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SUBCHAPTER A—GENERAL PROVISIONS [RESERVED] SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED] SUBCHAPTER C—MARINE MAMMALS
PART 216—REGULATIONS GOV- 216.37 Marine mammal parts. 216.38 Reporting. ERNING THE TAKING AND IM- 216.39 Permit amendments. PORTING OF MARINE MAMMALS 216.40 Penalties and permit sanctions. 216.41 Permits for scientific research and Subpart A—Introduction enhancement. 216.42 Photography. [Reserved] Sec. 216.43 Public display. [Reserved] 216.1 Purpose of regulations. 216.44 Applicability/transition. 216.2 Scope of regulations. 216.45 General Authorization for Level B 216.3 Definitions. harassment for scientific research. 216.4 Other laws and regulations. 216.46–216.49 [Reserved] 216.5 Payment of penalty. 216.6 Forfeiture and return of seized prop- Subpart E—Designated Ports erty. 216.7 Holding and bonding. 216.50 Importation at designated ports. 216.8 Enforcement officers. Subpart F—Pribilof Islands, Taking for Subpart B—Prohibitions Subsistence Purposes 216.11 Prohibited taking. 216.71 Allowable take of fur seals. 216.12 Prohibited importation. 216.72 Restrictions on taking. 216.13 Prohibited uses, possession, transpor- 216.73 Disposition of fur seal parts. tation, sales, and permits. 216.74 Cooperation with Federal officials. 216.14 Marine mammals taken before the MMPA. 216.15 Depleted species. Subpart G—Pribilof Islands Administration 216.16 Prohibitions under the General Au- 216.81 Visits to fur seal rookeries. thorization for Level B harassment for 216.82 Dogs prohibited. scientific research. 216.83 Importation of birds or mammals. 216.84 [Reserved] Subpart C—General Exceptions 216.85 Walrus and Otter Islands. 216.21 Actions permitted by international 216.86 Local regulations. treaty, convention, or agreement. 216.87 Wildlife research. 216.22 Taking by State or local government officials. Subpart H—Dolphin Safe Tuna Labeling 216.23 Native exceptions. 216.90 Purpose. 216.24 Taking and related acts incidental to 216.91 Labeling requirements. commercial fishing operations. 216.92 Purse seine vessels greater than 400 216.25 Exempted marine mammals and ma- short tons (362.8 metric tons). rine mammal products. 216.93 Submission of documentation. 216.26 Collection of certain marine mam- 216.94 Requests to review documents. mals parts without prior authorization. 216.95 False statements or endorsements. 216.27 Release, non-releasability, and dis- position under special exception permits for rehabilitated marine mammals. Subpart I—General Regulations Governing Small Takes of Marine Mammals Inci- Subpart D—Special Exceptions dental to Specified Activities 216.30 [Reserved] 216.101 Purpose. 216.31 Definitions. 216.102 Scope. 216.32 Scope. 216.103 Definitions. 216.33 Permit application submission, re- 216.104 Submission of requests. view, and decision procedures. 216.105 Specific regulations. 216.34 Issuance criteria. 216.106 Letter of Authorization. 216.35 Permit restrictions. 216.107 Incidental harassment authorization 216.36 Permit conditions. for Arctic waters.
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216.108 Requirements for monitoring and re- SOURCE: 39 FR 1852, Jan. 15, 1974, unless porting under incidental harassment au- otherwise noted. thorizations for Arctic waters. EDITORIAL NOTE: At 56 FR 21096, May 7, 1991, 56 FR 41308, Aug. 20, 1991, and 56 FR Subpart J—Taking of Ringed Seals 48115, Sept. 24, 1991, findings of nonconform- Incidental to On-Ice Seismic Activities ance, embargo and revocation were published in the FEDERAL REGISTER. 216.111 Specified activity and specified geo- graphical region. 216.112 Effective dates. Subpart A—Introduction 216.113 Permissible methods. 216.114 Mitigation. § 216.1 Purpose of regulations. 216.115 Requirements for monitoring and re- The regulations in this part imple- porting. ment the Marine Mammal Protection 216.116 Applications for Letters of Author- Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– ization. 1407, Pub. L. 92–522, which, among other 216.117 Renewal of Letters of Authorization. 216.118 Modifications to Letters of Author- things, restricts the taking, possession, ization. transportation, selling, offering for 216.119 [Reserved] sale, and importing of marine mam- mals. Subparts K–L [Reserved] § 216.2 Scope of regulations. Subpart M—Taking of Bottlenose Dolphins This part 216 applies solely to marine and Spotted Dolphins Incidental to Oil mammals and marine mammal prod- and Gas Structure Removal Activities ucts as defined in § 216.3. For regula- 216.141 Specified activity and specified geo- tions under the MMPA, with respect to graphical region. other marine mammals and marine 216.142 Effective dates. mammal products, see 50 CFR part 18. 216.143 Permissible methods of taking; miti- [39 FR 1852, Jan. 15, 1974, as amended at 59 gation. FR 50375, Oct. 3, 1994] 216.144 Prohibitions. 216.145 Requirements for monitoring and re- § 216.3 Definitions. porting. 216.146 Letters of Authorization. In addition to definitions contained 216.147 Renewal of Letters of Authorization. in the MMPA, and unless the context 216.148 Modifications to Letters of Author- otherwise requires, in this part 216: ization. ABI means Automated Broker Inter- face, the electronic product-entry fil- Subpart N—Taking of Marine Mammals In- ing system under the control of the cidental to Underwater Detonation of U.S. Customs Service, Department of Conventional Explosives by the De- the Treasury. partment of Defense Acts means, collectively, the Marine Mammal Protection Act of 1972, as 216.151 Specified activity, geographical re- amended, 16 U.S.C. 1361 et seq., the En- gion, and incidental take levels. 216.152 Effective dates. dangered Species Act of 1973, as amend- 216.153 Permissible methods of taking; miti- ed, 16 U.S.C. 1531 et seq., and the Fur gation. Seal Act of 1966, as amended, 16 U.S.C. 216.154 Prohibitions. 1151 et seq. 216.155 Requirements for monitoring and re- Active sportfishing means paying pas- porting. sengers have their terminal fishing 216.156 Renewal of Letter of Authorization. gear (lures, hooks, etc.) in the water in 216.157 Modifications to Letter of Author- an attempt to catch fish or, in the case ization. of fishing involving chumming, fishing is considered to be in progress from the Subparts O–Q [Reserved] instant fish have been sighted taking bait (boiling) during that chumming NOTE TO PART 216: See also 50 CFR parts 228 and 229 for regulations governing certain in- process. cidental takings of marine mammals. Alaskan Native means a person de- fined in the Alaska Native Claims Set- AUTHORITY: 16 U.S.C. 1361 et seq., unless tlement Act (43 U.S.C. 1602(b)) (85 Stat. otherwise noted. 588) as a citizen of the United States
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who is of one-fourth degree or more Authentic native articles of handicrafts Alaska Indian (including Tsimishian and clothing means items made by an Indians enrolled or not enrolled in the Indian, Aleut or Eskimo which (a) were Metlaktla Indian Community), Es- commonly produced on or before De- kimo, or Aleut blood or combination cember 21, 1972, and (b) are composed thereof. The term includes any Native, wholly or in some significant respect of as so defined, either or both of whose natural materials, and (c) are signifi- adoptive parents are not Natives. It cantly altered from their natural form also includes, in the absence of proof of and which are produced, decorated, or a minimum blood quantum, any citizen fashioned in the exercise of traditional of the United States who is regarded as native handicrafts without the use of an Alaska Native by the Native village pantographs, multiple carvers, or simi- or group, of which he claims to be a lar mass copying devices. Improved member and whose father or mother is methods of production utilizing mod- (or, if deceased, was) regarded as Na- ern implements such as sewing ma- tive by any Native village or Native chines or modern tanning techniques group. Any such citizen enrolled by the at a tannery registered pursuant to Secretary of the Interior pursuant to § 216.23(c) may be used so long as no section 5 of the Alaska Native Claims large scale mass production industry Settlement Act shall be conclusively results. Traditional native handicrafts presumed to be an Alaskan Native for include, but are not limited to, weav- purposes of this part. ing, carving, stitching, sewing, lacing, Article of handicraft means items beading, drawing, and painting. The made by an Indian, Aleut or Eskimo formation of traditional native groups, from the nonedible byproducts of fur such as a cooperative, is permitted so seals taken for personal or family con- long as no large scale mass production sumption which— results. (1) Were commonly produced by Alas- Bona fide scientific research: (1) Means kan Natives on or before October 14, scientific research on marine mammals 1983; conducted by qualified personnel, the (2) Are composed wholly or in some results of which: significant respect of natural mate- (i) Likely would be accepted for pub- rials, and; lication in a refereed scientific journal; (3) Are significantly altered from (ii) Are likely to contribute to the their natural form and which are pro- basic knowledge of marine mammal bi- duced, decorated, or fashioned in the ology or ecology. (Note: This includes, exercise of traditional native handi- for example, marine mammal parts in crafts without the use of pantographs, a properly curated, professionally ac- multiple carvers, or similar mass copy- credited scientific collection); or ing devices. Improved methods of pro- (iii) Are likely to identify, evaluate, duction utilizing modern implements or resolve conservation problems. such as sewing machines or modern (2) Research that is not on marine tanning techniques at a tannery reg- mammals, but that may incidentally istered pursuant to § 216.23(c) may be take marine mammals, is not included used so long as no large scale mass pro- in this definition (see sections duction industry results. Traditional 101(a)(3)(A), 101(a)(5)(A), and native handicrafts include, but are not 101(a)(5)(D) of the MMPA, and sections limited to, weaving, carving, stitching, 7(b)(4) and 10(a)(1)(B) of the ESA). sewing, lacing, beading, drawing, and Carrying capacity means the Regional painting. The formation of traditional Director’s determination of the maxi- native groups, such as a cooperative, is mum amount of fish that a vessel can permitted so long as no large scale carry in short tons based on the great- mass production results. er of the amount indicated by the Assistant Administrator means the As- builder of the vessel, a marine survey- sistant Administrator for Fisheries, or’s report, or the highest amount re- National Marine Fisheries Service, Na- ported landed from any one trip. tional Oceanic and Atmospheric Ad- Certified charter vessel means a fishing ministration, Silver Spring, MD 20910, vessel of a non-U.S. flag nation, which or his/her designee. is operating under the jurisdiction of
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the marine mammal laws and regula- 117° W. longitude, north of 5° N. lati- tions of another, harvesting, nation by tude, and west of 86° W. longitude. a formal declaration entered into by ETP Fishing Area 2 means the off- mutual agreement of the nations. shore area south of 14° N. latitude, Co-investigator means the on-site rep- north of 6° N. latitude, east of 150° W. resentative of a principal investigator. longitude, and west of 123° W. lon- Commercial fishing operation means gitude. the lawful harvesting of fish from the ETP Fishing Area 3 means all other marine environment for profit as part areas within the ETP not included in of an ongoing business enterprise. Such Fishing Areas 1 and 2. terms may include licensed com- Facility means, in the context specific mercial passenger fishing vessel (as to captive marine mammals,: (1) One or defined) activities, but no other sport- more permanent primary enclosures fishing activities, whether or not the used to hold marine mammals captive fish so caught are subsequently sold. (i.e., pools, lagoons) and associated in- Commercial passenger fishing vessel frastructure (i.e., equipment and sup- means any vessel licensed for commer- plies necessary for the care and main- cial passenger fishing purposes within tenance of marine mammals) where the State out of which it is operating these enclosures are either located and from which, while under charter or within the boundaries of a single con- hire, persons are legally permitted to tiguous parcel of land and water, or are conduct sportfishing activities. grouped together within the same gen- Custody means holding a live marine eral area within which enclosure-to-en- mammal pursuant to the conditional closure transport is expected to be authority granted under the MMPA, completed in less than one hour; or and the responsibility therein for cap- (2) A traveling display/exhibit, where tive maintenance of the marine mam- the enclosure(s) and associated infra- mal. structure is transported together with Director, Office of Protected Resources the marine mammals. means Director, Office of Protected Re- Feeding is offering, giving, or sources, National Marine Fisheries attempting to give food or non-food Service, 1315 East-West Highway, Sil- items to marine mammals in the wild. ver Spring, MD 20910. It includes operating a vessel or provid- Director, Southwest Region means the ing other platforms from which feeding Director, Southwest Region, NMFS, 501 is conducted or supported. It does not W. Ocean Blvd., Long Beach, CA 90802, include the routine discard of bycatch or his/her designee. during fishing operations or the rou- Dolphin Mortality Limit (DML) means tine discharge of waste or fish byprod- the maximum allowable number of in- ucts from fish processing plants or cidental dolphin mortalities per cal- other platforms if the discharge is oth- endar year assigned to a vessel, unless erwise legal and is incidental to oper- a shorter time period is specified. ation of the activity. Endangered Species means a species or First exporter means the person or subspecies of marine mammal listed as company that first exports the fish or ‘‘endangered’’ pursuant to the Endan- fish product, or, in the case of ship- gered Species Act of 1973, 87 Stat. 884, ments that are subject to the labeling Pub. L. 93–205 (see part 17 of this title). requirements of 50 CFR part 247 and ESA means the Endangered Species that only contain fish harvested by Act of 1973, as amended, 16 U.S.C. 1531 vessels of the United States, the first et seq. seller of the fish or fish product. ETP means the eastern tropical Pa- Fisheries Certificate of Origin means cific Ocean which includes the Pacific NOAA Form 370, as described in 50 CFR Ocean area bounded by 40° N. latitude, 216.24(e)(3)(iii). 40° S. latitude, 160° W. longitude and Fishing season means, for the pur- the coastlines of North, Central and poses of § 216.24(e), those sets made on South America. trips that are completed between Octo- ETP Fishing Area 1 means the north- ber 1 and September 30 of the following ern coastal portion of the ETP east of calendar year.
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FSA means the Fur Seal Act of 1966, search involving: A break in or cutting as amended, 16 U.S.C. 1151 et seq. of the skin or equivalent, insertion of Fur seal means North Pacific fur seal, an instrument or material into an ori- scientifically known as Callorhinus fice, introduction of a substance or ob- ursinus. ject into the animal’s immediate envi- Hard part means any bone, tooth, ronment that is likely either to be in- baleen, treated pelt, or other part of a gested or to contact and directly affect marine mammal that is relatively solid animal tissues (i.e., chemical sub- or durable. stances), or a stimulus directed at ani- Harvesting nation means the country mals that may involve a risk to health under whose flag one or more fishing or welfare or that may have an impact vessels are documented, or which has on normal function or behavior (i.e., by formal declaration agreed to assert audio broadcasts directed at animals jurisdiction over one or more certified that may affect behavior). For captive charter vessels, from which vessel(s) animals, this definition does not in- fish are caught that are a part of any clude: cargo or shipment of fish to be im- (1) A procedure conducted by the pro- ported into the United States, regard- fessional staff of the holding facility or less of any intervening transshipments. an attending veterinarian for purposes Humane means the method of taking, of animal husbandry, care, mainte- import, export, or other activity which nance, or treatment, or a routine medi- involves the least possible degree of cal procedure that, in the reasonable pain and suffering practicable to the judgment of the attending veterinar- animal involved. ian, would not constitute a risk to the Import means to land on, bring into, health or welfare of the captive ani- or introduce into, or attempt to land mal; or on, bring into, or introduce into, any (2) A procedure involving either the place subject to the jurisdiction of the introduction of a substance or object United States, whether or not such (i.e., as described in this definition) or landing, bringing, or introduction con- a stimulus directed at animals that, in stitutes an importation within the Cus- the reasonable judgment of the attend- toms laws of the United States; except ing veterinarian, would not involve a that, for the purpose of any ban issued risk to the health or welfare of the cap- under 16 U.S.C. 1371(a)(2) on the impor- tive animal. tation of fish or fish products, the defi- nition of ‘‘import’’ in § 216.24(e)(1)(ii) Kill-per-set means the number of shall apply. small, toothed cetaceans (marine mam- Incidental catch means the taking of a mals) killed per purse seine set made marine mammal (1) because it is di- involving marine mammals. rectly interfering with commercial Kill-per-ton means the number of fishing operations, or (2) as a con- small toothed cetacean marine mam- sequence of the steps used to secure the mals killed per ton of yellowfin tuna fish in connection with commercial caught in sets made on marine mam- fishing operations: Provided, That a mals. marine mammal so taken must imme- Label means a display of written, diately be returned to the sea with a printed, or graphic matter on or affixed minimum of injury and further, that to the immediate container of any arti- the taking of a marine mammal, which cle. otherwise meets the requirements of Land or landing means to begin off- this definition shall not be considered loading any fish, to arrive in port with an incidental catch of that mammal if the intention of offloading fish, or to it is used subsequently to assist in cause any fish to be offloaded. commercial fishing operations. Large-scale driftnet means a gillnet Intentional purse seine set means that that is composed of a panel or panels of a tuna purse seine vessel or associated webbing, or a series of such gillnets, vessels chase marine mammals and with a total length of 2.5 kilometers or subsequently make a purse seine set. more that is used on the high seas and Intrusive research means a procedure allowed to drift with the currents and conducted for bona fide scientific re- winds for the purpose of harvesting fish
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by entangling the fish in the webbing Public display means an activity that of the net. provides opportunities for the public to Level A Harassment means any act of view living marine mammals at a facil- pursuit, torment, or annoyance which ity holding marine mammals captive. has the potential to injure a marine Purse seine set on common dolphins mammal or marine mammal stock in means a purse seine set in which more the wild. than 50 percent of the marine mam- Level B Harassment means any act of mals killed are common dolphins or, in pursuit, torment, or annoyance which sets with no dolphins killed, more than has the potential to disturb a marine 50 percent of the dolphins captured are mammal or marine mammal stock in common dolphins. the wild by causing disruption of be- Regional Director means the Director, havioral patterns, including, but not Southwest Region, NMFS, 501 W. Ocean limited to, migration, breathing, nurs- Blvd., Long Beach, CA 90802, or his/her ing, breeding, feeding, or sheltering but designee. which does not have the potential to Rehabilitation means treatment of injure a marine mammal or marine beached and stranded marine mammals mammal stock in the wild. taken under section 109(h)(1) of the Marine environment means the oceans MMPA or imported under section and the seas, including estuarine and 109(h)(2) of the MMPA, with the intent brackish waters. of restoring the marine mammal’s Marine mammal means those speci- health and, if necessary, behavioral mens of the following orders, which are patterns. morphologically adapted to the marine Secretary shall mean the Secretary of environment, whether alive or dead, Commerce or his authorized represent- and any part thereof, including but not ative. limited to, any raw, dressed or dyed fur Sexual harassment means any unwel- or skin: Cetacea (whales and por- come sexual advance, request for sex- poises), Pinnipedia, other than walrus ual favors, or other verbal and physical (seals and sea lions). conduct of a sexual nature which has MMPA means the Marine Mammal the purpose or effect of substantially Protection Act of 1972, as amended, 16 interfering with an individual’s work U.S.C. 1361 et seq. performance or creating an intimidat- Native village or town means any com- ing, hostile, or offensive working envi- munity, association, tribe, band, clan ronment. or group. Soft part means any marine mammal Optimum sustainable population is a part that is not a hard part. Soft parts population size which falls within a do not include urine or fecal material. range from the population level of a South Pacific Ocean means any waters given species or stock which is the of the Pacific Ocean that lie south of largest supportable within the eco- the equator. system to the population level that re- Stranded or stranded marine mammal sults in maximum net productivity. means a marine mammal specimen Maximum net productivity is the under the jurisdiction of the Secretary: greatest net annual increment in popu- (1) If the specimen is dead, and is on lation numbers or biomass resulting a beach or shore, or is in the water from additions to the population due to within the Exclusive Economic Zone of reproduction and/or growth less losses the United States; or due to natural mortality. (2) If the specimen is alive, and is on Pregnant means pregnant near term. a beach or shore and is unable to re- Pribilovians means Indians, Aleuts, turn to the water, or is in the water and Eskimos who live on the Pribilof within the Exclusive Economic Zone of Islands. the United States where the water is so Principal investigator means the indi- shallow that the specimen is unable to vidual primarily responsible for the return to its natural habitat under its taking, importation, export, and any own power. related activities conducted under a Subsistence means the use of marine permit issued for scientific research or mammals taken by Alaskan Natives enhancement purposes. for food, clothing, shelter, heating,
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transportation, and other uses nec- Wasteful manner means any taking or essary to maintain the life of the taker method of taking which is likely to re- or those who depend upon the taker to sult in the killing of marine mammals provide them with such subsistence. beyond those needed for subsistence, Subsistence uses means the customary subsistence uses, or for the making of and traditional uses of fur seals taken authentic native articles of handicrafts by Pribilovians for direct personal or and clothing, or which results in the family consumption as food, shelter, waste of a substantial portion of the fuel, clothing, tools or transportation; marine mammal and includes, without for the making and selling of handi- limitation, the employment of a meth- craft articles out of nonedible byprod- od of taking which is not likely to as- ucts of fur seals taken for personal or sure the capture or killing of a marine family consumption; and for barter, or mammal, or which is not immediately sharing for personal or family con- followed by a reasonable effort to re- sumption. As used in this definition— trieve the marine mammal. (1) Family means all persons related EDITORIAL NOTE: For FEDERAL REGISTER ci- by blood, marriage, or adoption, or any tations affecting § 216.3, see the List of Sec- person living within a household on a tions Affected in the Finding Aids section of permanent basis. this volume. (2) Barter means the exchange of fur seals or their parts, taken for subsist- § 216.4 Other laws and regulations. ence uses— (a) Federal. Nothing in this part, nor (i) For other wildlife or fish or their any permit issued under authority of parts, or this part, shall be construed to relieve (ii) For other food or for nonedible a person from any other requirements items other than money if the ex- imposed by a statute or regulation of change is of a limited and noncommer- the United States, including any appli- cial nature. cable statutes or regulations relating Take means to harass, hunt, capture, to wildlife and fisheries, health, quar- collect, or kill, or attempt to harass, antine, agriculture, or customs. hunt, capture, collect, or kill any ma- (b) State laws or regulations. See part rine mammal. This includes, without 403 of this chapter. limitation, any of the following: The collection of dead animals, or parts [39 FR 1852, Jan. 15, 1974, as amended at 41 thereof; the restraint or detention of a FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993] marine mammal, no matter how tem- porary; tagging a marine mammal; the § 216.5 Payment of penalty. negligent or intentional operation of an aircraft or vessel, or the doing of The respondent shall have 30 days any other negligent or intentional act from receipt of the final assessment de- which results in disturbing or molest- cision within which to pay the penalty ing a marine mammal; and feeding or assessed. Upon a failure to pay the pen- attempting to feed a marine mammal alty, the Secretary may request the in the wild. Attorney General to institute a civil Threatened species means a species of action in the appropriate United States marine mammal listed as ‘‘threatened’’ District Court to collect the penalty. pursuant to the Endangered Species [39 FR 1852, Jan. 15, 1974. Redesignated at 46 Act of 1973, 87 Stat. 884, Pub. L. 93–205. FR 61652, Dec. 18, 1981] Trip means a voyage starting when a vessel leaves port with all fish wells § 216.6 Forfeiture and return of seized empty of fish and ending when a vessel property. unloads all of its fish. (a) Whenever any cargo or marine Tuna product means any food product mammal or marine mammal product processed for retail sale and intended has been seized pursuant to section 107 for human or animal consumption that of the MMPA, the Secretary shall expe- contains an item listed in dite any proceedings commenced under § 216.24(e)(2)(i) or (ii), but does not in- these regulations. clude perishable items with a shelf life (b) Whenever a civil penalty has been of less than 3 days. assessed by the Secretary under these
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regulations, any cargo, marine mam- dispatched to the respondent by reg- mal, or marine mammal product seized istered mail, return receipt requested, pursuant to section 107 of the MMPA and shall identify the respondent, the shall be subject to forfeiture. If re- seized property, and, if appropriate, the spondent voluntarily forfeits any such bailee of the seized property. It shall seized property or the monetary value also provide that upon presentation of thereof without court proceedings, the the letter and proper identification, Secretary may apply the value thereof, the seized property is authorized to be if any, as determined by the Secretary, released. All charges for storage, care, toward payment of the civil penalty. or handling of the seized property ac- (c) Whenever a civil penalty has been cruing 5 days or more after the date of assessed under these regulations, and the return receipt shall be for the ac- whether or not such penalty has been count of the respondent: Provided, That paid, the Secretary may request the if it is the final decision of the Sec- Attorney General to institute a civil retary under these regulations that the action in an appropriate United States respondent has committed the alleged District Court to compel forfeiture of violation, all charges which have ac- such seized property or the monetary crued for the storage, care, or handling value thereof to the Secretary for dis- of the seized property shall be for the position by him in such manner as he account of the respondent. deems appropriate. If no judicial action [39 FR 1852, Jan. 15, 1974. Redesignated at 46 to compel forfeiture is commenced FR 61652, Dec. 18, 1981, and amended at 59 FR within 30 days after final decision- 50375, Oct. 3, 1994] making assessment of a civil penalty, pursuant to § 216.60, such seized prop- § 216.7 Holding and bonding. erty shall immediately be returned to (a) Any marine mammal, marine the respondent. mammal product, or other cargo seized (d) If the final decision of the Sec- pursuant to section 107 of the MMPA retary under these regulations is that shall be delivered to the appropriate respondent has committed no violation Regional Director of the National Ma- of the MMPA or of any permit or regu- rine Fisheries Service (see § 201.2 of this lations issued thereunder, any marine title) or his designee, who shall either mammal, marine mammal product, or hold such seized property or arrange other cargo seized from respondent in for the proper handling and care of connection with the proceedings under such seized property. these regulations, or the bond or other (b) Any arrangement for the handling monetary value substituted therefor, and care of seized property shall be in shall immediately be returned to the writing and shall state the compensa- respondent. tion to be paid. Subpart F of 15 CFR (e) If the Attorney General com- part 904 contains additional procedures mences criminal proceedings pursuant that govern seized property that is sub- to section 105(b) of the MMPA, and ject to forfeiture or has been forfeited such proceedings result in a finding under the MMPA. that the person accused is not guilty of [39 FR 1852, Jan. 15, 1974. Redesignated at 46 a criminal violation of the MMPA, the FR 61652, Dec. 18, 1981, and amended at 50 FR Secretary may institute proceedings 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] for the assessment of a civil penalty under this part: Provided, That if no § 216.8 Enforcement officers. such civil penalty proceedings have Enforcement Agents of the National been commenced by the Secretary Marine Fisheries Service shall enforce within 30 days following the final dis- the provisions of the MMPA and may position of the criminal case, any prop- take any actions authorized by the erty seized pursuant to section 107 of MMPA with respect to enforcement. In the MMPA shall be returned to the re- addition, the Secretary may utilize, by spondent. agreement, the personnel, services, and (f) If any seized property is to be re- facilities of any other Federal Agency turned to the respondent, the Regional for the purposes of enforcing this Director shall issue a letter authoriz- MMPA. Pursuant to the terms of sec- ing such return. This letter shall be tion 107(b) of the MMPA, the Secretary
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may also designate officers and em- permits only) and 216.32 of this part 216, ployees of any State or of any posses- it is unlawful to import into the United sion of the United States to enforce the States any: provisions of this MMPA. (1) Marine mammal which was preg- nant at the time of taking. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 (2) Marine mammal which was nurs- FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] ing at the time of taking, or less than 8 months old, whichever occurs later. (3) Specimen of an endangered or Subpart B—Prohibitions threatened species of marine mammal. (4) Specimen taken from a depleted § 216.11 Prohibited taking. species or stock of marine mammals, Except as otherwise provided in sub- or parts C, D, and I of this part 216 or in (5) Marine mammal taken in an inhu- part 228 or 229, it is unlawful for: mane manner. (a) Any person, vessel, or conveyance (d) It is unlawful to import into the subject to the jurisdiction of the United States any fish, whether fresh, United States to take any marine frozen, or otherwise prepared, if such mammal on the high seas, or fish was caught in a manner proscribed (b) Any person, vessel, or conveyance by the Secretary of Commerce for per- to take any marine mammal in waters sons subject to the jurisdiction of the or on lands under the jurisdiction of United States, whether or not any ma- the United States, or rine mammals were in fact taken inci- (c) Any person subject to the juris- dent to the catching of the fish. diction of the United States to take [39 FR 1852, Jan. 15, 1974, as amended at 59 any marine mammal during the mora- FR 50375, Oct. 3, 1994] torium. [39 FR 1852, Jan. 15, 1974, as amended at 47 § 216.13 Prohibited uses, possession, FR 21254, May 18, 1982; 54 FR 21921, May 19, transportation, sales, and permits. 1989] It is unlawful for: (a) Any person to use any port, har- § 216.12 Prohibited importation. bor or other place under the jurisdic- (a) Except as otherwise provided in tion of the United States for any pur- subparts C and D of this part 216, it is pose in any way connected with a pro- unlawful for any person to import any hibited taking or an unlawful importa- marine mammal or marine mammal tion of any marine mammal or marine product into the United States. mammal product; or (b) Regardless of whether an importa- (b) Any person subject to the juris- tion is otherwise authorized pursuant diction of the United States to possess to subparts C and D of this part 216, it any marine mammal taken in violation 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- [39 FR 1852, Jan. 15, 1974, as amended at 59 ception referred to in subpart C and FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May §§ 216.31 (regarding scientific research 10, 1996]
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§ 216.14 Marine mammals taken before which the products sought to be im- the MMPA. ported were derived were taken prior to (a) Section 102(e) of the MMPA pro- December 21, 1972. vides, in effect, that the MMPA shall (c) No pre-Act marine mammal or not apply to any marine mammal pre-Act marine mammal product may taken prior to December 21, 1972, or to be imported unless the requirements of any marine mammal product, consist- this section have been fulfilled. ing of or composed in whole or in part (d) This section has no application to of, any marine mammal taken before any marine mammal or marine mam- that date. This prior status of any ma- mal product intended to be imported rine mammal or marine mammal prod- pursuant to §§ 216.21, 216.31 or § 216.32. uct may be established by submitting [39 FR 1852, Jan. 15, 1974, as amended at 59 to the Director, National Marine Fish- FR 50375, 50376, Oct. 3, 1994] eries Service prior to, or at the time of importation, an affidavit containing § 216.15 Depleted species. the following: The following species or population (1) The Affiant’s name and address; stocks have been designated by the As- (2) Identification of the Affiant; sistant Administrator as depleted (3) A description of the marine mam- under the provisions of the MMPA. mals or marine mammal products (a) Hawaiian monk seal (Monachus which the Affiant desires to import; schauinslandi). (4) A statement by the Affiant that, (b) Bowhead whale (Balaena mystice- to the best of his knowledge and belief, tus). the marine mammals involved in the (c) North Pacific fur seal (Callorhinus application were taken prior to Decem- ursinus). Pribilof Island population. ber 21, 1972; (d) Bottlenose dolphin (Tursiops (5) A statement by the Affiant in the truncatus), coastal-migratory stock following language: along the U.S. mid-Atlantic coast. (e) Eastern spinner dolphin (Stenella The foregoing is principally based on the attached exhibits which, to the best of my longirostris orientalis). knowledge and belief, are complete, true and (f) Northeastern offshore spotted dol- correct. I understand that this affidavit is phin (Stenella attenuata). being submitted for the purpose of inducing [53 FR 17899, May 18, 1988, as amended at 58 the Federal Government to permit the im- FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, portation of—under the Marine Mammal 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Protection Act of 1972 (16 U.S.C. 1361 through Oct. 3, 1994] 1407) and regulations promulgated there- under, and that any false statements may subject me to the criminal penalties of 13 § 216.16 Prohibitions under the Gen- U.S.C. 1001, or to penalties under the Marine eral Authorization for Level B har- Mammal Protection Act of 1972. assment for scientific research. It shall be unlawful for any person (b) Either one of two exhibits shall be to: attached to such affidavit, and will (a) Provide false information in a let- contain either: ter of intent submitted pursuant to (1) Records or other available evi- § 216.45(b); dence showing that the product con- (b) Violate any term or condition im- sists of or is composed in whole or in posed pursuant to § 216.45(d). part of marine mammals taken prior to the effective date of the MMPA. Such [59 FR 50376, Oct. 3, 1994] records or other evidentiary material must include information on how, Subpart C—General Exceptions when, where, and by whom the animals were taken, what processing has taken § 216.21 Actions permitted by inter- place since taking, and the date and lo- national treaty, convention, or cation of such processing; or agreement. (2) A statement from a government The MMPA and these regulations agency of the country of origin exercis- shall not apply to the extent that they ing jurisdiction over marine mammals are inconsistent with the provisions of that any and all such mammals from any international treaty, convention
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or agreement, or any statute imple- report to be submitted to the Secretary menting the same relating to the tak- every six months beginning December ing or importation of marine mammals 31, 1973. Unless otherwise permitted by or marine mammal products, which the Secretary, the report shall contain was existing and in force prior to De- a description of: cember 21, 1972, and to which the (1) The animal involved; United States was a party. Specifi- (2) The circumstances requiring the cally, the regulations in subpart B of taking; this part and the provisions of the (3) The method of taking; MMPA shall not apply to activities (4) The name and official position of carried out pursuant to the Interim the State official or employee involved; Convention on the Conservation of (5) The disposition of the animal, in- North Pacific Fur Seals signed at cluding in cases where the animal has Washington on February 9, 1957, and been retained in captivity, a descrip- the Fur Seal Act of 1966, 16 U.S.C. 1151 tion of the place and means of confine- through 1187, as in each case, from ment and the measures taken for its time to time amended. maintenance and care; and [39 FR 1852, Jan. 15, 1974, as amended at 59 (6) Such other information as the FR 50376, Oct. 3, 1994] Secretary may require. (c) Salvage of dead stranded marine § 216.22 Taking by State or local gov- mammals or parts therefrom and sub- ernment officials. sequent transfer. (a) A State or local government offi- (1) Salvage. In the performance of of- cial or employee may take a marine ficial duties, a state or local govern- mammal in the normal course of his ment employee; an employee of the Na- duties as an official or employee, and tional Marine Fisheries Service, the no permit shall be required, if such U.S. Fish and Wildlife Service, or any taking: other Federal agency with jurisdiction (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 natu- other rehabilitation subsequent to that ral 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 (iii) A description of the parts section shall be included in a written salvaged;
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(iv) The date and the location of the transferring the marine mammal speci- taking; men notifies the appropriate Regional (v) Such other information as deemed Office of the National Marine Fisheries necessary by the Assistant Adminis- Service of the transfer, including noti- trator. fication of the number of the specimen (3) Identification and curation. The Re- transferred and the person to whom the gional Director will assign a single specimen was transferred, within 30 unique number to each carcass, and the days after the transfer occurs. parts thereof, that are salvaged under (6) Other transfers within the United the provisions of this section. The per- States. Except as provided under para- son who salvaged the specimen may graphs (c)(5) and (c)(8) of this section, a designate the number to be assigned. person who salvages a marine mammal After this number is assigned, the per- son who salvaged the specimen must specimen, or who has received a marine permanently mark that number on mammal specimen under the provi- each separate hard part of that speci- sions of this section, may not transfer men and must affix that number with that specimen to another person within tags or labels to each soft part of that the United States unless the Regional specimen or the containers in which Director of the appropriate Regional that soft part is kept. Each specimen Office of the National Marine Fisheries salvaged under this section must be Service grants prior written authoriza- curated in accordance with profes- tion for the transfer. The Regional Di- sional standards. rector may grant authorization for the (4) No sale or commercial trade. No per- transfer if there is evidence that the son may sell or trade for commercial conditions listed under paragraphs purposes any marine mammal speci- (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this men salvaged under this section. section are met. (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 mammal specimen is an employee of grants prior written authorization for the National Marine Fisheries Service, the transfer. The Assistant Adminis- the U.S. Fish and Wildlife Service, or trator may grant authorization for the any other Federal agency with jurisdic- transfer if there is evidence that the tion and conservation responsibilities conditions listed under paragraphs in marine shoreline areas; is a person (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this authorized under 16 U.S.C. 1382(c); or is section are met. a person who has received prior author- (8) Exceptions to requirements for notifi- ization under paragraph (c)(6) of this cation or prior authorization. A person section; may transfer a marine mammal speci- (iii) The marine mammal specimen is men salvaged under this section with- transferred for the purpose of scientific out the notification required in para- research, for the purpose of mainte- graph (c)(5)(v) of this section or the nance in a properly curated, profes- prior authorization required in para- sionally accredited scientific collec- graph (c)(6) of this section if: tion, or for educational purposes; (i) The transfer is a temporary trans- (iv) The unique number assigned by fer to a laboratory or research facility the National Marine Fisheries Service within the United States so that analy- is on, marked on, or affixed to the ma- ses can be performed for the person sal- rine mammal specimen or container; vaging the specimen; or and (v) Except as provided under para- (ii) The transfer is a loan of not more graph (c)(8) of this section, the person than 1 year to another professionally
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accredited scientific collection within (ii) It is sold or transferred to a reg- the United States. istered agent for resale or transfer to an Indian, Aleut, or Eskimo; or [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991] (iii) It has first been transformed into an authentic native article of § 216.23 Native exceptions. handicraft or clothing; or (iv) It is an edible portion and sold (a) Taking. Notwithstanding the pro- (A) in an Alaskan Native village or hibitions of subpart B of this part 216, town, or (B) to an Alaskan Native for but subject to the restrictions con- his consumption. tained in this section, any Indian, Aleut, or Eskimo who resides on the (c) Any tannery, or person who wish- coast of the North Pacific Ocean or the es to act as an agent, within the juris- Arctic Ocean may take any marine diction of the United States may apply mammal without a permit, if such tak- to the Director, National Marine Fish- ing is: eries Service, U.S. Department of Com- merce, Washington, DC 20235, for reg- (1) By Alaskan Natives who reside in istration as a tannery or an agent Alaska for subsistence, or which may possess and process marine (2) For purposes of creating and sell- mammal products for Indians, Aleuts, ing authentic native articles of handi- or Eskimos. The application shall in- craft and clothing, and clude the following information: (3) In each case, not accomplished in (i) The name and address of the appli- a wasteful manner. cant; (b) Restrictions. (1) No marine mam- (ii) A description of the applicant’s mal taken for subsistence may be sold procedures for receiving, storing, proc- or otherwise transferred to any person essing, and shipping materials; other than an Alaskan Native or deliv- (iii) A proposal for a system of book- ered, carried, transported, or shipped in keeping and/or inventory segregation interstate or foreign commerce, unless: by which the applicant could maintain (i) It is being sent by an Alaskan Na- accurate records of marine mammals tive directly or through a registered received from Indians, Aleuts, or Eski- agent to a tannery registered under mos pursuant to this section; paragraph (c) of this section for the (iv) Such other information as the purpose of processing, and will be re- Secretary may request; turned directly or through a registered (v) A certification in the following agent to the Alaskan Native; or language: (ii) It is sold or transferred to a reg- istered agent in Alaska for resale or I hereby certify that the foregoing infor- transfer to an Alaskan Native; or mation is complete, true and correct to the best of my knowledge and belief. I under- (iii) It is an edible portion and it is stand that this information is submitted for sold in an Alaskan Native village or the purpose of obtaining the benefit of an ex- town. ception under the Marine Mammal Protec- (2) No marine mammal taken for pur- tion Act of 1972 (16 U.S.C. 1361 through 1407) poses of creating and selling authentic and regulations promulgated thereunder, and native articles of handicraft and cloth- that any false statement may subject me to ing may be sold or otherwise trans- the criminal penalties of 18 U.S.C. 1001, or to penalties under the Marine Mammal Protec- ferred to any person other than an In- tion Act of 1972. dian, Aleut or Eskimo, or delivered, carried, transported or shipped in (vi) The signature of the applicant. interstate or foreign commerce, unless: The sufficiency of the application shall (i) It is being sent by an Indian, be determined by the Secretary, and in Aleut or Eskimo directly or through a that connection, he may waive any re- registered agent to a tannery reg- quirement for information, or require istered under paragraph (c) of this sec- any elaboration or further information tion for the purpose of processing, and deemed necessary. The registration of 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,
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but are not limited to, provisions re- certificate(s) of inclusion, to carry garding records, inventory segregation, more than two speedboats if any part reports, and inspection. The Secretary of its fishing trip is in the Pacific may charge a reasonable fee for proc- Ocean area described in the General essing such applications, including an Permit for gear Category 2 operations. appropriate apportionment of overhead (ii) It is unlawful for any person and administrative expenses of the De- using a Class III (greater than 400 short partment of Commerce. tons (362.8 metric tons) carrying capac- (d) Notwithstanding the preceding ity, built after 1960) U.S. purse seine provisions of this section, whenever, fishing vessel that does not have and under the MMPA, the Secretary deter- operate under a valid operator and ves- mines any species of stock of marine sel certificate of inclusion, to catch, mammals to be depleted, he may pre- possess, or land tuna from a fishing scribe regulations pursuant to section trip that includes the Pacific Ocean 103 of the MMPA upon the taking of area described in the General Permit such marine animals by any Indian, for gear Category 2 operations. Aleut, or Eskimo and, after promulga- (iii) It is unlawful for any person sub- tion of such regulations, all takings of ject to the jurisdiction of the United such marine mammals shall conform States to receive, purchase, or possess to such regulations. tuna caught, possessed, or landed in violation of paragraph (a)(2)(ii) of this [39 FR 1852, Jan. 15, 1974, as amended at 59 section. FR 50376, Oct. 3, 1994] (iv) It is unlawful for a person subject § 216.24 Taking and related acts inci- to the jurisdiction of the United States dental to commercial fishing oper- intentionally to deploy a purse seine ations. net on, or to encircle, dolphins from a vessel operating in the ETP when the NOTE TO § 216.24: The provisions of 50 CFR DML assigned to that vessel has been part 229, rather than § 216.24, will govern the reached, or when there is not a DML incidental taking of marine mammals in the assigned to that vessel. course of commercial fishing operations by persons using vessels of the United States, (3) Upon written request in advance other than vessels used in the eastern tropi- of entering the General Permit area, cal Pacific yellowfin tuna purse seine fish- the limitation in (a)(2) may be waived ery, and vessels which have valid fishing per- by the Director, Southwest Region for mits issued in accordance with section 204(b) the purpose of allowing transit through of the Magnuson Fishery Conservation and the General Permit area. The waiver Management Act (16 U.S.C. 1824(b)). Other will provide in writing the terms and commercial fisheries remain subject to regu- conditions under which the vessel must lations under § 216.24. operate, including a requirement to re- (a)(1) No marine mammals may be port by radio to the Director, South- taken in the course of a commercial west Region the vessel’s date of exit fishing operation unless: The taking from or subsequent entry to the permit constitutes an incidental catch as de- area, in order to transit the area with fined in § 216.3, a general permit and more than two speedboats. certificate(s) of inclusion have been ob- (b) [Reserved] tained in accordance with these regula- (c) Certificates of inclusion—(1) Vessel tions and such taking is not in viola- certificates of inclusion. The owner or tion of such permit, certificate(s), and managing owner of a vessel that par- regulations. ticipates in commercial fishing oper- (2)(i) It is unlawful for any person ations under the ATA permit must using a Class I (400 short tons (362.8 hold a valid vessel certificate of inclu- metric tons) carrying capacity or less) sion. Such certificates are not transfer- or Class II (greater than 400 short tons able and must be renewed annually. If (362.8 metric tons) carrying capacity, a vessel certificate holder surrenders built before 1961) U.S. purse seine fish- his/her certificate to the Director, ing vessel on a fishing involving the Southwest Region, the certificate shall utilization of purse seines to capture not be returned nor shall a new certifi- yellowfin tuna, that is not operating cate be issued before the end of the cal- under a Category 2 general permit and endar year. This provision does not
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apply when a change of vessel owner- owner, address, and if applicable, the ship occurs. organization acting on behalf of the (2) Operator’s certificate of inclusion. vessel. The person in charge of and actually (5) Fees. (i) Applications for certifi- controlling fishing operations (herein- cates of inclusion under paragraph after referred to as the operator) on a (c)(1) of this section must include a fee vessel engaged in commercial fishing of $200.00 for each vessel named in the operations under the ATA permit, application, unless the applicant’s in- must hold a valid operator’s certificate come is below Federal poverty guide- of inclusion. Such certificates are not lines and the applicant shows in the ap- transferable, and must be renewed an- plication that his/her income is below nually. In order to receive a certifi- such guidelines, in which case a fee of cation of inclusion, the operator must have satisfactorily completed all re- $20.00 must be included. quired training. (ii) The Assistant Administrator may (3) A vessel certificate issued pursu- change the amount of the fee required ant to paragraph (c)(1) of this section at any time a different fee is deter- must be on board the vessel while it is mined to be reasonable, and notifica- engaged in fishing operations and the tion of such change shall be published operator’s certificate issued pursuant in the FEDERAL REGISTER. to paragraph (c)(2) of this section must (6) The Director, Southwest Region be in the possession of the operator to shall determine the adequacy and com- whom it was issued. Certificates must pleteness of applications, and upon said be shown upon request to an enforce- determination that such applications ment agent or other National Marine are adequate and complete, shall ap- Fisheries Service (NMFS) designated prove such applications and issue the agent. Vessels and operators at sea on certificate(s). a fishing trip on the expiration date of (7) Failure to comply with provisions their certificate of inclusion, to whom of the ATA permit, certificates of in- or to which a certificate of inclusion clusion, or these regulations may lead for the next year has been issued, may to suspension, revocation, modifica- take marine mammals under the terms tion, or denial of a certificate of inclu- of the new certificate. A vessel owner sion. It may also subject the certificate or operator is obligated to obtain or place the new certificate on board, as holder, vessel, vessel owner, operator, appropriate, when the vessel next re- or master to the penalties provided turns to port. under the MMPA. Procedures govern- (4) Applications. Owners or managing ing permit sanctions and denials are owners of purse seine vessels should found at subpart D of 15 CFR part 904. make application for vessel certificates (8) By using an operator or vessel cer- of inclusion to the Director, Southwest tificate of inclusion under the ATA Region. Applications for vessel certifi- permit, the certificate holder author- cates of inclusion must contain: izes the release to NMFS of all data (i) The name of the vessel that is to collected by observers aboard purse appear on the certificate(s) of inclu- seine vessels during fishing trips under sion; the Inter-American Tropical Tuna (ii) The category of the general per- Commission observer program or any mit under which the applicant wishes other international observer program to be included; in which the United States may par- (iii) The species of fish sought and ticipate. The certificate holder must general area of operations; furnish the international observer pro- (iv) The identity of state and local gram all release forms required to pro- commercial fishing licenses, if applica- vide the observer data to NMFS. Data ble, under which vessel operations are obtained under such releases will be conducted, and dates of expiration; used for the same purposes as data col- (v) The name of the operator and date of training, if applicable; and lected directly by observers placed by (vi) The name and signature of the the NMFS and will be subject to the applicant, whether owner or managing same standards of confidentiality.
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(d) Terms and conditions of certifi- (D) The general permit is valid until cates under general permits shall in- surrendered by the permit holder or clude, but are not limited to the fol- suspended or terminated by the Assist- lowing: ant Administrator provided the permit- (1) [Reserved] tee and certificate holders under this (2) Encircling gear, purse seining in- part continue to use the best marine volving the intentional taking of marine mammal safety techniques and equip- mammals—(i) Quotas: ment that are economically and tech- (A) A certificated vessel may take nologically practicable. The Assistant marine mammals only if the taking is Administrator may, upon receipt of an incidental occurrence in the course new information which in his opinion of normal commercial tuna purse seine is sufficient to require modification of fishing operations, and the fishing op- the general permit or regulations, pro- erations are under the immediate di- pose to modify such after consultation rection of a person who is the holder of with the Marine Mammal Commission. a valid operator’s certificate of inclu- These modifications must be consistent sion, subject to the following condi- with and necessary to carry out the tions: purposes of the MMPA. Any modifica- (1)–(2) [Reserved] tions proposed by the Assistant Admin- (3) No purse seine net may be de- istrator involving changes in the ployed on or used to encircle any quotas will include the statements re- school of dolphins in which any eastern quired by section 103(d) of the MMPA. spinner dolphin (Stenella longirostris), Modifications will be proposed in the coastal spotted dolphin (Stenella FEDERAL REGISTER and a public com- attenuata), or, in the area from 40° N. ment period will be allowed. At the re- lat. to 5° N. lat. and from 120° W. long. quest of any interested person within to the coastline of Central and South 15 days after publication of the pro- America, any offshore spotted dolphin posed modification in the FEDERAL (Stenella attenuata), are observed in the REGISTER, the Assistant Administrator school prior to the release of the net may hold a public hearing to receive skiff. and evaluate evidence in those cir- (B) The incidental mortality of ma- cumstances where he has determined it rine mammals permitted under the to be consistent with and necessary to general permit for each category will carry out the purposes of the MMPA. be monitored according to the meth- Such request may be for a formal hear- odology published in the FEDERAL REG- ing on the record before an Administra- ISTER. The Assistant Administrator tive Law Judge. Within 10 days after shall determine on the basis of the evi- receipt of the request for a public hear- dence available to him the date upon ing, the Assistant Administrator will which the allowable quotas will be provide the requesting party or parties reached or exceeded. Notice of the As- with his decision. If a request is denied, sistant Administrator’s determination the Assistant Administrator will state shall be published in the FEDERAL REG- the reasons for the denial. Within 10 ISTER not less than seven days prior to days after receipt of a decision denying the effective date. a request for a formal hearing, the re- (C) Except for the coastal spotted questing person may file a written no- dolphin stock and the eastern spinner tice of appeal with the Administrator. dolphin stock, if at the time the net Based upon the evidence presented in skiff attached to the net is released the notice, the Administrator will from the vessel at the start of a set, render a decision within 20 days from and species or stocks that are prohib- receipt of the notice. ited from being taken are not reason- (ii) General conditions: (A) Marine ably observable, the fact that individ- mammals incidentally taken must be uals of that species or stock are subse- immediately returned to the environ- quently taken will not be cause for ment where captured without further issuance of a notice of violation pro- injury. The operators of purse seine vided that all procedures required by vessels must take every precaution to the applicable regulations have been refrain from causing or permitting in- followed. cidental mortality or serious injury of
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marine mammals. Live marine mam- (B) [Reserved] mals must not be brailed or hoisted (C) The Director, Southwest Region, onto the deck during ortza retrieval. will provide to the public, periodic (B) Operators may take such steps as quota status reports summarizing the are necessary to protect their gear or estimated incidental porpoise mortal- person from damage or threat of per- ity by U.S. vessels of individual species sonal injury. However, all marine and stock. mammals taken in the course of com- (iv) A vessel having a vessel certifi- mercial fishing operations shall be sub- cate issued under paragraph (c)(1) may ject to the definition of ‘‘incidental not engage in fishing operations for catch’’ in § 216.3 of this part and may which a general permit is required un- not be retained except where a specific less it is equipped with a porpoise safe- permit has been obtained authorizing ty panel in its purse seine, and has and the retention. uses the other required gear, equip- (C) The vessel certificate holder shall ment, and procedures. notify the Director, Southwest Region (A) Class I and II Vessels: For Class I of any change of vessel operator within purse seiners (400 short tons carrying at least 48 hours prior to departing on capacity or less) and for Class II purse the next scheduled trip. seiners (greater than 400 short tons car- (iii) Reporting requirements: In accord- rying capacity, built before 1961), the ance with § 216.24(f) of these regula- porpoise safety panel must be a mini- tions, the following specific reporting mum of 100 fathoms in length (as meas- procedures shall be required: ured before installation), except that (A) The vessel certificate holder of the minimum length of the panel in each certificated vessel, who has been nets deeper than 10 strips must be de- notified via certified letter from NMFS termined at a ratio of 10 fathoms in that his/her vessel is required to carry length for each strip that the net is an observer, shall notify the Director, deep. It must be installed so as to pro- Southwest Region at least 5 days in ad- tect the perimeter of the backdown vance of the vessel’s departure on a area. The perimeter of the backdown fishing voyage to allow for observer area is the length of the corkline which placement. After a fishing voyage is begins at the outboard end of the last initiated, the vessel is obligated to bow bunch pulled and continues to at carry an observer until the vessel re- least two-thirds the distance from the turns to port and one of the following backdown channel apex to the stern conditions is met: tiedown point. The porpoise safety (1) Unloads more than 400 tons of any panel must consist of small mesh web- species of tuna; or bing not to exceed 11⁄4″ stretch mesh, (2) Unloads any amount of any spe- extending from the corkline downward cies of tuna equivalent to one half of to a minimum depth equivalent to one the vessel’s carrying capacity; or strip of 100 meshes of 41⁄4″ stretch mesh (3) Unloads its tuna catch after 40 webbing. In addition, at least a 20-fath- days or more at sea from the date of om length of corkline must be free departure. from bunchlines at the apex of the Further, the Director, Southwest Re- backdown channel. gion, may consider special cir- (B) Class III Vessels: For Class III cumstances for exemptions to this defi- purse seiners (greater than 400 short nition, provided written requests clear- tons carrying capacity, built after ly describing the circumstances are re- 1960), the porpoise safety panel must be ceived prior to the termination or the a minimum of 180 fathoms in length (as initiation of a fishing voyage. A re- measured before installation), except sponse to the written request will be that the minimum length of the panel made by the Director, Southwest Re- in nets deeper than 18 strips must be gion within five (5) days after receipt of determined in a ratio of 10 fathoms in the request. A vessel whose vessel cer- length for each strip of net depth. It tificate holder has failed to comply must be installed so as to protect the with the provisions of this section may perimeter of the backdown area. The not engage in fishing operations for perimeter of the backdown area is the which a general permit is required. length of corkline which begins at the
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outboard end of the last bowbunch (I) Lights: All certificated vessels pulled and continues to at least two- shall be equipped by July 1, 1986, with thirds the distance from the backdown lights capable of producing a minimum channel apex to the stern tiedown of 140,000 lumens of output for use in point. The porpoise safety panel must darkness to ensure sufficient light to consist of small mesh webbing not to observe that procedures for porpoise re- exceed 11⁄4″ stretch mesh extending lease are carried out and to monitor in- downward from the corkline and, if cidental porpoise mortality. present, the base of the porpoise apron (v) Vessel inspection: (A) Annual: At to a minimum depth equivalent to two least once during each calendar year, strips of 100 meshes of 41⁄4″ stretch purse seine nets and other gear and mesh webbing. In addition, at least a equipment required by these regula- 20-fathom length of corkline must be tions shall be made available for in- free from bunchlines at the apex of the spection by an authorized National Ma- backdown channel. rine Fisheries Service Inspector as (C) Porpoise safety panel markers: Each specified by the Director, Southwest end of the porpoise safety panel and Region. porpoise apron shall be identified with (B) Reinspection: Purse seine nets and an easily distinguishable marker. other gear and equipment required by (D) Porpoise safety panel hand holds: these regulations shall be made avail- Throughout the length of the corkline able for reinspection by an authorized under which the porpoise safety panel National Marine Fisheries Service In- and porpoise apron are located, hand spector as specified by the Director, hold openings are to be secured so that Southwest Region. The vessel certifi- the insertion of a 13⁄8″ diameter cylin- cate holder shall notify the Director, drical-shaped object meets resistance. Southwest Region of any net modifica- (E) Porpoise safety panel corkline hang- tion at least 5 days prior to departure ings: Throughout the length of the of the vessel in order to determine corkline under which the porpoise safe- whether a reinspection or trial set is ty panel and porpoise apron are lo- required. cated, corkline hangings shall be in- (C) Upon failure to pass an inspection spected by the vessel operator follow- or reinspection, a vessel having a ves- ing each trip. Hangings found to have sel certificate of inclusion issued under loosened to the extent that a cylin- paragraph (c)(1) may not engage in drical object with a 13⁄8″ diameter will fishing operations for which a general not meet resistance when inserted be- permit is required until the defi- tween the cork and corkline hangings, ciencies in gear or equipment are cor- must be tightened so that a cylindrical rected as required by an authorized Na- object with a 13⁄8″ diameter cannot be tional Marine Fisheries Service inspec- inserted. tor. (F) Speedboats: Certificated vessels (vi) Operator training requirements. All engaged in fishing operations involving operators shall maintain proficiency setting on marine mammals shall carry sufficient to perform the procedures re- a minimum of two speedboats in oper- quired herein, and must attend and sat- ating condition. All speedboats carried isfactorily complete a formal training aboard purse seine vessels and in oper- session conducted under the auspices of ating condition shall be rigged with the National Marine Fisheries Service towing bridles and towlines. Speedboat in order to obtain their certificate of hoisting bridles shall not be sub- inclusion. At the training session an stituted for towing bridles. attendee shall be instructed concerning (G) Raft: A raft suitable to be used as the provisions of the Marine Mammal a porpoise observation-and-rescue plat- Protection Act of 1972, the regulations form shall be carried on all certificated promulgated pursuant to the MMPA, vessels. and the fishing gear and techniques (H) Facemask and snorkel, or viewbox: which are required or will contribute At least two facemasks and snorkels, to reducing serious injury and mortal- or viewboxes, must be carried on all ity of porpoise incidental to purse certificated vessels. seining for tuna. Operators who have
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received a written certificate of satis- establishing to the satisfaction of the factory completion of training and who Director, Southwest Region, NMFS, possess a current or previous calendar based upon NMFS and Inter-American year certificate of inclusion will not be Tropical Tuna Commission (IATTC) ob- required to attend additional formal server records, that the operator’s av- training sessions unless there are sub- erage kill of marine mammals per set stantial changes in the MMPA, the reg- in sundown sets involving marine ulations, or the required fishing gear mammals was 3.01 marine mammals or and techniques. Additional training fewer. may be required for any operator who (i) The application must include the is found by the Director, Southwest following: Region, to lack proficiency in the pro- (A) Name of the operator as it ap- cedures required. pears on the certificate of inclusion; (vii) Marine mammal release require- (B) The dates of all observed trips ments: All operators shall use the fol- any part of which occurred since July lowing procedures during all sets in- 1, 1986 and observed trips before that volving the incidental taking of marine date, if necessary to include a mini- mammals in association with the cap- mum of three observed sundown sets; ture and landing of tuna. (C) Names of the vessels operated (A) Backdown procedure: Backdown during those trips; shall be performed following a purse (D) The number of marine mammals seine set in which marine mammals are killed in sundown sets and the number captured in the course of catching and of sundown sets involving marine landing tuna, and shall be continued mammals; until it is no longer possible to remove (E) Detailed description of the cir- live marine mammals from the net by cumstances that support any request this procedure. Thereafter, other re- that the mortality associated with a lease procedures required shall be con- particular sundown set be excluded tinued until all live animals have been from consideration; and released from the net. (F) The operator’s signature or the (B) Prohibited use of sharp or pointed signature of an individual authorized instrument: The use of a sharp or point- by the operator to make the applica- ed instrument to remove any marine tion in the operator’s absence. mammal from the net is prohibited. (ii) All sundown sets since July 1, 1986 (C) Sundown sets prohibited. On every will be considered for this determina- set encircling porpoise, the backdown tion, except that the Director, South- procedure must be completed and roll- west Region will exclude one sundown ing of the net to sack-up must be begun set from each twelve month period before one-half hour after sundown, ex- from the calculations of average kill if cept as provided below. For the purpose the operator establishes to the satis- of this section, sundown is defined as faction of the Director, Southwest Re- the time at which the upper edge of the gion that the kill in that sundown set sun disappears below the horizon or, if was due to an unforeseeable equipment view of the sun is obscured, the local malfunction that could not have been time of sunset calculated from tables avoided by reasonable diligence in op- developed by the U.S. Naval Observ- erating or maintaining the vessel. atory. A sundown set is a set in which (iii) An operator must have a mini- the backdown procedure has not been mum of five observed sundown sets for completed and rolling the net to sack- the Director, Southwest Region to con- up has not begun within one-half hour sider in determining whether or not after sundown. Should a set extend be- the operator qualifies for an exemp- yond one-half hour after sundown, the tion. If an operator does not have five operator must use the required marine observed sundown sets since July 1, mammal release procedures including 1986, the Director, Southwest Region the use of the high intensity lighting will consider records from observed system. trips before that date, starting with (1) A certificated operator may ob- the most recent observed trip during tain an initial waiver from this prohi- which a sundown set was made and re- bition, for trips with an observer, by viewing as many trips as necessary to
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obtain at least five sundown sets for (viii) Experimental fishing operations: consideration. The Assistant Administrator may au- (2) An operator fishing under an ex- thorize experimental fishing operations emption from the sundown set prohibi- and may waive, as appropriate, any re- tion must follow the marine mammal quirements within § 216.24(d)(2), except release requirements, including the use quotas on the incidental kill of marine of high intensity lights for sets that mammals and the prohibition on set- continue one-half hour past sundown. ting nets on pure schools of certain (3) An operator exemption is valid for porpoise species. one calendar year only on trips carry- (A) A vessel certificate holder may ing a NMFS or IATTC observer and ex- apply for an experimental fishing oper- pires on December 31, unless renewed ation waiver by submitting the follow- by the Director, Southwest Region. ing information to the Assistant Ad- (4) An exemption will be reviewed an- ministrator no less than 90 days before nually between November 1 and Decem- the intended date the proposed oper- ber 15 and the exemption will not be re- ation is intended to begin: newed if the operator’s average mortal- (1) Name(s) of the vessel(s) and the ity in sundown sets during trips com- vessel certificate holder(s) to partici- pleted in the previous twelve month pe- pate; riod ending November 1 exceeds the (2) A statement of the specific vessel United States fleet’s average mortality gear and equipment or procedural re- rate in daylight sets for all of the ob- quirement to be exempted and why served trips completed in the same pe- such an exemption is necessary to con- riod. duct the experiment; (5) An operator who is notified that (3) A description of how the proposed his or her exemption will not be re- modification to the gear or procedures newed, or who anticipates not getting is expected to reduce incidental mor- renewed, may petition the Director, talities or serious injury of marine Southwest Region in writing to rein- mammals; state the exemption based on excluding (4) A description of the applicability from the calculations one set where an of this modification to other purse unforeseeable equipment malfunction seine vessels; caused mortality in a sundown set that (5) Planned design, time, duration, could not have been avoided by reason- and general area of the experimental able diligence in operating or main- operation; taining the vessel. The Director, (6) Name(s) of the certificated op- Southwest Region will reinstate the erator(s) of the vessel(s) during the exemption if the evidence supports ex- experiment; cluding the set and if the resulting re- (7) A statement of the qualifications calculation of the operator’s perform- of the individual or company doing the ance meets the standard required by analysis of the research. these regulations. (B) The Assistant Administrator will (D) Porpoise Safety Panel: During acknowledge receipt of the application backdown, the porpoise safety panel and, upon determining that it is com- must be positioned so that it protects plete, publish notice in the FEDERAL the perimeter of the backdown area. REGISTER summarizing the application, The perimeter of the backdown area is making the full application available the length of corkline which begins at for inspection and inviting comments the outboard end of the last bow bunch for a minimum period of thirty days pulled and continues to at least two- from the date of publication. thirds the distance from the backdown (C) The Assistant Administrator, channel apex to the stern tiedown after considering the information iden- point. Any super apron must be posi- tified in paragraph (d)(2)(viii)(A) of this tioned at the apex of the backdown section and the comments received, channel. will deny the application giving the (E) Use of explosive devices: The use of reasons for denial or issue a permit to explosive devices is prohibited in all conduct the experiment including re- tuna purse seine operations that in- strictions and conditions as deemed ap- volve marine mammals. propriate.
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(D) The permit for an experimental ditions described in paragraph fishing operation will be valid only for (d)(2)(ix)(F) of this section. The Direc- the vessels and operators named in the tor, Southwest Region may exclude permit, for the time period and areas from the mortality calculation for a specified, for trips carrying an observer trip, those purse seine sets in which assigned by the NMFS, and when all marine mammal mortality resulted the terms and conditions of the permit from an unavoidable and unforeseeable are met. equipment breakdown. The mortality (E) The Assistant Administrator may rate calculated after exclusion of a set suspend or revoke an experimental or sets under this paragraph will deter- fishing permit by written notice to the mine the action taken under this per- permit holder if the terms and condi- formance evaluation system. tions of the permit or the provisions of (B) Fishing trips with five or fewer the regulations are not followed, after sets on marine mammals and an aver- providing an opportunity for the per- age kill-per-set less than or equal to mit holder to discuss the proposed sus- 26.30 marine mammals are not subject pension or revocation. to further action under the operator (ix) Operator Certificate of Inclusion performance system. Such trips neither Holder Performance Requirements. (A) count as trips meeting the performance The certificate of inclusion of any op- standard nor count as trips failing to erator who makes one or more purse meet the performance standard for the seine sets on marine mammals result- purpose of determining actions based ing in an average kill-per-set for a fish- on performance in consecutive fishing ing trip which exceeds 26.30 marine trips. mammals is suspended. Such suspen- (C) Fishing trips with more than five sion shall be effective upon notifica- sets on marine mammals resulting in tion from the Director, Southwest Re- an average kill-per-set of not greater gion and shall be for a period of one than 26.30 marine mammals are subject year. If the operator exceeds the 26.30 to review under the operator perform- marine mammals killed per set average ance system as follows: for a subsequent trip within three (1) The operator’s kill of marine years of reinstatement, the certificate mammals in purse seine sets on marine is suspended. Such suspension shall be mammals will be determined from ob- effective upon notification by the Di- server records. rector, Southwest Region and shall be (2) The kill-per-set will be deter- for a period of one year. If the opera- mined by dividing the total kill of ma- tor’s average mortality rate exceeds rine mammals by the number of sets 26.30 marine mammals kill-per-set on a involving marine mammals during the subsequent trip within five years of the fishing trip. second reinstatement, the certificate is (3) If the calculated kill-per-set for revoked. The revocation shall be effec- the trip is equal to or less than 3.89 ma- tive upon notification by the Director, rine mammals, the operator has met Southwest Region and shall be perma- the performance standard and is not nent. An operator who is subject to a subject to further action under the per- suspension or revocation under this formance system based on the current paragraph may petition the Director, trip. Southwest Region to review the opera- (4) If the calculated kill-per-set for tor’s marine mammal mortality his- the trip exceeds 3.89 marine mammals, tory. The Director, Southwest Region the operator failed to meet the mortal- may reinstate the operator’s certifi- ity performance standard and is sub- cate if the operator demonstrates that ject to further action under the per- the operator has not exceeded a kill- formance system. per-set of 3.89 marine mammals during (D) The Director, Southwest Region any of the eight consecutive observed may exclude from the mortality cal- trips immediately preceding the trip culation for a trip, those purse seine which caused the suspension. However, sets in which marine mammal mortal- that trip will be considered as a single ity resulted from an unavoidable and trip exceeding a kill-per-set of 3.89 ma- unforeseeable equipment breakdown. rine mammals and subject to the con- Should exclusion of a set or sets cause
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the operator’s performance to fall tions for reducing marine mammal within the standard performance, that mortality which may be ordered by the trip will not be counted as a trip for Director, Southwest Region. The oper- the purposes of the performance eval- ator must carry an expert fisherman uation system. (i.e., an experienced vessel operator (E) An operator shall not serve as a with a history of low dolphin mortal- certificated operator until the Direc- ity), if required to do so by the Direc- tor, Southwest Region has determined tor, Southwest Region, to assist in per- under this subpart and notified the op- fecting marine mammal safety tech- erator that the operator’s marine niques, and must also carry an ob- mammal mortality rate performance server on the next trip for which he met or failed to meet the applicable serves as the certificated operator. The performance standard on the previous selection of the expert fisherman will observed trip. The Director, Southwest be provided by the General Permit Region will make the determination holder or the Porpoise Rescue Founda- within five days (excluding Saturdays, tion and subject to the approval of the Sundays and Federal holidays) after re- Director, Southwest Region. If the Di- ceiving the observer data from the trip. rector, Southwest Region determines (F) An operator whose average ma- that the required training or other or- rine mammal mortality rate exceeds dered action has not been completed 3.89 kill-per-set for a trip must have ob- satisfactorily or is refused, the Direc- server data and other pertinent records tor, Southwest Region will suspend the reviewed by the Director, Southwest operator’s certificate of inclusion for Region and the Porpoise Rescue Foun- one year. dation for the purpose of determining the causes of higher than acceptable (H) The operator certificate of inclu- mortality, must participate in supple- sion or an operator whose average ma- mental marine mammal safety train- rine mammal mortality rate exceeds ing as ordered by the Director, South- 3.89 kill-per-set on three consecutive west Region and must comply with ac- trips, or on any four trips (of which no tions for reducing marine mammal more than two are consecutives) com- mortality which may be ordered by the pleted within a period of twenty-four Director, Southwest Region. The oper- months or on four trips (of which no ator must carry an observer on the more than two are consecutive) within next trip for which he serves as the cer- eight consecutively observed trips, is tificated operator. If the Director, suspended upon notification to the op- Southwest Region determines that the erator from the Director, Southwest required training or other ordered ac- Region. tion has not been completed satisfac- (I) Following a suspension and a rein- torily or is refused, the Director, statement of a certification of inclu- Southwest Region will suspend the op- sion, the operator certificate of inclu- erator’s certificate of inclusion for one sion is suspended for any operator year. whose average marine mammal mor- (G) An operator whose average ma- tality rate exceeds 3.89 marine mam- rine mammal mortality rate exceeds mals killed per set on any subsequent 3.89 marine mammals killed per set on trip as required under the criteria for a two consecutive trips or on three trips suspension established in paragraph ending within a period of twenty-four (d)(2)(ix)(H) of this section. Under this months or on three trips within eight paragraph, trips completed by the oper- consecutive trips must have observer ator prior to suspension will be carried data and other pertinent records re- over and counted along with trips com- viewed by the Director, Southwest Re- pleted subsequent to the suspension. gion and the Porpoise Rescue Founda- Such suspension shall be effective upon tion for the purpose of determining the notification from the Director, South- causes of higher than acceptable mor- west Region and shall be for a period of tality, must participate in supple- one year. For purposes of this para- mental marine mammal safety train- graph only, each suspension under ing as ordered by the Director, South- paragraph (d)(2)(ix)(A) of this section west Region and must comply with ac- will be considered equivalent to and
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counted as three consecutive trips ex- IATTC, for assignment of a DML for ceeding the trip kill rate of 3.89 marine the following year. mammals killed per set. (B) Each vessel certificate of inclu- (J) An operator may appeal suspen- sion holder that desires a DML for the sion of revocation of a certificate of in- period July 1 to December 31, for a ves- clusion under paragraphs (d)(2)(ix)(A), sel that has not previously had a DML (d)(2)(ix)(H), or (d)(2)(ix)(I) of this sec- assigned for the year, must provide to tion to the Assistant Administrator. the Director, Southwest Region, Appeals must be filed in writing within NMFS, 501 W. Ocean Blvd., Suite 4200, 30 days of suspension or revocation and Long Beach, CA 90802–4213, by March must contain a statement setting forth 15, the name of the purse seine vessel(s) the basis for the appeal. Appeals must of carrying capacity greater than 400 be filed with the Director, Southwest short tons (362.8 mt) that the owner Region. The appeal may be presented thinks will intentionally deploy purse at the option of the operator at a hear- seine fishing nets in the ETP to encir- ing before a person appointed by the cle dolphins in an effort to capture Assistant Administrator to hear the tuna during the period. NMFS will for- appeal. The Assistant Administrator ward the list of purse seine vessels to will determine, based upon the record, the Director of the IATTC on or before including any record developed at a April 1, or as required by the IATTC, hearing, if the suspension or revocation for assignment of a DML for the 6- is supported under the criteria set month period July 1 to December 31. forth in these regulations. The decision Under the Agreement adopted at the of the Assistant Administrator will be Annual Meeting of the IATTC June 16– the final decision of the Department of 18, 1992, the DML shall be assigned Commerce. from the unutilized pool of DMLs de- scribed under paragraph (d)(2)(x)(D) of (K) An operator must carry an ob- this section, divided among the appli- server on the operator’s first trip after cants for the 6-month period, and shall a suspension under this performance not exceed 50 percent of the DML as- system has expired. An operator must signed to a vessel in the fishery with a also participate in supplemental ma- DML for the entire year. rine mammal safety training and com- (C)(1) NMFS will notify vessel owners ply with actions for reducing marine of the DML assigned for each vessel for mammal mortality as ordered by the the following year as determined by Director, Southwest Region before the IATTC. making another trip as a certified op- (2) NMFS may adjust the DMLs, ei- erator. ther upward or downward with 15 per- (L) A person obtaining an operator cent of the original DML, except that certificate of inclusion for the first the adjusted DMLs for the U.S. fleet time must carry an observer on the op- will not exceed the original total of the erator’s first trip. DMLs for the U.S. fleet as assigned by (x) Vessel Certificate of Inclusion Hold- the IATTC. All adjustments shall be er Performance Requirements—(A) vessel made prior to December 1, and NMFS certificate of inclusion holder desiring shall notify the IATTC prior to Decem- a DML for the following year must pro- ber 15. DMLs as assigned on December vide to the Director, Southwest Re- 1 will be applicable to the following gion, NMFS, 501 W. Ocean Blvd., Suite year. 4200, Long Beach, CA 90802–4213, by Sep- (3) NMFS may make an adjustment tember 1, the name of the purse seine of a vessel’s DMLs if it will further sci- vessel(s) of carrying capacity greater entific or technological advancement than 400 short tons (362.8 mt) that the in the protection of marine mammals owner thinks will intentionally deploy in the fishery, or if the past perform- purse seine fishing nets in the ETP to ance of the vessel indicates that the encircle dolphins in an effort to cap- protection or use of the yellowfin tuna ture tuna during that year. NMFS will stocks or marine mammals is best forward the list of purse seine vessels served by the adjustment, within the to the Director of the IATTC on or be- mandates of the MMPA. Experimental fore October 1, or as required by the fishing operation waivers or scientific
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research permits shall be considered a (d)(2)(x)(C)(2) of this section, is basis for adjustments. reached. (D)(1) Any vessel assigned a DML, (G)(1) Sanctions recommended by the that does not participate, by June 1, in Review Panel for any violation of these this fishery by operating under valid rules shall be considered by NMFS in certificates of inclusion, or that leaves its enforcement of these regulations. the fishery, shall lose its right to uti- (2) Intentionally deploying a purse lize its DML for the remainder of the seine net on or to encircle dolphins year. after the vessel’s DML is reached will (2) NMFS will determine, based on disqualify the vessel from consider- the available information, whether a ation for a DML for the following year. vessel has left the fishery. A vessel lost If already assigned, the DMLs for the at sea, undergoing extensive repairs, following year will be withdrawn, and operating in an ocean area other than the IATTC notified by NMFS that the the ETP, or for which other informa- DML assigned to that vessel will be tion indicates will no longer be con- unutilized. The vessel owner will be ducting purse seine operations in the provided an opportunity to provide in- ETP for the remainder of the period, formation and comments on this issue shall be determined to have left the before a final determination is made by fishery. NMFS will make all reason- NMFS. able efforts to determine the intentions (3) Encircling gear, purse seining not of the vessel owner, and the owner of involving the intentional taking of marine any vessel that has been preliminarily mammals. (i) A certificate holder may determined to have left the fishery will take marine mammals so long as such be provided notice of such preliminary taking is an incidental occurrence in determination and the opportunity to the course of normal commercial fish- provide information on whether the ing operations. Marine mammals taken vessel has left the fishery before NMFS incidental to commercial fishing oper- makes a final determination and noti- ations shall be immediately returned fies the IATTC of this determination. to the environment where captured The vessel owner will receive written without further injury. notification of NMFS’ final determina- (ii) A certificate holder may take tion. such steps as are necessary to protect (3) Any unused DML for a vessel that his catch, gear, or person from depreda- has been determined to have left the tion, damage or personal injury with- fishery will be returned to the IATTC, out inflicting death or injury to any to be added to the pool of unutilized marine mammal. DMLs. (iii) Only after all means permitted (E) Any vessel that exceeds its by paragraph (d)(3)(ii) of this section assigned DML, after any applicable have been taken to deter a marine adjustment under paragraph mammal from depredating the catch, (d)(2)(x)(C)(2) of this section, shall have damaging the gear, or causing personal its DML for the subsequent year re- injury, may the certificate holder in- duced by the amount of overage. jure or kill the animal causing the dep- (F)(1) The vessel operator and owner redation or immediate damage, or are responsible for ensuring that the about to cause immediate personal in- DML for that vessel is not exceeded. jury; however, in no event shall a cer- (2) Observers, either from the IATTC tificate holder kill or injure an Atlan- observer program or the NMFS ob- tic bottlenosed dolphin, Tursiops server program, will make their truncatus, under the provisions of this records available to the vessel opera- paragraph. A certificate holder shall tors at any time, including after each not injure or kill any animal permitted set, so that the operator can monitor to be killed or injured under this para- the balance of the DML remaining for graph unless the infliction of such use during the trip. damage is substantial and immediate (3) Vessel captains must cease de- and is actually being caused at the ploying purse seine sets to encircle time such steps are taken. In all cases, dolphins intentionally when the ves- the burden is on the certificate holder sel’s DML, as adjusted under paragraph to report fully and demonstrate that
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the animal was causing substantial and have been taken to deter a marine immediate damage or about to cause mammal from depredating the catch, personal injury and that all possible damaging the gear, or causing personal steps to protect against such damage injury, may the certificate holder in- or injury as permitted by paragraph jure or kill the animal causing the dep- (d)(3)(ii) of this section were taken and redation or immediate damage, or that such attempts failed. about to cause immediate personal in- (iv) Marine mammals taken in the jury; however, in no event shall a cer- course of commercial fishing oper- tificate holder kill or injure an Atlan- ations shall be subject to the provi- tic bottlenosed dolphin, Tursiops sions of § 216.3 with respect to ‘‘Inciden- truncatus, under the provisions of this tal catch,’’ and may be retained except paragraph. A certificate holder shall where a specific permit has been ob- not injure or kill any animal permitted tained authorizing the retention. to be killed or injured under this para- (v) All certificate holders shall main- graph unless the infliction of such tain logs of incidental take of marine damage is substantial and immediate mammals in such form as prescribed by and is actually being caused at the the Assistant Administrator. All time such steps are taken. In all cases, deaths or injuries to marine mammals the burden is on the certificate holder occurring in the course of commercial to report fully and demonstrate that fishing operations under the conditions the animal was causing substantial and of a general permit shall be imme- immediate damage or about to cause diately recorded in the log and re- personal injury and that all possible ported in writing to the Director, steps to protect against such damage Southwest Region, where a certificate or injury as permitted by paragraph (ii) application was made, or to an enforce- were taken and that such attempts ment agent or other designated agent failed. of the National Marine Fisheries Serv- (iv) Marine mammals taken in the ice, at the earliest opportunity but no course of commercial fishing oper- later than five days after such occur- ations shall be subject to the provi- rence, except that if a vessel at sea re- sions of § 216.3 with respect to ‘‘Inciden- turns to port later than five days after tal catch,’’ and may not be retained ex- such occurrence, then it shall be re- cept where a specific permit has been ported within forty-eight hours after obtained authorizing the retention. arrival in port. Reports must include: (v) All certificate holders shall main- (A) The location, time, and date of tain logs of incidental take of marine the death or injury; mammals in such form as prescribed by (B) The identity and number of ma- the Assistant Administrator. All rine mammals killed or injured; and deaths or injuries to marine mammals (C) A description of the circum- occurring in the course of commercial stances which led up to and caused the fishing operations under the conditions death or injury. of a general permit shall be imme- (4) Stationary gear. (i) A certificate diately recorded in the log and re- holder may take marine mammals so ported in writing to the Director, long as such taking is an incidental oc- Southwest Region, where a certificate currence in the course of normal com- application was made, or to an enforce- mercial fishing operations. Marine ment agent or other designated agent mammals taken incidental to commer- of the National Marine Fisheries Serv- cial fishing operations shall be imme- ice, at the earliest opportunity but no diately returned to the environment later than five days after such occur- where captured without further injury. rence, except that if a vessel at sea re- (ii) A certificate holder may take turns to port later than five days after such steps as are necessary to protect such occurrence, then it shall be re- his catch, gear, or person from depreda- ported within forty-eight hours after tion, damage or personal injury with- arrival in port. Reports must include: out inflicting death or injury to any (A) The location time, and date of marine mammal. the death or injury; (iii) Only after all means permitted (B) The identity and number of ma- by paragraph (d)(4)(ii) of this section rine mammals killed or injured; and
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(C) A description of the cir- occurring in the course of commercial cumstances which led up to and caused fishing operations under the conditions the death or injury. of a general permit shall be imme- (5) Other gear. (i) A certificate holder diately recorded in the log and re- may take marine mammals so long as ported in writing to the Director, such taking is an incidental occurrence Southwest Region, where a certificate in the course of normal commercial application was made, or to an enforce- fishing operations. Marine mammals ment agent, or other designated agent taken incidental to commercial fishing of the National Marine Fisheries Serv- operations shall be immediately re- ice, at the earliest opportunity but no turned to the environment where cap- later than five days after such occur- tured without further injury. rence, except that if a vessel at sea re- (ii) A certificate holder may take turns to port later than five days after such steps as are necessary to protect such occurrence, then it shall be re- his catch, gear, or person from depreda- ported within forty-eight hours after tion, damage or personal injury with- arrival in port. Reports must include: out inflicting death or injury to any (A) The location, time, and date of marine mammal. the death or injury; (iii) Only after all means permitted (B) The identity and number of ma- by paragraph (d)(5)(ii) of this section rine mammals killed or injured; and have been taken to deter a marine (C) A description of the cir- mammal from depredating the catch, cumstances which led up to and caused damaging the gear, or causing personal the death or injury. injury, may the certificate holder in- jure or kill the animal causing the dep- (vi) [Reserved] redation or immediate damage, or (vii) The number of Dall’s porpoise about to cause immediate personal in- (Phocoenoides dalli) killed or injured by jury; however, in no event shall a cer- Japanese vessels operating in the U.S. tificate holder kill or injure an Atlan- EEZ is limited to an aggregate of 789 in tic bottlenosed dolphin, Tursiops the Bering Sea and 5250 in the North truncatus, under the provisions of this Pacific Ocean over the period 1987 to paragraph. A certificate holder shall 1989, of which no more than 448 may be not injure or kill any animal permitted taken from the Bering Sea and no more to be killed or injured under this para- than 2494 may be taken from the North graph unless the infliction of such Pacific Ocean in any single calendar damage is substantial and immediate year. The incidental take levels au- and is actually being caused at the thorized by this subpart are reduced time such steps are taken. In all cases, proportionately in the event that the the burden is on the certificate holder Soviet Union reduces salmon quotas to report fully and demonstrate that for 1988 or 1989 by more than 10 percent the animal was causing substantial and from the 1987 quota. Any permit issued immediate damage or about to cause under this part must indicate the personal injury and that all possible measures by which the permit holder steps to protect against such damage must comply with the conditions at- or injury as permitted by paragraph tached to the permit, and the reporting (d)(5)(ii) of this section were taken and requirements of paragraph (d)(5)(v) of that such attempts failed. this section. Any permit issued under (iv) Marine mammals taken in the this part may allow retention of ma- course of commercial fishing oper- rine mammals for scientific purposes ations shall be subject to the provi- and will not require a separate permit sions of § 216.3 with respect to ‘‘Inciden- under paragraph (d)(5)(iv) of this sec- tal catch,’’ and may not be retained ex- tion. cept where a specific permit has been (6) Commercial passenger fishing vessels obtained authorizing the retention. (CPFV). (i) A certificate holder aboard (v) All certificate holders shall main- the vessel may take marine mammals tain logs of incidental take of marine so long as the taking is limited to har- mammals in such form as prescribed by assment and is an incidental occur- the Assistant Administrator. All rence in the course of the active deaths or injuries to marine mammals sportfishing subject to the following
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restrictions (paragraphs (d)(6) (ii) sults in the incidental kill or inciden- through (vi) of this section). tal serious injury of marine mammals (ii) Takings are prohibited within 500 in excess of that allowed under this yards of a pinniped rookery or haul-out part for U.S. fishermen or in excess of site. what is specified in subsection (e)(5) in (iii) A certificate holder aboard the the case of fishing for yellowfin tuna. CPFV must use only those non-lethal, (ii) For purposes of this paragraph non-injurious methods not including (e), and in applying the definition of an capture as approved in advance by the ‘‘intermediary nation’’, an import oc- Assistant Administrator for Fisheries curs when the fish or fish product is re- through publication in the FEDERAL leased from a nation’s Customs’ cus- REGISTER and stipulated in the General tody and enters into the territory of Permit for taking marine mammals. the nation. For other purposes, ‘‘im- (iv) Takings are allowed only while port’’ is defined in § 216.3. engaged in active sportfishing to pre- (2) The following fish and categories vent imminent marine mammal ap- of fish, which the Assistant Adminis- proaches to the vessel or to protect a trator has determined may be involved passenger’s catch or gear from depreda- with commercial fishing operations tion or damage, without inflicting which cause the death or injury of ma- death or injury to any marine mam- rine mammals, are subject to the re- mal. quirements of this section: (v) All operators must ensure the safe (i) Tuna: yellowfin. The following U.S. use of the approved methods for pre- Harmonized Tariff Schedule Item Num- venting marine mammal sportfishing bers identify the categories of yellow- interaction and must satisfactorily fin tuna and yellowfin tuna products complete such training as may be re- that are harvested in the ETP purse quired by the Assistant Administrator seine fisher (some of which are also for Fisheries. harvested with large-scale driftnet), (vi) All certificate holders must are imported into the United States, maintain records of incidental take of and are subject to the restrictions of marine mammals in such form as pre- paragraphs (e)(3) and (e)(5) of this sec- scribed by the Assistant Administrator tion: for Fisheries. All incidents involving (A) Tuna, frozen whole or in the harassment of marine mammals must round: be immediately recorded and reported 0303.42.00.20.0 Tuna, yellowfin, whole frozen. in writing to the Director, Southwest 0303.42.00.40.6 Tuna, yellowfin, eviscerated Region to whom the certificate appli- head-on, frozen. cation was made, or to an enforcement 0303.42.00.60.1 Tuna, yellowfin, eviscerated agent or other designated agent of the head-off, frozen. National Marine Fisheries Service, at 0303.49.00.40.9 Tuna, non-specific, frozen. the earliest opportunity, but no later (B) Tuna, canned: than five days after such occurrence. 1604.14.10.00.0 Tuna, non-specific, canned in At a minimum, reports must include: oil. (A) The time, date, and location of 1604.14.20.40.0 Tuna, non-specific, canned, the taking; not in oil, not over 7kg in quota. (B) The type of harassment device 1604.14.30.40.8 Tuna, non-specific, canned, used, and the number used at each oc- not in oil, not over 7kg over quota. currence; (C) Tuna, loins: (C) The number and species of af- 1604.14.40.00.4 Tuna, non-specific, not in air- fected marine mammals; and tight container, not in oil, over 6.8kg. (D) A description of any behavioral 1604.14.50.00.1 Tuna, non-specific, not in air- changes noted that may be due to tight container, not in oil, not over using the harassment device. 6.8kg. (e) Importation, purchase, shipment, (ii) Tuna: non-yellowfin. The follow- sale and transport. (1)(i) It is illegal to ing U.S. Harmonized Tariff Schedule import into the United States any fish, Item Numbers identify the categories whether fresh, frozen, or otherwise pre- of tuna and tuna products that are har- pared, if the fish have been caught with vested with large-scale driftnet and im- commercial fishing technology that re- ported into the United States and are
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subject to the restrictions of paragraph 0303.75.00.00.4 Shark, dogfish and other (e)(3) of this section: sharks, frozen. (A) Tuna, frozen whole or in the 0305.59.20.00.8 Shark fins. round: (D) Swordfish: 0303.41.00.00.5 Tuna, albacore, frozen. 0303.79.20.40.8 Swordfish, frozen. 0303.43.00.00.3 Tuna, skipjack, frozen. (E) Species not specifically identi- 0303.49.00.20.3 Tuna, bluefin, frozen. fied: (B) Tuna, canned: 0303.79.40.90.3 Marine fish, non-specific, fro- 1604.14.20.20.4 Tuna, albacore, canned, not in zen. oil, not over 7kg in quota. 0304.20.20.66.6 Marine fish, non-specific, fil- 1604.14.30.20.2 Tuna, albacore, canned, not in let blocks frozen over 4.5kg. oil, not over 7kg over quota. 0304.20.60.85.4 Marine fish, non-specific, fil- (iii) Fish, other than tuna. The follow- let, frozen. ing U.S. Harmonized Tariff Schedule 0305.30.60.80.6 Fish, non-specific, fillet dried/ Item Numbers identify the categories salted/brine over 6.8kg. of fish and fish products that are im- 0305.49.40.40.9 Fish, non-specific, smoked. ported into the United States and are 0305.59.40.00.4 Fish, non-specific, dried. 0305.69.50.00.9 Fish, non-specific, salted, not subject to the restrictions of paragraph over 6.8kg. (e)(3) of this section: 0305.69.60.00.7 Fish, non-specific, salted, over (A) Salmon: 6.8kg. (1) Salmon, frozen whole or in the 1604.19.20.00.3 Fish, non-specific, in airtight round: containers, not in oil. 0303.10.00.12.8 Salmon, chinook, frozen. 1604.19.30.00.1 Fish, non-specific, in airtight 0303.10.00.22.6 Salmon, chum, frozen. containers, in oil. 0303.10.00.32.4 Salmon, pink, frozen. (3)(i) Tuna—(A) All nations. No ship- 0303.10.00.42.2 Salmon, sockeye, frozen. ment containing an item listed in para- 0303.10.00.52.9 Salmon, coho, frozen. graph (e)(2)(i) or (e)(2)(ii) of this sec- 0303.10.00.62.7 Salmon, Pacific, non-specific, tion, from any nation, may be im- frozen. 0303.21.00.00.9 Trout, frozen. ported into the United States unless: 0303.22.00.00.8 Salmon, Atlantic, Danube, (1) Accompanied by a completed frozen. Fisheries Certificate of Origin de- 0303.29.00.00.1 Salmonidae, non-specific, fro- scribed in paragraph (e)(3)(iii) of this zen. section, or, for points of entry where 0304.20.60.07.9 Salmonidae, salmon fillet, the ABI system is available, the infor- frozen. mation required for the Certificate 0305.69.40.00.2 Salmon, non-specific, salted. may be filed electronically by the ABI (2) Salmon, canned: system in lieu of the paper form, pro- 1604.11.20.20.7 Salmon, pink, canned in oil. vided that the electronic filing is made 1604.11.20.30.5 Salmon, sockeye, canned in no later than at the time of entry and oil. all documentation in support of the 1604.11.20.90.2 Salmon, non-specific, canned in oil. ABI entry is maintained by the im- 1604.11.40.10.5 Salmon, chum, canned, not in porter or broker for not less than 5 oil. years and is kept available for inspec- 1604.11.40.20.3 Salmon, pink, canned, not in tion by NMFS personnel upon request; oil. (2) The tuna or tuna product was not 1604.11.40.30.1 Salmon, sockeye, canned, not harvested with a large-scale driftnet in oil. after July 1, 1991; and 1604.11.40.40.9 Salmon, non-specific, canned, not in oil. (3) An original invoice accompanies 1604.11.40.50.6 Salmon, non-specific, other. the shipment at the time of importa- (B) Squid: tion, or is made available within 30 days of a request by the Secretary to 0307.49.00.10.1 Squid, non-specific, fillet, fro- produce the invoice. zen. 0307.49.00.50.2 Squid, non-specific, frozen/ (B) Harvesting nations. No shipment dried/salted/brine. containing an item listed in paragraph 0307.49.00.60.0 Squid, non-specific, & cuttle- (e)(2)(i) of this section may be imported fish frozen/dried/salted/brine. into the United States from a harvest- 1605.90.60.55.9 Squid, non-specific, prepared/ ing nation subject to paragraph (e)(5)(i) preserved. of this section unless a finding required (C) Shark: for importation has been made.
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(C) Intermediary nations. No shipment 370), 1 certified to be accurate by the containing an item listed in paragraph first exporter of the accompanying (e)(2)(i) of this section may be imported shipment, must include the following into the United States from an inter- information: mediary nation subject to paragraph (A) Country under whose laws the (e)(5)(xiv) of this section if a ban is cur- harvesting vessel operated; rently in force prohibiting the importa- (B) Exporter (name and address); tion. (C) Consignee (name and address); (D) Harvesting and intermediary na- (D) Type and quantity of the fish or tions. No shipment containing an item fish products to be imported, listed by in paragraph (e)(2)(i) of this section U.S. Harmonized Tariff Schedule Num- may be imported into the United ber; States from a nation that is both a (E) Ocean area where the fish was harvesting nation subject to paragraph harvested (ETP, Western Pacific (e)(5)(i) of this section and an inter- Ocean, South Pacific Ocean, Atlantic mediary nation subject to paragraph Ocean, Caribbean Sea, Indian Ocean, or (e)(5)(xiv) of this section unless the other); necessary findings have been made (F) Type of fishing gear used to har- under both provisions and a ban is not vest the fish (purse seine, longline, bait currently in force. boat, large-scale driftnet, other type of (E) Tuna or tuna products sold in or gillnet, trawl, pole and line, other); exported from the United States that (G) Dates on which the fishing trip suggest the tuna was harvested in a began and ended; manner not injurious to dolphins are (H) If shipment is tuna or products subject to the requirements of subpart from tuna that were harvested in the H. ETP with a purse seine net, the name (ii) Other fish. After July 1, 1991, no of the harvesting vessel; and shipment containing an item listed in (I) For shipments harvested by ves- paragraphs (e)(2)(iii)(B) through (E) of sels of a nation known to use large- this section, and, after July 1, 1992, no scale driftnets, as determined by the shipment containing an item in the Secretary pursuant to paragraph (e)(4) whole of paragraph (e)(2)(iii) of this of this section, a statement must be in- section, that was harvested by any na- cluded on the Fisheries Certificate of tion determined by the Assistant Ad- Origin, or by separate attachment, ministrator to be engaged in large- that is dated and signed by a respon- scale driftnet fishing, or exported from sible government official of the har- any such nation, either directly or vesting nation, certifying that the fish through an intermediary nation, may or fish product was harvested by a be imported into the United States un- method other than large-scale driftnet, less: if the shipment includes: (A) Accompanied by a complete Fish- (1) Tuna or tuna products described eries Certificate of Origin, as described in paragraph (e)(2) (i) or (ii) of this sec- in paragraph (e)(3)(iii) of this section; tion that were harvested on the high (B) The fish or fish product was not seas after July 1, 1991; or harvested with a large-scale driftnet, if (2) Fish or fish products other than the area of harvest, as described on the tuna described in paragraph (e)(2)(iii) Fisheries Certificate of Origin was: of this section that were harvested in (1) The South Pacific Ocean, for har- the South Pacific Ocean after July 1, vests after July 1, 1991; or 1991, or that were harvested anywhere (2) Anywhere on the high seas, for on the high seas after July 1, 1992. harvests after July 1, 1992; and (4) Large-scale driftnet nations. Based (C) An original invoice accompanies upon the best information available, the shipment at the time of importa- the Assistant Administrator will deter- tion, or is made available within 30 mine which nations have registered days of a request by the Secretary to vessels that engage in fishing with produce the invoice. (iii) Certificates of Origin. A Fisheries 1 Copies of the form are available from the Certificate of Origin (NOAA Form Director, Southwest Region (see § 216.3).
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large-scale driftnets. Such determina- marine mammals, including but not tions shall be published in the FEDERAL limited to the following: REGISTER. A responsible government (i) A description of the methods used official of any such nation may certify to identify problems and to take cor- to the Assistant Administrator that rective actions to improve the perform- none of the nation’s vessels use large- ance of individual fishermen in reduc- scale driftnets. Upon receipt of the cer- ing incidental mortality and serious in- tification, the Assistant Administrator jury. By 1990 the methods must iden- may find, and publish such finding in tify individual operators with marine the FEDERAL REGISTER, that none of mammal mortality rates which are the nation’s vessels engage in fishing consistently and substantially higher with large-scale driftnets. than the majority of the nation’s fleet, (5) Yellowfin tuna. (i) Any tuna or and provide for corrective training and, tuna products in the classifications ultimately, suspension and removal listed in paragraph (e)(2)(i) of this sec- from the fishery if the operator’s per- tion, from harvesting nations whose formance does not improve to at least vessels of greater than 400 short tons the performance of the majority of the (362.8 mt) carrying capacity operate in fleet in a reasonable time period; the ETP tuna purse seine fishery as de- (ii) By 1990, a description of a regu- termined by the Assistant Adminis- latory system in operation which en- trator, may not be imported into the sures that all marine mammal sets are United States unless the Assistant Ad- completed through backdown to rolling ministrator makes an affirmative find- the net to sack-up no later than one- ing under either paragraph (e)(5)(v), half hour after sundown, except that (e)(5)(viii) or (e)(5)(x) of this section individual operators may be exempted, and publishes the finding in the FED- if they have maintained consistently a ERAL REGISTER that: rate of kill during their observed sun- down sets which is not higher than (A) The government of the harvesting that of the nation’s fleet average dur- nation has adopted a regulatory pro- ing daylight sets made during the time gram governing the incidental taking period used for their comparability of marine mammals in the course of finding; and such harvesting that is comparable to (iii) By 1990, a description of its re- the regulatory program of the United strictions on the use of explosive de- States; and vices in the purse seine fishery which (B) The average rate of incidental are comparable to those of the United mortality by the vessels of the har- States. vesting nation is comparable to the (2) A detailed description of the average rate of incidental mortality of method (e.g., Inter-American Tropical marine mammals by U.S. vessels in the Tuna Commission (IATTC) or other course of such harvesting as specified international program observer in paragraphs (e)(5)(v)(E) and records) and level of observer coverage (e)(5)(v)(F) of this section. by which the incidental mortality and (ii) A harvesting nation which desires serious injury of marine mammals will an initial finding under these regula- be monitored. tions that will allow it to import into (B) A list of its vessels and any cer- the United States those products listed tified charter vessels of greater than in paragraph (e)(2)(i) of this section 400 short tons carrying capacity which must provide the Assistant Adminis- purse seined for yellowfin tuna at any trator with the following information: time during the preceding year in the (A) A detailed description of the na- ETP, indicating the status of each such tion’s regulatory and enforcement pro- vessel during that period (i.e., actively gram governing incidental taking of fishing in ETP, fishing in other waters; marine mammals in the purse seine in port for repairs; inactive) and the fishery for yellowfin tuna, including: status of each vessel expected to oper- (1) A description, with copies of rel- ate in the ETP in the year in which the evant laws, implementing regulations submission is made. and guidelines, of the gear and proce- (C) A compilation of the best avail- dures required in the fishery to protect able data for each calendar year on the
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performance of any of its purse seine (iii) A nation applying for its initial vessels (including certified charter ves- finding of comparability should apply sels) fishing at any time for tuna asso- at least 120 days before the desired ef- ciated with marine mammals within fective date. The Assistant Administra- the ETP including the following: tor’s determination on a nation’s appli- (1) Total number of tons of yellowfin cation for its initial finding will be an- tuna observed caught in each fishing nounced and published in the FEDERAL area by purse seine sets on: REGISTER within 120 days of receipt of (i) Common dolphin and the information required in paragraph (ii) All other marine mammal spe- (e)(5)(ii) of this section. cies; (iv) A harvesting nation that has in (2) Total number of marine mammals effect a positive finding under this observed killed and the total number of section may request renewal of its find- marine mammals observed seriously ing for the following calendar year by injured in each fishing area by species/ providing the Assistant Administrator, stock by purse seine sets on: by December 1 of the current calendar (i) Common dolphin and year, an update of the information list- (ii) All other marine mammal spe- ed in § 216.24(e)(5)(ii) summarizing all cies; fishing trips completed during the 12- (3) Total number of observed trips month period from October 1 of the and total number of observed purse previous calendar year through Sep- seine sets on marine mammals in each tember 30 of the current year. fishing area by the nation’s purse seine (v) The Assistant Administrator’s de- fleet during the year; termination of a nation’s timely sub- (4) Total number of vessel trips and mitted request for renewal of an af- total number of purse seine sets on ma- firmative finding will be announced by rine mammals in each fishing area by December 31. A finding will be valid for the nation’s purse seine fleet during the calendar year following the fishing the year; and season for which observer data was (5) The total number of observed submitted for obtaining a finding. The purse seine sets in each fishing area in Assistant Administrator will make an which more than 15 marine mammals affirmative finding or renew an affirm- were killed. ative finding if: (D) Data required by paragraph (A) The harvesting nation has pro- (e)(5)(ii)(C)(2) presented individually vided all information required by para- for the following marine mammal spe- graphs (e)(5)(ii) and (e)(5)(iv) of this cies/stocks: offshore spotted dolphin, section; coastal spotted dolphin, eastern spin- (B) The nation’s regulatory program ner dolphin, whitebelly spinner dol- is comparable to the regulatory pro- phin, common dolphin, striped dolphin, gram of the United States as described and ‘‘other marine mammals’’. in paragraphs (a), (c), (d)(2), and (f) of (E) A description of the source of the this section and the nation has incor- data provided in accordance with para- porated into its regulatory program graph (e)(5)(ii)(C) of this section. The such additional prohibitions as the observer program from which these United States may apply to its own data are provided must be operated by vessels within 180 days after the prohi- the IATTC or another international bition applies to U.S. vessels; program in which the United States (C) The data on marine mammal participates and must sample at least mortality and serious injury submitted the same percentage of the fishing by the harvesting nation are deter- trips as the United States achieves mined to be accurate; over the same time period, unless the (D) The observer coverage of fishing Assistant Administrator determines trips was equal to that achieved by the that an alternative observer program, United States during the same time pe- including a lesser level of observer cov- riod or, if less, was determined by the erage, will provide a sufficiently reli- Assistant Administrator to provide a able average rate of incidental taking sufficiently accurate sample of the na- of marine mammals for the nation. tion’s fleet mortality rate;
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(E) For findings using data collected (e)(5)(v)(G) of this section, the addi- after 1988, the average kill-per-set rate tional information must include data for the longest period of time for which collected by an acceptable observer data are available, up to 5 consecutive program, which must demonstrate that years, or for the most recent year, the nation’s fleet marine mammal whichever is lower, is no more than 25 mortality rate improved to the accept- percent greater than the U.S. average able level during the period submitted for the same time period, after the U.S. for comparison, which must include, at mortality rate is weighted to account a minimum, the most recent: for dissimilar amounts of fishing effort (A) Twelve months of observer data if between the two nations in the three the species composition rate prescribed ETP fishing areas and for common dol- by paragraph (e)(5)(v)(G) of this section phin and other marine mammal spe- was not acceptable; or cies, except as provided in paragraph (B) Six months of observer data if the (e)(5)(v)(F) of this section for findings average kill-per-set rate prescribed by made in 1990; paragraph (e)(5)(v)(E) of this section (F) For determining comparability was not acceptable. where there are fewer than five sets (viii) Application for finding for non- (including no effort) on dolphin by the marine-mammal intentional sets. The As- U.S. fleet in a fishing area on a species sistant Administrator’s determination grouping that has fishing effort by the on a nation’s application for a finding foreign nation requesting a com- will be announced and published in the parability test, the mortality rates FEDERAL REGISTER. A harvesting na- used for comparability will be the tion which has implemented a regu- overall (i.e., unweighted) kill-per-set latory program that prohibits the in- rate of the U.S. fleet and of the foreign tentional setting of any purse seine net nation’s fleet. to encircle marine mammals and de- (G) For the 1989 fishing year and sub- sires an initial finding under these reg- sequent years, the nation’s observed ulations that will allow it to import kill of eastern spinner dolphin (Stenella into the United States those products longirostris) and coastal spotted dolphin (Stenella attenuata) is no greater than listed in paragraph (e)(2)(i) of this sec- 15 percent and 2 percent, respectively, tion must provide the Assistant Ad- of the nation’s total annual observed ministrator with the following: dolphin mortality; and (A) Documentary evidence establish- (H) The nation has complied with all ing that its regulatory program in- reasonable requests by the Assistant cludes: Administrator for cooperation in car- (1) A law prohibiting the intentional rying out dolphin population assess- setting of purse seine nets on marine ments in the ETP. mammals (a copy of the law must be (vi) Period of validity. A finding is submitted); valid only for the period for which it (2) A requirement that a certificate was issued and may be terminated be- from an observer be obtained within 30 fore the end of the year if the Assistant days of the completion of each and Administrator finds that the nation no every trip of the nation’s purse seine longer has a comparable regulatory vessels greater than 400 short tons program or kill rate. (362.8 mt) carrying capacity, stating (vii) Reconsideration of finding. The that the observer was aboard the vessel Assistant Administrator may recon- during the entire trip and that there sider a finding upon a request from and were no intentional purse seine sets on the submission of additional informa- marine mammals; and tion by the harvesting nation, if the in- (B) A complete list of the nation’s formation indicates that the nation vessels and any certified charter ves- has met the requirements under para- sels of greater than 400 short tons (362.8 graph (e)(5)(v) of this section. For a mt) carrying capacity which purse harvesting nation whose marine mam- seine for yellowfin tuna in the ETP, in- mal mortality rate was found to exceed dicating the status of each vessel (i.e., the acceptable levels prescribed in actively fishing in the ETP, in port for paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or repairs, etc.), and a list of changes to
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this fleet within 30 days when changes (e)(5)(viii)(A)(2) of this section; or the occur. harvesting nation is in a probationary (ix) Application for renewal of finding status in accordance with paragraph for non-marine-mammal intentional sets. (e)(5)(xi)(B)(1) of this section; and A harvesting nation, which has in ef- (C) The harvesting nation meets the fect an affirmative finding under this criteria of paragraphs (e)(5)(v)(E), and section, may request a renewal of its (e)(5)(v)(G) of this section; and finding for the subsequent calendar (D) Certificates have been provided year by providing the Assistant Admin- to the Assistant Administrator within istrator an annual report by November 30 days of the completion of each and 1, covering the previous October 1 to every trip of the nation’s purse seine September 30 period, which includes vessels greater than 400 short tons the following: (362.8 mt) carrying capacity from an (A) Vessel summary data, to include: observer approved by the Assistant Ad- (1) The total number of observed ministrator or under the direction of trips; the Inter-American Tropical Tuna (2) The percentage of all purse seine Commission, and verified by the Inter- fishing trips that carried observers American Tropical Tuna Commission, under a program approved by the As- stating that the observer was aboard sistant Administrator; the vessel during the entire trip and (3) The total number, if any, of ob- that there were no intentional purse served purse seine sets on marine mam- seine sets on marine mammals or the mals; nation received a positive reconsider- (4) A summary of the number and ation for an affirmative finding under species, if any, of all marine mammals paragraph (e)(5)(xii)(A) of this section. killed or seriously injured in inten- (xi) Probation and revocation. (A)(1) If tional purse seine sets on marine mam- it is determined that, during any trip, mals; a purse seine was intentionally set on (5) A complete list of the nation’s marine mammals, the nation will enter vessels and any certified charter ves- into a probationary status for 180 days, sels of greater than 400 short tons (362.8 effective upon the date the vessel re- mt) carrying capacity which purse turns to port to unload. seine for yellowfin tuna in the ETP, in- (2) If, during the probationary period dicating the status of each vessels as of of 180 days, there are any additional in- October 1; tentional purse seine sets made on ma- (B) A summary, which copies of rel- rine mammals, the Assistant Adminis- evant laws, of any changes in the na- trator will immediately revoke the af- tion’s laws or regulatory program re- firmative finding. garding marine mammals for the purse (B)(1) If it is determined that, during seine fishery in the ETP; and any trip, an observer is not aboard a (C) A summary of any enforcement nation’s purse seine vessel greater than actions taken to ensure compliance 400 short tons (362.8 mt) carrying ca- with the nation’s marine mammal pro- pacity fishing in the ETP, that nation tection laws. will enter into a probationary status (x) Review of finding for non-marine- for 1 year, effective upon the date the mammal intentional sets. The Assistant vessel returns to port to unload. Administrator will renew an affirma- (2) If, during the 1-year probationary tive finding obtained under paragraph period, a nation’s purse seine vessel re- (e)(5)(ix) of this section if: turns to port to unload, and it is deter- (A) The harvesting nation has pro- mined that an observer was not aboard vided all of the information required by the vessel during a trip in the ETP, the paragraph (e)(5)(ix) of this section and Assistant Administrator will imme- the conditions under which the original diately revoke an affirmative finding finding was made under paragraph made under paragraphs (e)(5)(viii) or (e)(5)(viii) of this section continue to (e)(5)(x) of this section. exist; and (xii) Reconsideration. (A) The Assist- (B) Either 100-percent observer cov- ant Administrator will reconsider a erage is provided for all purse seine revocation of an affirmative finding vessels as required by paragraph upon request from a harvesting nation
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which had its affirmative finding re- lading or in another manner that does voked under paragraph (e)(5)(xi)(A) of not enter the shipments into that na- this section if: tion as an importation do not make (1) The number of marine mammals that nation an intermediary nation. taken in purse seine nets that were in- The Assistant Administrator shall act tentionally set on marine mammals on any request to review decisions does not exceed the comparability under this paragraph (e)(5)(xiv) that standards established in paragraphs are accompanied by specific and de- (e)(5)(v)(E) and (e)(5)(v)(G) of this sec- tailed supporting information or docu- tion; and mentation, within 30 days of receipt of (2) That nation provides documen- such request. For purposes of this para- tary evidence that no additional purse graph (e)(5)(xiv), certification and rea- seines were intentionally set on marine sonable proof means the submission by mammals during the 90-day period im- a responsible government official from mediately preceding the request for re- the nation of a document reflecting the consideration. nation’s customs records for the pre- (B) A harvesting nation which has its ceding 6 months, together with a cer- affirmative finding revoked under tificate attesting that the document is paragraph (e)(5)(xi)(B) of this section accurate. or its reconsideration under paragraph (xv) Pelly certification. After 6 months (e)(5)(xii)(A) of this section denied, on an embargo being in place against a may request reconsideration for an af- nation under this section, that fact firmative finding under paragraph shall be certified to the President for (e)(5)(vii) of this section. purposes of certification under section (xiii) Verification. The Assistant Ad- 8(a) of the Fishermen’s Protective Act ministrator may require verification of of 1967 (22 U.S.C. 1978(a)) for as long as statements made in connection with the embargo is in effect. requests to allow importations. (xvi) Coordination. The Assistant Ad- (xiv) Intermediary nation. Any yellow- ministrator will promptly advise the fin tuna or yellowfin tuna products in Department of State of embargo deci- the classifications listed in paragraph sions, actions and finding determina- (e)(2)(i) of this section, from any inter- tions. mediary nation, as that term is defined in section 3 of the MMPA, may not be (6) Fish refused entry. If fish is denied imported into the United States unless entry under the provisions of the Assistant Administrator deter- § 216.24(e)(3), the District Director of Customs shall refuse to release the fish mines and publishes in the FEDERAL REGISTER that the intermediary nation for entry into the United States and has provided reasonable proof and has shall issue a notice of such refusal to certified to the United States that it the importer or consignee. has not imported, in the preceding 6 (7) [Reserved] months, yellowfin tuna or yellowfin (8) Disposition of fish refused entry into tuna products that are subject to a ban the United States; redelivered fish. Fish on direct importation into the United which is denied entry under States under section 101(a)(2)(B) of the § 216.24(e)(3) or which is delivered in ac- MMPA. A prohibition on imports under cordance with § 216.24(e)(7) and which is this paragraph may be lifted by the As- not exported under Customs super- sistant Administrator upon a deter- vision within 90 days from the date of mination announced in the FEDERAL notice of refusal of admission or date of REGISTER, based upon new information redelivery shall be disposed of under supplied by the government of the Customs laws and regulations. Provided intermediary nation, that the nation however, That any disposition shall not has not imported, in the preceding 6 result in an introduction into the months, yellowfin tuna or yellowfin United States of fish caught in viola- tuna products subject to a ban on di- tion of the Marine Mammal Protection rect imports under section 101(a)(2)(B) Act of 1972. of the MMPA. Shipments of yellowfin (9) Dolphin safe requirements. (i) It is tuna or yellowfin tuna products unlawful for any person to sell, pur- through a nation on a through bill of chase, offer for sale, transport, or ship
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in the United States, any tuna or tuna cant association occurs between ma- product that is not dolphin safe. rine mammals and tuna, and in which (ii) For purposes of this section, tuna tuna is harvested through the use of or a tuna product is dolphin safe if: purse seine nets deployed on, or to en- (A) It does not contain tuna that was circle, marine mammals, it is accom- harvested on the high seas by a vessel panied by a written statement, exe- engaged in large-scale driftnet fishing; cuted by the captain of the vessel and (B) In the case of tuna or tuna prod- by an observer, certifying that no uct that contains tuna harvested in the purse seine net was intentionally de- ETP by a purse seine vessel, either the ployed on, or to encircle, marine mam- purse seine vessel is of less than 400 mals during the particular voyage on short tons (362.8 metric tons (mt)) car- which the tuna was harvested. rying capacity or, if the purse seine (iii) Submission of documentation—(A) vessel is of 400 short tons (362.8 mt) car- Imported tuna or tuna product. The doc- rying capacity or greater, the tuna or uments required by paragraph (e)(9)(ii) tuna product is accompanied by: of this section must accompany the im- (1) A completed Fisheries Certificate ported tuna or tuna product until no of Origin; further endorsements are required on (2) A written statement by the cap- the documentation and the documents tain of each vessel that harvested the have been submitted to officials of the tuna, certifying that the vessel did not U.S. Customs Service at the time of intentionally deploy a purse seine net importation. on, or to encircle, dolphins at any time (B) U.S. domestic shipments. The docu- during the trip; a written statement, ments required by paragraph (e)(9)(ii) signed by either the Secretary or a rep- of this section must accompany tuna resentative of the Inter-American or tuna product, other than imported, Tropical Tuna Commission, certifying until no further endorsements are re- that an observer employed by or work- quired on the documentation and the ing under contract with the Inter- documents have been submitted to the American Tropical Tuna Commission Director, Southwest Region, National or the Secretary, was on board the ves- Marine Fisheries Service, 501 W. Ocean sel during the entire trip and that the vessel did not intentionally deploy a Boulevard, Suite 4200, Long Beach, CA purse seine net on, or to encircle, dol- 90802. phin at any time during the trip; and (f) Observers. (1) The vessel certificate (3) An endorsement on the Fisheries holder of any certificated vessel shall, Certificate of Origin by each exporter, upon the proper notification by the Na- importer, and processor certifying tional Marine Fisheries Service, allow that, to the best of his or her knowl- an observer duly authorized by the Sec- edge and belief, the Fisheries Certifi- retary to accompany the vessel on any cate of Origin and attached documents, or all regular fishing trips for the pur- and the statements required by this pose of conducting research and observ- paragraph (e)(9)(ii) accurately describe ing operations, including collecting in- the tuna products; formation which may be used in civil (C) In the case of tuna or a tuna prod- or criminal penalty proceedings, for- uct containing tuna harvested outside feiture actions, or permit or certificate the eastern tropical Pacific Ocean by a sanctions. purse seine vessel, it is accompanied by (2) Research and observation duties a written statement, executed by the shall be carried out in such a manner captain of the vessel, certifying that no as to minimize interference with com- purse seine net was intentionally de- mercial fishing operations. The navi- ployed on, or to encircle, dolphins dur- gator shall provide true vessel loca- ing the particular voyage on which the tions by latitude and longitude, accu- tuna was harvested; and rate to the nearest minute, upon re- (D) In the case of tuna or a tuna quest by the observer. No owner, mas- product containing tuna harvested out- ter, operator, or crew member of a cer- side the ETP by a purse seine vessel in tificated vessel shall impair or in any a fishery in which the Secretary has way interfere with the research or ob- determined that a regular and signifi- servations being carried out.
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(3) Marine mammals killed during (ii) Female observers on a vessel with fishing operations which are accessible an all-male crew must be accommo- to crewmen and requested from the dated either in a single-person cabin certificate holder or master by the ob- or, if reasonable privacy can be ensured server shall be brought aboard the ves- by installing a curtain or other tem- sel and retained for biological process- porary divider, in a two-person cabin ing, until released by the observer for shared with a licensed officer of the return to the ocean. Whole marine vessel. If the cabin assigned to a female mammals designated as biological observer does not have its own toilet specimens by the observer shall be re- and shower facilities that can be pro- tained in cold storage aboard the vessel vided for the exclusive use of the ob- until retrieved by authorized personnel server, then a schedule for time-shar- of the National Marine Fisheries Serv- ing common facilities must be estab- ice when the vessel returns to port for lished before the placement meeting unloading. and approved by NMFS and must be (4) The Secretary shall provide for followed during the entire trip. the payment of all reasonable costs di- (iii) In the event there are one or rectly related to the quartering and more female crew members, the female maintaining of such observers on board observer may be provided a bunk in a such vessels. A vessel certificate holder cabin shared solely with female crew who has been notified that the vessel is members, and provided toilet and required to carry an observer, via cer- shower facilities shared solely with tified letter from the National Marine these female crew members. Fisheries Service, shall notify the of- (7)(i) A vessel certificate of inclusion fice from which the letter was received holder (or vessel owner in the case of a at least five days in advance of the new application) may seek an exemp- fishing voyage to facilitate observer tion from carrying a female observer placement. A vessel certificate holder on a vessel by applying to the Director, who has failed to comply with the pro- Southwest Region when applying for visions of this section may not engage the vessel certificate of inclusion until in fishing operations for which a gen- July 10, 1989 and establishing the fol- eral permit is required. lowing: (5) It is unlawful for any person to (A) The vessel will have an all-male forcibly assault, impede, intimidate, crew; interfere with, or to influence or at- (B) The vessel has fewer than two pri- tempt to influence an observer, or to vate (one-person) and semi-private harass (including sexual harassment) (two-person) cabins in total (excluding an observer by conduct which has the the captain’s cabin); purpose or effect of unreasonably inter- (C) A temporary divider like a cur- fering with the observer’s work per- tain cannot be installed in the private formance, or which creates an intimi- or semi-private cabin (excluding the dating, hostile, or offensive environ- captain’s cabin) to provide reasonable ment. In determining whether conduct privacy; and constitutes harassment, the totality of (D) There are no other areas (exclud- the circumstances, including the na- ing the captain’s cabin) that can be ture of the conduct and the context in converted to a sleeping room without which it occurred, will be considered. either significant expense or signifi- The determination of the legality of a cant sacrifice to the crew’s quarters. particular action will be made from the (ii) The exclusion criteria in para- facts on a case-by-case basis. graph (f)(7)(i) of this section can be met (6)(i) All observers must be provided without having to provide the captain’s sleeping, toilet and eating accommoda- cabin for the observer. The application tions at least equal to that provided to for an exemption must also include an a full crew member. A mattress or accurate diagram of the vessel’s living futon on the floor or a cot is not ac- areas, and other areas possibly suitable ceptable in place of a regular bunk. for sleeping. Additional documentation Meal and other galley privileges must to support the application may also be be the same for the observer as for required, as may an inspection of the other crew members. vessel. The exemption, once granted, is
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valid for the same calendar year as the States before the date on which a no- vessel certificate of inclusion, and the tice is published in the FEDERAL REG- exemption must be renewed annually ISTER with respect to the designation to remain valid. The vessel certificate of the species or stock concerned as de- of inclusion holder is responsible for pleted or endangered. reporting to the Director, Southwest (c) Section 216.12(b) shall not apply to Region any changes aboard the vessel articles imported into the United within 15 days of the change which States before the effective date of the might affect the continued eligibility foreign law making the taking or sale, for an exemption. The Director, South- as the case may be, of such marine west Region will revoke an exemption mammals or marine mammal products if the criteria for an exemption are no unlawful. longer met. (g) Penalties and rewards: Any person [39 FR 1852, Jan. 15, 1974, as amended at 56 or vessel subject to the jurisdiction of FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, the United States shall be subject to 1994] the penalties provided for under the MMPA for the conduct of fishing oper- § 216.26 Collection of certain marine ations in violation of these regulations. mammal parts without prior au- thorization. The Secretary shall recommend to the Secretary of the Treasury that an Notwithstanding any other provision amount equal to one-half of the fine in- of this subpart: curred but not to exceed $2,500 be paid (a) Any bones, teeth or ivory of any to any person who furnishes informa- dead marine mammal may be collected tion which leads to a conviction for a from a beach or from land within 1⁄4 of violation of these regulations. Any offi- a mile of the ocean. The term ocean in- cer, employee, or designated agent of cludes bays and estuaries. the United States or of any State or (b) Notwithstanding the provisions of local government who furnishes in- subpart D, soft parts that are sloughed, formation or renders service in the per- excreted, or discharged naturally by a formance of his official duties shall not living marine mammal in the wild may be eligible for payment under this sec- be collected or imported for bona fide tion. scientific research and enhancement, [45 FR 72187, Oct. 31, 1980] provided that collection does not in- volve the taking of a living marine EDITORIAL NOTE: For FEDERAL REGISTER ci- tations affecting § 216.24, see the List of CFR mammal in the wild. Sections Affected in the Finding Aids sec- (c) Any marine mammal part col- tion of this volume. lected under paragraph (a) of this sec- tion or any marine mammal part col- § 216.25 Exempted marine mammals lected and imported under paragraph and marine mammal products. (b) of this section must be registered (a) The provisions of the MMPA and and identified, and may be transferred these regulations shall not apply: or otherwise possessed, in accordance (1) To any marine mammal taken be- with § 216.22(c). In registering a marine fore December 21, 1972 1, or mammal part collected or imported (2) To any marine mammal product if under paragraph (b) of this section, the the marine mammal portion of such person who collected or imported the product consists solely of a marine part must also state the scientific re- mammal taken before such date. search or enhancement purpose for (b) The prohibitions contained in which the part was collected or im- § 216.12(c) (3) and (4) shall not apply to ported. marine mammals or marine mammal (d) No person may purchase, sell or products imported into the United trade for commercial purposes any ma- rine mammal part collected or im- 1 In the context of captive maintenance of ported under this section. marine mammals, the only marine mammals exempted under this section are those that (e) The export of parts collected were actually captured or otherwise in cap- without prior authorization under tivity before December 21, 1972. paragraph (b) of this section may occur
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if consistent with the provisions at (ii) Change the date or location of re- § 216.37(d) under subpart D. lease, or the method or duration of transport prior to release; [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, (iii) Impose additional conditions to 1996] improve the likelihood of success or to monitor the success of the release; or § 216.27 Release, non-releasability, and (iv) Require other disposition of the disposition under special exception marine mammal. permits for rehabilitated marine (4) All marine mammals must be re- mammals. leased near wild populations of the (a) Release requirements. (1) Any ma- same species, and stock if known, un- rine mammal held for rehabilitation less a waiver is granted by the Re- must be released within six months of gional Director or the Office Director. capture or import unless the attending (5) All marine mammals released veterinarian determines that: must be tagged or marked in a manner (i) The marine mammal might ad- acceptable to the Regional Director or versely affect marine mammals in the the Office Director. The tag number or wild; description of the marking must be re- (ii) Release of the marine mammal to ported to the Regional Director or Of- the wild will not likely be successful fice Director following release. given the physical condition and be- (b) Non-releasability and postponed de- havior of the marine mammal; or terminations. (1) The attending veteri- narian shall provide the Regional Di- (iii) More time is needed to deter- rector or Office Director with a written mine whether the release of the marine report setting forth the basis of any de- mammal to the wild will likely be suc- termination under paragraphs (a)(1)(i) cessful. Releasability must be reevalu- through (iii) of this section. ated at intervals of no less than six months until 24 months from capture (2) Upon receipt of a report under or import, at which time there will be paragraph (b)(1) of this section, the Re- gional Director or Office Director, in a rebuttable presumption that release their sole discretion, may: into the wild is not feasible. (i) Order the release of the marine (2) The custodian of the rehabilitated mammal; marine mammal shall provide written notification prior to any release into (ii) Order continued rehabilitation the wild. for an additional 6 months; or (i) Notification shall be provided to: (iii) Order other disposition as au- thorized. (A) The NMFS Regional Director at (3) No later than 30 days after a ma- least 15 days in advance of releasing rine mammal is determined any beached or stranded marine mam- unreleasable in accordance with para- mal, unless advance notice is waived in graphs (a)(1)(i) through (iii) of this sec- writing by the Regional Director; or tion, the person with authorized cus- (B) The Office Director at least 30 tody must: days in advance of releasing any im- (i) Request authorization to retain or ported marine mammal. transfer custody of the marine mam- (ii) Notification shall include the fol- mal in accordance with paragraph (c) lowing: of this section, or; (A) A description of the marine mam- (ii) Humanely euthanize the marine mal, including its physical condition mammal or arrange any other disposi- and estimated age; tion of the marine mammal authorized (B) The date and location of release; by the Regional Director or Office Di- and rector. (C) The method and duration of (4) Notwithstanding any of the provi- transport prior to release. sions of this section, the Office Direc- (3) The Regional Director, or the Of- tor may require use of a rehabilitated fice Director as appropriate, may: marine mammal for any activity au- (i) Require additional information thorized under subpart D in lieu of ani- prior to any release; mals taken from the wild.
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(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 consist- that, the transferee may reimburse the ent 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 (i) Documentation has been submit- Committee of Scientific Advisors on ted to the Office Director that the per- Marine Mammals, and are conducted son retaining the subject animal or the pursuant to a scientific research per- person receiving custody of the subject mit. (d) Reporting. In addition to the re- animal by transfer, hereinafter referred port required under § 216.22(b), the per- to as the recipient, complies with pub- son authorized to hold marine mam- lic display requirements of 16 U.S.C. mals for rehabilitation must submit re- 1374(c)(2)(A) or, for purposes of sci- ports to the Regional Director or Office entific research and enhancement, Director regarding release or other dis- holds an applicable permit, or an appli- position. These reports must be pro- cation for such a special exception per- vided in the form and frequency speci- mit under § 216.33 or a request for a fied by the Regional Director or Office major amendment under § 216.39 has Director. been submitted to the Office Director and has been found complete; [61 FR 21933, May 10, 1996] (ii) The recipient agrees to hold the marine mammal in conformance with Subpart D—Special Exceptions all applicable requirements and stand- ards; and § 216.30 [Reserved] (iii) The recipient acknowledges that the marine mammal is subject to sei- § 216.31 Definitions. zure by the Office Director: For the purpose of this subpart, the (A) If, at any time pending issuance definitions set forth in 50 CFR part 217 of the major amendment or permit, the shall apply to all threatened and en- Office Director determines that seizure dangered marine mammals, unless a
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more restrictive definition exists under (c) Initial review. (1) NMFS will notify the MMPA or part 216. the applicant of receipt of the applica- tion. [61 FR 21935, May 10, 1996] (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 part. (b) All marine mammals and marine (iii) If the proposed activity is for en- mammal parts that are listed as hancement purposes, whether the spe- threatened or endangered under the cies or stock identified in the applica- ESA. tion is in need of enhancement for its survival or recovery and whether the [61 FR 21935, May 10, 1996] proposed activity will likely succeed in § 216.33 Permit application submis- its objectives. sion, review, and decision proce- (iv) Whether the activities proposed dures. are to be conducted consistent with the (a) Application submission. Persons permit restrictions and permit specific seeking a special exemption permit conditions as described in § 216.35 and under this subpart must submit an ap- § 216.36(a). plication to the Office Director. The (v) Whether sufficient information is application must be signed by the ap- included regarding the environmental plicant, and provide in a properly for- impact of the proposed activity to en- matted manner all information nec- able the Office Director: essary to process the application. Writ- (A) To make an initial determination ten instructions addressing informa- under the National Environmental Pol- tion requirements and formatting may icy Act (NEPA) as to whether the pro- be obtained from the Office Director posed activity is categorically excluded upon request. from preparation of further environ- (b) Applications to export living marine mental documentation, or whether the mammals. For applicants seeking a spe- preparation of an environmental as- cial exception permit to export living sessment (EA) or environmental im- marine mammals, the application pact statement (EIS) is appropriate or must: necessary; and (1) Be submitted through the Conven- (B) To prepare an EA or EIS if an ini- tion on International Trade in Endan- tial determination is made by the Of- gered Fauna and Flora management fice Director that the activity proposed authority of the foreign government is not categorically excluded from such or, if different, the appropriate agency requirements. or agencies of the foreign government (3) The Office Director may consult that exercises oversight over marine with the Marine Mammal Commission mammals. (Commission) and its Committee of (2) Include a certification from the Scientific Advisors on Marine Mam- foreign government that: mals (Committee) in making these ini- (i) The information set forth in the tial, and any subsequent, determina- application is accurate; tions. (ii) The laws and regulations of the (4) Incomplete applications will be foreign governmentinvolved allow en- returned with explanation. If the appli- forcement of the terms and conditions cant fails to resubmit a complete appli- of the permit, and that the foreign gov- cation or correct the identified defi- ernment will enforce all terms and con- ciencies within 60 days, the application ditions; and will be deemed withdrawn. Applica- (iii) The foreign government involved tions that propose activities inconsist- will afford comity to any permit ent with this subpart will be returned amendment, modification, suspension with explanation, and will not be con- or revocation decision. sidered further.
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(d) Notice of receipt and application re- will be published in the FEDERAL REG- view. (1) Upon receipt of a valid, com- ISTER not less than 15 days in advance plete application, and the preparation of the public hearing. Any interested of any NEPA documentation that has person may appear in person or been determined initially to be re- through representatives and may sub- quired, the Office Director will publish mit any relevant material, data, views, a notice of receipt in the FEDERAL REG- or comments. A summary record of the ISTER. The notice will: hearing will be kept. (i) Summarize the application, in- (6) The Office Director may extend cluding: the period during which any interested (A) The purpose of the request; party may submit written comments. (B) The species and number of marine Notice of the extension must be pub- mammals; lished in the FEDERAL REGISTER within (C) The type and manner of special 60 days of publication of the notice of exception activity proposed; receipt in the FEDERAL REGISTER. (D) The location(s) in which the ma- (7) If, after publishing a notice of re- rine mammals will be taken, from ceipt, the Office Director determines which they will be imported, or to on the basis of new information that an which they will be exported; and EA or EIS must be prepared, the Office (E) The requested period of the per- Director must deny the permit unless mit. an EA is prepared with a finding of no (ii) List where the application is significant impact. If a permit is de- available for review. nied under these circumstances the ap- (iii) Invite interested parties to sub- plication may be resubmitted with in- mit written comments concerning the formation sufficient to prepare an EA application within 30 days of the date or EIS, and will be processed as a new of the notice. application. (iv) Include a NEPA statement that (e) Issuance or denial procedures. (1) an initial determination has been made Within 30 days of the close of the pub- that the activity proposed is categori- lic hearing or, if no public hearing is cally excluded from the requirement to held, within 30 days of the close of the prepare an EA or EIS, that an EA was public comment period, the Office Di- prepared resulting in a finding of no rector will issue or deny a special ex- significant impact, or that a final EIS ception permit. has been prepared and is available for (2) The decision to issue or deny a review. permit will be based upon: (2) The Office Director will forward a copy of the complete application to the (i) All relevant issuance criteria set Commission for comment. If no com- forth at § 216.34; ments are received within 45 days (or (ii) All purpose-specific issuance cri- such longer time as the Office Director teria as appropriate set forth at § 216.41, may establish) the Office Director will § 216.42, and § 216.43; consider the Commission to have no (iii) All comments received or views objection to issuing a permit. solicited on the permit application; (3) The Office Director may consult and with any other person, institution, or (iv) Any other information or data agency concerning the application. that the Office Director deems rel- (4) Within 30 days of publication of evant. the notice of receipt in the FEDERAL (3) If the permit is issued, upon re- REGISTER, any interested party may ceipt, the holder must date and sign submit written comments or may re- the permit, and return a copy of the quest a public hearing on the applica- original to the Office Director. The tion. permit shall be effective upon the per- (5) If the Office Director deems it ad- mit holder’s signing of the permit. In visable, the Office Director may hold a signing the permit, the holder: public hearing within 60 days of publi- (i) Agrees to abide by all terms and cation of the notice of receipt in the conditions set forth in the permit, and FEDERAL REGISTER. Notice of the date, all restrictions and relevant regula- time, and place of the public hearing tions under this subpart; and
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(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 consist- Director shall be published in the FED- ent 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 to accomplish successfully the objec- and policy set forth in section 2 of the tives and activities stated in the appli- ESA. cation; (5) If the permit is denied, the Office (6) If a live animal will be held cap- Director shall provide the applicant tive or transported, the applicant’s with an explanation for the denial. qualifications, facilities, and resources (6) Under the MMPA, the Office Di- are adequate for the proper care and rector may issue a permit for scientific maintenance of the marine mammal; research before the end of the public and comment period if delaying issuance (7) Any requested import or export could result in injury to a species, will not likely result in the taking of stock, or individual, or in loss of marine mammals or marine mammal unique research opportunities. The Of- parts beyond those authorized by the fice Director also may waive the 30-day permit. comment period required under the (b) The opinions or views of scientists ESA in an emergency situation where or other persons or organizations the health or life of an endangered or knowledgeable of the marine mammals threatened marine mammal is threat- that are the subject of the application ened and no reasonable alternative is or of other matters germane to the ap- available. If a permit is issued under plication will be considered. these circumstances, notice of such issuance before the end of the comment [61 FR 21936, May 10, 1996] period shall be published in the FED- § 216.35 Permit restrictions. ERAL REGISTER within 10 days of issuance. The following restrictions shall apply (7) The applicant or any party op- to all permits issued under this sub- posed to a permit may seek judicial re- part: view of the terms and conditions of (a) The taking, importation, export, such permit or of a decision to deny or other permitted activity involving such permit. Review may be obtained marine mammals and marine mammal by filing a petition for review with the parts shall comply with the regulations appropriate U.S. District Court as pro- of this subpart. vided for by law. (b) The maximum period of any spe- cial exception permit issued, or any [61 FR 21935, May 10, 1996] major amendment granted, is five years from the effective date of the § 216.34 Issuance criteria. permit or major amendment. In ac- (a) For the Office Director to issue cordance with the provisions of § 216.39, any permit under this subpart, the ap- the period of a permit may be extended plicant must demonstrate that: by a minor amendment up to 12 months
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beyond that established in the original ity, when the marine mammal is in permit. transit incidental to such activity, and (c) Except as provided for in whenever marine mammals or marine § 216.41(c)(1)(v), marine mammals or mammal parts are in the possession of marine mammal parts imported under the permit holder or agent. A copy of the authority of a permit must be the permit shall be affixed to any con- taken or imported in a humane man- tainer, package, enclosure, or other ner, and in compliance with the Acts means of containment, in which the and any applicable foreign law. Impor- marine mammals or marine mammal tation of marine mammals and marine parts are placed for purposes of transit, mammal parts is subject to the provi- supervision, or care. For marine mam- sions of 50 CFR part 14. mals held captive and marine mammal (d) The permit holder shall not take parts in storage, a copy of the permit from the wild any marine mammal shall be kept on file in the holding or which at the time of taking is either storage facility. 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 (f) The permit holder is responsible which they may be imported, or to for all activities of any individual who which they may be exported, as appli- is operating under the authority of the cable, and, for endangered or threat- permit; ened marine mammal species to be im- (g) Individuals conducting activities ported or exported, the port of entry or authorized under the permit must pos- export; sess qualifications commensurate with (iv) The period during which the per- their duties and responsibilities, or mit is valid. must be under the direct supervision of (2) [Reserved] a person with such qualifications; (b) Other conditions. In addition to (h) Persons who require state or Fed- the specific conditions imposed pursu- eral licenses to conduct activities au- ant to paragraph (a) of this section, the thorized under the permit must be duly Office Director shall specify any other licensed when undertaking such activi- permit conditions deemed appropriate. ties; (i) Special exception permits are not [61 FR 21937, May 10, 1996] transferable or assignable to any other person, and a permit holder may not § 216.37 Marine mammal parts. require any direct or indirect com- With respect to marine mammal pensation from another person in re- parts acquired by take or import au- turn for requesting authorization for thorized under a permit issued under such person to conduct the taking, im- this subpart: port, or export activities authorized (a) Marine mammal parts are under the subject permit; transferrable if: (j) The permit holder or designated (1) The person transferring the part agent shall possess a copy of the per- receives no remuneration of any kind mit when engaged in a permitted activ- for the marine mammal part;
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(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- (1) Maintained as part of a properly sistent with the requirements of para- curated, professionally accredited col- graphs (a)(1) and (a)(3) through (6) of lection; or this section. (2) Made available for purposes of sci- (3) The marine mammal part is trans- entific research or enhancement at the ferred for the purpose of scientific re- request of the Office Director. search, maintenance in a properly (d) Marine mammal parts may be ex- curated, professionally accredited sci- ported and subsequently reimported by entific collection, or education, pro- a permit holder or subsequent author- vided that, for transfers for edu- ized recipient, for the purpose of sci- cational purposes, the recipient is a entific research, maintenance in a museum, educational institution or properly curated, professionally ac- equivalent that will ensure that the credited scientific collection, or edu- part is available to the public as part cation, provided that: of an educational program; (1) The permit holder or other person (4) A unique number assigned by the receives no remuneration for the ma- permit holder is marked on or affixed rine mammal part; to the marine mammal part or con- (2) A unique number assigned by the tainer; permit holder is marked on or affixed (5) The person receiving the marine to the marine mammal specimen or mammal part agrees that, as a condi- container; tion of receipt, subsequent transfers (3) The marine mammal part is ex- may only occur subject to the provi- ported or reimported in compliance sions of paragraph (a) of this section; with all applicable domestic and for- and eign laws; (6) Within 30 days after the transfer, (4) If exported or reimported for edu- the person transferring the marine cational purposes, the recipient is a mammal part notifies the Regional Di- museum, educational institution, or rector of the transfer, including a de- equivalent that will ensure that the scription of the part, the person to part is available to the public as part whom the part was transferred, the of an educational program; and purpose of the transfer, certification (5) Special reports are submitted that the recipient has agreed to comply within 30 days after both export and re- with the requirements of paragraph (a) import as required by the Office Direc- of this section for subsequent transfers, tor under § 216.38. and, if applicable, the recipient’s per- mit number. [61 FR 21937, May 10, 1996]
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§ 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) Major amendments. The provisions of § 216.39 Permit amendments. § 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 [61 FR 21937, May 10, 1996] impact; (iii) The location(s) in which the ma- § 216.40 Penalties and permit sanc- rine mammals may be taken, from tions. which they may be imported, and to (a) Any person who violates any pro- which they may be exported, as appli- vision of this subpart or permit issued cable; and thereunder is subject to civil and (iv) The duration of the permit, if the criminal penalties, permit sanctions proposed extension would extend the and forfeiture as authorized under the duration of the permit more than 12 Acts, and 15 CFR part 904. months beyond that established in the (b) All special exception permits are original permit. subject to suspension, revocation, (2) A minor amendment means any modification and denial in accordance amendment that does not constitute a with the provisions of subpart D of 15 major amendment. CFR part 904. (b) Amendment requests and proposals. (1) Requests by a permit holder for an [61 FR 21938, May 10, 1996] amendment must be submitted in writ- ing and include the following: § 216.41 Permits for scientific research (i) The purpose and nature of the and enhancement. amendment; In addition to the requirements (ii) Information, not previously sub- under §§ 216.33 through 216.38, permits mitted as part of the permit applica- for scientific research and enhance- tion or subsequent reports, necessary ment are governed by the following re- to determine whether the amendment quirements: satisfies all issuance criteria set forth (a) Applicant. (1) For each application at § 216.34, and, as appropriate, § 216.41, submitted under this section, the appli- § 216.42, and § 216.43. cant shall be the principal investigator
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responsible for the overall research or (A) Contribute to fulfilling a research enhancement activity. If the research need or objective identified in a species or enhancement activity will involve a recovery or conservation plan, or if periodic change in the principal inves- there is no conservation or recovery tigator or is otherwise controlled by plan in place, a research need or objec- and dependent upon another entity, the tive identified by the Office Director in applicant may be the institution, gov- stock assessments established under ernmental entity, or corporation re- section 117 of the MMPA; sponsible for supervision of the prin- (B) Contribute significantly to under- cipal investigator. standing the basic biology or ecology (2) For any scientific research involv- of the species or stock, or to identify- ing captive maintenance, the applica- ing, evaluating, or resolving conserva- tion must include supporting docu- tion problems for the species or stock; mentation from the person responsible or for the facility or other temporary en- (C) Contribute significantly to fulfill- closure. ing a critically important research (b) Issuance Criteria. For the Office need. Director to issue any scientific re- (6) For proposed enhancement activi- search or enhancement permit, the ap- ties: plicant must demonstrate that: (i) Only living marine mammals and (1) The proposed activity furthers a marine mammal parts necessary for bona fide scientific or enhancement enhancement of the survival, recovery, purpose; or propagation of the affected species (2) If the lethal taking of marine or stock may be taken, imported, ex- mammals is proposed: ported, or otherwise affected under the (i) Non-lethal methods for conducting authority of an enhancement permit. the research are not feasible; and Marine mammal parts would include in 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 contrib- search need. ute significantly to maintaining or in- (3) Any permanent removal of a ma- creasing distribution or abundance, en- rine mammal from the wild is consist- hancing the health or welfare of the ent with any applicable quota estab- species or stock, or ensuring the sur- lished by the Office Director. vival or recovery of the affected species (4) The proposed research will not or stock in the wild. likely have significant adverse effects (iii) The activity is consistent with: on any other component of the marine (A) An approved conservation plan ecosystem of which the affected species developed under section 115(b) of the or stock is a part. MMPA or recovery plan developed (5) For species or stocks designated under section 4(f) of the ESA for the or proposed to be designated as de- species or stock; or pleted, or listed or proposed to be listed (B) If there is no conservation or re- as endangered or threatened: covery plan, with the Office Director’s (i) The proposed research cannot be evaluation of the actions required to accomplished using a species or stock enhance the survival or recovery of the that is not designated or proposed to be species or stock in light of the factors designated as depleted, or listed or pro- that would be addressed in a conserva- posed to be listed as threatened or en- tion or recovery plan. dangered; (iv) An enhancement permit may au- (ii) The proposed research, by itself thorize the captive maintenance of a or in combination with other activities marine mammal from a threatened, en- will not likely have a long-term direct dangered, or depleted species or stock or indirect adverse impact on the spe- only if the Office Director determines cies or stock; that: (iii) The proposed research will ei- (A) The proposed captive mainte- ther: nance will likely contribute directly to
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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, provid- (iv) Personnel involved in research ing necessary biological information, activities shall be reasonable in num- or establishing animal reserves re- ber and limited to: quired to support directly these objec- (A) Individuals who perform a func- tives; 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 (vi) The Office Director may author- (C) Are conducted in a manner con- ize non-intrusive scientific research to sistent with provisions applicable to be conducted while a marine mammal public display, unless exceptions are is held under the authority of an en- specifically authorized by the Office hancement permit, only if such sci- Director. entific research: (vii) Any activity conducted inciden- (A) Is incidental to the permitted en- tal to the authorized scientific re- hancement activities; and search activity must not involve any (B) Will not interfere with the attain- taking of marine mammals beyond ment of the survival or recovery objec- what is necessary to conduct the re- tives. search (i.e., educational and commer- (c) Restrictions. (1) The following re- cial photography). strictions apply to all scientific re- (2) Any marine mammal or progeny search permits issued under this sub- held in captive maintenance under an part: enhancement permit shall be returned (i) Research activities must be con- to its natural habitat as soon as fea- ducted in the manner authorized in the sible, consistent with the terms of the permit. enhancement permit and the objectives (ii) Research results shall be pub- of an approved conservation or recov- lished or otherwise made available to ery plan. In accordance with section the scientific community in a reason- 10(j) of the ESA, the Office Director able period of time. may authorize the release of any popu- (iii) Research activities must be con- lation of an endangered or threatened ducted under the direct supervision of species outside the current range of
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such species if the Office Director de- ized under the permit involves such termines that such release will further Level B harassment of marine mam- the conservation of such species. mals or marine mammal stocks, and [61 FR 21938, May 10, 1996] they comply with the terms and condi- tions of that permit. § 216.42 Photography. [Reserved] (2) Except as provided under para- graph (a)(1)(ii) of this section, no tak- § 216.43 Public display. [Reserved] ing, including harassment, of marine mammals listed as threatened or en- § 216.44 Applicability/transition. dangered under the ESA is authorized (a) General. The regulations of this under the General Authorization. Ma- subpart are applicable to all persons, rine mammals listed as endangered or including persons holding permits or threatened under the ESA may be other authorizing documents issued be- taken for purposes of scientific re- fore June 10, 1996, by NMFS for the search only after issuance of a permit take, import, export, or conduct of any for such activities pursuant to the otherwise prohibited activity involving ESA. a marine mammal or marine mammal (3) The following types of research part for special exception purposes. activities will likely qualify for inclu- (b) Scientific research. Any intrusive sion under the General Authorization: research as defined in § 216.3, initiated Photo-identification studies, behav- after June 10, 1996, must be authorized 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- tive marine mammals held for public tudes of less than 1,000 ft). display purposes prior to June 10, 1996, (b) Letter of intent. Except as provided must be authorized under a scientific under paragraph (a)(1)(ii) of this sec- research permit one year after June 10, tion, any person intending to take ma- 1996. rine mammals in the wild by Level B harassment for purposes of bona fide [61 FR 21939, May 10, 1996] scientific research under the General § 216.45 General Authorization for Authorization must submit, at least 60 Level B harassment for scientific days before commencement of such re- research. search, a letter of intent by certified (a) General Authorization. (1) Persons return/receipt mail to the Chief, Per- are authorized under section mits Division, F/PR1, Office of Pro- 104(c)(3)(C) of the MMPA to take ma- tected Resources, NMFS, 1335 East- rine mammals in the wild by Level B West Highway, Silver Spring, MD harassment, as defined in § 216.3, for 20910–3226. purposes of bona fide scientific re- (1) The letter of intent must be sub- search Provided, That: mitted by the principal investigator (i) They submit a letter of intent in (who shall be deemed the applicant). accordance with the requirements of For purposes of this section, the prin- paragraph (b) of this section, receive cipal investigator is the individual who confirmation that the General Author- is responsible for the overall research ization applies in accordance with project, or the institution, govern- paragraph (c) of this section, and com- mental entity, or corporation respon- ply with the terms and conditions of sible for supervision of the principal in- paragraph (d) of this section; or vestigator. (ii) If such marine mammals are list- (2) The letter of intent must include ed as endangered or threatened under the following information: the ESA, they have been issued a per- (i) The name, address, telephone mit under Section 10(a)(1)(A) of the number, qualifications and experience ESA and implementing regulations at of the applicant and any co-investiga- 50 CFR parts 217–227, particularly at tor(s) to be conducting the proposed re- § 222.23 through § 222.28, to take marine search, and a curriculum vitae for mammals in the wild for the purpose of each, including a list of publications by scientific research, the taking author- each such investigator relevant to the
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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 ter of intent; names) that are the subject of the sci- (ii) Notifying the applicant that all entific research and any other species or part of the research described in the or stock of marine mammals that may letter of intent is likely to result in a be harassed during the conduct of the taking of a marine mammal in the wild research; involving other than Level B harass- (iii) The geographic location(s) in ment and, as a result, cannot be con- which the research is to be conducted, ducted under the General Authoriza- e.g., geographic name or lat./long.; tion, and that a scientific research per- (iv) The period(s) of time over which mit is required to conduct all or part of the research will be conducted (up to the subject research; or five years), including the field sea- (iii) Notifying the applicant that the son(s) for the research, if applicable; letter of intent fails to provide suffi- (v) The purpose of the research, in- cient information and providing a de- cluding a description of how the pro- scription of the deficiencies, or notify- posed research qualifies as bona fide re- ing the applicant that the proposed re- search as defined in § 216.3; and search as described in the letter of in- (vi) The methods to be used to con- tent is not bona fide research as de- duct the research. fined in § 216.3. (3) The letter of intent must be (2) A copy of each letter of intent and signed, dated, and certified by the ap- letter confirming that the General Au- plicant as follows: thorization applies or notifying the ap- In accordance with section 104(c)(3)(C) of plicant that it does not apply will be the Marine Mammal Protection Act of 1972, forwarded to the Marine Mammal Com- as amended (16 U.S.C. 1361 et seq.) and imple- mission. menting regulations (50 CFR part 216), I (3) Periodically, NMFS will publish a hereby notify the National Marine Fisheries Service of my intent to conduct research in- summary document in the FEDERAL volving only Level B harassment on marine REGISTER notifying the public of let- mammals in the wild, and request confirma- ters of confirmation issued. tion that the General Authorization for (d) Terms and conditions. Persons Level B Harassment for Scientific Research issued letters of confirmation in ac- applies to the proposed research as described cordance with paragraph (c) of this sec- herein. I certify that the information in this tion are responsible for complying with letter of intent is complete, true, and correct to the best of my knowledge and belief, and the following terms and conditions: I understand that any false statement may (1) Activities are limited to those subject me to the criminal penalties of 18 conducted for the purposes, by the U.S.C. 1001, or penalties under the MMPA means, in the locations, and during the and implementing regulations. I acknowl- periods of time described in the letter edge and accept that authority to conduct of intent and acknowledged as author- scientific research on marine mammals in the wild under the General Authorization is ized under the General Authorization a limited conditional authority restricted to in the confirmation letter sent pursu- Level B harassment only, and that any other ant to paragraph (c) of this section; take of marine mammals, including the con- (2) Annual reports of activities con- duct of any activity that has the potential to ducted under the General Authoriza- injure marine mammals (i.e., Level A harass- tion must be submitted to the Chief, ment), may subject me to penalties under Permits Division (address listed in the MMPA and implementing regulations. paragraph (b) of this section) within 90 (c) Confirmation that the General Au- days of completion of the last field sea- thorization applies or notification of per- son(s) during the calendar year or, if mit requirement. the research is not conducted during a (1) Not later than 30 days after re- defined field season, no later than 90 ceipt of a letter of intent as described days after the anniversary date of the in paragraph (b) of this section, the letter of confirmation issued under Chief, Permits Division, NMFS will paragraph (c) of this section. Annual issue a letter to the applicant either: reports must include:
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(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, directly supportive of and necessary for educational, or commercial uses of the the research being conducted, or be one images, and if there are any such uses, of a reasonable number of support per- the names of all photographers; and sonnel included for the purpose of training or as back-up personnel; (9) Persons conducting scientific re- (5) The principal investigator must search under authority of the General notify the appropriate Regional Direc- Authorization may not transfer or as- tor, NMFS, (Regional Director) in writ- sign any authority granted thereunder ing at least 2 weeks before initiation of to any other person. on-site activities. The Regional Direc- (e) Suspension, revocation, or modifica- tor shall consider this information in tion. (1) NMFS may suspend, revoke, or efforts to coordinate field research ac- modify the authority to conduct sci- tivities to minimize adverse impacts entific research under the General Au- on marine mammals in the wild. The thorization if: principal investigator must cooperate (i) The letter of intent included false with coordination efforts by the Re- information or statements of a mate- gional Director in this regard; rial nature; (6) If research activities result in a (ii) The research does not constitute taking which exceeds Level B harass- bona fide scientific research; ment, the applicant shall: (iii) Research activities result in (i) Report the taking within 12 hours takings of marine mammals other than to the Director, Office of Protected Re- by Level B harassment; sources, or his designee as set forth in (iv) Research activities differ from the letter authorizing research; and those described in the letter of intent (ii) Temporarily discontinue for 72 submitted by the applicant and letter hours all field research activities that of confirmation issued by NMFS; or
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(v) The applicant violates any term Subpart F—Pribilof Islands, Taking or condition set forth in this section. for Subsistence Purposes (2) Any suspension, revocation, or modification is subject to the require- § 216.71 Allowable take of fur seals. ments of 15 CFR part 904. Pribilovians may take fur seals on [59 FR 50376, Oct. 3, 1994] the Pribilof Islands if such taking is (a) For subsistence uses, and §§ 216.46–216.49 [Reserved] (b) Not accomplished in a wasteful manner. Subpart E—Designated Ports [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.50 Importation at designated ports. § 216.72 Restrictions on taking. (a) Any marine mammal or marine (a) The harvests of seals on St. Paul mammal product which is subject to and St. George Islands shall be treated the jurisdiction of the National Marine independently for the purposes of this Fisheries Service, National Oceanic section. Any suspension, termination, and Atmospheric Administration, De- or extension of the harvest is applica- partment of Commerce and is intended ble only to the island for which it is for importation into the United States issued. shall be subject to the provisions of 50 (b) By April 1 of every third year, be- CFR part 14. ginning April 1994, the Assistant Ad- (b) For the information of importers, ministrator will publish in the FED- designated ports of entry for the ERAL REGISTER a summary of the pre- United States are: ceding 3 years of harvesting and a dis- cussion of the number of seals expected New York, N.Y. to be taken annually over the next 3 Miami, Fla. years to satisfy the subsistence re- Chicago, Ill. quirements of each island. This discus- San Francisco, Calif. sion will include an assessment of fac- Los Angeles, Calif. tors and conditions on St. Paul and St. New Orleans, La. George Islands that influence the need Seattle, Wash. by Pribilof Aleuts to take seals for sub- Honolulu, Hi. sistence uses and an assessment of any (c) Additionally, marine mammals or changes to those conditions indicating marine mammal products which are that the number of seals that may be entered into Alaska, Hawaii, Puerto taken for subsistence each year should Rico, Guam, American Samoa or the be made higher or lower. Following a Virgin Islands and which are not to be 30-day public comment period, a final notification of the expected annual forwarded or transhipped within the harvest levels for the next 3 years will United States may be imported be published. through the following ports: (c)(1) No fur seal may be taken on the Alaska—Juneau, Anchorage, Fairbanks Pribilof Islands before June 23 of each Hawaii—Honolulu year. Puerto Rico—San Juan (2) No fur seal may be taken except Guam—Honolulu, Hi. by experienced sealers using the tradi- American Samoa—Honolulu, Hi. tional harvesting methods, including Virgin Islands—San Juan, P.R. stunning followed immediately by (d) Importers are advised to see 50 exsanguination. The harvesting meth- od shall include organized drives of CFR part 14 for importation require- subadult males to killing fields unless ments and information. it is determined by the NMFS rep- [39 FR 1852, Jan. 15, 1974. Redesignated at 59 resentatives, in consultation with the FR 50376, Oct. 3, 1994] Pribilovians conducting the harvest,
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that alternative methods will not re- (3) A suspension issued in accordance sult in increased disturbance to the with paragraph (e)(1)(iii) of this section rookery or the increased accidental may not exceed 48 hours in duration take of female seals. and shall be followed immediately by a (3) Any taking of adult fur seals or review of the harvest data to determine pups, or the intentional taking of if a finding under paragraph (e)(1)(i) of subadult female fur seals is prohibited. this section is warranted. If a the har- (4) Only subadult male fur seals 124.5 vest is not suspended under paragraph centimeters or less in length may be (e)(1)(i) of this section, the Assistant taken. Administrator must provide a revised (5) Seals with tags and/or entangling estimate of the number of seals re- debris may only be taken if so directed quired to satisfy the Pribilovians’ sub- by NMFS scientists. sistence needs. (d) The scheduling of the harvest is (f) The Assistant Administrator shall at the discretion of the Pribilovians, terminate the take provided for in § 215.31 on August 8 of each year or but must be such as to minimize stress when it is determined under paragraph to the harvested seals. The (e)(1)(i) of this section that the subsist- Pribilovians must give adequate ad- ence needs of the Pribilovians on the vance notice of their harvest schedules island have been satisfied, whichever to the NMFS representatives to allow occurs first. for necessary monitoring activities. Scheduling must be consistent with the [51 FR 24840, July 9, 1986, as amended at 57 following restrictions: FR 33902, July 31, 1992; 59 FR 35474, July 12, (1) St. Paul Island—Seals may only be 1994. Redesignated at 61 FR 11750, Mar. 22, 1996] harvested from the following haulout areas: Zapadni, English Bay, Northeast § 216.73 Disposition of fur seal parts. Point, Polovina, Lukanin, Kitovi, and Except for transfers to other Alaskan Reef. No haulout area may be har- Natives for barter or sharing for per- vested more than once per week. sonal or family consumption, no part (2) St. George Island—Seals may only of a fur seal taken for subsistence uses be harvested from the following may be sold or otherwise transferred to haulout areas: Northeast and Zapadni. any person unless it is a nonedible by- Neither haulout area may be harvested product which: more than twice per week. (a) Has been transformed into an ar- (e)(1) The Assistant Administrator is ticle of handicraft, or required to suspend the take provided (b) Is being sent by an Alaskan Na- for in § 215.31 when: tive directly, or through a registered (i) He determines, after reasonable agent, to a tannery registered under 50 notice by NMFS representatives to the CFR 216.23(c) for the purpose of proc- Pribilovians on the island, that the essing, and will be returned directly to subsistence needs of the Pribilovians the Alaskan Native for conversion into on the island have been satisfied; an article of handicraft, or or (c) Is being sold or transferred to an (ii) He determines that the harvest is Alaskan Native, or to an agent reg- otherwise being conducted in a waste- istered under 50 CFR 216.23(c) for resale ful manner; or or transfer to an Alaskan Native, who (iii) The lower end of the range of the will convert the seal part into a handi- estimated subsistence level provided in craft. the notice issued under paragraph (b) [51 FR 24840, July 9, 1986. Redesignated at 61 of this section is reached. FR 11750, Mar. 22, 1996] (2) A suspension based on a deter- mination under paragraph (e)(1)(ii) of § 216.74 Cooperation with Federal offi- this section may be lifted by the As- cials. sistant Administrator if he finds that Pribilovians who engage in the har- the conditions which led to the deter- vest of seals are required to cooperate mination that the harvest was being with scientists engaged in fur seal re- conducted in a wasteful manner have search on the Pribilof Islands who may been remedied. need assistance in recording tag or
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other data and collecting tissue or § 216.84 [Reserved] other fur seal samples for research pur- poses. In addition, Pribilovians who § 216.85 Walrus and Otter Islands. take fur seals for subsistence uses By Executive Order 1044, dated Feb- must, consistent with 5 CFR ruary 27, 1909, Walrus and Otter Islands 1320.7(k)(3), cooperate with the NMFS were set aside as bird reservations. All representatives on the Pribilof Islands persons are prohibited to land on these who are responsible for compiling the islands except those authorized by the following information on a daily basis: appropriate representative of the Na- (a) The number of seals taken each tional Marine Fisheries Service. day in the subsistence harvest, [41 FR 49488, Nov. 9, 1976. Redesignated at 61 (b) The extent of the utilization of FR 11750, Mar. 22, 1996] fur seals taken, and (c) Other information determined by § 216.86 Local regulations. the Assistant Administrator to be nec- Local regulations will be published essary for determining the subsistence from time to time and will be brought needs of the Pribilovians or for making to the attention of local residents and determinations under § 215.32(e). persons assigned to duty on the Islands by posting in public places and brought [51 FR 24840, July 9, 1986. Redesignated at 61 to the attention of tourists by personal FR 11750, Mar. 22, 1996] notice. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 Subpart G—Pribilof Islands FR 11750, Mar. 22, 1996] Administration § 216.87 Wildlife research. § 216.81 Visits to fur seal rookeries. (a) Wildlife research, other than re- From June 1 to October 15 of each search on North Pacific fur seals, in- year, no person, except those author- cluding specimen collection, may be ized by a representative of the National permitted on the Pribilof Islands sub- Marine Fisheries Service, or accom- ject to the following conditions: panied by an authorized employee of (1) Any person or agency, seeking to the National Marine Fisheries Service, conduct such research shall first obtain shall approach any fur seal rookery or any Federal or State of Alaska permit hauling grounds nor pass beyond any required for the type of research in- volved. posted sign forbidding passage. (2) Any person seeking to conduct [41 FR 49488, Nov. 9, 1976. Redesignated at 61 such research shall obtain prior ap- FR 11750, Mar. 22, 1996] proval of the Director, Pribilof Islands Program, National Marine Fisheries § 216.82 Dogs prohibited. Service, National Oceanic and Atmos- In order to prevent molestation of fur pheric Administration, 1700 Westlake seal herds, the landing of any dogs at Avenue North, Seattle, WA 98109, by Pribilof Islands is prohibited. filing with the Director an application which shall include: [41 FR 49488, Nov. 9, 1976. Redesignated at 61 (i) Copies of the required Federal and FR 11750, Mar. 22, 1996] State of Alaska permits; and (ii) A resume of the intended research § 216.83 Importation of birds or mam- program. mals. (3) All approved research shall be No mammals or birds, except house- subject to all regulations and adminis- hold cats, canaries and parakeets, shall trative procedures in effect on the be imported to the Pribilof Islands Pribilof Islands, and such research without the permission of an author- shall not commence until approval ized representative of the National Ma- from the Director is received. rine Fisheries Service. (4) Any approved research program shall be subject to such terms and con- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 ditions as the Director, Pribilof Islands FR 11750, Mar. 22, 1996] Program deems appropriate.
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(5) Permission to utilize the Pribilof sel 400 short tons (362.8 metric tons) Islands to conduct an approved re- carrying capacity or greater, must be search program may be revoked by the accompanied by: Director, Pribilof Islands Program at (a) A completed Fisheries Certificate any time for noncompliance with any of Origin; terms and conditions, or for violations (b) A written statement by the cap- of any regulation or administrative tain of each vessel that harvested the procedure in effect on the Pribilof Is- tuna, certifying that the vessel did not lands. intentionally deploy a purse seine net on or to encircle dolphins at any time [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] during the trip; (c) A written statement certifying that an observer, employed by or work- Subpart H—Dolphin Safe Tuna ing under contract with the Inter- Labeling American Tropical Tuna Commission or the Secretary, was on board the ves- AUTHORITY: 16 U.S.C. 1385. sel during the entire trip and that the SOURCE: 61 FR 27794, June 3, 1996, unless vessel did not intentionally deploy a otherwise noted. purse seine net on or to encircle dol- phin at any time during the trip. The § 216.90 Purpose. statement must be signed by either: This subpart governs the require- (1) The Secretary; or ments for labeling of tuna or tuna (2) A representative of the Inter- products sold in or exported from the American Tropical Tuna Commission; United States that suggest the tuna and was harvested in a manner not injuri- (d) An endorsement on the Fisheries ous to dolphins. Certificate of Origin by each exporter, importer, and processor certifying § 216.91 Labeling requirements. that, to the best of his or her knowl- It is a violation of section 5 of the edge and belief, the Fisheries Certifi- Federal Trade Commission Act (15 cate of Origin and attached documenta- U.S.C. 45) for any person subject to tion, accurately describe the tuna U.S. jurisdiction, including any pro- products. ducer, exporter, importer, distributor, or seller of any tuna product exported § 216.93 Submission of documentation. from the United States or offered for The documents required by § 216.92 sale in the United States to include on must accompany the tuna product the label of that product the term ‘‘dol- whenever it is offered for sale or ex- phin safe’’ or any other term, phrase, port, except that these documents need or symbol that claims or suggests that not accompany the product when of- the tuna contained in the product was fered for sale if: harvested using a fishing method that (a) The documents do not require fur- is not harmful to dolphins, if the prod- ther endorsement by any importer or uct: processor, and are submitted to offi- (a) Contains tuna harvested with a cials of the U.S. Customs Service at large-scale driftnet; or the time of import; or (b) Contains tuna harvested in the (b) The documents are endorsed as re- ETP by a purse seine vessel 400 short quired by § 216.92(d) and delivered to tons (362.8 metric tons) carrying capac- the Director, Southwest Region, or to ity or greater and is labeled in a man- the U.S. Customs Service at the time ner that violates the standards set of exportation. forth in § 216.92 or § 216.93. § 216.94 Requests to review docu- § 216.92 Purse seine vessels greater ments. than 400 short tons (362.8 metric At any time, the Assistant Adminis- tons). trator may request, in writing, any ex- For purposes of § 216.91(b), any tuna porter, importer, processor, distribu- product containing tuna that were har- tor, or seller of any tuna or tuna prod- vested in the ETP by a purse seine ves- uct labeled in a manner subject to the
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requirements of § 216.91, to produce, conditions contained within an inci- within a specified time period, all doc- dental harassment authorization issued umentary evidence concerning the ori- under § 216.107, setting forth permis- gin of any product that is offered for sible methods of taking and other sale as ‘‘dolphin safe,’’ including the means of effecting the least practicable original invoice. adverse impact on the species or stock of marine mammal and its habitat and § 216.95 False statements or endorse- on the availability of the species or ments. stock of marine mammal for subsist- Any person who knowingly and will- ence uses, paying particular attention fully makes a false statement or false to rookeries, mating grounds, and endorsement required by § 216.92 is lia- areas of similar significance; and ble for a civil penalty not to exceed (c) Prescribes either regulations or $100,000, that may be assessed in an ac- requirements and conditions contained tion brought in any appropriate Dis- within an incidental harassment au- trict Court of the United States on be- thorization, as appropriate, pertaining half of the Secretary. to the monitoring and reporting of such taking. The specific regulations Subpart I—General Regulations governing certain specified activities Governing Small Takes of Ma- are contained in subsequent subparts of rine Mammals Incidental to this part. Specified Activities § 216.103 Definitions. In addition to definitions contained SOURCE: 61 FR 15887, Apr. 10, 1996, unless in the MMPA, and in § 216.3, and unless otherwise noted. the context otherwise requires, in sub- sequent subparts to this part: § 216.101 Purpose. Arctic waters means the marine and The regulations in this subpart im- estuarine waters north of 60° N. lat. plement section 101(a)(5) (A) through Citizens of the United States and U.S. (D) of the Marine Mammal Protection citizens mean individual U.S. citizens or Act of 1972, as amended, 16 U.S.C. any corporation or similar entity if it 1371(a)(5), which provides a mechanism is organized under the laws of the for allowing, upon request, the inciden- United States or any governmental tal, but not intentional, taking of unit defined in 16 U.S.C. 1362(13). U.S. small numbers of marine mammals by Federal, state and local government U.S. citizens who engage in a specified agencies shall also constitute citizens activity (other than commercial fish- of the United States for purposes of ing) within a specified geographic re- this part. gion. Incidental harassment, incidental tak- ing and incidental, but not intentional, § 216.102 Scope. taking all mean an accidental taking. The taking of small numbers of ma- This does not mean that the taking is rine mammals under section 101(a)(5) unexpected, but rather it includes (A) through (D) of the Marine Mammal those takings that are infrequent, un- Protection Act may be allowed only if avoidable or accidental. (A complete the National Marine Fisheries Service: definition of ‘‘take’’ is contained in (a) Finds, based on the best scientific § 216.3). evidence available, that the total tak- Negligible impact is an impact result- ing by the specified activity during the ing from the specified activity that specified time period will have a neg- cannot be reasonably expected to, and ligible impact on species or stock of is not reasonably likely to, adversely marine mammal(s) and will not have affect the species or stock through ef- 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.
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Specified activity means any activity, (i.e., takes by harassment only; takes other than commercial fishing, that by harassment, injury and/or death) takes place in a specified geographical and the method of incidental taking; region and potentially involves the (6) By age, sex, and reproductive con- taking of small numbers of marine dition (if possible), the number of ma- mammals. rine mammals (by species) that may be Specified geographical region means an taken by each type of taking identified area within which a specified activity in paragraph (a)(5) of this section, and is conducted and that has certain bio- the number of times such takings by geographic characteristics. each type of taking are likely to occur; Unmitigable adverse impact means an (7) The anticipated impact of the ac- impact resulting from the specified ac- tivity upon the species or stock of ma- tivity: rine mammal; (1) That is likely to reduce the avail- (8) The anticipated impact of the ac- ability of the species to a level insuffi- tivity on the availability of the species cient for a harvest to meet subsistence or stocks of marine mammals for sub- needs by: sistence uses; (i) Causing the marine mammals to (9) The anticipated impact of the ac- abandon or avoid hunting areas; (ii) Directly displacing subsistence tivity upon the habitat of the marine users; or mammal populations, and the likeli- (iii) Placing physical barriers be- hood of restoration of the affected tween the marine mammals and the habitat; subsistence hunters; and (10) The anticipated impact of the (2) That cannot be sufficiently miti- loss or modification of the habitat on gated by other measures to increase the marine mammal populations in- the availability of marine mammals to volved; allow subsistence needs to be met. (11) The availability and feasibility (economic and technological) of equip- § 216.104 Submission of requests. ment, methods, and manner of con- (a) In order for the National Marine ducting such activity or other means of Fisheries Service to consider authoriz- effecting the least practicable adverse ing the taking by U.S. citizens of small impact upon the affected species or numbers of marine mammals inciden- stocks, their habitat, and on their tal to a specified activity (other than availability for subsistence uses, pay- commercial fishing), or to make a find- ing particular attention to rookeries, ing that an incidental take is unlikely mating grounds, and areas of similar to occur, a written request must be significance; submitted to the Assistant Adminis- (12) Where the proposed activity trator. All requests must include the would take place in or near a tradi- following information for their activ- tional Arctic subsistence hunting area ity: and/or may affect the availability of a (1) A detailed description of the spe- species or stock of marine mammal for cific activity or class of activities that Arctic subsistence uses, the applicant can be expected to result in incidental must submit either a plan of coopera- taking of marine mammals; tion or information that identifies (2) The date(s) and duration of such what measures have been taken and/or activity and the specific geographical will be taken to minimize any adverse region where it will occur; effects on the availability of marine (3) The species and numbers of ma- mammals for subsistence uses. A plan rine mammals likely to be found with- must include the following: in the activity area; (i) A statement that the applicant (4) A description of the status, dis- has notified and provided the affected tribution, and seasonal distribution subsistence community with a draft (when applicable) of the affected spe- plan of cooperation; cies or stocks of marine mammals like- (ii) A schedule for meeting with the ly to be affected by such activities; affected subsistence communities to (5) The type of incidental taking au- discuss proposed activities and to re- thorization that is being requested solve potential conflicts regarding any
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aspects of either the operation or the comments for a period not to exceed 30 plan of cooperation; days from the date of publication in (iii) A description of what measures the FEDERAL REGISTER. All informa- the applicant has taken and/or will tion and suggestions will be considered take to ensure that proposed activities by the National Marine Fisheries Serv- will not interfere with subsistence ice in developing, if appropriate, the whaling or sealing; and most effective regulations governing (iv) What plans the applicant has to the issuance of letters of authorization continue to meet with the affected or conditions governing the issuance of communities, both prior to and while an incidental harassment authoriza- conducting the activity, to resolve con- tion. flicts and to notify the communities of (3) Applications that are determined any changes in the operation; (13) The suggested means of accom- to be incomplete or inappropriate for plishing the necessary monitoring and the type of taking requested, will be re- reporting that will result in increased turned to the applicant with an expla- knowledge of the species, the level of nation of why the application is being taking or impacts on populations of returned. marine mammals that are expected to (c) The Assistant Administrator shall be present while conducting activities evaluate each request to determine, and suggested means of minimizing based upon the best available scientific burdens by coordinating such reporting evidence, whether the taking by the requirements with other schemes al- specified activity within the specified ready applicable to persons conducting geographic region will have a neg- such activity. Monitoring plans should ligible impact on the species or stock include a description of the survey and, where appropriate, will not have techniques that would be used to deter- an unmitigable adverse impact on the mine the movement and activity of availability of such species or stock for marine mammals near the activity subsistence uses. If the Assistant Ad- site(s) including migration and other ministrator finds that the mitigating habitat uses, such as feeding. Guide- measures would render the impact of lines for developing a site-specific mon- the specified activity negligible when itoring plan may be obtained by writ- it would not otherwise satisfy that re- ing to the Director, Office of Protected quirement, the Assistant Adminis- Resources; and trator may make a finding of neg- (14) Suggested means of learning of, encouraging, and coordinating research ligible impact subject to such mitigat- opportunities, plans, and activities re- ing measures being successfully imple- lating to reducing such incidental tak- mented. Any preliminary findings of ing and evaluating its effects. ‘‘negligible impact’’ and ‘‘no (b)(1) The Assistant Administrator unmitigable adverse impact’’ shall be shall determine the adequacy and com- proposed for public comment along pleteness of a request and, if deter- with either the proposed incidental mined to be adequate and complete, harassment authorization or the pro- will begin the public review process by posed regulations for the specific activ- publishing in the FEDERAL REGISTER ei- ity. ther: (d) If, subsequent to the public review (i) A proposed incidental harassment period, the Assistant Administrator authorization; or finds that the taking by the specified (ii) A notice of receipt of a request activity would have more than a neg- for the implementation or re- ligible impact on the species or stock implementation of regulations govern- of marine mammal or would have an ing the incidental taking. unmitigable adverse impact on the (2) Through notice in the FEDERAL availability of such species or stock for REGISTER, newspapers of general cir- subsistence uses, the Assistant Admin- culation, and appropriate electronic istrator shall publish in the FEDERAL media in the coastal areas that may be REGISTER the negative finding along affected by such activity, NMFS will invite information, suggestions, and with the basis for denying the request.
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§ 216.105 Specific regulations. (d) Notice of issuance of all Letters of (a) For all petitions for regulations Authorization will be published in the under this paragraph, applicants must FEDERAL REGISTER within 30 days of provide the information requested in issuance. § 216.104(a) on their activity as a whole, (e) Letters of Authorization shall be which includes, but is not necessarily withdrawn or suspended, either on an limited to, an assessment of total im- individual or class basis, as appro- pacts by all persons conducting the ac- priate, if, after notice and opportunity tivity. for public comment, the Assistant Ad- (b) For allowed activities that may ministrator determines that: result in incidental takings of small (1) The regulations prescribed are not numbers of marine mammals by har- being substantially complied with; or assment, serious injury, death or a (2) The taking allowed is having, or combination thereof, specific regula- may have, more than a negligible im- tions shall be established for each al- pact on the species or stock or, where lowed activity that set forth: (1) Permissible methods of taking; relevant, an unmitigable adverse im- (2) Means of effecting the least prac- pact on the availability of the species ticable adverse impact on the species or stock for subsistence uses. and its habitat and on the availability (f) The requirement for notice and of the species for subsistence uses; and opportunity for public review in (3) Requirements for monitoring and § 216.106(e) shall not apply if the Assist- reporting, including requirements for ant Administrator determines that an the independent peer-review of pro- emergency exists that poses a signifi- posed monitoring plans where the pro- cant risk to the wellbeing of the spe- posed activity may affect the availabil- cies or stocks of marine mammals con- ity of a species or stock for taking for cerned. subsistence uses. (g) A violation of any of the terms (c) Regulations will be established and conditions of a Letter of Author- based on the best available informa- ization or of the specific regulations tion. As new information is developed, shall subject the Holder and/or any in- through monitoring, reporting, or re- dividual who is operating under the au- search, the regulations may be modi- fied, in whole or in part, after notice thority of the Holder’s Letter of Au- and opportunity for public review. thorization to penalties provided in the MMPA. § 216.106 Letter of Authorization. § 216.107 Incidental harassment au- (a) A Letter of Authorization, which thorization for Arctic waters. may be issued only to U.S. citizens, is required to conduct activities pursuant (a) Except for activities that have to any regulations established under the potential to result in serious injury § 216.105. Requests for Letters of Au- or mortality, which must be authorized thorization shall be submitted to the under § 216.105, incidental harassment Director, Office of Protected Re- authorizations may be issued, follow- sources. The information to be submit- ing a 30-day public review period, to al- ted in a request for an authorization lowed activities that may result in will be specified in the appropriate sub- only the incidental harassment of a part to this part or may be obtained by small number of marine mammals. writing to the above named person. Each such incidental harassment au- (b) Issuance of a Letter of Authoriza- thorization shall set forth: tion will be based on a determination (1) Permissible methods of taking by that the level of taking will be consist- harassment; ent with the findings made for the total taking allowable under the spe- (2) Means of effecting the least prac- cific regulations. ticable adverse impact on the species, (c) Letters of Authorization will its habitat, and on the availability of specify the period of validity and any the species for subsistence uses; and additional terms and conditions appro- (3) Requirements for monitoring and priate for the specific request. reporting, including requirements for
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the independent peer-review of pro- erating under the authority of the posed monitoring plans where the pro- holder’s incidental harassment author- posed activity may affect the availabil- ization to penalties provided in the ity of a species or stock for taking for MMPA. subsistence uses. (b) Issuance of an incidental harass- § 216.108 Requirements for monitoring ment authorization will be based on a and reporting under incidental har- determination that the number of ma- assment authorizations for Arctic rine mammals taken by harassment waters. will be small, will have a negligible im- (a) Holders of an incidental harass- pact on the species or stock of marine ment authorization in Arctic waters mammal(s), and will not have an and their employees, agents, and des- unmitigable adverse impact on the ignees must cooperate with the Na- availability of species or stocks for tional Marine Fisheries Service and taking for subsistence uses. other designated Federal, state, or (c) An incidental harassment author- local agencies to monitor the impacts ization will be either issued or denied of their activity on marine mammals. within 45 days after the close of the Unless stated otherwise within an inci- public review period. (d) Notice of issuance or denial of an dental harassment authorization, the incidental harassment authorization holder of an incidental harassment au- will be published in the FEDERAL REG- thorization effective in Arctic waters ISTER within 30 days of issuance of a must notify the Alaska Regional Direc- determination. tor, National Marine Fisheries Service, (e) Incidental harassment authoriza- of any activities that may involve a tions will be valid for a period of time take by incidental harassment in Arc- not to exceed 1 year but may be re- tic waters at least 14 calendar days newed for additional periods of time prior to commencement of the activ- not to exceed 1 year for each reauthor- ity. ization. (b) Holders of incidental harassment (f) An incidental harassment author- authorizations effective in Arctic wa- ization shall be modified, withdrawn, ters may be required by their author- or suspended if, after notice and oppor- ization to designate at least one quali- tunity for public comment, the Assist- fied biological observer or another ap- ant Administrator determines that: propriately experienced individual to (1) The conditions and requirements observe and record the effects of activi- prescribed in the authorization are not ties on marine mammals. The number being substantially complied with; or of observers required for monitoring (2) The authorized taking, either in- the impact of the activity on marine dividually or in combination with mammals will be specified in the inci- other authorizations, is having, or may dental harassment authorization. If ob- have, more than a negligible impact on servers are required as a condition of the species or stock or, where relevant, the authorization, the observer(s) must an unmitigable adverse impact on the be approved in advance by the National availability of the species or stock for Marine Fisheries Service. subsistence uses. (g) The requirement for notice and (c) The monitoring program must, if opportunity for public review in para- appropriate, document the effects (in- graph (f) of this section shall not apply cluding acoustical) on marine mam- if the Assistant Administrator deter- mals and document or estimate the ac- mines that an emergency exists that tual level of take. The requirements poses a significant risk to the well- for monitoring plans, as specified in being of the species or stocks of marine the incidental harassment authoriza- mammals concerned. tion, may vary depending on the activ- (h) A violation of any of the terms ity, the location, and the time. and conditions of an incidental harass- (d) Where the proposed activity may ment authorization shall subject the affect the availability of a species or holder and/or any individual who is op- stock of marine mammal for taking for
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subsistence purposes, proposed mon- holder of the authorization with an ex- itoring plans or other research propos- planation of why the report is being re- als must be independently peer-re- turned. If the authorization holder dis- viewed prior to issuance of an inciden- agrees with the findings of the Assist- tal harassment authorization under ant Administrator, the holder may re- this subpart. In order to complete the quest an independent peer review of the peer-review process within the time report. Failure to submit a complete frames mandated by the MMPA for an and accurate report may result in a incidental harassment authorization, a delay in processing future authoriza- proposed monitoring plan submitted tion requests. under this paragraph must be submit- (g) Results of any behavioral, feed- ted to the Assistant Administrator no ing, or population studies, that are later than the date of submission of the conducted supplemental to the mon- application for an incidental harass- itoring program, should be made avail- ment authorization. Upon receipt of a able to the National Marine Fisheries complete monitoring plan, and at its Service before applying for an inciden- discretion, the National Marine Fish- tal harassment authorization for the eries Service will either submit the following year. plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, sched- Subpart J—Taking of Ringed Seals ule a workshop to review the plan. The Incidental to On-Ice Seismic applicant must submit a final monitor- Activities ing plan to the Assistant Adminis- trator prior to the issuance of an inci- SOURCE: 63 FR 5283, Feb. 2, 1998, unless oth- dental harassment authorization. erwise noted. (e) At its discretion, the National EFFECTIVE DATE NOTE: At 63 FR 5283, Feb. Marine Fisheries Service may place an 2, 1998, subpart J was revised, effective Feb. observer aboard vessels, platforms, air- 2, 1998, to Dec. 31, 2002. craft, etc., to monitor the impact of ac- tivities on marine mammals. § 216.111 Specified activity and speci- (f)(1) As specified in the incidental fied geographical region. harassment authorization, the holder Regulations in this subpart apply of an incidental harassment authoriza- only to the incidental taking of ringed tion for Arctic waters must submit re- seals (Phoca hispida) and bearded seals ports to the Assistant Administrator (Erignathus barbatus) by U.S. citizens within 90 days of completion of any in- engaged in on-ice seismic exploratory dividual components of the activity (if and associated activities over the any), within 90 days of completion of Outer Continental Shelf of the Beau- the activity, but no later than 120 days fort Sea of Alaska, from the shore out- prior to expiration of the incidental ward to 45 mi (72 km) and from Point harassment authorization, whichever is Barrow east to Demarcation Point, earlier. This report must include the from January 1 through May 31 of any following information: calendar year. (i) Dates and type(s) of activity; (ii) Dates and location(s) of any ac- § 216.112 Effective dates. tivities related to monitoring the ef- fects on marine mammals; and Regulations in this subpart are effec- (iii) Results of the monitoring activi- tive from February 2, 1998 through De- ties, including an estimate of the ac- cember 31, 2002. tual level and type of take, species name and numbers of each species ob- § 216.113 Permissible methods. served, direction of movement of spe- The incidental, but not intentional, cies, and any observed changes or taking of ringed and bearded seals from modifications in behavior. January 1 through May 31 by U.S. citi- (2) Monitoring reports will be re- zens holding a Letter of Authorization, viewed by the Assistant Administrator issued under § 216.106, is permitted dur- and, if determined to be incomplete or ing the course of the following activi- inaccurate, will be returned to the ties:
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(a) On-ice geophysical seismic activi- (4) Numbers of ringed seal lairs ob- ties involving vibrator-type, airgun, or served and proximity to seismic or as- other energy source equipment shown sociated activities for each location. to have similar or lesser effects. (5) Other information as required in a (b) Operation of transportation and Letter of Authorization. camp facilities associated with seismic activities. § 216.116 Applications for Letters of Authorization. § 216.114 Mitigation. (a) To incidentally take ringed and (a) All activities identified in § 216.113 bearded seals pursuant to these regula- must be conducted in a manner that tions, each company conducting seis- minimizes to the greatest extent prac- mic operations between January 1 and ticable adverse effects on ringed and May 31 in the geographical area de- bearded seals and their habitat. scribed in § 216.111, must apply for and (b) All activities identified in § 216.113 obtain a Letter of Authorization in ac- must be conducted as far as practicable cordance with § 216.106. from any observed ringed or bearded (b) The application must be submit- seal or ringed seal lair. No energy ted to the National Marine Fisheries source must be placed over an observed Service at least 90 days before the ac- ringed seal lair, whether or not any tivity is scheduled to begin. seal is present. (c) Applications for Letters of Au- thorization and for renewals of Letters § 216.115 Requirements for monitoring of Authorization must include the fol- and reporting. lowing: (a) Holders of Letters of Authoriza- (1) Name of company requesting the tion are required to cooperate with the authorization; National Marine Fisheries Service and (2) A description of the activity in- any other Federal, state, or local agen- cluding method to be used (vibroseis, cy monitoring the impacts on ringed or airgun, watergun), the dates and dura- bearded seals. tion of the activity, the specific loca- (b) Holders of Letters of Authoriza- tion of the activity and the estimated tion must designate qualified on-site area that will actually be affected by individuals, as specified in the Letter the exploratory activity; of Authorization, to observe and record (3) Any plans to monitor the behavior the presence of ringed or bearded seals and effects of the activity on marine and ringed seal lairs along shot lines mammals; and around camps, and the information (4) A description of what measures required in paragraph (d) of this sec- the applicant has taken and/or will tion. take to ensure that proposed activities (c) Holders of Letters of Authoriza- will not interfere with subsistence seal- tion must conduct additional monitor- ing; and ing as required under an annual Letter (5) What plans the applicant has to of Authorization. continue to meet with the affected (d) An annual report must be submit- communities, both prior to and while ted to the Assistant Administrator for conducting the activity, to resolve con- Fisheries within 90 days after complet- flicts and to notify the communities of ing each year’s activities and must in- any changes in the operation. clude the following information: (d) A copy of the Letter of Authoriza- (1) Location(s) of survey activities. tion must be in the possession of the (2) Level of effort (e.g., duration, area persons conducting activities that may surveyed, number of surveys), methods involve incidental takings of ringed used, and a description of habitat (e.g., and bearded seals. ice thickness, surface topography) for each location. § 216.117 Renewal of Letters of Author- (3) Numbers of ringed seals, bearded ization. seals, or other marine mammals ob- (a) A Letter of Authorization issued served, proximity to seismic or associ- under § 216.106 for the activity identi- ated activities, and any seal reactions fied in § 216.111 will be renewed annu- observed for each location. ally upon:
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(1) Timely receipt of the reports re- EFFECTIVE DATE NOTE: At 60 FR 53145, Oct. quired under § 216.115(d), which have 12, 1995, subpart E to part 228 was added, ef- been reviewed by the Assistant Admin- fective Nov. 13, 1995 through Nov. 13, 2000. At 61 FR 15887, Apr. 10, 1996, subpart E to part istrator and determined to be accept- 228 was redesignated as subpart M to part able; and 216. (2) A determination that the mitiga- tion measures required under § 216.141 Specified activity and speci- § 216.114(b) and the Letter of Authoriza- fied geographical region. tion have been undertaken. (a) Regulations in this subpart apply (b) A notice of issuance of a Letter of only to the incidental taking of marine Authorization or of a renewal of a Let- mammals by U.S. citizens engaged in ter of Authorization will be published removing oil and gas drilling and pro- in the FEDERAL REGISTER within 30 duction structures in state waters and days of issuance. on the Outer Continental Shelf in the Gulf of Mexico adjacent to the coasts § 216.118 Modifications to Letters of of Texas, Louisiana, Alabama, Mis- Authorization. sissippi, and Florida. The incidental, (a) In addition to complying with the but not intentional, taking of marine mammals by U.S. citizens holding a provisions of § 216.106, except as pro- Letter of Authorization is permitted vided in paragraph (b) of this section, during the course of severing pilings, no substantive modification, including well conductors, and related supporting withdrawal or suspension, to a Letter structures, and other activities related of Authorization issued pursuant to to the removal of the oil well struc- § 216.106 and subject to the provisions of ture. this subpart shall be made until after (b) The incidental take of marine notice and an opportunity for public mammals under the activity identified comment. For purposes of this para- in paragraph (a) of this section is lim- graph, renewal of a Letter of Author- ited annually to a combined total of no ization under § 216.117, without modi- more than 200 takings by harassment fication, is not considered a sub- of bottlenose dolphins (Tursiops stantive modification. truncatus) and spotted dolphins (b) If the Assistant Administrator de- (Stenella frontalis and S. attenuata). termines that an emergency exists that poses a significant risk to the well- § 216.142 Effective dates. being of the species or stocks of marine Regulations in this subpart are effec- mammals specified in § 216.111, the Let- tive from November 13, 1995 through ter of Authorization issued pursuant to November 13, 2000. § 216.106, or renewed pursuant to this section may be substantively modified § 216.143 Permissible methods of tak- without prior notice and an oppor- ing; mitigation. tunity for public comment. A notice (a) The use of the following means in will be published in the FEDERAL REG- conducting the activities identified in ISTER subsequent to the action. § 216.141 is permissible: Bulk explosives, shaped explosive charges, mechanical § 216.119 [Reserved] or abrasive cutters, and underwater arc cutters. Subparts K–L [Reserved] (b) All activities identified in § 216.141 must be conducted in a manner that Subpart M—Taking of Bottlenose minimizes, to the greatest extent prac- ticable, adverse effects on bottlenose Dolphins and Spotted Dol- dolphins, spotted dolphins, and their phins Incidental to Oil and habitat. When using explosives, the fol- Gas Structure Removal Activi- lowing mitigation measures must be ties utilized: (1)(i) If bottlenose or spotted dolphins SOURCE: 60 FR 53145, Oct. 12, 1995, unless are observed within 3,000 ft (910 m) of otherwise noted. Redesignated at 61 FR 15887, the platform prior to detonating Apr. 10, 1996. charges, detonation must be delayed
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until either the marine mammal(s) are (22.7 kg) explosive charge detonated more than 3,000 ft (910 m) from the outside the rig piling. platform or actions (e.g., operating a [60 FR 53145, Oct. 12, 1995. Redesignated and vessel in the vicinity of the dolphins to amended at 61 FR 15887, 15890, Apr. 10, 1996] stimulate bow riding, then steering the vessel away from the structure to be § 216.145 Requirements for monitoring removed) are successful in removing and reporting. them at least 3,000 ft (910 m) from the (a) Observer(s) approved by the Na- detonation site; tional Marine Fisheries Service in ad- (ii) Whenever the conditions de- vance of the detonation must be used scribed in paragraph (b)(1)(i) of this to monitor the area around the site section occur, the aerial survey re- prior to, during, and after detonation quired under § 216.145(b)(1) must be re- of charges. peated prior to detonation of charges if (b)(1) Both before and after each det- the timing requirements of onation episode, an aerial survey by § 216.145(b)(1) cannot be met. NMFS-approved observers must be con- (2) Detonation of explosives must ducted for a period not less than 30 occur no earlier than 1 hour after sun- minutes within 1 hour of the detona- rise and no later than 1 hour before tion episode. To ensure that no marine sunset; mammals are within the designated (3) If weather and/or sea conditions 3,000 ft (1,000 yd, 941 m) safety zone nor preclude adequate aerial, shipboard or are likely to enter the designated safe- subsurface surveillance, detonations ty zone prior to or at the time of deto- must be delayed until conditions im- nation, the pre-detonation survey must prove sufficiently for surveillance to be encompass all waters within one nau- undertaken; and tical mile of the structure. (4) Detonations must be staggered by (2) A second post-detonation aerial or a minimum of 0.9 seconds for each vessel survey of the detonation site group of charges. must be conducted no earlier than 48 hours and no later than 1 week after [60 FR 53145, Oct. 12, 1995. Redesignated and the oil and gas structure is removed, amended at 61 FR 15887, 15890, Apr. 10, 1996] unless a systematic underwater survey, either by divers or remotely-operated § 216.144 Prohibitions. vehicles, dedicated to marine mammals Notwithstanding takings authorized and sea turtles, of the site has been by § 216.143 or by a Letter of Authoriza- successfully conducted within 24 hours tion issued under § 216.106, the follow- of the detonation event. The aerial or ing activities are prohibited: vessel survey must be systematic and (a) The taking of a marine mammal concentrate down-current from the that is other than unintentional, ex- structure. cept that the intentional passive (3) The NMFS observer may waive herding of dolphins from the vicinity of post-detonation monitoring described the platform may be authorized under in paragraph (b)(2) of this section pro- section 109(h) of the Act as described in vided no marine mammals were sighted a Letter of Authorization; by the observer during either the re- (b) The violation of, or failure to quired 48 hour pre-detonation monitor- comply with, the terms, conditions, ing period or during the pre-detonation and requirements of this part or a Let- aerial survey. ter of Authorization issued or renewed (c) During all diving operations under § 216.106 or § 216.146; (working dives as required in the (c) The incidental taking of any ma- course of the removals), divers must be rine mammal of a species either not instructed to scan the subsurface areas specified in this subpart or whenever surrounding the platform (detonation) the incidental taking authorization for sites for bottlenose or spotted dolphins authorized species has been reached; and if marine mammals are sighted to and inform either the U.S. government ob- (d) The use of single explosive server or the agent of the holder of the charges having an impulse and pressure Letter of Authorization immediately greater than that generated by a 50–lb upon surfacing.
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(d)(1) A report summarizing the re- quired under § 216.145(d), to determine sults of structure removal activities, that the taking is not having more mitigation measures, monitoring ef- than a negligible impact on the species forts, and other information as re- or stock involved. quired by a Letter of Authorization, (c) Notice of issuance of a renewal of must be submitted to the Director, the Letter of Authorization will be NMFS, Southeast Region, 9721 Execu- published in the FEDERAL REGISTER. tive Center Drive N, St. Petersburg, FL 33702 within 30 calendar days of com- [60 FR 53145, Oct. 12, 1995. Redesignated and pletion of the removal of the rig. amended at 61 FR 15887, 15890, Apr. 10, 1996] (2) NMFS will accept the U.S. Gov- ernment observer report as the activity § 216.148 Modifications to Letters of report if all requirements for reporting Authorization. contained in the Letter of Authoriza- (a) In addition to complying with the tion are provided to that observer be- provisions of § 216.106, except as pro- fore the observer’s report is complete. vided in paragraph (b) of this section, no substantive modification, including § 216.146 Letters of Authorization. withdrawal or suspension, to the Let- (a) To incidentally take bottlenose ter of Authorization issued pursuant to and spotted dolphins pursuant to these § 216.106 and subject to the provisions of regulations, each company operating this subpart shall be made until after or which operated an oil or gas struc- notice and an opportunity for public ture in the geographical area described comment. For purposes of this para- in § 216.141, and which is responsible for graph, renewal of a Letter of Author- abandonment or removal of the plat- ization under § 216.147, without modi- form, must apply for and obtain a Let- fication, is not considered a sub- ter of Authorization in accordance stantive modification. with § 216.106. (b) If the Assistant Administrator de- (b) A copy of the Letter of Authoriza- termines that an emergency exists that tion must be in the possession of the poses a significant risk to the well- persons conducting activities that may being of the species or stocks of marine involve incidental takings of mammals specified in § 216.141(b), the bottlenose and spotted dolphins. Letter of Authorization issued pursu- [60 FR 53145, Oct. 12, 1995. Redesignated and ant to § 216.106, or renewed pursuant to amended at 61 FR 15887, 15890, Apr. 10, 1996] this section may be substantively modified without prior notice and an § 216.147 Renewal of Letters of Author- ization. opportunity for public comment. A no- tice will be published in the FEDERAL (a) A Letter of Authorization issued REGISTER subsequent to the action. under § 216.106 for the activity identi- fied in § 216.141 will be renewed annu- [60 FR 53145, Oct. 12, 1995. Redesignated and ally upon: amended at 61 FR 15887, 15890, Apr. 10, 1996] (1) Timely receipt of the reports re- quired under § 216.145(d), which have Subpart N—Taking of Marine been reviewed by the Assistant Admin- Mammals Incidental to Un- istrator and determined to be accept- derwater Detonation of Con- able; (2) A determination that the maxi- ventional Explosives by the mum incidental take authorizations in Department of Defense § 216.141(b) will not be exceeded; and (3) A determination that the mitiga- SOURCE: 59 FR 5126, Feb. 3, 1994, unless oth- tion measures required under erwise noted. Redesignated at 61 FR 15887, § 216.143(b) and the Letter of Authoriza- Apr. 10, 1996. tion have been undertaken. EFFECTIVE DATE NOTE: At 59 FR 5126, Feb. (b) If a species’ annual authorization 3, 1994, subpart F to part 228 was added, effec- is exceeded, the Assistant Adminis- tive March 3, 1994 through March 3, 1999. At trator will review the documentation 61 FR 15887, Apr. 10, 1996, subpart F of part submitted with the annual reports re- 228 was redesignated as subpart N of part 216.
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§ 216.151 Specified activity, geographi- (4) 10 detonations of 10 lbs (4.5 kg); cal region, and incidental take lev- and els. (5) 20 detonations of 1 lb (0.45 kg), (a) Regulations in this subpart apply provided all terms, conditions, and re- only to the incidental taking of marine quirements of these regulations and mammals specified in paragraph (b) of such Letter of Authorization are com- this section by U.S. citizens engaged in plied with. the detonation of conventional mili- (b) The activity identified in para- tary explosives within the waters of graph (a) of this section must be con- the Outer Sea Test Range of the Naval ducted in a manner that minimizes, to Air Warfare Center, Pt. Mugu, Ventura the greatest extent possible, adverse County, CA. impacts on marine mammals and their (b) The incidental take of marine habitat. When detonating explosives, mammals under the activity identified the following mitigation measures in paragraph (a) of this section is lim- must be utilized: ited annually to the following species (1) If marine mammals are observed and species groups: within the designated safety zone pre- scribed in the Letter of Authorization, Har- Le- In- or on a course that will put them with- thal jury ass- ment in the safety zone prior to detonation, California Sea Lion ...... 2 38 173 detonation must be delayed until the Harbor Seal...... 2 16 68 marine mammals are no longer within Northern Elephant Seal ...... 9 158 724 the safety zone. Northern Fur Seal ...... 2 13 57 Common Dolphin ...... 1 16 67 (2) If weather and/or sea conditions Striped Dolphin ...... 0 2 5 preclude adequate aerial surveillance, Risso's Dolphin ...... 0 1 2 detonation must be delayed until con- Pacific White-Sided Dolphin ...... 3 52 236 ditions improve sufficiently for aerial Northern Rt. Whale Dolphin ...... 2 24 108 Dall's Porpoise ...... 0 6 18 surveillance to be undertaken. Bottlenose Dolphin ...... 0 4 15 (3) If post-test surveys determine Killer Whale ...... 0 0 1 that an injurious or lethal take of a Sperm Whale ...... 0 6 20 Beaked Whales ...... 0 0 3 marine mammal has occurred, the test Minke Whale ...... 0 0 4 procedure and the monitoring methods Blue Whale ...... 0 1 11 must be reviewed and appropriate Fin Whale ...... 0 0 6 changes must be made prior to con- Sei Whale ...... 0 0 1 Humpback Whale ...... 0 0 4 ducting the next project. Gray Whale ...... 0 3 40 Right Whale ...... 0 0 1 [59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]
§ 216.152 Effective dates. § 216.154 Prohibitions. Regulations in this subpart are effec- Notwithstanding takings authorized tive from March 3, 1994, through March by § 216.153 or by a Letter of Authoriza- 3, 1999. tion issued under § 216.106, the follow- ing activities are prohibited: § 216.153 Permissible methods of tak- ing; mitigation. (a) The taking of a marine mammal that is other than unintentional; (a) U.S. citizens holding a Letter of (b) The violation of, or failure to Authorization issued pursuant to comply with, the terms, conditions, § 216.106 may incidentally, but not in- and requirements of this part or a Let- tentionally, take marine mammals by ter of Authorization issued or renewed harassment, injury or killing in the under § 216.106 or § 216.156; and course of the detonation of conven- tional explosives up to the following (c) The incidental taking of any ma- maximum annual level within the area rine mammal of a species either not described in § 216.151(a): specified in this subpart or whose tak- (1) 12 detonations of 10,000 lbs (4,536 ing authorization for the year has been kg); reached. (2) 2 detonations of 1,200 lbs (544 kg); [59 FR 5126, Feb. 3, 1994. Redesignated and (3) 10 detonations of 100 lbs (45 kg); amended at 61 FR 15887, 15890, Apr. 10, 1996]
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§ 216.155 Requirements for monitoring mammals in other scientific research and reporting. may be authorized pursuant to 50 CFR (a) The holder of the Letter of Au- parts 216 and 220. thorization is required to cooperate (e) At its discretion, the National with the National Marine Fisheries Marine Fisheries Service may place an Service and any other Federal, state or observer on either the towing vessel, local agency monitoring the impacts of target vessel, or both, and on any ship the activity on marine mammals. The or aircraft involved in marine mammal holder must notify the Director, reconnaissance, or monitoring either Southwest Region, National Marine prior to, during, or after explosives det- Fisheries Service, 501 West Ocean Bou- onation in order to monitor the impact levard, suite 4200, Long Beach, CA on marine mammals. (Telephone: (310) 980–4001), at least 2 (f) A summary report must be sub- weeks prior to activities involving the mitted to the Assistant Administrator detonation of explosives in order to for Fisheries, NOAA, within 90 days satisfy paragraph (f) of this section. after the conclusion of any explosives (b) The holder of the Letter of Au- detonation project. This report must thorization must designate a qualified include the following information: on-site individual(s) to record the ef- (1) Date and time of the test(s); fects of explosives detonation on ma- (2) A summary of the pre-test and rine mammals that inhabit the Outer post-test activities related to mitigat- Sea Test Range. ing and monitoring the effects of explo- (c) The primary test area, and if nec- sives detonation on marine mammal essary, secondary and tertiary test populations; and areas, in the Outer Sea Test Range, (3) Results of the monitoring pro- must be surveyed by marine mammal gram, including numbers by species/ biologists and other trained individ- stock of any marine mammals noted uals, and the marine mammal popu- injured or killed as a result of the deto- lations monitored, approximately 48 nation and numbers that may have hours prior to a scheduled detonation, been harassed due to presence within on the day of detonation, and for a pe- the safety zone. riod of time specified in the Letter of (g) An annual report must be submit- Authorization after each test or ted to the Assistant Administrator for project. Monitoring shall include, but Fisheries, NOAA, no later than 120 days not necessarily be limited to, aerial prior to the date of expiration of the surveillance sufficient to ensure that annual Letter of Authorization in no marine mammals are within the order for issuance of a Letter of Au- designated safety zone nor are likely to thorization for the following year. This enter the designated safety zone prior annual report must contain the follow- to or at the time of detonation. ing information: (d)(1) Under the direction of a cer- (1) Date and time of all tests con- tified marine mammal veterinarian, ducted under the expiring Letter of Au- examination and recovery of any dead thorization; or injured marine mammals will be (2) A description of all pre-test and conducted. Necropsies will be per- post-test activities related to mitigat- formed and tissue samples taken from ing and monitoring the effects of explo- any dead animals. After completion of sives detonation on marine mammal the necropsy, animals not retained for populations; shoreside examination, will be tagged (3) Results of the monitoring pro- and returned to the sea. The occur- gram, including numbers by species/ rence of live marine mammals will also stock of any marine mammals noted be documented. injured or killed as a result of the deto- (2) Activities related to the monitor- nation and numbers that may have ing described in paragraph (d)(1) of this been harassed due to presence within section or the Letter of Authorization the designated safety zone; issued under this part may include the (4) If one or more species’ take levels retention of marine mammals without have been reached or exceeded during the need for a separate scientific re- the previous year, additional docu- search permit. The use of such marine mentation must be provided on the
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taking and a description of any meas- fication, is not considered a sub- ures that will be taken in the following stantive modification. year to prevent exceeding the author- (b) If the National Marine Fisheries ized incidental take level. Service determines that an emergency (5) Results of any population assess- exists that poses a significant risk to ment studies made on marine mam- the well-being of the species or stocks mals in the Outer Sea Test Range dur- of marine mammals specified in ing the previous year. § 216.151, or that significantly and det- rimentally alters the scheduling of ex- § 216.156 Renewal of Letter of Author- plosives detonation within the area ization. specified in § 216.151, the Letter of Au- (a) A Letter of Authorization issued thorization issued pursuant to § 216.106, under § 216.106 for the activity identi- or renewed pursuant to this section fied in § 216.151(a) will be renewed annu- may be substantively modified without ally upon: prior notice and an opportunity for (1) Timely receipt of the reports re- public comment. A notice will be pub- quired under § 216.155(f) and (g), which lished in the FEDERAL REGISTER subse- have been reviewed by the Assistant quent to the action. Administrator for Fisheries, NOAA, [59 FR 5126, Feb. 3, 1994. Redesignated and and determined to be acceptable; amended at 61 FR 15887, 15891, Apr. 10, 1996] (2) A determination that the maxi- mum incidental take authorizations in Subparts O–Q [Reserved] § 216.151(b) will not be exceeded; and (3) A determination that the mitiga- tion measures required under PART 217—GENERAL PROVISIONS § 216.153(b) and the Letter of Authoriza- tion have been undertaken. Subpart A—Introduction (b) If a species’ annual authorization Sec. is exceeded, the National Marine Fish- 217.1 Purpose of regulations. eries Service will review the docu- 217.2 Scope of regulations. mentation submitted with the annual 217.3 Other applicable laws. report required under § 216.155(g), to de- 217.4 When regulations apply. termine that the taking is not having more than a negligible impact on the Subpart B—Definitions species or stock involved. 217.12 Definitions. (c) Notice of issuance of a renewal of the Letter of Authorization will be Subpart C—Addresses published in the FEDERAL REGISTER. 217.21 Assistant Administrator. [59 FR 5126, Feb. 3, 1994. Redesignated and 217.22 Office of Marine Mammals and En- amended at 61 FR 15887, 15890–15891, Apr. 10, dangered Species. 1996] 217.23 Enforcement Division. § 216.157 Modifications to Letter of Au- AUTHORITY: 16 U.S.C. 742a et seq., 1361 et thorization. seq., and 1531–1544, unless otherwise noted. (a) In addition to complying with the provisions of § 216.106, except as pro- Subpart A—Introduction vided in paragraph (b) of this section, no substantive modification, including § 217.1 Purpose of regulations. withdrawal or suspension, to the Let- The regulations of parts 216 through ter of Authorization issued pursuant to 227 are promulgated to implement the § 216.106 and subject to the provisions of following statutes enforced by the Na- this subpart shall be made until after tional Marine Fisheries Service, Na- notice and an opportunity for public tional Oceanic and Atmospheric Ad- comment. For purposes of this para- ministration, Department of Com- graph, renewal of a Letter of Author- merce, which regulate the taking, pos- ization under § 216.146, without modi- session, transportation, sale, purchase,
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barter, exportation, and importation of (a) Civil penalty proceedings. Except as wildlife. otherwise provided in § 218.25, the civil penalty assessment procedures con- (Endangered Species Act of 1973, section 11(f), 87 Stat. 884, Pub. L. 93–205; Fish and tained in parts 216 through 227 of this Wildlife Act of 1956, 16 U.S.C. 742a–1) chapter shall apply only to any pro- ceeding instituted by notice of viola- [39 FR 41370, Nov. 27, 1974, as amended at 52 tion dated subsequent to the effective FR 24250, June 29, 1987] date of these regulations, regardless of § 217.2 Scope of regulations. when the act or omission which is the basis of a civil penalty proceeding oc- The various provisions of parts 216 curred. through 227 of this chapter are inter- (b) [Reserved] related, and particular note should be taken that the parts must be construed [39 FR 41370, Nov. 27, 1974, as amended at 52 with reference to each other. The regu- FR 24250, June 29, 1987] lations in parts 216 through 227 apply only for fish or wildlife under the juris- Subpart B—Definitions dictional responsibilities of the Sec- retary of Commerce for the purpose of § 217.12 Definitions. carrying out the Endangered Species Accelerator funnel means a device Act of 1973 (see part 222, § 222.23(a)). En- used to accelerate the flow of water dangered species of fish or wildlife through a shrimp trawl net. other than those covered by these regu- Act means the Endangered Species lations are under the jurisdiction of Act of 1973, as amended (Pub. L. the Secretary of the Interior. For rules 93–205). and procedures relating to such spe- Approved TED means: cies, see 50 CFR parts 10 through 17. (1) A hard TED that complies with [39 FR 41370, Nov. 27, 1974, as amended at 52 the generic design criteria set forth in FR 24250, June 29, 1987] 50 CFR 227.72(e)(4)(i). (A hard TED may be modified as specifically authorized § 217.3 Other applicable laws. by 50 CFR 227.72(e)(4)(iv)); or No statute or regulation of any State (2) A soft TED that complies with the shall be construed to relieve a person provisions of 50 CFR 227.72(e)(4)(iii); or from the restrictions, conditions, and (3) A special hard TED which com- requirements contained in parts 216 plies with the provisions of 50 CFR through 227 of this chapter. In addi- 227.72(e)(4)(ii). tion, nothing in parts 216 through 227 of Assistant Administrator means the As- this chapter, nor any permit issued sistant Administrator for Fisheries of under parts 217 through 228 of this the National Marine Fisheries Service, chapter, shall be construed to relieve a National Oceanic and Atmospheric Ad- person from any other requirements ministration, Department of Com- imposed by a statute or regulation of merce, or his authorized representa- any State or of the United States, in- tive. cluding any applicable health, quar- Atlantic Area means all waters of the ° ′ ″ antine, agricultural, or customs laws Atlantic Ocean south of 36 33 00.8 N. or regulations, or other National Ma- latitude (the line of the North Caro- rine Fisheries Service enforced stat- lina/Virginia border) and adjacent seas, utes or regulations. other than waters of the Gulf Area, and all waters shoreward thereof (including [39 FR 41370, Nov. 27, 1974, as amended at 52 ports). FR 24250, June 29, 1987] Atlantic Shrimp Fishery-Sea Turtle Conservation Area (Atlantic SFSTCA) § 217.4 When regulations apply. means the inshore and offshore waters The regulations of parts 216 through extending to 10 nautical miles (18.5 km) 227 of this chapter shall apply to all offshore along the coast of the States matters, including the processing of of Georgia and South Carolina from the permits, arising after the effective date Georgia-Florida border (defined as the of such regulations, with the following line along 30°42′45.6′′ N. lat.) to the exception: North Carolina-South Carolina border
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(defined as the line extending in a di- (2) The attempted catching, taking, rection of 135°34′55′′ from true north or harvesting of fish or wildlife; from the North Carolina-South Caro- (3) Any other activity that can rea- lina land boundary, as marked by the sonably be expected to result in the border station on Bird Island at 33° catching, taking, or harvesting of fish 51′07.9′′ N. lat., 078°32′32.6′′ W. long.). or wildlife; or Authorized officer means: (4) Any operations on any waters in (1) Any commissioned, warrant, or support of, or in preparation for, any petty officer of the U.S. Coast Guard; activity described in paragraphs (1) (2) Any special agent or enforcement through (3) of this definition. officer of the National Marine Fish- Footrope means a weighted rope or eries Service; cable attached to the lower lip (bottom (3) Any officer designated by the head edge) of the mouth of a trawl net along of a Federal or state agency that has the forwardmost webbing. entered into an agreement with the Footrope length means the distance Secretary or the Commandant of the between the points at which the ends of Coast Guard to enforce the provisions the footrope are attached to the trawl of the Act; or net, measured along the forwardmost (4) Any Coast Guard personnel ac- webbing. companying and acting under the di- Foreign commerce includes, among rection of any person described in para- other things, any transaction (1) be- graph (1) of this definition. tween persons within one foreign coun- try, or (2) between persons in two or Bait shrimper means a shrimp trawler more foreign countries, or (3) between that fishes for and retains its shrimp a person within the United States and catch alive for the purpose of selling it a person in one or more foreign coun- for use as bait. tries, or (4) between persons within the Commercial activity means all activi- United States, where the fish or wild- ties of industry and trade, including, life in question are moving in any but not limited to, the buying or sell- country or countries outside the ing of commodities and activities con- United States. ducted for the purpose of facilitating Four-seam, straight-wing trawl means such buying and selling: Provided, how- a design of shrimp trawl in which the ever, That it does not include the exhi- main body of the trawl is formed from bition of commodities by museums or a top panel, a bottom panel, and two similar cultural or historical organiza- side panels of webbing. The upper and tions. lower edges of the side panels of web- Country of exportation means the last bing are parallel over the entire length. country from which the animal was ex- Four-seam, tapered-wing trawl means a ported before importation into the design of shrimp trawl in which the United States. main body of the trawl is formed from Country of origin means the country a top panel, a bottom panel, and two where the animal was taken from the side panels of webbing. The upper and wild, or the country of natal origin of lower edges of the side panels of web- the animal. bing converge toward the rear of the Fish or wildlife means any member of trawl. the animal kingdom, including without Gulf Area means all waters of the limitation any mammal, fish, bird (in- Gulf of Mexico west of 81° W. longitude cluding any migratory, nonmigratory, (the line at which the Gulf Area meets or endangered bird for which protec- the Atlantic Area) and all waters tion is also afforded by treaty or other shoreward thereof (including ports). international agreement), amphibian, Gulf Shrimp Fishery-Sea Turtle Con- reptile, mollusk, crustacean, arthropod servation Area (Gulf SFSTCA) means the or other invertebrate, and includes any offshore waters extending to 10 nau- part, product, egg, or offspring thereof, tical miles (18.5 km) offshore along the or the dead body or parts thereof. coast of the States of Texas and Louisi- Fishing, or to fish, means: ana from the South Pass of the Mis- (1) The catching taking or harvesting sissippi River (west of 89°08.5′ W. long.) of fish or wildlife; to the U.S.-Mexican border.
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Hard TED means a rigid deflector (Coast Charts, 1:80,000 scale) and as de- grid and associated hardware designed scribed in 33 CFR part 80. to be installed in a trawl net forward of Permit or ‘‘Certificate of exemption’’ the codend for the purpose of excluding means any document so designated by sea turtles from the net. the National Marine Fisheries Service Headrope means a rope that is at- and signed by an authorized official of tached to the upper lip (top edge) of the the National Marine Fisheries Service, mouth of a trawl net along the including any document which modi- forewardmost webbing. fies, amends, extends or renews any Headrope length means the distance permit or certificate of exemption. between the points at which the ends of Person means an individual, corpora- the headrope are attached to the trawl tion, partnership, trust, association, or net, measured along the forewardmost any other private entity, or any offi- webbing. cer, employee, agent, department, or Import means to land on, bring into, instrumentality of the Federal Govern- or introduce into, or attempt to land ment, of any State or political subdivi- on, bring into, or introduce into any sion thereof, or of any foreign govern- place subject to the jurisdiction of the ment. United States, whether or not such Possession means the detention and landing, bringing, or introduction con- control, or the manual or ideal custody stitutes an importation within the of anything which may be the subject meaning of the tariff laws of the of property, for one’s use and enjoy- United States. ment, either as owner or as the propri- Inshore means marine and tidal wa- etor of a qualified right in it, and ei- ters landward of the 72 COLREGS de- ther held personally or by another who marcation line (International Regula- exercises it in one’s place and name. tions for Preventing Collisions at Sea, Possession includes the act or state of 1972), as depicted or noted on nautical possessing and that condition of facts charts published by the National Oce- under which one can exercise his power anic and Atmospheric Administration over a corporeal thing at his pleasure (Coast Charts, 1:80,000 scale) and as de- to the exclusion of all other persons. scribed in 33 CFR part 80. Possession includes constructive pos- Leatherback conservation zone means session which means not actual but as- all inshore and offshore waters bounded sumed to exist, where one claims to on the south by a line along 28°24.6′ N. hold by virtue of some title, without lat. (Cape Canaveral, FL), and bounded having actual custody. on the north by a line along 36°30.5′ N. Pre-Act endangered species part means lat. (North Carolina-Virginia border). any sperm whale oil, including deriva- Length in reference to a shrimp tives and products thereof, which was trawler, means the distance from the lawfully held within the United States tip of the vessel’s bow to the tip of its on December 28, 1973 in the course of a stern. commercial activity; or any finished North Carolina restricted area means scrimshaw product, if such product or that portion of the offshore waters the raw material for such product was bounded on the north by a line along lawfully held within the United States 34°17.6′ N. latitude (Rich Inlet, North on December 28, 1973, in the course of a Carolina) and 34°35.7′ N. latitude commercial activity. (Browns Inlet, North Carolina) to a dis- Pusher-head trawl (chopsticks) means tance of 1 nautical mile seaward of the a trawl that is spread by poles sus- 72 COLREGS demarcation line (Inter- pended in a ‘‘V’’ configuration from the national Regulations for Preventing bow of the trawler. Collisions at Sea, 1972). Right whale, as used in subpart D of Offshore means marine and tidal wa- this part, means any whale that is a ters seaward of the 72 COLREGS de- member of the western North Atlantic marcation line (International Regula- population of the northern right whale tions for Preventing Collisions at Sea, species (Eubalaena glacialis). 1972), as depicted or noted on nautical Scrimshaw product means any art charts published by the National Oce- form which involves the substantial anic and Atmospheric Administration etching or engraving of designs upon,
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or the substantial carving of figures, lina border), except as provided in patterns, or designs from any bone or paragraph (2) of this definition. tooth of any marine mammal of the (2) [Reserved] order Cetacea. For purposes of this Summer flounder trawler means any part, polishing or the adding of minor vessel that is equipped with one or superficial markings does not con- more bottom trawl nets, and that is ca- stitute substantial etching, engraving pable of, or used for, fishing for floun- or carving. der, or whose on-board or landed catch Secretary means the Secretary of of flounder is more than 100 pounds Commerce or his authorized represent- (45.4 kg). ative. Take means to harass, harm, pursue, Shrimp means any species of marine hunt, shoot, wound, kill, trap, capture, shrimp (Order Crustacea) found in the or collect, or attempt to harass, harm, Atlantic Area or the Gulf Area, includ- pursue, hunt, shoot, wound, kill, trap, ing, but not limited to: capture, or collect. (1) Brown shrimp (Penaeus aztecus); Taper, in reference to the webbing (2) White shrimp (P. setiferus); used in trawls, means the angle of a (3) Pink shrimp (P. duorarum); cut used to shape the webbing, ex- (4) Rock shrimp (Sicyonia brevirostris); pressed as the ratio between the cuts that reduce the width of the webbing (5) Royal red shrimp (Hymenopenaeus by cutting into the panel of webbing robustus); and through one row of twine (bar cuts) and (6) Seabob shrimp (Xiphopenaeus the cuts that extend the length of the kroyeri). panel of webbing by cutting straight Shrimp trawler means any vessel that aft through two adjoining rows of is equipped with one or more trawl nets twine (point cuts). For example, se- and that is capable of, or used for, fish- quentially cutting through the lengths ing for shrimp, or whose on-board or of twine on opposite sides of a mesh, landed catch of shrimp is more than 1 leaving an uncut edge of twines all percent, by weight, of all fish compris- lying in the same line, produces a rel- ing its on-board or landed catch. atively strong taper called ‘‘all-bars’’; Skimmer trawl means a trawl that ex- making a sequence of 4-bar cuts fol- tends from the outrigger of a vessel lowed by 1-point cut produces a more with a cable and a lead weight holding gradual taper called ‘‘4 bars to 1 point’’ the trawl mouth open. or ‘‘4b1p’’; similarly, making a se- Soft TED means a panel of poly- quence of 2-bar cuts followed by 1-point propylene or polyethylene netting de- cut produces a still more gradual taper signed to be installed in a trawl net called ‘‘2b1p’’; and making a sequence forward of the codend for the purpose of cuts straight aft does not reduce the of excluding sea turtles from the net. width of the panel and is called a State means any State of the United ‘‘straight’’ or ‘‘all-points’’ cut. States, the District of Columbia, the Taut means a condition in which Commonwealth of Puerto Rico, Amer- there is no slack in the net webbing. ican Samoa, the Virgin Islands, Guam, TED (turtle excluder device) means a and the Trust Territory of the Pacific device designed to be installed in a Islands. trawl net forward of the codend for the Stretched mesh size means the dis- purpose of excluding sea turtles from tance between the centers of the two the net. opposite knots in the same mesh when Test net, or try net, means a net pulled pulled taut. for brief periods of time just before, or Summer flounder means the species during, deployment of the primary Paralichthys dentatus. net(s) in order to test for shrimp con- Summer flounder fishery-sea turtle pro- centrations or determine fishing condi- tection area means: tions (e.g., presence or absence of bot- (1) All offshore waters, bounded on tom debris, jellyfish, bycatch, sea- the north by a line along 37°05′ N. lati- grasses, etc.). tude (Cape Charles, VA) and bounded Tongue means any piece of webbing on the south by a line along 33°35′ N. along the top, center, leading edge of a latitude (North Carolina-South Caro- trawl, whether lying behind or ahead of
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the headrope, to which a towing bridle 742b); sec. 11(f), Endangered Species Act of can be attached for purposes of pulling 1973, Pub. L. 93–205, 87 Stat. 884 (16 U.S.C. the trawl net and/or adjusting the 1540). shape of the trawl. SOURCE: 45 FR 57133, Aug. 27, 1980, unless Transportation means to ship, convey, otherwise noted. carry or transport by any means what- ever, and deliver or receive for such § 217.21 Assistant Administrator. shipment, conveyance, carriage, or Mail forwarded to the Assistant Ad- transportation. ministrator for Fisheries should be ad- Triple-wing trawl means a trawl with dressed: a tongue on the top, center, leading edge of the trawl and an additional Assistant Administrator for Fisheries, F National Marine Fisheries Service tongue along the bottom, center, lead- Washington, DC 20235. ing edge of the trawl. Two-seam trawl means a design of § 217.22 Office of Marine Mammals and shrimp trawl in which the main body of Endangered Species. the trawl is formed from a top panel Mail in regard to permits should be and a bottom panel of webbing that are addressed to: directly attached to each other down the sides of the trawl. Office of Marine Mammals and Endangered Underway, with respect to a vessel, Species, F/MM means that the vessel is not at anchor, National Marine Fisheries Service Washington, DC 20235. or made fast to the shore, or aground. United States means the several § 217.23 Enforcement Division. States of the United States of America, the District of Columbia, the Common- Mail in regard to enforcement and wealth of Puerto Rico, American certificates of exemption should be ad- Samoa, the Virgin Islands, Guam, and dressed to: the Trust Territory of the Pacific Is- Enforcement Division, F/CM5 lands. National Marine Fisheries Service Vessel includes every description of Washington, DC 20235. watercraft, including nondisplacement craft and seaplanes, used or capable of PART 220—GENERAL PERMIT being used as a means of transpor- PROCEDURES tation on water. Vessel restricted in her ability to ma- Subpart A—Introduction neuver has the meaning specified for this term at 33 U.S.C. 2003(g). Sec. Whoever means the same as person. 220.1 General. Wildlife means the same as fish or 220.2 Purpose of regulations. 220.3 Scope of regulations. wildlife. 220.4 Emergency variation from require- Wing net (butterfly trawl) means a ments. trawl with a rigid frame, rather than trawl door, holding the trawl mouth Subpart B—Application for Permits open. 220.11 Procedure for obtaining a permit. (Sec. 3(d), Fish and Wildlife Act of 1956, as 220.12 [Reserved] amended, 88 Stat. 92 (16 U.S.C. 742b); sec. 220.13 Abandoned application. 11(f), Endangered Species Act of 1973, Pub. L. 93–205, 87 Stat. 884 (16 U.S.C. 1540)) Subpart C—Permit Administration [45 FR 57132, Aug. 27, 1980] 220.21 Issuance of permits. EDITORIAL NOTE: For FEDERAL REGISTER ci- 220.22 Duration of permit. tations affecting § 217.12, see the List of CFR 220.23 [Reserved] Sections Affected in the Finding Aids sec- 220.24 Renewal of permit. tion of this volume. 220.25 Permits not transferable; agents. 220.26 Right of succession by certain per- sons. Subpart C—Addresses 220.27 Change of mailing address. 220.28 Change in name. AUTHORITY: Sec. 3(d), Fish and Wildlife Act 220.29–220.30 [Reserved] of 1956, as amended, 88 Stat. 92 (16 U.S.C. 220.31 Discontinuance of activity.
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Subpart D—Conditions § 220.3 Scope of regulations. 220.42 Permits are specific. The provisions in this part are in ad- 220.43 Alteration of permits. dition to, and are not in lieu of, other 220.44 Display of permit. permit regulations of parts 217 through 220.45 Filing of reports. 220.46 Maintenance of records. 222 of this chapter and apply to all per- 220.47 Inspection requirement. mits issued thereunder, including ‘‘En- dangered Fish or Wildlife’’ (part 222). Subpart E—Permits Involving Endangered or Threatened Sea Turtles § 220.4 Emergency variation from re- quirements. 220.50 Purpose. 220.51 Permit applications. The Director may approve variations 220.52 Issuance of permits. from the requirements of this part 220.53 Other requirements. when he finds that an emergency exists AUTHORITY: Endangered Species Act of and that the proposed variations will 1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205; act not hinder effective administration of of August 31, 1951, Ch. 376. Title 5, sec. 501, 65 parts 217 through 222 of this chapter, Stat. 290 (31 U.S.C. 483a). and will not be unlawful. SOURCE: 39 FR 41373, Nov. 27, 1974, unless otherwise noted. Subpart B—Application for Permits
Subpart A—Introduction § 220.11 Procedure for obtaining a per- mit. § 220.1 General. Each person intending to engage in The following general procedures an activity for which a permit is re- apply to applications for permits: quired by parts 217 through 222 of this (a) Forms. Applications must be sub- chapter or the Endangered Species Act mitted by letter containing all nec- of 1973 shall, before commencing such essary information, attachments, cer- activity, obtain a valid permit author- tification, and signature. In no case izing such activity. Each person who will oral or telephone applications be desires to obtain the permit privileges accepted. authorized by parts 217 through 222 of (b) Forwarding instructions. Applica- this chapter must make application for tions must be submitted to the Direc- such permit in accordance with the re- tor, National Marine Fisheries Service. quirements of this part 220 of this The address is listed in § 217.21. chapter and the other regulations in (c) Time requirement. Applications parts 217 through 222 of this chapter must be received by the appropriate of- which set forth the additional require- ficial of the National Marine Fisheries ments for the specific permits desired. Service at least 90 calendar days prior If the activity for which permission is to the date on which the applicant de- sought is covered by the requirements sires to have the permit made effec- of more than one part of parts 217 through 222 of this chapter, the re- tive. The National Marine Fisheries quirements of each part must be met. Service will, in all cases, attempt to If the information required for each process applications deemed sufficient specific permitted activity is included, in the shortest possible time. The Na- one application may be accepted for all tional Marine Fisheries Service does permits required, and a single permit not, however, guarantee 90 days may be issued. issuance after publication in the FED- ERAL REGISTER of receipt of a permit § 220.2 Purpose of regulations. application and some permits cannot The regulations contained in this be issued within that time period. part will provide uniform rules and procedures for application, issuance, § 220.12 [Reserved] renewal, conditions, and general ad- ministration of permits issuable pursu- § 220.13 Abandoned application. ant to parts 217 through 222 of this Upon receipt of an insufficiently or chapter. improperly executed application, the
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applicant shall be notified of the defi- ministrative decision of the Depart- ciency in the application. If the appli- ment. cant fails to supply the deficient infor- [39 FR 41373, Nov. 27, 1974, as amended at 49 mation or otherwise fails to correct the FR 1042, Jan. 6, 1984] deficiency within 60 days following the date of notification, the application § 220.22 Duration of permit. shall be considered abandoned. Permits shall entitle the person to whom issued to engage in the activity Subpart C—Permit Administration specified in the permit, within the lim- itations of the applicable statute and § 220.21 Issuance of permits. regulations contained in parts 217 (a) No permit may be issued prior to through 222 of this chapter for the pe- the receipt of a written application riod stated on the permit, unless soon- therefor, unless a written variation er modified, suspended, or revoked pur- from the requirements, as authorized suant to subpart D of 15 CFR part 904. by § 220.4 is inserted into the official [49 FR 1042, Jan. 6, 1984] file of the National Marine Fisheries Service. Any representation of an em- § 220.23 [Reserved] ployee or agent of the United States Government shall not be construed as a § 220.24 Renewal of permit. permit unless it meets the Where the permit is renewable and a requirements of a permit as defined in permittee intends to continue the ac- 50 CFR 217.12. tivity described in the permit during (b) The Director shall issue the ap- any portion of the year ensuing its ex- propriate permit unless— piration, he shall, unless otherwise no- (1) Denial of a permit has been made tified in writing by the Director, file a pursuant to subpart D of 15 CFR part request for permit renewal, together 904; with a certified statement that the in- (2) The applicant has failed to dis- formation in his original application is close material information required, or still currently correct, or a statement has made false statements as to any of all changes in the original applica- material fact, in connection with his tion, accompanied by any required fee application; at least 30 days prior to the expiration (3) The applicant has failed to dem- of his permit. Any person holding a onstrate a valid justification for the valid renewable permit, who has com- permit or a showing of responsibility; plied with the foregoing provision of (4) The authorization requested po- this section, may continue such activi- tentially threatens a wildlife popu- ties as were authorized by his expired lation, or permit until his renewal application is (5) The Director finds through fur- acted upon. ther inquiry or investigation, or other- wise, that the applicant is not quali- § 220.25 Permits not transferable; fied. agents. (c) Each permit shall bear a serial (a) Permits issued under parts 220 number. Such number may be reas- through 222 are not transferable or as- signed to the permittee to whom issued signable. Some permits authorize cer- so long as he maintains continuity of tain activities in connection with a renewal. business or commercial enterprise and (d) The applicant shall be notified in in the event of any lease, sale, or trans- writing of the denial of any permit re- fer of such business entity, the succes- quest, and the reasons therefor. If au- sor must obtain a permit prior to con- thorized in the notice of denial, the ap- tinuing the permitted activity. How- plicant may submit further informa- ever, certain limited rights of succes- tion, or reasons why the permit should sion are provided in § 220.26. not be denied. Such further submis- (b) Except as otherwise stated on the sions shall not be considered a new ap- face of a permit, any person who is plication. The final action by the Di- under the direct control of the permit- rector shall be considered the final ad- tee, or who is employed by or under
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contract to the permittee for the pur- §§ 220.29–220.30 [Reserved] poses authorized by the permit, may carry out the activity authorized by § 220.31 Discontinuance of activity. the permit. When any permittee discontinues his activity, he shall, within 30 days there- § 220.26 Right of succession by certain of, mail his permit and a request for persons. cancellation to the issuing officer, and (a) Certain persons, other than the said permit shall be deemed void upon permittee, are granted the right to receipt. No refund of any part of an carry on a permitted activity for the amount paid as a permit fee shall be remainder of the term of a current per- made where the operations of the per- mit provided they comply with the pro- mittee are, for any reason, discon- visions of paragraph (b) of this section. tinued during the tenure of an issued Such persons are the following: permit. (1) The surviving spouse, child, ex- ecutor, administrator, or other legal Subpart D—Conditions representative of a deceased permittee; and § 220.42 Permits are specific. (2) A receiver or trustee in bank- The authorizations on the face of a ruptcy or a court designated assignee permit which set forth specific times, for the benefit of creditors. dates, places, methods of taking, num- (b) In order to secure the right pro- bers and kinds of fish or wildlife, loca- vided in this section, the person or per- tion of activity, authorize certain cir- sons desiring to continue the activity cumscribed transactions, or otherwise shall furnish the permit to the issuing permit a specifically limited matter, officer for endorsement within 90 days are to be strictly construed and shall from the date the successor begins to not be interpreted to permit similar or carry on the activity. related matters outside the scope of strict construction. § 220.27 Change of mailing address. § 220.43 Alteration of permits. During the term of his permit, a per- mittee may change his mailing address Permits shall not be altered, erased, or mutilated, and any permit which without procuring a new permit. How- has been altered, erased, or mutilated ever, in every case notification of the shall immediately become invalid. new mailing address must be forwarded to the issuing official within 30 days § 220.44 Display of permit. after such change. This section does not authorize the change of location of Any permit issued under parts 220 the permitted activity for which an through 222 shall be displayed for in- spection upon request to the Director amendment must be obtained. or his agent, or to any other person re- § 220.28 Change in name. lying upon its existence. A permittee continuing to conduct a § 220.45 Filing of reports. permitted activity is not required to Permittees may be required to file obtain a new permit by reason of a reports of the activities conducted mere change in trade name under under the permit. Any such reports which a business is conducted or a shall be filed not later than March 31 change of name by reason of marriage for the preceding calendar year ending or legal decree: Provided, That such December 31, or any portion thereof, permittee must furnish his permit to during which a permit was in force, un- the issuing official for endorsement less the regulations of parts 217 within 30 days from the date the per- through 222 of this chapter or the pro- mittee begins conducting the per- visions of the permit set forth other re- mitted activity under the new name. porting requirements.
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§ 220.46 Maintenance of records. cies) or 50 CFR 17.32(a) (Threatened From the date of issuance of the per- Species) as appropriate. Applications mit, the permittee shall maintain com- involving activities under the jurisdic- plete and accurate records of any tak- tion of the National Marine Fisheries ing, possession, transportation, sale, Service (NMFS) as defined in 50 CFR purchase, barter, exportation, or im- 222.23(a) and 50 CFR 227.4 shall be for- portation of fish or wildlife pursuant to warded by the WPO to NMFS. such permit. Such records shall be kept current and shall include names and § 220.52 Issuance of permits. addresses of persons with whom any (a) Applications under the jurisdic- fish or wildlife has been purchased, tion of the WPO shall be reviewed and sold, bartered, or otherwise trans- acted upon in accordance with 50 CFR ferred, and the date of such trans- 17.22 or 50 CFR 17.32 as appropriate. action, and such other information as (b) NMFS shall make a complete re- may be required or appropriate. Such view of applications forwarded to it by records, unless otherwise specified, the WPO in accordance with § 220.51 and shall be entered in books, legibly writ- determine the appropriate action to be ten in the English language. Such taken in accordance with 50 CFR records shall be retained for 5 years 220.21(b) and 222.23(c). In instances from the date of issuance of the permit. where the application involves activi- ties solely within NMFS jurisdiction, § 220.47 Inspection requirement. NMFS shall issue permits or letters of Any person holding a permit under denial and provide WPO with copies of parts 217 through 222 of this chapter its actions. shall allow the Director’s agent to (c) Where a permit application in- enter his premises at any reasonable volves activities under both NMFS and hour to inspect any fish or wildlife held FWS jurisdiction, each agency will or to inspect, audit, or copy any per- process the application for activities mits, books, or records required to be under its jurisdiction. WPO will issue kept by regulations of parts 217 either a permit or a letter of denial. through 222 of this chapter or by the (d) Where a permit application for ac- Endangered Species Act of 1973. tivities under NMFS jurisdiction also requires a permit under the Convention Subpart E—Permits Involving En- on International Trade in Endangered dangered or Threatened Sea Species of Wild Fauna and Flora (TIAS Turtles 8249, July 1, 1975) (CITES) (50 CFR part 23), NMFS will process the application SOURCE: 43 FR 32809, July 28, 1978, unless for activities under its jurisdiction. otherwise noted. WPO will issue the final document by means of a combination ESA/CITES § 220.50 Purpose. permit or a letter of denial. This subpart establishes procedures for issuance of permits for scientific § 220.53 Other requirements. purposes or to enhance the propagation Permits issued by NMFS under this or survival of ‘‘endangered’’ or ‘‘threat- subpart shall be administered and com- ened’’ sea turtles and zoological exhi- ply with the provisions of 50 CFR parts bition or educational purposes for 217 through 227 as appropriate. ‘‘threatened’’ sea turtles.
§ 220.51 Permit applications. PART 221—DESIGNATED PORTS Applications for permits to take, im- port, export or engage in any other AUTHORITY: Endangered Species Act of prohibited activity involving any spe- 1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205. cies of sea turtle listed in 50 CFR 17.11 shall be submitted to the Wildlife Per- § 221.1 Importation and exportation at mit Office (WPO) of the U.S. Fish and designated ports. Wildlife Service in accordance with ei- Any fish or wildlife (other than shell- ther, 50 CFR 17.22(a) (Endangered Spe- fish and fishery products which (a) are
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not endangered or not threatened spe- 222.12–2 Change of address. cies, and (b) are imported for purposes 222.12–3 Certain continuance of business. of human or animal consumption or 222.12–4 Change in trade name. 222.12–5 State or other law. taken in waters under the jurisdiction 222.12–6 Right of entry and examination. of the United States or on the high 222.12–7 Records. seas for recreational purposes) which is 222.12–8 Record of receipt and disposition. subject to the jurisdiction of the Na- 222.12–9 Importation. tional Marine Fisheries Service, Na- 222.13 Exportation. tional Oceanic and Atmospheric Ad- 222.13–1 Procedure by exporter. ministration, Department of Com- 222.13–2 Action by Customs. 222.13–3 Transportation to effect expor- merce and is intended for importation tation. into or exportation from the United 222.13–4 Burden of proof; presumption. States, shall not be imported or ex- ported except at a port or ports des- Subpart C—Endangered Fish or Wildlife ignated by the Secretary of the Inte- Permits rior. The Secretary of the Interior may 222.21 General permit requirement. permit the importation or exportation 222.22 Permits for the incidental taking of at nondesignated ports in the interest endangered species. of the health or safety of the fish or 222.23 Permits for scientific purposes or to wildlife or for other reasons if he deems enhance the propagation or survival of it appropriate and consistent with the the affected endangered species. purpose of facilitating enforcement of 222.24 Procedures for issuance of permits. the Endangered Species Act and reduc- 222.25 Applications for modification of per- mit by permittee. ing the costs thereof. Importers and ex- 222.26 Amendment of permits by NMFS. porters are advised to see 50 CFR part 222.27 Procedures for suspension, revoca- 14 for importation and exportation re- tion, or modification of permits. quirements and information. 222.28 Possession of permits. [39 FR 41375, Nov. 27, 1974] Subpart D—Special Prohibitions 222.31 Approaching humpback whales in Ha- PART 222—ENDANGERED FISH OR waii. WILDLIFE 222.32 Approaching North Atlantic right whales. Subpart A—Introduction 222.33 Special prohibitions relating to en- dangered Steller sea lion protection. Sec. 222.1 Purpose of regulations. Subpart E—Incidental Capture of 222.2 Scope of regulations. Endangered Sea Turtles 222.3 Definitions. 222.41 Policy regarding incidental capture Subpart B—Certificates of Exemption for of sea turtles. Pre-Act Endangered Species Parts 222.42 Special prohibitions relating to leatherback sea turtles. 222.11–1 General certificate of exemption re- quirements. AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C. 222.11–2 Application renewal procedure. 1361 et seq. 222.11–3 Application renewal requirements. 222.11–4 Procedures for issuance of renewals Subpart A—Introduction of certificates of exemption. 222.11–5 Application for modification of cer- § 222.1 Purpose of regulations. tificate of exemption by holder. 222.11–6 Amendment of certificates of ex- The regulations contained in this emption. part identify the species or subspecies 222.11–7 Procedures for suspension, revoca- of fish or wildlife determined to be en- tion, or modification of certificates of dangered under either the Endangered exemption. Species Conservation Act of 1969 or the 222.11–8 Purchaser provisions. Endangered Species Act of 1973, and 222.11–9 Duration of certificate of exemp- presently deemed endangered species tion. 222.12 Locations covered by certificate of under the Endangered Species Act of exemption. 1973, which are under the jurisdiction 222.12–1 Certificate of exemption not trans- of the Secretary of Commerce, and es- ferable; exception. tablish procedures and criteria for
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issuance of permits for the taking, im- that an applicant must submit when portation, exportation, or otherwise applying for an incidental take permit. prohibited acts, involving endangered Conservation plans also are known as fish or wildlife. The regulations of this ‘‘habitat conservation plans’’ or part implement, in part, the Endan- ‘‘HCPs.’’ gered Species Act of 1973, 87 Stat. 884, Operating conservation program means Pub. L. 93–205, as amended. those conservation management activi- [45 FR 57133, Aug. 27, 1980] ties which are expressly agreed upon and described in a conservation plan or § 222.2 Scope of regulations. its Implementing Agreement, if any, (a) The regulations of this part apply and which are to be undertaken for the only to endangered fish or wildlife. affected species when implementing an (b) The provisions in this part are in approved conservation plan, including addition to, and are not in lieu of, measures to respond to changed cir- other regulations of parts 217 through cumstances. 222 of this chapter which may require a Properly implemented conservation plan permit or prescribe additional restric- means any conservation plan, Imple- tions or conditions for the taking, im- menting Agreement and permit whose portation, exportation, and interstate commitments and provisions have been transportation of fish or wildlife. (See or are being fully implemented by the also parts 220 and 221 of this chapter.) permittee. Unforeseen circumstances means [45 FR 57133, Aug. 27, 1980] changes in circumstances affecting a § 222.3 Definitions. species or geographic area covered by a conservation plan that could not rea- These definitions apply only to sonably have been anticipated by plan § 222.22: developers and NMFS at the time of Adequately covered means, with re- the conservation plan’s negotiation spect to species listed pursuant to sec- and development, and that result in a tion 4 of the ESA, that a proposed con- substantial and adverse change in the servation plan has satisfied the permit status of the covered species. issuance criteria under section 10(a)(2)(B) of the ESA for the species [63 FR 8872, Feb. 23, 1998] covered by the plan and, with respect to unlisted species, that a proposed Subpart B—Certificates of Exemp- conservation plan has satisfied the per- tion for Pre-Act Endangered mit issuance criteria under section Species Parts 10(a)(2)(B) of the ESA that would other- wise apply if the unlisted species cov- ered by the plan were actually listed. SOURCE: 45 FR 57134, Aug. 27, 1980, unless For the Services to cover a species otherwise noted. under a conservation plan, it must be § 222.11–1 General certificate of ex- listed on the section 10(a)(1)(B) permit. emption requirements. Changed circumstances means changes in circumstances affecting a species or (a) The Assistant Administrator, pur- geographic area covered by a conserva- suant to the provisions of the Endan- tion plan that can reasonably be an- gered Species Act, and pursuant to the ticipated by plan developers and NMFS provisions of this paragraph, may ex- and that can be planned for (e.g., the empt any pre-Act endangered species listing of new species, or a fire or other part from one or more of the following: natural catastrophic event in areas (1) The prohibition, as set forth in prone to such events). section 9(a)(1)(A) of the Act, to export Conserved habitat areas means areas any such species part from the United explicitly designated for habitat res- States; toration, acquisition, protection, or (2) The prohibitions, as set forth in other conservation purposes under a section 9(a)(1)(E) of the Act, to deliver, conservation plan. receive, carry, transport, or ship in Conservation plan means the plan re- interstate or foreign commerce, by any quired by section 10(a)(2)(A) of the ESA means whatsoever and in the course of
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a commercial activity any such species tion requested is not applicable, put part; ‘‘N.A.’’) and such other information (3) The prohibitions, as set forth in that the Assistant Administrator may section 9(a)(1)(F) of the Act, to sell or require. offer for sale in interstate or foreign [45 FR 57134, Aug. 27, 1980] commerce any such species part. (b) No person shall engage in any of § 222.11–3 Application renewal re- the above activities involving any pre- quirements. Act endangered species part without a (a) The following information will be valid certificate of exemption, or evi- used as the basis for determining dence of a right thereunder, issued pur- whether an application for renewal of a suant to this subpart B. certificate of exemption is complete: (c) After January 31, 1984, no person (1) Title: Application for Renewal of may export; deliver, receive, carry, Certificate of Exemption Under Pub. L. transport or ship in interstate or for- 97–304. eign commerce in the course of a com- (2) The date of application. mercial activity; or sell or offer for (3) The identity of the applicant in- sale in interstate or foreign commerce cluding complete name, original cer- any pre-Act finished scrimshaw prod- tificate of exemption number, current uct unless that person has been issued address, and telephone number, includ- a valid certificate of exemption and the ing zip and area codes. If the applicant product or the raw material for such is a corporation, partnership, or asso- product was held by such certificate ciation set forth the details. holder on October 13, 1982. (4) The period of time for which a re- [45 FR 57134, Aug. 27, 1980, as amended at 50 newal of the certificate of exemption is FR 12808, Apr. 1, 1985] requested; however, no renewal of cer- tificate of exemption, or right claimed § 222.11–2 Application renewal proce- thereunder, shall be effective after the dure. close of the three-year period begin- (a) Any person to whom a certificate ning on the date of the expiration of of exemption has been issued by the the previous renewal of the certificate National Marine Fisheries Service and of exemption. who desires to obtain a renewal of such (5)(i) A complete and detailed up- certificate of exemption may make ap- dated inventory of all pre-Act endan- plication therefor to the Assistant Ad- gered species parts for which the appli- ministrator. The sufficiency of the ap- cant seeks exemption. Each item on plication shall be determined by the the inventory must be identified by the Assistant Administrator in accordance following information: a unique serial with the requirements of this part and, number; the weight of the item in in that connection, he may waive any grams, to the nearest whole gram; and requirement for information, or require a description in detail sufficient to per- any elaboration for further informa- mit ready identification of the item. tion deemed necessary. Small lots, not exceeding five pounds (b) One copy of a completed applica- (2,270 grams), of scraps or raw material, tion for renewal shall be submitted to which may include or consist of one or the Assistant Administrator for Fish- more whole raw whale teeth, may be eries, National Marine Fisheries Serv- identified by a single serial number and ice, Washington, DC 20235. total weight. All finished scrimshaw (c) The outside of the envelope should items subsequently made from a given be marked, ATTENTION: Enforcement lot of scrap may be identified by the Division, ‘‘Certificate of Exemption lot serial number plus additional digits Request.’’ Assistance may be obtained to signify the piece number of the indi- by writing or calling the Enforcement vidual finished item. Identification Division, NMFS, in Washington, DC numbers will be in the following for- (AC 202, 634–7265). At least 15 days mat: 00–000000–0000. The first two digits should be allowed for processing. An will be the last two digits of the appro- application for a certificate of exemp- priate certificate of exemption number; tion shall provide the information con- the next six digits, the serial number of tained in § 222.11–3 (when the informa- the individual piece or lot of scrap or
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raw material; and the last four digits, by the Assistant Administrator which where applicable, the piece number of the Assistant Administrator deems suf- an item made from a lot of scrap or ficient, he shall, as soon as practicable, raw material. The serial numbers for issue a certificate of renewal to the ap- each certificate holder’s inventory plicant. must begin with 000001, and piece num- bers, where applicable, must begin with § 222.11–5 Application for modification 0001 for each separate lot. of certificate of exemption by hold- (ii) Identification numbers may be af- er. fixed to inventory items by any means, Where circumstances have changed including, but not limited to, etching so that an applicant or certificate of the number into the item, attaching a label or tag bearing the number to the exemption holder desires to have any item, or sealing the item in a plastic material term or condition of his appli- bag, wrapper or other container bear- cation or certificate modified, he must ing the number. Provided that, the submit in writing full justification and number must remain affixed to the supporting information in conformance item until it is sold to an ultimate with the provisions of this part. user, as defined in § 222.11–8(b) of this part. § 222.11–6 Amendment of certificates (iii) No renewals will be issued for of exemption. scrimshaw products in excess of any All certificates are issued subject to quantities declared in the original ap- the condition that the Assistant Ad- plication for a certificate of exemption. ministrator reserves the right to (6) A certification in the following amend the provisions of a certificate of language: exemption for just cause at any time. I hereby certify that the foregoing infor- Such amendments take effect on the mation is complete, true, and correct to the date of notification, unless otherwise best of my knowledge and belief. I under- specified. stand that this information is submitted for the purpose of obtaining a renewal of my cer- § 222.11–7 Procedures for suspension, tificate of exemption under the Endangered Species Act of 1973, as amended by Pub. L. revocation, or modification of cer- 94–359, 90 Stat. 911, Pub. L. 96–159, 93 Stat. tificates of exemption. 1225, Pub. L. 97–304, 95 Stat. 715, and the De- Any violation of the applicable provi- partment of Commerce regulations issued sions of parts 217 through 222 of this thereunder, and that any false statement may subject me to the criminal penalties of chapter, or of the Act, or of a condition 18 U.S.C. 1001, or to the penalties under the of the certificate of exemption may Endangered Species Act of 1973. subject the certificate holder to the (7) Signature of the applicant. following: (b) Upon receipt of an incomplete or (a) The penalties provided in the Act; improperly executed application for re- and newal, the applicant shall be notified (b) Suspension, revocation, or modi- by Certified Mail of the deficiency in fication of the certificate of exemption, the application for renewal. If the ap- as provided in subpart D of 15 CFR part plication for renewal is not corrected 904. and received by the Assistant Adminis- trator within 30 days following the [49 FR 1042, Jan. 6, 1984] date of receipt of notification, the ap- § 222.11–8 Purchaser provisions. plication for renewal shall be consid- ered as having been abandoned. (a) Any person granted a certificate of exemption, including a renewal, [45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12808, Apr. 1, 1985] under this subpart, upon a sale of any exempted pre-Act endangered species § 222.11–4 Procedures for issuance of part, must provide the purchaser in renewals of certificates of exemp- writing with a description (including tion. full identification number) of the part Whenever application for a renewal sold, and must inform the purchaser in of a certificate of exemption is received writing of the purchaser’s obligation
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under paragraph (b) of this section, in- § 222.12 Locations covered by certifi- cluding the address given in the certifi- cate of exemption. cate to which the purchaser’s report is The certificate of exemption covers to be sent. the business or activity specified in the (b) Any purchaser of pre-Act endan- certificate of exemption at the address gered species parts included in a valid described therein. No certificate of ex- certificate of exemption, unless an ul- emption is required to cover a separate timate user, must within 30 days after warehouse facility used by the certifi- the receipt of such parts submit a writ- cate of exemption holder solely for ten report to the address given in the storage of pre-Act endangered species certificate specifying the quantity of parts, if the records required by this such parts or products received, the subpart are maintained at the address name and address of the seller, a copy specified in the certificate of exemp- of the invoice or other document show- ing the serial numbers, weight, and de- tion which is served by the warehouse scriptions of the parts or products re- or storage facility. ceived, the date on which such parts or [50 FR 12809, Apr. 1, 1985] products were received, and the in- tended use of such parts by the pur- § 222.12–1 Certificate of exemption not chaser. An ultimate user, for purposes transferable; exception. of this paragraph, means any person Certificates of exemption issued who acquired such endangered species under this subpart are not transferable: part or product for his own consump- Provided, That in the event of the lease, tion or personal use (including as sale or other transfer of the operations gifts), and not for resale. or activity authorized by the certifi- (c) After January 31, 1984, no pur- cate of exemption the successor is not chaser may export; deliver, receive, required by this subpart to obtain a carry or transport in interstate or for- new certificate of exemption prior to eign commerce in the course of a com- commencing such operations or activ- mercial activity; or sell or offer for ity. In such case, the successor will be sale in interstate or foreign commerce treated as a purchaser and must com- any endangered species part or product ply with the record and reporting re- even though such part or product was quirements set forth in § 222.11–8. acquired under a certificate of exemp- tion either prior to or subsequent to [45 FR 57134, Aug. 27, 1980, as amended at 50 that date. FR 12809, Apr. 1, 1985] [50 FR 12808, Apr. 1, 1985] § 222.12–2 Change of address. § 222.11–9 Duration of certificate of ex- A certificate of exemption holder emption. may during the term of the certificate of exemption move his business or ac- A certificate of exemption is valid tivity to a new location at which he in- only if renewed in accordance with the tends regularly to carry on such busi- procedures set forth in § 222.11–3 of this ness or activity, without obtaining a part. All certificates so renewed will be valid for a period beginning April 1, new certificate of exemption. However, 1985, and ending no later than March in every case, notification of the new 31, 1988. A renewed certificate of ex- location of the business or activity emption entitles the holder to engage must be given in writing within 10 days in the business or activity specified in of such move to the Assistant Adminis- the certificate of exemption, within trator. In each instance, the certificate the limitations of the Act and the reg- of exemption must be endorsed by the ulations contained in this subpart, for Assistant Administrator. After en- the period stated in the certificate of dorsement of the certificate of exemp- exemption, unless sooner terminated. tion the Assistant Administrator will provide an amended certificate of ex- [50 FR 12808, Apr. 1, 1985, as amended at 50 emption to the person to whom issued. FR 25713, June 21, 1985]
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§ 222.12–3 Certain continuance of busi- form, and shall be retained at the ad- ness. dress shown on the certificate of ex- A certificate of exemption holder emption, or at the principal address of who requests that his certificate of ex- a purchaser in the manner prescribed emption be amended by the Assistant by this subpart. Administrator for corrections or en- [45 FR 57134, Aug. 27, 1980, as amended at 50 dorsement in compliance with the pro- FR 12809, Apr. 1, 1985] visions contained in this subpart, may continue his operations while awaiting § 222.12–8 Record of receipt and dis- action by the Assistant Administrator. position. (a) Holders of certificates of exemp- § 222.12–4 Change in trade name. tion must maintain records of all pre- A certificate holder continuing to Act endangered species parts they re- conduct business at the location shown ceive, sell, transfer, distribute or dis- on his certificate of exemption is not pose of otherwise. Purchasers of pre- required to obtain a new certificate of Act endangered species parts, unless exemption by reason of a change in ultimate users, must similarly main- trade name under which he conducts tain records of all such parts or prod- his business: Provided, That such cer- ucts they receive. tificate of exemption holder requests in (b) Such records as referred to in writing that his certificate of exemp- paragraph (a) of this section may con- tion be endorsed to reflect such change sist of invoices or other commercial of name to the Assistant Adminis- records which must be filed in an or- trator within 30 days from the date the derly manner separate from other com- certificate of exemption holder begins mercial records maintained, and be his business under the new name. readily available for inspection. Such records must (1) show the name and ad- § 222.12–5 State or other law. dress of the purchaser, seller, or other A certificate of exemption issued transferor; (2) show the type, quantity, under this subpart confers no right or and identity of the part or product; (3) privilege to conduct a business or an show the date of such sale or transfer; activity contrary to State or other and (4) be retained, in accordance with law. Similarly, compliance with the the requirements of this subpart, for a provisions of any State or other law af- period of not less than three years fol- fords no immunity under any Federal lowing the date of sale or transfer. laws or regulations of any other Fed- Each pre-Act endangered species part eral Agency. will be identified by its number on the updated inventory required to renew a § 222.12–6 Right of entry and examina- certificate of exemption. tion. (c)(1) Each certificate of exemption Any person authorized to enforce the holder must submit a quarterly report Act may enter during business hours (to the address given in the certificate) the premises, including places of stor- containing all record information re- age, of any holder of a certificate of ex- quired by paragraph (b) on all transfers emption or of any purchaser for the of pre-Act endangered species parts purpose of inspecting or examining any made in the previous calendar quarter, records or documents required to be or such other record information the kept by such certificate of exemption Assistant Administrator may specify holder or successor under this subpart, from time to time. and any endangered species parts at (2) Quarterly reports are due on Jan- such premises of location. uary 15, April 15, July 15, and October [45 FR 57134, Aug. 27, 1980, as amended at 50 15. The first report is due on October FR 12809, Apr. 1, 1985] 15, 1985. (d) The Assistant Administrator may § 222.12–7 Records. authorize the record information to be The records pertaining to pre-Act en- submitted in a manner other than that dangered species parts prescribed by prescribed in paragraph (b) of this sec- this subpart shall be in permanent tion when it is shown by the record
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holder that an alternate method of re- the port of exportation, and must pre- porting is reasonably necessary and cede or accompany the shipment in will not hinder the effective adminis- order to permit appropriate inspection tration or enforcement of this subpart. prior to lading.
[45 FR 57134, Aug. 27, 1980, as amended at 50 § 222.13–2 Action by Customs. FR 12809, Apr. 1, 1985] Upon receipt of a certificate of ex- § 222.12–9 Importation. emption authorizing the exportation of No pre-Act endangered species part pre-Act endangered species parts or shall be imported into the United scrimshaw products, the District Direc- States, and a certificate of exemption tor of Customs may order such inspec- issued in accordance with the provi- tion as deemed necessary prior to lad- sions of this subpart confers no right or ing of the merchandise. If satisfied that privilege to import into the United the shipment is proper and agrees with States any such part. the information contained in the cer- tificate, and any endorsement thereto, § 222.13 Exportation. the District Director of Customs will (a) Any person desiring to export clear the merchandise for export. The from the United States any pre-Act en- certificate, and any endorsements, will dangered species part or scrimshaw be forwarded to the Chief, Enforcement product, must possess a valid certifi- Division, F/CM5 National Marine Fish- cate of exemption issued in accordance eries Service, Washington, DC 20235. with the provisions of this subpart. § 222.13–3 Transportation to effect ex- (b) In addition to other information, portation. which may be required by this subpart, the exporter will notify the Assistant Notwithstanding any provision of Administrator by letter which shall this subpart, it shall not be required show the name and address of the for- that authorization be obtained from eign consignee, the intended port of ex- the Assistant Administrator for the portation, and a complete description transportation in interstate or foreign of the parts to be exported. Such infor- commerce of pre-Act endangered spe- mation should reach the Assistant Ad- cies parts to effect an exportation of ministrator not less than 10 days prior such parts authorized under the provi- to shipment. sions of this subpart. (c) No pre-Act endangered species § 222.13–4 Burden of proof; presump- part or scrimshaw product which is to tion. be exported from the United States under a certificate of exemption issued Any person claiming the benefit of therefor, shall be exported except at a any exemption or certificate of exemp- port or ports designated by the Sec- tion under the Act or regulations, shall retary of the Interior. The Secretary of have the burden of proving that the ex- the Interior may permit the expor- emption or certificate is applicable, tation at non-designated ports for any has been granted, and was valid and in reason if he deems it appropriate and force at the time of the alleged viola- consistent with the purposes of the En- tion. dangered Species Act, as amended, or it will facilitate the administration or Subpart C—Endangered Fish or enforcement of the Act and reducing Wildlife Permits the costs thereof. Exporters are advised to see 50 CFR part 14 for a listing of the SOURCE: 39 FR 41375, Nov. 27, 1974, unless designated ports. otherwise noted.
§ 222.13–1 Procedure by exporter. § 222.21 General permit requirement. Shipment may not be made until the No person shall take, import, export, requirements of § 222.13 are met by the or engage in any other prohibited ac- exporter. A copy of the certificate of tivity involving, any species or sub- exemption, and any endorsements species of fish or wildlife which the thereto, must be sent by the exporter Secretary has determined to be endan- to the District Director of Customs at gered under the Endangered Species
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Act of 1973, as evidenced by its inclu- (ii) Application for a General Inci- sion on the list of endangered fish or dental Take Permit under the Endan- wildlife (see 50 CFR chapter I, part 17) gered Species Act of 1973. or which the Secretary of the Interior (2) The name, address and telephone determined to be endangered under the number of the applicant. If the appli- Endangered Species Conservation Act cant is a partnership, corporate entity of 1969 and which are now under the ju- or is representing a group or organiza- risdictional responsibilities of the Sec- tion, the applicable details. retary of Commerce, without a valid (3) The species or stocks, by common permit issued pursuant to this part. and scientific name, and a description of the status, distribution, seasonal (Pub. L. 94–359) distribution, habitat needs, feeding [41 FR 36028, Aug. 26, 1976] habits and other biological require- ments of the affected species or stocks. § 222.22 Permits for the incidental tak- (4) A detailed description of the pro- ing of endangered species. posed activity, including the antici- (a) Scope. (1) The Assistant Adminis- pated dates, duration and specific loca- trator may issue permits to take en- tion. If the request is for a general inci- dangered marine species incidentally dental take permit, an estimate of the to an otherwise lawful activity under total level of activity expected to be section 10(a)(1)(B) of the Endangered conducted. Species Act of 1973. The regulations in (5) A conservation plan, based on the this section apply only to those endan- best scientific and commercial data gered species under the jurisdiction of available, which specifies the Secretary of Commerce identified (i) The anticipated impact (i.e., in § 222.23(a). amount, extent and type of anticipated (2) If the applicant represents an in- taking) of the proposed activity on the dividual or a single entity, such as a species or stocks; corporation, the Assistant Adminis- (ii) The anticipated impact of the trator will issue an individual inciden- proposed activity on the habitat of the tal take permit. If the applicant rep- species or stocks and the likelihood of resents a group or organization whose restoration of the affected habitat; members conduct the same or a similar (iii) The steps (specialized equip- activity in the same geographical area ment, methods of conducting activi- with similar impacts on endangered ties, or other means) that will be taken marine species, the Assistant Adminis- to monitor, minimize and mitigate trator will issue a general incidental such impacts, and the funding avail- take permit. To be covered by a gen- able to implement such measures; and eral incidental take permit, each indi- (iv) The alternative actions to such vidual conducting the activity must taking that were considered and the have a certificate of inclusion issued reasons why those alternatives are not under paragraph (f) of this section. being used. (b) Permit application procedures. Ap- (v) A list of all sources of data used plications should be sent to the Assist- in preparation of the plan, including ant Administrator for Fisheries, Na- reference reports, environmental as- tional Marine Fisheries Service, 1335 sessments and impact statements, and East West Highway, Silver Spring, MD personal communications with recog- 20910. The sufficiency of the application nized experts on the species or activity will be determined by the Assistant who may have access to data not pub- Administrator in accordance with the lished in current literature. requirements of this section. At least (c) Issuance criteria. (1) In determin- 120 days should be allowed for process- ing whether to issue a permit, the As- ing. Each application must be signed sistant Administrator will consider the and dated and include the following: following: (1) The type of application, either: (i) The status of the affected species (i) Application for an Individual Inci- or stocks; dental Take Permit under the Endan- (ii) The potential severity of direct, gered Species Act of 1973, or indirect and cumulative impacts on the
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species or stocks and habitat as a re- authorized by the permit, including sult of the proposed activity; conservation activities. In determining (iii) The availability of effective the duration of a permit, the Assistant monitoring techniques; Administrator will consider the dura- (iv) The use of the best available tion of the proposed activities, as well technology for minimizing or mitigat- as the possible positive and negative ing impacts; and effects associated with issuing a permit (v) The views of the public, scientists of the proposed duration on listed spe- and other interested parties knowl- cies, including the extent to which the edgeable of the species or stocks or conservation plan is likely to enhance other matters related to the applica- the habitat of the endangered species tion. or increase the long-term survivability (2) To issue the permit, the Assistant of the species. Administrator must find that: (f) Certificates of inclusion. (1) Any in- (i) The taking will be incidental; dividual who wishes to conduct an ac- (ii) The applicant will, to the maxi- tivity covered by a general incidental mum extent practicable, monitor, min- take permit must apply to the Assist- imize and mitigate the impacts of such ant Administrator for a certificate of taking; inclusion. Each application must be (iii) The taking will not appreciably signed and dated and include the fol- reduce the likelihood of the survival lowing: and recovery of the species in the wild; (i) The general incidental take per- (iv) The applicant has amended the mit under which the applicant wants conservation plan to include any meas- coverage. ures (not originally proposed by the ap- (ii) The name, address and telephone plicant) that the Assistant Adminis- number of the applicant. If the appli- trator determines are necessary or ap- cant is a partnership or a corporate en- propriate; and tity, the applicable details. (v) There are adequate assurances (iii) A description of the activity the that the conservation plan will be applicant seeks to have covered under funded and implemented, including any the general incidental take permit in- measures required by the Assistant Ad- cluding the anticipated dates, dura- ministrator. tion, and specific location; and (d) Permit conditions. In addition to (iv) A signed certification that the the general conditions set forth in part applicant has read and understands the 220 of this chapter, every permit issued general incidental take permit and the under this section will contain such conservation plan, will comply with terms and conditions as the Assistant their terms and conditions, and will Administrator deems necessary and ap- fund and implement applicable meas- propriate, including, but not limited to ures of the conservation plan. the following: (2) To issue a certificate of inclusion, (1) Reporting requirements or rights the Assistant Administrator must find of inspection for determining whether that: the terms and conditions are being (i) The applicant will be engaged in complied with; the activity covered by the general per- (2) The species and number of ani- mit and mals covered; (ii) The applicant has made adequate (3) The authorized method of taking; assurances that the applicable meas- (4) The procedures to be used to han- ures of the conservation plan will be dle or dispose of any animals taken; funded and implemented. and (g) Assurances provided to permittee in (5) The payment of a fee to reimburse case of changed or unforeseen cir- the National Marine Fisheries Service cumstances. The assurances in this the cost of processing the application. paragraph (g) apply only to incidental (e) Duration of permits. The duration take permits issued in accordance with of permits issued under this section paragraph (c) of this section where the will be such as to provide adequate as- conservation plan is being properly im- surances to the permit holder to com- plemented, and apply only with respect mit funding necessary for the activities to species adequately covered by the
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conservation plan. These assurances resources otherwise available for devel- cannot be provided to Federal agencies. opment or use under the original terms This rule does not apply to incidental of the conservation plan without the take permits issued prior to March 25, consent of the permittee. 1998. The assurances provided in inci- (iii) NMFS will have the burden of dental take permits issued prior to demonstrating that unforeseen cir- March 25, 1998 remain in effect, and cumstances exist, using the best sci- those permits will not be revised as a entific and commercial data available. result of this rulemaking. These findings must be clearly docu- (1) Changed circumstances provided for mented and based upon reliable tech- in the plan. If additional conservation nical information regarding the status and mitigation measures are deemed and habitat requirements of the af- necessary to respond to changed cir- fected species. NMFS will consider, but cumstances and were provided for in not be limited to, the following factors: the plan’s operating conservation pro- (A) Size of the current range of the gram, the permittee will implement affected species; the measures specified in the plan. (B) Percentage of range adversely af- (2) Changed circumstances not provided fected by the conservation plan; for in the plan. If additional conserva- (C) Percentage of range conserved by tion and mitigation measures are the conservation plan; deemed necessary to respond to (D) Ecological significance of that changed circumstances and such meas- portion of the range affected by the ures were not provided for in the plan’s conservation plan; operating conservation program, (E) Level of knowledge about the af- NMFS will not require any conserva- fected species and the degree of speci- tion and mitigation measures in addi- ficity of the species’ conservation pro- tion to those provided for in the plan gram under the conservation plan; and without the consent of the permittee, provided the plan is being properly im- (F) Whether failure to adopt addi- plemented. tional conservation measures would ap- (3) Unforeseen circumstances. (i) In ne- preciably reduce the likelihood of sur- gotiating unforeseen circumstances, vival and recovery of the affected spe- NMFS will not require the commit- cies in the wild. ment of additional land, water, or fi- (h) Nothing in this rule will be con- nancial compensation or additional re- strued to limit or constrain the Assist- strictions on the use of land, water, or ant Administrator, any Federal, State, other natural resources beyond the local, or tribal government agency, or level otherwise agreed upon for the spe- a private entity, from taking addi- cies covered by the conservation plan tional actions at its own expense to without the consent of the permittee. protect or conserve a species included (ii) If additional conservation and in a conservation plan. mitigation measures are deemed nec- [55 FR 20606, May 18, 1990, as amended at 63 essary to respond to unforeseen cir- FR 8872, Feb. 23, 1998] cumstances, NMFS may require addi- tional measures of the permittee where § 222.23 Permits for scientific purposes the conservation plan is being properly or to enhance the propagation or implemented, but only if such meas- survival of the affected endangered ures are limited to modifications with- species. in conserved habitat areas, if any, or to (a) The Director, National Marine the conservation plan’s operating con- Fisheries Service, may issue permits servation program for the affected spe- for scientific purposes or to enhance cies, and maintain the original terms the propagation or survival of the af- of the conservation plan to the maxi- fected endangered species which au- mum extent possible. Additional con- thorize, under such terms and condi- servation and mitigation measures will tions as he may prescribe, taking, im- not involve the commitment of addi- portation, or certain other acts with tional land, water or financial com- respect to endangered species other- pensation or additional restrictions on wise prohibited by section 9 of the the use of land, water, or other natural Endangered Species Act of 1973. The
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species listed as endangered under ei- sea turtle (Lepidochelys olivacea) breed- ther the Endangered Species Conserva- ing colony population on the Pacific tion Act of 1969 or the Endangered Spe- coast of Mexico. Of these, the National cies Act of 1973 and currently under the Marine Fisheries Service has sole agen- jurisdiction of the Secretary of Com- cy jurisdiction for sea turtles while the merce are: Shortnose sturgeon turtles are in the water and the U.S. (Acipenser brevirostrum); Totoaba Fish and Wildlife Service has jurisdic- (Cynoscian macdonaldi), Snake River tion for sea turtles while the turtles sockeye salmon (Oncorhynchusnerka), are on land. Within the jurisdiction of Umpqua River cutthroat trout a State, more restrictive State laws or (Oncorhynchus clarki clarki); Southern regulations in regard to endangered California steelhead (Oncorhynchus species shall prevail in regard to tak- mykiss), which includes all naturally ing. Proof of compliance with applica- spawned populations of steelhead (and ble State laws will be required before a their progeny) in streams from the permit will be issued. Santa Maria River, San Luis Obispo (b) Application procedures. To obtain County, California (inclusive) to such a permit, an application must be Malibu Creek, Los Angeles County, made to the Director in accordance California (inclusive); Upper Columbia with this subpart, except for marine River steelhead (Oncorhynchus mykiss), mammal permits which shall be issued which includes the Wells Hatchery in accordance with the provisions of stock and all naturally spawned popu- part 216, subpart D of this chapter, and lations of steelhead (and their progeny) sea turtle permits which shall be issued in streams in the Columbia River Basin in accordance with part 220, subpart E upstream from the Yakima River, Washington, to the United States-Can- of this chapter. The sufficiency of the ada Border; Sacramento River winter- application shall be determined by the run chinook salmon (Oncorhynchus Director in accordance with the re- tshawytscha); Western North Pacific quirements of this part and, in that (Korean) gray whale (Eschrichtius connection, he may waive any require- robustus), Blue whale (Balaenoptera ment for information, or require any musculus), Humpback whale (Megaptera elaboration or further information novaeangliae), Bowhead whale deemed necessary. The following infor- (Balaenamysticetus), Right whales mation will be used as the basis for de- (Eubalaena spp.), Fin or finback whale termining whether an application is (Balaenoptera physalus), Sei whale complete and whether a permit for sci- (Balaenoptera borealis), Sperm whale entific purposes or to enhance the (Physeter catodon); Cochito (Phocoena propagation or survival of the affected Sinus), Chinese river dolphin (Lipotes endangered species should be issued by vexillifer); Indus River dolphin the Director. An original and four cop- (Platanista minor); Caribean monk seal ies of the completed application shall (Monachus tropicalis) Hawaiian monk be submitted to the Director, National seal (Monachus schauinslandi); Medi- Marine Fisheries Service, National terranean monk seal (Monachus Oceanic and Atmospheric Administra- monachus); Saimaa seal (Phoca hispida tion (NOAA), U.S. Department of Com- saimensis); Steller sea lion (Eumetopias merce, Washington, DC 20235. Assist- jubatus), western population, which ance may be obtained by writing the consists of Steller sea lions from breed- Director or calling the Marine Mam- ing colonies located west of 144° W. mal and Endangered Species Division long.; Leatherback sea turtle in Washington, DC (202–343–9445 and ef- (Dermochelys coriacea), Pacific fective December 2, 1974, it will become hawksbill sea turtle (Eretmochelys 202–634–7529). At least 45 days should be imbricata bissa), Atlantic hawksbill sea allowed for processing. An application turtle (Eretmochelys imbricata for a permit shall provide the following imbricata), Atlantic ridley sea turtle information (when the information re- (Lepidochelys kempii). Green sea turtle quested is not applicable put ‘‘N.A.’’) (Chelonia mydas) breeding colony popu- and such other information that the lations in Florida and on the Pacific Director may require: coast of Mexico, and the olive ridley (1) Title: As applicable, either:
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(i) Application for Permit for Sci- scientific name; the subspecies (if ap- entific Purposes under the Endangered plicable); population group, and range; Species Act of 1973; or (ii) A physical description of each (ii) Application for Permit to En- animal, including the age, size, and hance the Propagation or Survival of sex; the Endangered Species Under the En- (iii) A list of the probable dates of dangered Species Act of 1973. capture or other taking, importation, (2) The date of the application. exportation, and other acts which re- (3) The identity of the applicant in- quire a permit, for each animal, and cluding complete name, address, and the location of capture or other taking, telephone number. If the applicant is a importation, exportation, and other partnership or a corporate entity set acts which require a permit, as specifi- forth the details. If the endangered spe- cally as possible; cies is to be utilized by a person other (iv) A description of the status of the than the Applicant, set forth the name stock of each species related insofar as of that person and such other informa- possible to the location or area of tak- tion as would be required if such person were an Applicant. ing; (4) A description of the purpose of the (v) A description of the manner of proposed acts, including: taking for each animal, including the (i) A detailed justification of the gear to be used; need for the endangered species, in- (vi) The name and qualifications of cluding a discussion of possible alter- the persons or entity which will cap- natives, whether or not under the con- ture or otherwise take the animals; trol of the applicant; and (vii) If the capture or other taking is (ii) A detailed description of how the to be done by a contractor, a statement species will be used. as to whether a qualified member of (5) A detailed description of the proj- your staff (include name(s) and quali- ect, or program, in which the endan- fications) will supervise or observe the gered species is to be used, including: capture or other taking. Accompany (i) The period of time over which the such statement with a copy of the pro- project or program will be conducted; posed contract or a letter from the con- (ii) A list of the names and addresses tractor indicating agreement to cap- of the sponsors or cooperating institu- ture or otherwise taken the animals, tions and the scientists involved; should a permit be granted; (iii) A copy of the formal research (7) A description of the manner of proposal or contract if one has been transportation of any live animal prepared; taken, imported, exported, or shipped (iv) A statement of whether the pro- in interstate commerce, including: posed project or program has broader (i) Mode of transportation; significance than the individual re- (ii) Name of transportation company; searcher’s goals (i.e., does the proposed (iii) Length of time in transit for the project or program respond directly or transfer of the animal(s) from the cap- indirectly to recommendation of any ture site to the holding facility; national or international scientific body charged with research or manage- (iv) Length of time in transit for any ment of the endangered species, and, if future move or transfer of the ani- so, how?); and mal(s) that is planned; (v) A description of the arrange- (v) The qualifications of the common ments, if any, for the disposition of any carrier or agent used for transpor- dead specimen or its skeleton or other tation of the animals; remains, for the continued benefit to (vi) A description of the pen, tank, science, in a museum or other institu- container, cage, cradle, or other de- tional collection. vices used, both to hold the animal at (6) A description of the endangered the capture site and during transpor- species which is the subject of the ap- tation; plication, including the following: (vii) Special care before and during (i) A list of each species and the num- transportation, such as salves, anti- ber of each, including the common and biotics, moisture; and
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(viii) A statement as to whether the purposes or to enhance the propagation animals will be accompanied by a vet- or survival of the affected species, and/ erinarian or other similarly qualified or for all such species caused to be cap- person, and the qualifications of such tured, transported, maintained, or uti- person. lized for scientific purposes or to en- (8) Describe the contemplated care hance the propagation or survival of and maintenance of any live animals the affected species, by the Applicant; sought, including a complete descrip- (ii) The numbers of mortalities tion of the facilities where any such among such animals by species, by animals will be maintained including: date, location of capture, i.e., from (i) The dimensions of the pools or which population, and location of such other holding facilities and the num- mortalities; ber, sex, and age of animals by species (iii) The cause(s) of any such mortali- to be held in each; ties; and (ii) The water supply, amount, and (iv) The steps which have been taken quality; by Applicant to avoid or decrease any (iii) The diet, amount and type, for such mortalities. all animals; (12) A certification in the following (iv) Sanitation practices used; language: (v) Qualifications and experience of the staff; and I hereby certify that the foregoing infor- mation is complete, true and correct to the (vi) A written certification from a li- best of my knowledge and belief. I under- censed veterinarian knowledgeable stand that this information is submitted for about the species (or related species) or the purpose of obtaining a permit under the group which is the subject of the appli- Endangered Species Act of 1973 (87 Stat. 864, cation, or from a recognized expert on Pub. L. 93–205, 16 U.S.C. 1531 et seq.) and reg- the species (or related species) or group ulations promulgated thereunder, and that covered in the application that he has any false statement may subject me to the personally reviewed the amendments criminal penalties of 18 U.S.C. 1001, or to penalties under the Endangered Species Act for transporting and maintaining the of 1973. animal(s) and that in his opinion they are adequate to provide for the well- (13) The applicant and/or an officer being of the animal; and thereof must sign the application. (vii) The availability in the future of (c) Issuance criteria. The Director a consulting expert or veterinarian shall specifically consider, among meeting paragraph (b)(8)(vi) require- other criteria, the following in deter- ments of this section; mining whether to issue a permit for (9) A statement of willingness to par- scientific purposes or to enhance the ticipate in a cooperative breeding pro- propagation or survival of the affected gram and maintain or contribute data endangered species: to a stud book. (1) Whether the permit was applied (10) A statement of how the appli- for in good faith; cant’s proposed project or program will (2) Whether the permit if granted and enhance or benefit the wild population. exercised will not operate to the dis- (11) For the 5 years preceding the advantage of the endangered species; date of this application, provide a de- (3) Whether the permit would be con- tailed description of all mortalities in- sistent with the purposes and policy volving species which were under the set forth in section 2 of the Act; control of or utilized by the applicant (4) Whether the permit would further and are either presently listed as en- a bona fide and necessary or desirable dangered species or are taxonomically scientific purpose or enhance the prop- related within the Order to the species agation or survival of the endangered which is the subject of this application, species, taking into account the bene- including: fits anticipated to be derived on behalf (i) A list of all endangered species of the endangered species; and species related to the species which (5) The status of the population of is the subject of this application; cap- the requested species, and the effect of tured, transported, maintained, or uti- the proposed action on the population, lized by the applicant for scientific both direct and indirect;
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(6) If a live animal is to be taken, current and chargeable for the cost of transported, or held in captivity—the furnishing the service. applicant’s qualifications for the prop- [39 FR 41375, Nov. 27, 1974] er care and maintenance of the species and the adequacy of his facilities; EDITORIAL NOTE: For FEDERAL REGISTER ci- (7) Whether alternative non-endan- tations affecting § 222.23, see the List of CFR Sections Affected in the Finding Aids sec- gered species or population stocks can tion of this volume. and should be used; (8) Whether the animal was born in § 222.24 Procedures for issuance of captivity or was (or will be) taken from permits. the wild; (a) Whenever application for a permit (9) Provision for disposition of the is received by the Director which the species if and when the applicant’s Director deems sufficient, he shall, as project or program terminates; soon as practicable, publish a notice (10) How the applicant’s needs, pro- thereof in the FEDERAL REGISTER. In- gram, and facilities compare and relate formation received by the Director as a to proposed and ongoing projects and part of the application shall be avail- programs; able to the public as a matter of public (11) Whether the expertise, facilities, record at every stage of the proceeding. or other resources available to the ap- An interested party may within 30 days plicant appear adequate to successfully after the date of publication of such accomplish the objectives stated in the notice, submit to the Director his writ- application; ten data, views, or arguments with re- (12) Opinions or views of scientists or spect to the taking, importation, or other persons or organizations knowl- other action proposed in the applica- edgeable of the species which is the tion and may request a hearing in con- subject of the application or of other nection with the action to be taken matters germane to the application; thereon. and (b) If a request for a hearing is made (d) Permits applied for under this within the 30–day period referred to in section shall contain terms and condi- paragraph (a) of this section, or if the tions as the Director may deem appro- Director determines that a hearing priate, including: would otherwise be advisable, the Di- rector may, within 60 days after the (1) The number and kind of species date of publication of the notice re- which are covered; ferred to in paragraph (a) of this sec- (2) The location and manner of tak- tion, afford to such requesting party or ing; parties an opportunity for a hearing. (3) Port of entry or export; Such hearing shall also be open to par- (4) The methods of transportation, ticipation by any interested members care and maintenance to be used with of the public. Notice of the date, time, live species; and place of such hearing shall be pub- (5) Any requirements for reports or lished in the FEDERAL REGISTER not rights of inspections with respect to less than 15 days in advance of such any activities carried out pursuant to hearing. Any interested person may ap- the permit; pear in person or through representa- (6) The transferability or assignabil- tives at the hearing and may submit ity of the permit; any relevant material, data, views, (7) The sale or other disposition of comments, arguments, or exhibits. A the species, its progeny or the species summary record of the hearing shall be product; kept. (8) A reasonable fee covering the (c) Except as provided in subpart D of costs of issuance of such permit, in- 15 CFR part 904, as soon as practicable cluding reasonable inspections and an but not later than 30 days after the appropriate apportionment of overhead close of the hearing (or if no hearing is and administrative expenses of the De- held, as soon as practicable after the partment of Commerce. All such fees end of the 30 days succeeding publica- will be deposited in the Treasury to the tion of the notice referred to in para- credit of the appropriation which is graph (a) of this section) the Director
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shall issue or deny issuance of the per- date of notification, unless otherwise mit. Notice of the decision of the Di- specified. rector shall be published in the FED- [39 FR 41375, Nov. 27, 1974] ERAL REGISTER within 10 days after the date of the issuance or denial and indi- § 222.27 Procedures for suspension, cate where copies of the permit, if revocation, or modification of per- issued, may be obtained. mits. (d) If a permit is issued, the Director Any violation of the applicable provi- shall publish notice thereof in the FED- sions of parts 217 through 222 of this ERAL REGISTER, including his finding that (1) such permit was applied for in chapter, or of the Act, or of a condition good faith, (2) if granted and exercised of the permit may subject the certifi- will not operate to the disadvantage of cate holder to the following: such endangered species, and (3) will be (a) The penalties provided in the Act; consistent with the purposes and policy and set forth in section 2 of the Endangered (b) Suspension, revocation, or modi- Species Act of 1973. The requirements fication of the permit, as provided in of this paragraph pertain solely to the subpart D of 15 CFR part 904. permits issued under § 222.23. [49 FR 1043, Jan. 6, 1984, as amended at 55 FR (e) The Director may waive the thir- 20607, May 18, 1990] ty-day period in an emergency situa- tion where the health or life of an en- § 222.28 Possession of permits. dangered animal is threatened and no (a) Any permit issued under these reasonable alternative is available to regulations must be in the possession the applicant, but notice of any such of the person to whom it is issued (or waiver shall be published by the Direc- an agent of such person) during: tor in the FEDERAL REGISTER within (1) The time of the authorized taking, ten days following the issuance of the importation, exportation, or other act; certificate of exemption or permit. (2) The period of any transit of such [39 FR 41375, Nov. 27, 1974, as amended at 42 person or agent which is incident to FR 28139, June 2, 1977; 49 FR 1042, Jan. 6, 1984; such taking, importation, exportation, 55 FR 20607, May 18, 1990] or other act; and (3) Any other time while any animal § 222.25 Applications for modification of permit by permittee. under such permit is in the possession of such person or agent. Where circumstances have changed (b) A duplicate copy of the issued per- so that an applicant or permittee mit must be physically attached to the desires to have any term or condition tank, container, package, enclosure, or of his application or permit modified, other means of containment, in which he must submit in writing full jus- the animal is placed for purposes of tification and supporting information storage, transit, supervision, or care. in conformance with the provisions of this part and the part under which the [39 FR 41375, Nov. 27, 1974] permit has been issued or requested. Such applications for modification are Subpart D—Special Prohibitions subject to the same issuance criteria as are original applications, as provided § 222.31 Approaching humpback in §§ 222.22(c) and 222.23(c). whales in Hawaii. [39 FR 41375, Nov. 27, 1974, as amended at 55 Except as provided in subpart C (En- FR 20607, May 18, 1990] dangered Fish or Wildlife Permits) of this part it is unlawful for any person § 222.26 Amendment of permits by subject to the jurisdiction of the NMFS. United States to commit, to attempt All permits are issued subject to the to commit, to solicit another to com- condition that the National Marine mit, or to cause to be committed, with- Fisheries Service reserves the right to in 200 nautical miles (370.4 km) of the amend the provisions of a permit for Islands of Hawaii, any of the following just cause at any time during its term. acts with respect to humpback whales Such amendments take effect on the (Megaptera novaeangliae):
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(a) Operate any aircraft within 1,000 an exception has the burden of proving ft (300 m) of any humpback whale; or that the exception is applicable: (b) Approach by any means, within (1) Paragraphs (a) and (b) of this sec- 100 yd (90 m) of any humpback whale; tion do not apply if a right whale ap- or proach is authorized by NMFS through (c) Cause a vessel or other object to a permit issued under subpart C (En- approach within 100 yd (90 m) of a dangered Fish or Wildlife Permits) of humpback whale; or this part or through a similar author- (d) Disrupt the normal behavior or ization. prior activity of a whale by any other (2) Paragraphs (a) and (b) of this sec- act or omission. A disruption of normal tion do not apply where compliance behavior may be manifested by, among would create an imminent and serious other actions on the part of the whale, threat to a person, vessel, or aircraft. a rapid change in direction or speed; es- (3) Paragraphs (a) and (b) of this sec- cape tactics such as prolonged diving, tion do not apply when approaching to underwater course changes, underwater investigate a right whale entanglement exhalation, or evasive swimming pat- or injury, or to assist in the terns; interruptions of breeding, nurs- disentanglement or rescue of a right ing, or resting activities, attempts by a whale, provided that permission is re- whale to shield a calf from a vessel or ceived from NMFS or a NMFS designee human observer by tail swishing or by prior to the approach. other protective movement; or the abandonment of a previously fre- (4) Paragraphs (a) and (b) of this sec- quented area. tion do not apply to an aircraft unless the aircraft is conducting whale watch [60 FR 3775, Jan. 19, 1995] activities or is being operated for that purpose. § 222.32 Approaching North Atlantic (5) Paragraph (b) of this section does right whales. not apply to the extent that a vessel is (a) Prohibitions. Except as provided restricted in her ability to maneuver, under paragraph (c) of this section, it and because of the restriction, cannot is unlawful for any person subject to comply with paragraph (b) of this sec- the jurisdiction of the United States to tion. commit, attempt to commit, to solicit another to commit, or cause to be com- [62 FR 6738, Feb. 13, 1997] mitted any of the following acts: (1) Approach (including by intercep- § 222.33 Special prohibitions relating tion) within 500 yards (460 m) of a right to endangered Steller sea lion pro- tection. whale by vessel, aircraft, or any other means; General. The regulatory provisions (2) Fail to undertake required right set forth in part 227, which govern whale avoidance measures specified threatened Steller sea lions, shall also under paragraph (b) of this section. apply to the western population of (b) Right whale avoidance measures. Steller sea lions, which consists of all Except as provided under paragraph (c) Steller sea lions from breeding colonies of this section, the following avoidance located west of 144 °W. long. measures must be taken if within 500 [62 FR 24355, May 5, 1997] yards (460 m) of a right whale: (1) If underway, a vessel must steer a course away from the right whale and Subpart E—Incidental Capture of immediately leave the area at a slow Endangered Sea Turtles safe speed; (2) An aircraft must take a course § 222.41 Policy regarding incidental away from the right whale and imme- capture of sea turtles. diately leave the area at a constant Shrimp fishermen in the southeast- airspeed. ern United States and the Gulf of Mex- (c) Exceptions. The following excep- ico who comply with rules for threat- tions apply to this section, but any ened sea turtles specified in § 227.72(e) person who claims the applicability of of this subchapter will not be subject
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to civil penalties under the Act for in- (a) Act means the Endangered Species cidental captures of endangered sea Act of 1973, 87 Stat. 884, 16 U.S.C. 1531 turtles by shrimp trawl gear. through 1543, Pub. L. 93–205. [52 FR 24251, June 29, 1987] (b) Agreements mean signed docu- mented statements of the actions to be § 222.42 Special prohibitions relating taken by the State(s) and the Director to leatherback sea turtles. in furthering certain purposes of the Special prohibitions relating to Act. They include: leatherback sea turtles are provided at (1) A Cooperative Agreement entered § 227.72(e)(2)(iv) of this chapter. into pursuant to section 6(c) of the Act and, where appropriate, containing pro- [60 FR 25623, May 12, 1995] visions found in section 6(d)(2) of the Act. PART 225—FEDERAL/STATE CO- (2) A Grant-In-Aid Award which in- OPERATION IN THE CONSERVA- cludes a statement of the actions to be TION OF ENDANGERED AND taken in connection with the conserva- THREATENED SPECIES tion of endangered or threatened spe- cies receiving Federal financial assist- Sec. ance, objectives and costs of such ac- 225.1 Purpose of regulations. tions, and costs to be borne by the Fed- 225.2 Scope of regulations. eral Government and by the State(s). 225.3 Definitions. 225.4 Cooperation with the States. (c) Application for Federal Assistance 225.5 Cooperative agreement. means a description of work to be ac- 225.6 Allocation of funds. complished, including objectives and 225.7 Financial assistance. needs, expected results and benefits, 225.8 Availability of funds. approach, cost, location and time re- 225.9 Payments. quired for completion. 225.10 Assurances. (d) Director means the Director of the 225.11 Submission of documents. 225.12 Project evaluation. National Marine Fisheries Service, Na- 225.13 Contracts. tional Oceanic and Atmospheric Ad- 225.14 Inspection. ministration, Department of Com- merce, or his authorized designee. AUTHORITY: Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. 1531–1543, Pub. L. (e) Program means a State-developed 93–205. plan for the conservation and manage- ment of all resident species which are SOURCE: 41 FR 24354, June 16, 1976, unless otherwise noted. deemed by the Secretary to be endan- gered or threatened and those which § 225.1 Purpose of regulations. are deemed by the State to be endan- The regulations in this part imple- gered or threatened, which includes ment section 6 of the Endangered Spe- goals, priorities, strategies, actions, cies Act of 1973, 87 Stat. 884, 16 U.S.C. and funding necessary to accomplish 1531 through 1543, Pub. L. 93–205 which the objectives on an individual species provides, under certain circumstances, basis. for cooperative agreements with and fi- (f) Project means a substantial under- nancial assistance to the States. taking to conserve the various endan- gered or threatened species. § 225.2 Scope of regulations. (g) Project segment means an essential This part applies to endangered and part or a division of a project, usually threatened species under the jurisdic- separated as a period of time, occasion- tion of the Department of Commerce ally as a unit of work. (see 50 CFR 222.23(a)). (h) Resident species means, for pur- poses of these regulations, with respect § 225.3 Definitions. to a State, a species which exists in the In addition to the definitions con- wild in that State during any part of tained in the Act, and unless the con- its life. text otherwise requires, in this part (i) Secretary means the Secretary of 225: Commerce or his authorized designee.
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§ 225.4 Cooperation with the States. (a) The actions that are to be taken by the Director and the State; The Director shall cooperate with (b) The benefits that are expected to any State which establishes and main- be derived in connection with the con- tains an adequate and active program servation of endangered or threatened for the conservation of endangered and species; and threatened species. In order for a State (c) The estimated cost of these ac- program to be deemed an adequate and tions. active program, the Director must find and reconfirm, on an annual basis, § 225.6 Allocation of funds. that: The Director shall allocate funds, ap- (a) Authority resides in a State agen- propriated for the purpose of carrying cy to conserve resident species deter- out section 6 of the Act, to various mined by the State agency or the Di- States using the following as the basis rector to be endangered or threatened; for his determination: (b) The State agency has established (a) The international commitments an acceptable conservation program, of the United States to protect endan- consistent with the purposes and poli- gered or threatened species; cies of the Act, for all resident species (b) The readiness of a State to pro- in the State which are deemed by the ceed with a conservation program con- Director to be endangered or threat- sistent with the objectives and pur- ened; and has furnished a copy of such poses of the Act; program together with all pertinent de- (c) The number of federally listed en- tails, information and data requested dangered and threatened species within to the Director; a State; (c) The State agency is authorized to (d) The potential for restoring endan- conduct investigations to determine gered and threatened species within a the status and requirements for sur- State; and vival of resident species; (e) The relative urgency to initiate a (d) The State agency is authorized to program to restore and protect an en- establish programs, including the ac- dangered or threatened species in quisition of land or aquatic habitat or terms of survival of the species. interests therein, for the conservation of resident endangered or threatened § 225.7 Financial assistance. species; and (a) Before any Federal funds may be (e) Provisions are made for public obligated for any project to be under- participation in designating resident taken in a State, the State must have species as endangered or threatened. entered into a Cooperative Agreement. Subsequent to such agreement, the Di- § 225.5 Cooperative agreement. rector may further agree with a Following receipt of an application State(s) to provide financial assistance by a State for a Cooperative Agree- in the development and implementa- ment and a determination by the Di- tion of acceptable projects for the con- rector that the State program for en- servation of endangered and threatened dangered and threatened species is ade- species. Documents to provide finan- quate and active, the Director shall cial assistance will consist of an Appli- enter into an Agreement with the cation for Federal Assistance and a State. A Cooperative Agreement is nec- Grant-In-Aid Award. The availability essary before a Grant-In-Aid Award can of Federal funds under a Grant-In-Aid be approved for endangered or threat- Award shall be contingent upon the ened species projects. The Cooperative continued existence of the Cooperative Agreement must be reconfirmed annu- Agreement. ally to insure that it reflects new laws, (b) To meet the requirements of the species lists, rules or regulations, and Act, the Application for Federal Assist- programs, and to demonstrate that the ance shall certify that the State agen- program is still active and adequate. In cy submitting the project is committed order for a State to receive financial to its execution and that it has been assistance, such Cooperative Agree- reviewed by the appropriate State offi- ment must also contain: cials and is in compliance with other
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requirements of the Office of Manage- penditures reported and certified by ment and Budget Circular No. A–95 (as the State agency. Payments shall be revised and published in the FEDERAL made only to the State office or offi- REGISTER on January 13, 1976 (41 FR cial designated by the State agency 2052)). and authorized under the laws of the (c) The mutual obligations by the co- State to receive public funds for the operating agencies will be set forth in State. a Grant-In-Aid Award executed be- (d) Vouchers and forms provided by tween the State and the Director. The the Director and certified as therein Grant-In-Aid Award shall cover the prescribed, showing amounts expended proposed financing and the work items and the amount of Federal Aid funds described in the documents supporting claimed to be due on account thereof, it. The form and content for both the shall be submitted to the Director by Application for Federal Assistance and the State agency. the Grant-In-Aid Award are provided in the Federal Aid Handbook No. 22. [41 FR 24354, June 16, 1976, as amended at 49 FR 30074, July 26, 1984] § 225.8 Availability of funds. § 225.10 Assurances. Funds allocated to a State are avail- A State shall certify that it will com- able for obligation during the fiscal ply with all applicable Federal laws, year for which they are allocated and regulations, and requirements as they until the close of the succeeding fiscal relate to the application, acceptance, year. For the purpose of this section, and use of Federal funds for projects obligation of allocated funds occurs under the Act in accordance with Fed- when a Grant-In-Aid Award is signed eral Management Circular 74–7. by the Director. § 225.11 Submission of documents. § 225.9 Payments. The payment of the Federal share of Documents required by section 6 of costs incurred in the conduct of activi- the Act or by these regulations shall be ties included under a Grant-In-Aid addressed to the Director, National Award shall be in accordance with the Marine Fisheries Service, Washington, Treasury Circular 1075. DC 20235. (a) Federal payments under the Act § 225.12 Project evaluation. shall not exceed 75 percent of the pro- gram costs as stated in the agreement; Any difference of opinion about a except, the Federal share may be in- proposed project or appraised value of creased to 90 percent when two or more land to be acquired or any other relat- States having a common interest in ed matter will be considered by quali- one or more endangered or threatened fied representatives of the Director and resident species, the conservation of the State. Final determination in the which may be enhanced by cooperation event of continued disagreement rests of such States, jointly enter into an with the Director. agreement with the Director. (b) The State share of program costs § 225.13 Contracts. may be in the form of cash or in-kind The State may use its own regula- contributions, including real property, tions in obtaining services provided subject to standards established by the they adhere to Federal laws and the re- Director as provided in Federal Man- quirements set forth in Federal Man- agement Circular 74–7. agement Circular 74–7. The State is the (c) Payments of funds, including pay- responsible authority without recourse ment of such preliminary costs and ex- to the Director regarding settlement of penses as may be incurred in connec- contractual issues. tion with projects, shall not be made unless all documents that may be nec- § 225.14 Inspection. essary or required in the administra- Supervision of each project by the tion of the Act shall have first been State shall include adequate and con- submitted to and approved by the Di- tinuous inspection. The project will be rector. Payments shall be made for ex- subject to periodic Federal inspection.
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PART 226—DESIGNATED CRITICAL as critical under section 7 of the En- HABITAT dangered Species Act, as amended, by the Assistant Administrator for Fish- Subpart A—Introduction eries, National Oceanic and Atmos- pheric Administration, for those en- Sec. dangered and threatened species under 226.1 Purpose of regulations. 226.2 Scope of regulations. the jurisdiction of the Secretary of Commerce. The list of these species is Subpart B—Critical Habitat for Marine found in 50 CFR 222.23(a) for endan- Mammals gered species and 50 CFR 227.4 for threatened species. 226.11 Northwestern Hawaiian Islands. 226.12 North Pacific Ocean. 226.13 North Atlantic Ocean. § 226.2 Scope of regulations. (a) The critical habitat designations Subpart C—Critical Habitat for Fish contained in this part apply only to the 226.21 Sacramento River winter-run chi- endangered and threatened species list- nook salmon (Oncorhynchus tshawytscha). ed in this part. 226.22 Snake River sockeye salmon (b) Regulations implementing section (oncorhynchus nerka), Snake River spring/summer chinook salmon 7 of the Endangered Species Act, as (oncorhynchus tshawytscha), Snake River amended, are found in 50 CFR part 402. fall chinook salmon (oncorhynchus (c) The provisions in this part are in tshawytscha). addition to, and not in lieu of other 226.23 Umpqua River cutthroat trout regulations of parts 217 through 227 and (Oncorhynchus clarki clarki). 402 of this chapter. Subpart D—Critical Habitat for Marine Reptiles Subpart B—Critical Habitat for 226.71 Sandy Point, St. Croix, U.S. Virgin Marine Mammals Islands. 226.72 Green Sea Turtle (Chelonia mydas). § 226.11 Northwestern Hawaiian Is- 226.73 Hawksbill Sea Turtle (Eretmochelys lands. imbricata). TABLE 1 TO PART 226 HAWAIIAN MONK SEAL TABLE 2 TO PART 226 TABLE 3 TO PART 226 (Monachus schauinslandi) TABLE 4 TO PART 226 FIGURE 1 TO PART 226 All beach areas, sand spits and islets, FIGURE 2 TO PART 226 including all beach crest vegetation to FIGURE 3 TO PART 226 its deepest extent inland, lagoon wa- FIGURE 4 TO PART 226 ters, inner reef waters, and ocean wa- FIGURE 5 TO PART 226 ters out to a depth of 20 fathoms FIGURE 6 TO PART 226 FIGURE 7 TO PART 226 around the following: FIGURE 8 TO PART 226 Kure Atoll (28°24′ N, 178°20′ W) FIGURE 9 TO PART 226 Midway Islands, except Sand Island and its AUTHORITY: 16 U.S.C. 1533. harbor (28°14′ N, 177°22′ W) SOURCE: 44 FR 17711, Mar. 23, 1979, unless Pearl and Hermes Reef (27°55′ N, 175° W) otherwise noted. Lisianski Island (26°46′ N, 173°58′ W) Laysan Island (25°46′ N, 171°44′ W) Subpart A—Introduction Maro Reef (25°25′ N, 170°35′ W) Gardner Pinnacles (25°00′ N, 168°00′ W) § 226.1 Purpose of regulations. French Frigate Shoals (23°45′ N, 166°00′ W) ° ′ ° ′ The regulations contained in this Necker Island (23 34 N, 164 42 W) ° ′ ° ′ part identify those habitats designated Nihoa Island (23 03.5 N, 161 55.5 W).
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[53 FR 18990, May 26, 1988]
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§ 226.12 North Pacific Ocean. (connected by the shortest lines); bounded on the west by a line connect- Steller Sea Lion (Eumetopias jubatus) ing Cape Kumlik (56°38″/157°27′W) and (a) Alaska rookeries, haulouts, and as- the southwestern tip of Tugidak Island ° ′ ° ′ sociated areas. In Alaska, all major (56 24 N/154 41 W) and bounded in the Steller sea lion rookeries identified in east by a line connecting Cape Douglas ° ′ ° ′ Table 1 and major haulouts identified (58 51 N/153 15 W) and the northernmost ° ′ ° ′ in Table 2 and associated terrestrial, tip of Shuyak Island (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 which is identified in Figure 3 and con- baseline or base point of each major sists of the area between 170°00′W and rookery and major haulout in Alaska. 164°00′W, south of straight lines con- Critical habitat includes an air zone necting 55°00′N/170°00′W and 55°00′N/ that extends 3,000 feet (0.9 km) above 168°00′W; 55°30′N/168°00′W and 55°30′N/ the terrestrial zone of each major rook- 166°00′W; 56°00′N/166°00′W and 56°00′N/ ery and major haulout in Alaska, 164°00′W and north of the Aleutian Is- measured vertically from sea level. lands and straight lines between the is- Critical habitat includes an aquatic lands connecting the following coordi- zone that extends 3,000 feet (0.9 km) nates 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 54°23.9′N/164°44.0′W and major haulout in Alaska that is west of 144° W. longitude. (3) Critical habitat includes the (b) California and Oregon rookeries and Seguam Pass area which is identified associated areas. In California and Or- in Figure 4 and consists of the area be- egon, all major Steller sea lion rook- tween 52°00′N and 53°00′N and between eries identified in Table 1 and associ- 173°30′W and 172°30′W. ated air and aquatic zones. Critical [58 FR 45278, Aug. 27, 1993] habitat includes an air zone that ex- tends 3,000 feet (0.9 km) above areas § 226.13 North Atlantic Ocean. historically occupied by sea lions at each major rookery in California and Northern Right Whale (Eubalaena Oregon, measured vertically from sea glacialis) level. Critical habitat includes an (a) Great South Channel. The area aquatic zone that extends 3,000 feet (0.9 bounded by 41°40′ N/69°45′ W; 41°00′ N/ km) seaward in State and Federally 69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/ managed waters from the baseline or 68°31′ W (Figure 6 to part 226). basepoint of each major rookery in (b) Cape Cod Bay, Massachusetts. The California and Oregon. area bounded by 42°04.8′ N/70°10′ W; (c) Three special aquatic foraging areas 42°12′ N/70°15′ W; 42°12′ N/70°30′ W; 41°46.8′ in Alaska. Three special aquatic forag- N/70°30′ W and on the south and east by ing areas in Alaska, including the the interior shore line of Cape Cod, Shelikof Strait area, the Bogoslof area, Massachusetts (Figure 7 to part 226). and the Seguam Pass area. (c) The (1) Critical habitat includes the Southeastern United States. coastal waters between 31°15′ N and Shelikof Strait area in the Gulf of 30°15′ N from the coast out 15 nautical Alaska which is identified in Figure 2 miles; and the coastal waters between and consists of the area between the 30°15′ N and 28°00′ N from the coast out Alaska Peninsula and Tugidak, 5 nautical miles (Figure 8 to part 226). Sitkinak, Aiaktilik, Kodiak, Rasp- berry, Afognak and Shuyak Islands [59 FR 28805, June 3, 1994]
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Subpart C—Critical Habitat for Fish salmon. The complete text delineating critical habitat for each species fol- lows. Hydrologic units (table 3) are SOURCE: 58 FR 33218, June 16, 1993, unless otherwise noted. those defined by the Department of the Interior (DOI), U.S. Geological Survey § 226.21 Sacramento River winter-run (USGS) publication, ‘‘Hydrologic Unit chinook salmon (Oncorhynchus Maps, United States Geological Survey tshawytscha). Water Supply Paper 2294, 1987’’, and the The following waterways, bottom and following DOI, USGS, 1:500,000 scale hy- water of the waterways and adjacent drologic unit map: State of Oregon, riparian zones: The Sacramento River 1974; State of Washington, 1974; State from Keswick Dam, Shasta County of Idaho, 1974, which are incorporated (River Mile 302) to Chipps Island (River by reference. This incorporation by ref- Mile 0) at the westward margin of the erence was approved by the Director of Sacramento-San Joaquin Delta, all wa- the Federal Register in accordance ters from Chipps Island westward to with 5 U.S.C. 552(a) and 1 CFR part 51. Carquinez Bridge, including Honker Copies of the USGS publication and Bay, Grizzly Bay, Suisun Bay, and maps may be obtained from the USGS, Carquinez Strait, all waters of San Map Sales, Box 25286, Denver, CO 80225. Pablo Bay westward of the Carquinez Copies may be inspected at NMFS, En- Bridge, and all waters of San Francisco dangered Species Branch, Environ- Bay (north of the San Francisco/Oak- mental and Technical Services Divi- land Bay Bridge) from San Pablo Bay sion, 911 NE. 11th Avenue, room 620, to the Golden Gate Bridge. Portland, OR 97232, NMFS, Office of Protected Resources, 1335 East-West § 226.22 Snake River sockeye salmon Highway, Silver Spring, MD 20910, or at (oncorhynchus nerka), Snake River spring/summer chinook salmon the Office of the Federal Register, 800 (oncorhynchus tshawytscha), Snake North Capitol Street, NW., suite 700, River fall chinook salmon Washington, DC. (oncorhynchus tshawytscha). (a) Snake River Sockeye Salmon The following areas consisting of the (Oncorhynchus nerka). The Columbia water, waterway bottom, and adjacent River from a straight line connecting riparian zone of specified lakes and the west end of the Clatsop jetty (south river reaches in hydrologic units pres- jetty, Oregon side) and the west end of ently or historically accessible to list- the Peacock jetty (north jetty, Wash- ed Snake River salmon (except reaches ington side) and including all Columbia above impassable natural falls, and River estuarine areas and river reaches Dworshak and Hells Canyon Dams). upstream to the confluence of the Co- Adjacent riparian zones are defined as lumbia and Snake Rivers; all Snake those areas within a horizontal dis- River reaches from the confluence of tance of 300 feet (91.4 m) from the nor- the Columbia River upstream to the mal line of high water of a stream confluence of the Salmon River; all channel (600 feet or 182.8 m, when both Salmon River reaches from the con- sides of the stream channel are in- fluence of the Snake River upstream to cluded) or from the shoreline of a Alturas Lake Creek; Stanley, Redfish, standing body of water. Figure 5 identi- Yellow Belly, Pettit, and Alturas fies the general geographic extent of Lakes (including their inlet and outlet larger rivers, lakes, and streams within creeks); Alturas Lake Creek, and that hydrologic units designated as critical portion of Valley Creek between Stan- habitat for Snake River sockeye, ley Lake Creek and the Salmon River. spring/summer chinook, and fall chi- Critical habitat is comprised of all nook salmon. Note that Figure 5 does river lakes and reaches presently or not constitute the definition of critical historically accessible (except reaches habitat, but instead is provided as a above impassable natural falls, and general reference to guide Federal Dworshak and Hells Canyon Dams) to agencies and interested parties in lo- Snake River sockeye salmon in the fol- cating the general boundaries of criti- lowing hydrologic units: Lower Salm- cal habitat for listed Snake River on, Lower Snake, Lower Snake-Asotin,
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Lower Snake-Tucannon, Middle Salm- necting the west end of the Clatsop on-Chamberlain, Middle Salmon-Pan- jetty (south jetty, Oregon side) and the ther, and Upper Salmon. Critical habi- west end of the Peacock jetty (north tat borders on or passes through the jetty, Washington side) and including following counties in Oregon: Clatsop, all Columbia River estuarine areas and Columbia, Gillium, Hood River, Mor- river reaches proceeding upstream to row, Multnomah, Sherman, Umatilla, the confluence of the Columbia and Wallowa, Wasco; the following counties Snake Rivers; the Snake River, all in Washington: Asotin, Benton, Clark, river reaches from the confluence of Columbia, Cowlitz, Franklin, Garfield, the Columbia River, upstream to Hells Klickitat, Pacific, Skamania, Canyon Dam; the Palouse River from Wahkiakum, Walla, Whitman; and the its confluence with the Snake River following counties in Idaho: Blaine, upstream to Palouse Falls; the Clear- Custer, Idaho, Lemhi, Lewis, Nez water River from its confluence with Perce. the Snake River upstream to its con- (b) Snake River Spring/Summer Chinook fluence with Lolo Creek; the North Salmon (Oncorhynchus tshawytscha). Fork Clearwater River from its con- The Columbia River from a straight fluence with the Clearwater River up- line connecting the west end of the stream to Dworshak Dam. Critical Clatsop jetty (south jetty, Oregon side) habitat also includes river reaches and the west end of the Peacock jetty presently or historically accessible (ex- (north jetty, Washington side) and in- cept reaches above impassable natural cluding all Columbia River estuarine falls, and Dworshak and Hells Canyon areas and river reaches proceeding up- Dams) to Snake River fall chinook stream to the confluence of the Colum- salmon in the following hydrologic bia and Snake Rivers; all Snake River units; Clearwater, Hells Canyon, reaches from the confluence of the Co- Imnaha, Lower Grande Ronde, Lower lumbia River upstream to Hells Canyon North Fork Clearwater, Lower Salmon, Dam. Critical habitat also includes Lower Snake, Lower Snake-Asotin, river reaches presently or historically Lower Snake-Tucannon, and Palouse. accessible (except reaches above im- Critical habitat borders on or passes passable natural falls, and Dworshak through the following counties in Or- and Hells Canyon Dams) to Snake egon: Baker, Clatsop, Columbia, River spring/summer chinook salmon Gillium, Hood River, Morrow, Multno- in the following hydrologic units: Hells mah, Sherman, Umatilla, Wallowa, Canyon, Imnaha, Lemhi, Little Salm- Wasco; the following counties in Wash- on, Lower Grande Ronde, Lower Middle ington: Adams, Asotin, Benton, Clark, Fork Salmon, Lower Salmon, Lower Columbia, Cowlitz, Franklin, Garfield, Snake-Asotin, Lower Snake-Tucannon, Klickitat, Lincoln, Pacific, Skamania, Middle Salmon-Chamberlain, Middle Spokane, Wahkiakum, Walla, Whit- Salmon-Panther, Pahsimeroi, South man; and the following counties in Fork Salmon, Upper Middle Fork Idaho: Adams, Benewah, Clearwater, Salmon, Upper Grande Ronde, Upper Idaho, Latah, Lewis, Nez Perce, Sho- Salmon, Wallowa. Critical habitat bor- shone, Valley. ders on or passes through the following [58 FR 68551, Dec. 28, 1993, as amended at 63 counties in Oregon: Baker, Clatsop, Co- FR 1393, Jan. 9, 1998] lumbia, Gillium, Hood River, Morrow, Multnomah, Sherman, Umatilla, § 226.23 Umpqua River cutthroat trout Union, Wallowa, Wasco; the following (Oncorhynchus clarki clarki). counties in Washington: Asotin, Ben- (a) The following areas consisting of ton, Clark, Columbia, Cowlitz, Frank- the water, waterway bottom, and adja- lin, Garfield, Klickitat, Pacific, cent riparian zone of specified lakes Skamania, Wahkiakum, Walla, Whit- and river reaches in hydrologic units man; and the following counties in presently accessible to listed Umpqua Idaho: Adams, Blaine, Custer, Idaho, River cutthroat trout. Adjacent ripar- Lemhi, Lewis, Nez Perce, Valley. ian zones are defined as those areas (c) Snake River Fall Chinook Salmon within a slope distance of 300 ft. (91.4 (Oncorhynchus tshawytscha). The Co- m) from the normal line of high water lumbia River from a straight line con- of a stream channel (600 ft. or 182.8 m,
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when both sides of the stream channel Creek, tributary to the South Umpqua are included) or from the shoreline of a River). Critical habitat includes all standing body of water. Figure 9 to this river reaches below longstanding, natu- part identifies the general geographic rally impassable barriers (i.e., water- extent of larger rivers, lakes, and falls in existence for several hundred streams within hydrologic units des- years) in the following hydrologic ignated as critical habitat for Umpqua units: North Umpqua, South Umpqua, River cutthroat trout. Note that Fig- and Umpqua. Critical habitat borders ure 9 does not constitute the definition on or passes through the following of critical habitat but, instead, is pro- counties in Oregon: Douglas, Lane, vided as a general reference to guide Coos, Jackson, and Klamath counties. Federal agencies and interested parties Perennial rivers and creeks within the in locating the general boundaries of defined areas are also included in the critical habitat for listed Umpqua River cutthroat trout. The complete critical habitat designation (but are text delineating the critical habitat for not specifically named), unless other- the species follows. Hydrologic units wise noted. Critical habitat maps are are those defined by the Department of available upon request from NMFS, the Interior (DOI), U.S. Geological Sur- Protected Resources Division, 525 NE vey (USGS) publication, ‘‘Hydrologic Oregon St., Suite 500, Portland, OR Unit Maps, Water Supply Paper 2294, 97232–2737, telephone (503/230–5422). 1986, and the following DOI, USGS, [63 FR 1393, Jan. 9, 1998] 1:500,000 scale hydrologic unit map: State of Oregon (1974) which is incor- porated by reference. This incorpora- Subpart D—Critical Habitat for tion by reference was approved by the Marine Reptiles Director of the Federal Register in ac- cordance with 5 U.S.C. 552(a) and 1 CFR § 226.71 Sandy Point, St. Croix, U.S. part 51. Copies of the USGS publication Virgin Islands. and maps may be obtained from the LEATHERBACK SEA TURTLE USGS, Map Sales, Box 25286, Denver, (DERMOCHELYS CORIACEA) CO 80225. Copies may be inspected dur- ing normal business hours at NMFS, The waters adjacent to Sandy Point, Protected Resources Division, 525 NE St. Croix, U.S. Virgin Islands, up to Oregon St., Suite 500, Portland, OR and inclusive of the waters from the 97232–2737, or NMFS, Office of Pro- hundred fathom curve shoreward to the tected Resources, 1315 East-West High- level of mean high tide with boundaries way, Silver Spring, MD 20910, or at the at 17°42′12″ North and 64°50′00″ West. Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, § 226.72 Green Sea Turtle (Chelonia Washington, DC. mydas). (b) Geographic boundaries. All river reaches accessible to listed Umpqua (a) Culebra Island, Puerto Rico—Wa- River cutthroat trout in the Umpqua ters surrounding the island of Culebra River from a straight line connecting from the mean high water line seaward the west end of the South jetty and the to 3 nautical miles (5.6 km). These wa- west end of the North jetty and includ- ters include Culebra’s outlying Keys ing all Umpqua River estuarine areas including Cayo Norte, Cayo Ballena, (including the Smith River) and tribu- Cayos Geniquı´, Isla Culebrita, Arrecife taries proceeding upstream from the Culebrita, Cayo de Luis Pen˜ a, Las Pacific Ocean to the confluence of the Hermanas, El Mono, Cayo Lobo, Cayo North and South Umpqua Rivers; the Lobito, Cayo Botijuela, Alcarraza, Los North Umpqua River, including all Gemelos, and Piedra Steven. tributaries, from its confluence with (b) [Reserved] the mainstem Umpqua River to Soda Springs dam; the South Umpqua River, [63 FR 46701, Sept. 2, 1998] including all tributaries, from its con- EFFECTIVE DATE NOTE: At 63 FR 46701, fluence with the mainstem Umpqua Sept. 2, 1998, § 226.72 was added, effective Oct. River to its headwaters (including Cow 2, 1998.
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§ 226.73 Hawksbill Sea Turtle (b) [Reserved]. (Eretmochelys imbricata). [63 FR 46701, Sept. 2, 1998] (a) Mona and Monito Islands, Puerto Rico—Waters surrounding the islands EFFECTIVE DATE NOTE: At 63 FR 46701, of Mona and Monito, from the mean Sept. 2, 1998, § 226.73 was added, effective Oct. high water line seaward to 3 nautical 2, 1998. miles (5.6 km).
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TABLE 1 TO PART 226 wise direction from the first set of geo- graphic coordinates along the shoreline Major Steller sea lion rookery sites at mean lower-low water to the second are identified in the following table. set of coordinates. Where only one set Where two sets of coordinates are of coordinates is listed, that location is given, the baseline extends in a clock- the base point.
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TABLE 2 TO PART 226 a clockwise direction from the first set of geographic coordinates along the Major Steller sea lion haulout sites shoreline at mean lower-low water to in Alaska are identified in the follow- the second set of coordinates. Where ing table. Where two sets of coordi- only one set of coordinates is listed, nates are given, the baseline extends in that location is the basepoint.
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TABLE 3.ÐHYDROLOGIC UNITS 1 CONTAINING CRITICAL HABITAT FOR ENDANGERED SNAKE RIVER SOCKEYE SALMON AND THREATENED SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMON
Hydrologic unit number Spring/ Hydrologic unit name Sockeye summer Fall chi- salmon chinook nook salmon salmon
Hells Canyon ...... 17060101 17060101 Imnaha ...... 17060102 17060102 Lower SnakeÐAsotin ...... 17060103 17060103 17060103 Upper Grande Ronde ...... 17060104 ...... Wallowa ...... 17060105 ...... Lower Grande Ronde ...... 17060106 17060106 Lower SnakeÐTucannon ...... 17060107 17060107 17060107 Palouse ...... 17060108 Lower Snake ...... 17060110 17060110 17060110 Upper Salmon ...... 17060201 17060201 ...... Pahsimeroi ...... 17060202 ...... Middle SalmonÐPanther ...... 17060203 17060203 ...... Lemhi ...... 17060204 ...... Upper Middle Fork Salmon ...... 17060205 ...... Lower Middle Fork Salmon ...... 17060206 ...... Middle SalmonÐChamberlain ...... 17060207 17060207 ...... South Fork Salmon ...... 17060208 ...... Lower Salmon ...... 17060209 17060209 17060209 Little Salmon ...... 17060210 ...... Clearwater ...... 17060306 Lower North Fork Clearwater ...... 17060308 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS); State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974.
[58 FR 68552, Dec. 28, 1993] TABLE 4.ÐHYDROLOGIC UNITS 1 CONTAINING CRITICAL HABITAT FOR ENDANGERED UMPQUA 1 TABLE 4.ÐHYDROLOGIC UNITS CONTAINING RIVER CUTTHROAT TROUT AND COUNTIES CRITICAL HABITAT FOR ENDANGERED UMPQUA CONTAINED IN EACH HYDROLOGIC UNIT.Ð RIVER CUTTHROAT TROUT AND COUNTIES Continued CONTAINED IN EACH HYDROLOGIC UNIT. Hydro- Counties contained in Hydro- Hydrologic unit name logic unit hydrologic unit Hydrologic unit name logic unit Counties contained in No. No. hydrologic unit Umpqua ...... 17100303 Douglas, Lane, Coos. North Umpqua ...... 17100301 Douglas, Lane, Klam- 1 1 Hydrologic units and names taken from DOI, USGS ath. 1:500,000 scale State of Oregon (1974) hydrologic unit map South Umpqua ...... 17100302 Douglas, Jackson, (available from USGS). Coos. [63 FR 1394, Jan. 9, 1998]
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FIGURES TO PART 226
[58 FR 45282, Aug. 27, 1993]
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[58 FR 45283, Aug. 27, 1993]
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[58 FR 45284, Aug. 27, 1993]
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[58 FR 45285, Aug. 27, 1993]
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FIGURE 5: DESIGNATED CRITICAL HABITAT, SNAKE RIVER SALMON
[58 FR 68552, Dec. 28, 1993]
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[59 FR 28805, June 3, 1994]
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[59 FR 28805, June 3, 1994]
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[63 FR 1394, Jan. 9, 1998]
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PART 227—THREATENED SPECIES Subpart A—General Provisions
Subpart A—General Provisions § 227.1 Purpose. The regulations contained in this Sec. 227.1 Purpose. part identify the species, subspecies, or 227.2 Scope. any other group of fish and wildlife of 227.3 Definitions. the same species or smaller taxa in 227.4 Enumeration of threatened species. common spatial arrangement that interbreed when mature, under the ju- Subpart B—Threatened Marine Mammals risdiction of the Secretary of Com- merce which have been determined to 227.11 Guadalupe fur seal. be threatened species under the Endan- 227.12 Steller sea lion. gered Species Act of 1973 and provide for the conservation of such species by Subpart C—Threatened Marine and establishing rules and procedures to Anadromous Fish govern activities involving the species. 227.21 Threatened salmon. 227.22 Southern Oregon/Northern California § 227.2 Scope. Coast (SONCC) coho salmon. (a) The regulations contained in this part apply only to the threatened spe- Subpart D—Threatened Marine Reptiles cies enumerated in § 227.4. 227.71 Prohibitions. (b) The provision of this part are in 227.72 Exceptions to prohibitions. addition to, and not in lieu of other FIGURE 1 TO PART 227—NMFS TED regulations of parts 217 through 222 and FIGURE 2 TO PART 227—CAMERON TED part 225 of this chapter II which pre- FIGURE 3 TO PART 227—MATAGORDA TED scribe additional restrictions or condi- FIGURE 4 TO PART 227—GEORGIA TED tions governing threatened species. FIGURE 5 TO PART 227—NET DIAGRAM FOR THE (c) Certain of the threatened fish or EXCLUDER PANEL OF THE PARKER SOFT wildlife listed in 50 CFR 17.11 and enu- TED merated in 50 CFR 227.4 are included in FIGURES 6—9b TO PART 227 [RESERVED] Appendix I or II to the Convention on FIGURE 10 TO PART 227—FLOUNDER TED International Trade in Endangered FIGURE 11 TO PART 227—JONES TED Species of Wild Fauna and Flora. The FIGURE 12a TO PART 227—ATTACHMENT OF THE importation, exportation, and reexpor- EXIT HOLE COVER tation of such species are subject to ad- FIGURE 12b TO PART 227—GRID TED ditional regulations provided in part LEATHERBACK MODIFICATION 23, chapter I (title 50). FIGURE 13 TO PART 227—SINGLE GRID HARD TED ESCAPE OPENING § 227.3 Definitions. FIGURE 14a TO PART 227—MAXIMUM ANGLE OF DEFLECTOR BARS WITH STRAIGHT BARS In addition to the definitions con- ATTACHED TO THE BOTTOM OF THE FRAME tained in the Act, and in parts 217 and FIGURE 14b TO PART 227—MAXIMUM ANGLE OF 225 of this chapter, and unless the con- DEFLECTOR BARS WITH BENT BARS AT- text otherwise requires, in this part TACHED TO THE BOTTOM OF THE FRAME 227: FIGURE 15 TO PART 227—MAXIMUM ANGLE OF (a) Act means the Endangered Species DEFLECTOR BARS WITH BARS UNATTACHED TO THE BOTTOM OF THE FRAME Act of 1973, as amended, 16 U.S.C. 1531 through 1547; AUTHORITY: 16 U.S.C. 1531–1543; subpart B, (b) Assistant Administrator means the § 227.12 also issued under 16 U.S.C. 1361 et seq. Assistant Administrator for Fisheries, SOURCE: 43 FR 32809, July 28, 1978, unless National Oceanic and Atmospheric Ad- otherwise noted. ministration, Department of Com- EDITORIAL NOTE: For a document relating merce, or his authorized delegate. The to adoption of alternative scientific testing Assistant Administrator for Fisheries protocol for evaluating TEDs see 55 FR 41092, is in charge of the National Marine Oct. 9, 1990. Fisheries Service;
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(c) Ongoing project(s) means an activ- nook in the mainstem Snake River and ity for scientific purposes or to en- any of the following subbasins: hance the propagation or survival of Tucannon River, Grande Ronde River, such species which are not conducted Imnaha River, Salmon River, and in the course of a commercial activity Clearwater River. initiated before the listing of the ef- (h) Central California Coast Coho fected species; Salmon. Includes all coho salmon natu- (d) Plastron means the ventral part of rally reproduced in streams between the shell of a sea turtle consisting typi- Punta Gorda in Humboldt County, CA, cally of nine symmetrically placed and the San Lorenzo River in Santa bones overlaid by horny plates; and Cruz County, CA. (e) Sea turtle(s) means those sea tur- (i) Southern Oregon/Northern Califor- tle species enumerated in § 227.4 and nia Coast coho salmon (Oncorhynchus any part(s), product(s), egg(s) or off- kisutch). Includes all coho salmon natu- spring thereof, or the dead body or part(s) thereof. rally reproduced in streams between Cape Blanco in Curry County, OR, and § 227.4 Enumeration of threatened spe- Punta Gorda in Humboldt County, CA. cies. (j) Central California Coast steelhead The species listed as threatened (Oncorhynchus mykiss). Includes all nat- under the Act which are under the ju- urally spawned populations of risdiction of the Secretary of Com- steelhead (and their progeny) in merce are: streams from the Russian River to (a) Green sea turtle (Chelonia mydas) Aptos Creek, Santa Cruz County, Cali- except for those populations listed fornia (inclusive), and the drainages of under 50 CFR 222.23(a).1 San Francisco and San Pablo Bays (b) Loggerhead sea turtle (Caretta eastward to the Napa River (inclusive), caretta ).1 Napa County, California. Excludes the (c) Pacific ridley sea turtle Sacramento-San Joaquin River Basin (Lepidochelys olivacea) except for those of the Central Valley of California; populations listed under 50 CFR (k) South-Central California Coast 222.23(a).1 steelhead (Oncorhynchus mykiss). In- The effective date of the listing of the cludes all naturally spawned popu- species in paragraphs (a), (b), and (c) of lations of steelhead (and their progeny) this section is September 6, 1978. in streams from the Pajaro River (in- (d) Guadalupe fur seal (Arctocephalus clusive), located in Santa Cruz County, townsendi). California, to (but not including) the (e) Steller (northern) sea lion Santa Maria River; (Eumetopias jubatus), eastern popu- (l) Snake River Basin steelhead lation, which consists of all Steller sea (Oncorhynchus mykiss). Includes all nat- lions from breeding colonies located urally spawned populations of ° east of 144 W. longitude. steelhead (and their progeny) in (f) Snake River spring/summer chi- streams in the Snake River Basin of nook salmon (Oncorhynchus southeast Washington, northeast Or- tshawytscha). Includes all natural popu- egon, and Idaho. lation(s) of spring/summer chinook (m) Lower Columbia River steelhead salmon in the mainstream Snake River (Oncorhynchus mykiss). Includes all nat- and any of the following subbasins: urally spawned populations of Tucannon River, Grande Ronde River, Imnaha River, and Salmon River. steelhead (and their progeny) in (g) Snake River fall chinook salmon streams and tributaries to the Colum- (Oncorhynchus tshawytscha). Includes bia River between the Cowlitz and all natural population(s) of fall chi- Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers, Oregon, inclusive. Excluded are 1 Department of Commerce, National Oce- anic and Atmospheric Administration, Na- steelhead in the upper Willamette tional Marine Fisheries Service, jurisdiction River Basin above Willamette Falls for sea turtles is limited to turtles while in and steelhead from the Little and Big the water. White Salmon Rivers in Washington;
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(n) Central Valley, California steelhead public health or welfare, or is for the (Oncorhynchus mykiss). Includes all nat- salvage or disposal of a dead specimen; urally spawned populations of (iii) Includes steps designed to ensure steelhead (and their progeny) in the the return of the animal to its natural Sacramento and San Joaquin Rivers habitat, if feasible; and and their tributaries. Excluded are (iv) Is reported within 30 days to the steelhead from San Francisco and San Director, Southwest Region, National Pablo Bays and their tributaries. Marine Fisheries Service, 300 S. Ferry (o) Oregon Coast coho salmon Street, Terminal Island, CA 90731. (Oncorhynchus kisutch). Includes all (3) Any animal or specimen taken naturally spawned populations of coho under paragraph (b)(2) of this section salmon in streams south of the Colum- may only be retained, disposed of, or bia River and north of Cape Blanco in salvaged in accordance with directions Curry County, OR. from the Director, Southwest Region. (p) Johnson’s seagrass (Halophila johnsonii) [50 FR 51258, Dec. 16, 1985] [43 FR 32809, July 18, 1978, as amended at 45 § 227.12 Steller sea lion. FR 29055, May 1, 1980; 50 FR 51258, Dec. 16, 1985; 55 FR 46523, Nov. 5, 1990; 55 FR 49210, (a) General prohibitions. The prohibi- Nov. 26, 1990; 57 FR 14662, Apr. 22, 1992; 59 FR tions of section 9 of the Act (16 U.S.C. 450, Jan. 4, 1994; 59 FR 42532, Aug. 18, 1994; 60 1538) and the following regulatory pro- FR 19342, Apr. 17, 1995; 61 FR 56149, Oct. 31, visions shall apply to the eastern popu- 1996; 62 FR 1297, Jan. 9, 1997; 62 FR 24355, May lation of Steller sea lions: 5, 1997; 62 FR 24609, May 6, 1997; 62 FR 43953, (1) No discharge of firearms. Except as Aug. 18, 1997; 63 FR 13371, Mar. 19, 1998; 63 FR 42591, Aug. 10, 1998; 63 FR 49041, Sept. 14, 1998] provided in paragraph (b) of this sec- tion, no person subject to the jurisdic- EFFECTIVE DATE NOTE: 1. At 63 FR 42591, tion of the United States may dis- Aug. 10, 1998, in § 227.4, paragraph (o) was added, effective Oct. 9, 1998. charge a firearm at or within 100 yards 2. At 63 FR 49041, Sept. 14, 1998, in § 227.4, (91.4 meters) of a Steller sea lion. A paragraph (p) was added, effective Oct. 14, firearm is any weapon, such as a pistol 1998. or rifle, capable of firing a missile using an explosive charge as a propel- Subpart B—Threatened Marine lant. Mammals (2) No approach in buffer areas. Except as provided in paragraph (b) of this sec- § 227.11 Guadalupe fur seal. tion: (a) Prohibitions. The prohibitions of (i) No owner or operator of a vessel section 9 of the Act (16 U.S.C. 1538) re- may allow the vessel to approach with- lating to endangered species apply to in 3 nautical miles (5.5 kilometers) of a the Guadalupe fur seal except as pro- Steller sea lion rookery site listed in vided in paragraph (b) of this section. paragraph (a)(3) of this section; (b) Exceptions. (1) The Assistant Ad- (ii) No person may approach on land ministrator may issue permits author- not privately owned within one-half izing activities which would otherwise statutory miles (0.8 kilometers) or be prohibited under paragraph (a) of within sight of a Steller sea lion rook- this section in accordance with the ery site listed in paragraph (a)(3) of subject to the provisions of part 222 this section, whichever is greater, ex- subpart C—Endangered Fish or Wildlife cept on Marmot Island; and Permits. (iii) No person may approach on land (2) Any Federal, State or local gov- not privately owned within one and ernment official, employee, or des- one-half statutory miles (2.4 kilo- ignated agent may, in the course of of- meters) or within sight of the eastern ficial duties, take a stranded Guada- shore of Marmot Island, including the lupe fur seal without a permit if such Steller sea lion rookery site listed in taking: paragraph (a)(3) of this section, which- (i) Is accomplished in a humane man- ever is greater. ner; (3) Listed sea lion rookery sites. Listed (ii) Is for the protection or welfare of Steller sea lion rookery sites consist of the animal, is for the protection of the the rookeries in the Aleutian Islands
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and the Gulf of Alaska listed in Table 1.
TABLE 1. 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 is- land. 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 is- land. 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 is- land. 9. Clubbing Rks (N) ...... 54°43.0 N 162°26.5 W 16540 Whole is- land. Clubbing Rks (S) ...... 54°42.0 N 162°26.5 W 16540 Whole Is- land. 10. Sea Lion Rks ...... 55°28.0 N 163°12.0 W 16520 Whole is- land. 11. Ugamak I...... 54°14.0 N 164°48.0 W 54°13.0 N 164°48.0 W 16520 E end of is- land. 12. Akun I...... 54°18.0N 165°32.5W 54°18.0N 165°31.5W 16547 Billings Head Bight. 13. Akutan I...... 54°03.5 N 166°00.0 W 54°05.5 N 166°05.0 W 16520 SW corner, Cape Mor- gan. 14. Bogoslof I...... 53°56.0 N 168°02.0 W 16500 Whole is- land. 15. Ogchul I...... 53°00.0 N 168°24.0 W 16500 Whole is- land. 16. Adugak I...... 52°55.0 N 169°10.5 W 16500 Whole is- land. 17. Yunaska I...... 52°42.0 N 170°38.5 W 52°41.0 N 170°34.5 W 16500 NE end. 18. Seguam I...... 52°21.0 N 172°35.0 W 52°21.0 N 172°33.0 W 16480 N coast, Saddlerid- ge Pt. 19. Agligadak I...... 52°06.5 N 172°54.0 W 16480 Whole is- land. 20. Kasatochi I...... 52°10.0N 175°31.5W 52°10.5N 175°29.0W 16480 N half of is- land. 21. Adak I...... 51°36.5N 176°59.0W 51°38.0N 176°59.5W 16460 SW Point, Lake Point. 22. Gramp rock ...... 51°29.0 N 178°20.5 W 16460 Whole is- land. 23. Tag I...... 51°33.5 N 178°34.5 W 16460 Whole is- land. 24. Ulak I...... 51°20.0 N 178°57.0 W 51°18.5 N 178°59.5 W 16460 SE corner, Hasgox Pt. 25. Semisopochnoi ...... 51°58.5 N 179°45.5 E 51°57.0 N 179°46.0 E 16440 E quadrant, Pochnoi Pt. Semisopochnoi ...... 52°01.5 N 179°37.5 E 52°01.5 N 179°39.0 E 16440 N quadrant, Petrel Pt. 26. Amchitka I...... 51°22.5N 179°28.0E 51°21.5N 179°25.0E 16440 East Cape. 27. Amchitka I...... 51°32.5N 178°49.5E 16440 Column Rocks. 28. Ayugadak Pt...... 51°45.5 N 178°24.5 E 16440 SE coast of Rat Island. 29. Kiska I...... 51°57.5 N 177°21.0 E 51°56.5 N 177°20.0 E 16440 W central, Lief Cove. 30. Kiska I...... 51°52.5 N 177°13.0 E 51°53.5 N 177°12.0 E 16440 Cape St. Stephen. 31. Walrus I...... 57°11.0 N 169°56.0 W 16380 Whole is- land. 32. Buldir I...... 52°20.5 N 175°57.0 E 52°23.5 N 175°51.0 E 16420 Se point to NW point. 33. Agattu I...... 52°24.0 N 173°21.5 E 16420 Gillion Point.
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TABLE 1. LISTED STELLER SEA LION ROOKERY SITES 1ÐContinued
From To Island NOAA Notes Lat. Long. Lat. Long. chart
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 50 CFR rookery site. The listing of a strait, part 222, subpart C—Endangered Fish narrows, or passageway does not indi- or Wildlife Permits. 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- Akutan Island Akutan Pass between Cape Morgan strict a Federal, state or local govern- 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] (4) Emergency situations. Paragraph (a)(2) of this section does not apply to Subpart C—Threatened Marine an emergency situation in which com- and Anadromous Fish pliance with that provision presents a threat to the health, safety, or life of a § 227.21 Threatened salmon. person or presents a significant threat (a) Prohibitions. The prohibitions of to the vessel or property. section 9 of the ESA (16 U.S.C. 1538) re- (5) Exemptions. Paragraph (a)(2) of lating to endangered species apply to this section does not apply to any ac- the threatened species of salmon listed tivity authorized by a prior written ex- in § 227.4 (f), (g), (h), and (i), except as emption from the Director, Alaska Re- provided in paragraph (b) of this sec- gion, National Marine Fisheries Serv- tion. These prohibitions shall become ice. Concurrently with the issuance of effective for the threatened species of any exemption, the Assistant Adminis- salmon listed in § 227.4(i) on August 18, trator will publish notice of the exemp- 1997. tion in the FEDERAL REGISTER. An ex- (b) Exceptions. (1) The exceptions of emption may be granted only if the ac- section 10 of the ESA (16 U.S.C. 1539) tivity will not have a significant ad- and other exceptions under the Act re- verse affect on Steller sea lions, the ac- lating to endangered species, including
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regulations implementing such excep- conducted in accordance with the Or- tions, also apply to the threatened spe- egon Coastal Salmon Restoration Ini- cies of salmon listed in § 227.4 (f), (g), tiative of March 1997 (OCSRI), provided (h), and (i). This section supersedes that NMFS has issued written concur- other restrictions on the applicability rence that the fisheries regulations are of parts 217 and 222 of this chapter, in- consistent with the OCSRI using infor- cluding, but not limited to, the restric- mation provided through the April 1997 tions specified in §§ 217.2 through Memorandum of Agreement (MOA) be- 222.22(a) of this chapter with respect to tween the State of Oregon and NMFS. the species identified in § 227.21(a). (b) Incidental take of SONCC coho (2) The prohibitions of paragraph (a) salmon in ocean fisheries within 3 of this section relating to threatened miles (approximately 5 km) of the species of salmon listed in § 227.4(i) do coast that are regulated under the sole not apply to activities specified in an authority of the State of California is application for a permit for scientific not prohibited, provided that the ocean purposes or to enhance the propagation salmon fishing regulations adopted by or survival of the species, provided that the California Fish and Game Commis- the application has been received by sion and CDFG for recreational and the Assistant Administrator for Fish- commercial fisheries within 3 miles eries, NOAA (AA), by September 16, (approximately 5 km) of the coast are 1997. This exception ceases upon the consistent with the Pacific Fishery AA’s rejection of the application as in- Management Council’s Fishery Man- sufficient, upon issuance or denial of a agement Plan for Ocean Salmon Fish- permit, or on Janury 20, 1998 whichever eries and the annual ocean salmon fish- occurs earliest. (3) The prohibitions of paragraph (a) ing regulations issued by the Secretary of this section relating to threatened of Commerce for the Federal EEZ. species of salmon listed in § 227.4(i) do (c) Take of SONCC coho salmon in a not apply to any employee or agent of hatchery program regulated under the the NMFS, any other Federal land sole authority of the State of Oregon is management agency, or the Oregon De- not prohibited, if the take results from partment of Fish and Wildlife (ODFW) a hatchery program conducted in ac- or the California Department of Fish cordance with the OCSRI, and the take and Game (CDFG), who is designated is counted against the total allocation by his/her agency for such purposes, of harvest-related mortality as speci- when that employee or agent, acting in fied in the OCSRI, provided that NMFS the course of his/her official duties, has issued written concurrence that takes a coho salmon in California or the hatchery program is consistent Oregon without a permit if such action with the OCSRI including the hatchery is necessary to: (1) Aid a sick, injured, and genetic management plan adopted or stranded individual, (2) dispose of a pursuant to the OCSRI, using informa- dead individual, or (3) salvage a dead tion provided through the MOA. individual, which may be useful for sci- (d) Take of SONCC coho salmon in entific study. fisheries research and monitoring ac- tivities conducted in California and Or- [62 FR 38483, July 18, 1997] egon is not prohibited provided that: § 227.22 Southern Oregon/Northern (1) Research and monitoring involv- California Coast (SONCC) coho ing directed take of coho salmon is salmon. conducted by CDFG personnel (in Cali- The following exceptions to the pro- fornia) and ODFW personnel (in Or- hibitions of section 227.21(a) apply to egon). SONCC coho salmon: (2) The CDFG and ODFW, respec- (a) Take of SONCC coho salmon with- tively, provide NMFS with a list of all in three miles (approximately 5 km) of research and monitoring activities in- the coast, and in 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, including an esti- egon is not prohibited, if the take re- mate of the total directed take that is sults from a fisheries harvest program anticipated, a description of the study
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design including a justification for tak- (4) ‘‘Habitat restoration activity’’ is ing the species and a description of the defined as an activity that has the sole techniques to be used, and a point of objective of restoring natural aquatic contact. or riparian habitat conditions or proc- (3) The CDFG and ODFW, respec- esses. tively, annually provide NMFS with (f) Incidental take of the SONCC the results of research and monitoring coho salmon in California that results studies directed at SONCC coho salm- from a habitat restoration activity, as on, including a report of the directed defined in paragraph (3) of this section, take resulting from the studies. is not prohibited, provided that Califor- (4) The CDFG and ODFW, respec- nia has a program in effect that NMFS tively, provide NMFS annually with a finds will assure technically supported list of all research and monitoring watershed assessments and coordinated studies each permits that may inciden- long-term monitoring strategies for tally take listed coho salmon during watershed protection plans and activi- the coming year and report the level of ties and: incidental take of listed coho salmon (1) The activity is conducted pursu- from the previous year’s research and ant to a watershed protection plan that monitoring activities, for NMFS’ re- CDFG has affirmed in writing is con- view and approval. sistent with state watershed plan (5) The research and monitoring ac- guidelines for California’s Watershed tivities do not include the use of Protection Program that NMFS has electrofishing in any body of water found meet the standards set forth in known or suspected to contain coho 50 CFR 222.22(c), and NMFS concurs in salmon. writing that the plan is consistent with (e) Incidental take of the SONCC those guidelines; or coho salmon in Oregon that results (2) Until a watershed protection or from a habitat restoration activity, as restoration plan is certified by the defined in paragraph (4), is not prohib- State of California and NMFS as de- ited, provided that: scribed in paragraph (f)(1) of this sec- (1) The activity is conducted pursu- tion, or until August 18, 1999, which- ant to a watershed action or restora- ever occurs first, NMFS has made a tion plan that the state has affirmed in written finding that the activity is writing is consistent with state water- consistent with State of California con- shed plan guidelines that NMFS has servation guidelines that NMFS has found meet the standards set forth in previously found meet the standards 50 CFR 222.22(c), and NMFS concurs in set forth in 50 CFR 222.22(c). writing that the plan is consistent with (3) ‘‘Habitat restoration activity’’ is those guidelines; or defined as an activity that has the sole (2) Until a watershed action or res- objective of restoring natural aquatic toration plan is approved by both Or- or riparian habitat conditions or proc- egon and NMFS as described in para- esses. graph (e)(1) of this section, or until Au- [62 FR 38484, July 18, 1997] gust 18, 1999, whichever occurs first, the ODFW has made a written finding that the activity is consistent with Subpart D—Threatened Marine state restoration activity guidelines Reptiles that NMFS has agreed in writing meet the standards set forth in 50 CFR § 227.71 Prohibitions. 222.22(c); or January 19, 1998. (a) Except as provided in § 227.72, the (3) Until January 20, 1998, the activ- prohibitions of section 9 of the Act (16 ity is any restoration action listed in U.S.C. 1538) relating to endangered spe- the Southwest Oregon Salmon Restora- cies apply to any species of sea turtle tion Initiative (OCSRI ch. 17F), pro- enumerated in § 227.4. vided that any action involving in- (b) Except as provided in § 227.72, it is water work receives written approval unlawful for any person subject to the from ODFW as to timing, scope, and jurisdiction of the United States to do methods. any of the following:
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(1) Own, operate, or be on board a (12) Resist a lawful arrest for an act vessel, except if that vessel is in com- prohibited by this section; pliance with all applicable provisions (13) Make a false statement, oral or of § 227.72(e); written, to an authorized officer or to (2) Fish for, catch, take, harvest, or the agency concerning the fishing for, possess, fish or wildlife while on board catching, taking, harvesting, landing, a vessel, except if that vessel is in com- purchasing, selling, or transferring fish pliance with all applicable provisions or wildlife, or concerning any other of § 227.72(e); matter subject to investigation under (3) Fish for, catch, take, harvest, or this section by such officer, or required possess, fish or wildlife contrary to any to be submitted under this part 227; notice of tow-time or other restriction (14) Sell, barter, trade or offer to sell, specified in, or issued under, § 227.72(e) barter, or trade, a TED that is not an (3) or (6); approved TED; or (4) Possess fish or wildlife taken in (15) Attempt to do, solicit another to violation of paragraph (b) of this sec- do, or cause to be done, any of the fore- tion; going. (5) Fail to follow any of the sea turtle (c) In connection with any action al- handling and resuscitation require- leging a violation of this section, any ments specified in § 227.72(e)(1); person claiming the benefit of any ex- (6) Possess a sea turtle in any man- emption, exception, or permit under ner contrary to the handling and resus- this subpart D has the burden of prov- citation requirements of § 227.72(e) (1); ing that the exemption, exception, or (7) Fail to comply immediately, in permit is applicable, was granted, and the manner specified at 50 CFR 620.8 was valid and in force at the time of (b)–(d), with instructions and signals the alleged violation. Further, any per- specified therein issued by an author- son claiming that a modification made ized officer, including instructions and to a TED that is the subject of such an signals to haul back a net for inspec- action complies with the requirements tion; of § 227.72(e) (4)(iii) has the burden of (8) Refuse to allow an authorized offi- proving such claim. cer to board a vessel, or to enter an area where fish or wildlife may be [57 FR 57354, Dec. 4, 1992] found, for the purpose of conducting a boarding, search, inspection, seizure, § 227.72 Exceptions to prohibitions. investigation, or arrest in connection (a) Scientific, propagation, or survival with enforcement of this section; permits. (1) The Assistant Adminis- (9) Destroy, stave, damage, or dispose trator may issue permits authorizing of in any manner, fish or wildlife, gear, activities which would otherwise be cargo, or any other matter after a com- prohibited under § 227.71 for scientific munication or signal from an author- purposes or to enhance the propagation ized officer, or upon the approach of or survival of such species. Applica- such an officer or of an enforcement tions for these permits are subject to vessel or aircraft, before the officer has the provisions of part 220 of this chap- an opportunity to inspect same, or in ter II. contravention of directions from the (2) Ongoing scientific, propagation, officer; or survival projects, which would oth- (10) Assault, resist, oppose, impede, erwise be prohibited by § 227.71 may intimidate, threaten, obstruct, delay, continue without a permit until an ap- prevent, or interfere with an author- plication for a permit has been denied ized officer in the conduct of any or 90 days from the effective date of the boarding, search, inspection, seizure, listing of the effected species, which- investigation, or arrest in connection ever comes first. If a permit has not with enforcement of this section; been denied, ongoing projects may con- (11) Interfere with, delay, or prevent tinue beyond this 90-day period pro- by any means, the apprehension of an- vided that the individual responsible other person, knowing that such person for such project(s) has applied for a committed an act prohibited by this permit and receives a letter from the section; Assistant Administrator stating that
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the application is complete and suffi- ice, Washington, DC 20235, and shall cient for processing within the 90-day contain the following information: period. Projects not receiving a permit (1) Name and position of the official or letter indicating sufficiency by the or employee involved; 90th day must cease. Within 30 days of (2) Description of the specimen(s) in- receipt of an application, the Assistant volved; Administrator will determine the com- (3) Date and location of disposal; pleteness and sufficiency of the appli- (4) Circumstances requiring the ac- cation for processing. If an application tion; is deemed complete and sufficient for (5) Method of disposal; processing, a permit will be issued or denied within the next 90 days begin- (6) Disposition of the specimen(s), in- ning with the date of the letter inform- cluding, where the specimen(s) has ing the applicant that the application been retained in captivity, a descrip- is sufficient. Approved projects shall tion of the place and means of confine- continue in accordance with the condi- ment, and the measures taken for its tions of the permit. maintenance and care; and (b) Permits for zoological exhibition or (7) Such other information as the As- educational purposes. The Assistant Ad- sistant Administrator may require. ministrator may issue permits author- (d) Exception for research or conserva- izing activities which would be other- tion. Any employee or agent of the Na- wise prohibited under § 227.71 for zoo- tional Marine Fisheries Service, the logical exhibition or educational pur- Fish and Wildlife Service, or a State poses. Applications for these permits fish and wildlife agency operating a are subject to the provisions of part 220 conservation program pursuant to the of this chapter II. terms of a Cooperative Agreement with (c) Exceptions for injured, dead, or the National Marine Fisheries Service stranded specimens. If any member of or the Fish and Wildlife Service in ac- any threatened species listed in § 227.4 cordance with section 6(c) of the Act, is found injured, dead, or stranded, any designated by his or her agency for agent or employee of the National Ma- such purposes, may, when acting in the rine Fisheries Service, the Fish and course of his or her official duties, take Wildlife Service, the U.S. Coast Guard, any threatened species to carry out sci- or any other Federal land or water entific research or conservation pro- management agency, or any agent or grams. All such takings shall be re- employee of a State agency responsible ported within 30 days of the taking to for fish and wildlife who is designated the Assistant Administrator who may by his or her agency for such purposes, request additional reports of the tak- may, when acting in the course of his ing and research at his discretion. or her official duties, take such speci- (e) Exception for incidental taking—(1) mens without a permit if such taking General. The prohibitions against tak- is necessary to aid a sick, injured, or ing in § 227.71(a) do not apply to the in- stranded specimen or dispose of a dead cidental take of any member of any specimen or salvage a dead specimen species of sea turtle listed in § 227.4 which may be useful for scientific (i.e., a take not directed toward such study. Wherever possible, live speci- member) during fishing or scientific re- mens shall be returned to their aquatic search activities, to the extent that environment as soon as possible. Every those involved are in compliance with action shall be reported in writing to the requirements of paragraphs (e)(1), the Assistant Administrator within 30 (2), (3), and (6) of this section, or in days, and reports of further occurrence compliance with the terms and condi- shall be made as deemed appropriate tions of an incidental take permit by the Assistant Administrator until issued pursuant to paragraph (e)(7) of the specimen is either returned to its this section. environment or disposed of. Reports (i) Any specimen so taken must be shall be mailed by registered or cer- handled with due care to prevent in- tified mail, return receipt requested, to jury to live specimens, observed for ac- the Assistant Administrator for Fish- tivity, and returned to the water ac- eries, National Marine Fisheries Serv- cording to the following procedures:
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(A) Sea turtles that are dead or ac- (i.e., any device used to haul any part tively moving must be released over of the net aboard); the stern of the boat. In addition, they (2) Is a bait shrimper that retains all must be released only when trawls are live shrimp on board in a container not in use, when the engine gears are with a circulating seawater system, if in neutral position, and in areas where it does not possess more than 32 pounds they are unlikely to be recaptured or (14.5 kg) of dead shrimp on board, and injured by vessels. if it has on board a valid original state (B) Resuscitation must be attempted bait-shrimp license (if in a state that on sea turtles that are comatose or in- requires such a license); active but not dead by: (3) Has only a pusher-head trawl, (1) Placing the turtle on its back skimmer trawl, or wing net rigged for (carapace) and pumping its breastplate fishing; (plastron) with hand or foot; or (4) Is in an area during a period for (2) Placing the turtle on its breast- which tow-time restrictions apply plate (plastron) and elevating its hind- under paragraphs (e)(3)(ii) or (iii) of quarter several inches for a period of 1 this section, if it complies with all ap- up to 24 hours. The amount of the ele- plicable provisions imposed under vation depends on the size of the tur- those paragraphs; tle; greater elevations are needed for (5) Prior to December 1, 1994, is in inshore waters, if it has no more than larger turtles. Sea turtles being resus- one net rigged for fishing (other than a citated must be shaded and kept wet or test (or try) net), if that net has both moist. Those that revive and become a headrope length of less than 35 feet active must be released over the stern (10.7 m) and a footrope length of less of the boat only when trawls are not in than 44 feet (13.4 m). use, when the engine gears are in neu- (B) The following fishing gear or ac- tral position, and in areas where they tivities are exempted from the TED re- are unlikely to be recaptured or in- quirements of paragraph (e)(2)(i) of this jured by vessels. Similarly, sea turtles section: that fail to move within several hours (1)(i) For any shrimp trawler fishing (up to 24, if possible) must be returned in the Gulf SFSTCA or the Atlantic to the water in the same manner. SFSTCA, a single test net (try net) (ii) Any specimen so taken must not with a headrope length of 12 ft (3.6 m) be consumed, sold, landed, offloaded, or less and with a footrope length of 15 transshipped, or kept below deck. ft (4.6 m) or less, if it is either pulled (2) Gear requirements—(i) TED require- immediately in front of another net or ment. Except as provided in paragraph is not connected to another net in any (e)(2)(ii) of this section, any shrimp way, if no more than one test net is trawler that is in the Atlantic Area or used at a time, and if it is not towed as Gulf Area must have an approved TED a primary net. (as defined in § 217.12 of this sub- (ii) Prior to December 19, 1997, in chapter) installed in each net that is areas other than the Gulf SFSTCA or rigged for fishing. A net is rigged for the Atlantic SFSTCA, a single test net fishing if it is in the water, or if it is (try net) with a headrope length of 20 ft shackled, tied, or otherwise connected (6.1 m) or less, if it is either pulled im- to any trawl door or board, or to any mediately in front of another net or is tow rope, cable, pole or extension, ei- not connected to another net in any ther on board or attached in any man- way, if no more than one test net is ner to the shrimp trawler. used at a time, and if it is not towed as (ii) Exemptions from the TED require- a primary net. ment. (A) A shrimp trawler is exempt (iii) Applicable after December 19, from the TED requirements of para- 1997, a single test net (try net) with a graph (e)(2)(i) of this section if it com- headrope length of 12 ft (3.6 m) or less plies with the alternative tow-time re- and with a footrope length of 15 ft (4.6 strictions in paragraph (e)(3)(i) of this m) or less, if it is either pulled imme- section and if it: diately in front of another net or is not (1) Has on board no power or mechan- connected to another net in any way, if ical-advantage trawl retrieval system no more than one test net is used at a
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time, and if it is not towed as a pri- ers will report any violations of this mary net. section, or other applicable regulations (2) A beam or roller trawl fished and laws; such information may be without doors, boards, or similar de- used for enforcement purposes. vices, that has a mouth formed by a (D) Additional sea turtle conservation rigid frame and rigid vertical bars, if measures. The Assistant Administrator none of the spaces between the bars, or may impose other such restrictions between the bars and the frame, exceed upon summer flounder trawlers as he 4 inches (10.2 cm); and or she deems necessary or appropriate (3) A shrimp trawler fishing for, or to protect sea turtles and ensure com- possessing, royal red shrimp, if at least pliance, pursuant to the procedures of 90 percent (by weight) of all shrimp ei- paragraph (e)(6) of this section. Such ther found on board, or offloaded from measures may include, but are not lim- that shrimp trawler, is royal red ited to, a requirement to use TEDs in shrimp. areas other than summer flounder fish- (iii) Gear requirement—summer floun- ery-sea turtle protection area, a re- der trawlers—(A) TED requirement. Ex- quirement to use limited tow-times, cept as provided in paragraph and closure of the fishery. (e)(2)(iii)(B) of this section, any sum- (iv) Gear requirement—leatherback con- mer flounder trawler in the summer servation zone—(A) Leatherback surveys. flounder fishery-sea turtle protection From January 1 through June 30 of area must have an approved TED (as each year, weekly aerial surveys will defined in § 217.12 of this chapter) in- be conducted (contingent upon weather stalled in each net that is rigged for conditions) by NMFS or state agents in fishing. A net is rigged for fishing if it the leatherback conservation zone (de- is in the water, or if it is shackled, fined in § 217.12 of this chapter). If tied, or otherwise connected to any sighting rates of greater than 10 trawl door or board, or to any tow rope, leatherback turtles per 50 nautical cable, pole or extension, either on miles (92.6 km) of trackline are ob- board or attached in any manner to the served, the aerial surveys of that area summer flounder trawler. will be replicated within 24 hours, or as (B) Exemptions from the TED require- soon as practicable thereafter. ment. Any summer flounder trawler (B) TED requirements and registration. north of 35°46.1′ N. lat. (Oregon Inlet, If surveys pursuant to (e)(2)(iv)(A) of NC) from January 15 through March 15 this section indicate a sighting rate annually is exempt from the TED re- within the leatherback conservation quirement of paragraph (e)(2)(iii)(A) of zone of greater than 10 leatherback sea this section, unless the Assistant Ad- turtles per 50 nautical miles (92.6 km) ministrator determines that TED use of trackline, NMFS will close, for a 2- is necessary to protect sea turtles or week period, an area of the leatherback ensure compliance, pursuant to the conservation zone encompassing all, or procedures of paragraph (e)(6) of this a portion of, inshore waters and off- section. shore waters 10 nautical miles (18.5 km) (C) Monitoring. Summer flounder seaward of the COLREGS demarcation trawlers must carry onboard a NMFS- line, bounded by 1° lat. coinciding with approved observer if requested upon the trackline, within the leatherback written notification from the Director, conservation zone. Within such closed Southeast Region, NMFS, or the Direc- area, fishing by any shrimp trawler re- tor, Northeast Region, NMFS, sent to quired to have a NMFS-approved TED the address specified for the vessel in installed in each net rigged for fishing either the NMFS or state fishing per- is prohibited, unless the TED installed mit application, or to the address spec- is one described at paragraph ified for registration or documentation (e)(4)(i)(G)(2)(ii) or, prior to October 13, purposes, or upon written notification 1999, paragraph (e)(4)(iii)(A)(4)(ii) of otherwise served on the owner or oper- this section, and the owner or operator ator of the vessel. Owners and opera- of the shrimp trawler has notified the tors must comply with the terms and Director, Southeast Region, NMFS conditions specified in such written no- (Regional Director) of his or her inten- tification. All NMFS-approved observ- tion to fish in that area, in accordance
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with the procedure provided in para- makes trawling with TED-equipped graphs (e)(6)(iv) (A) through (F) of this nets impracticable. section. If requested in writing from (B) North Carolina restricted area. the Regional Director, owners and op- From June 27, 1994 through November erators of shrimp trawlers in the 30, 1994, a shrimp trawler in the North leatherback conservation zone must Carolina restricted area, as an alter- carry NMFS-approved observers aboard native to complying with the TED re- such vessel(s). A shrimp trawler in the quirement of paragraph (e)(2)(i) of this leatherback conservation zone must section, may comply with the tow-time comply with the terms and conditions restrictions set forth in paragraph specified in such written request, as (e)(3)(i) of this section. The owner or well as provide information on trawl- operator of a shrimp trawler who wish- ing hours, gear modifications, and tur- es to operate his or her shrimp trawler tle captures. in the North Carolina restricted area (C) Notification. NMFS will imme- must register pursuant to paragraph diately announce specific area closures (e)(3)(v) of this section, with registra- on the NOAA weather radio channel, in tion received by the Director, South- newspapers, and other media. Specific east Region, NMFS, at least 24 hours area closures will be effective upon fil- before the first use of such tow times. ing for public inspection at the Office Registration may be made by telephon- of the Federal Register. Owners and op- ing (813) 893–3141 or writing to 9721 Ex- erators of shrimp trawl vessels in the ecutive Center Drive, St. Petersburg, FL 33702. The owner or operator of a leatherback conservation zone are re- shrimp trawler in the North Carolina sponsible for monitoring the NOAA restricted area must carry onboard a weather radio channel for closure an- NMFS-approved observer upon written nouncements. Shrimp trawlers may notification by the Director, Southeast also call the Southeast Regional Office Region, NMFS. Notification shall be at (813) 570–5312 to receive updated area made to the address specified for the closure information. vessel in either the NMFS or state fish- (3) Tow-time restrictions—(i) Duration ing permit application, the registration of tows. If tow-time restrictions are uti- or documentation papers, or otherwise lized pursuant to paragraphs (e)(2)(ii), served upon the owner or operator of (e)(3)(ii), or (e)(3)(iii) of this section, a the vessel. The owner or operator must shrimp trawler must limit tow times to comply with the terms and conditions no more than 55 minutes from April 1 specified in such written notification. through October 31; and to no more All observers will report any violations than 75 minutes from November 1 of this section, or other applicable reg- through March 31. A shrimp trawler in ulations and laws; such information the North Carolina restricted area may be used for enforcement purposes. must limit tow times to no more than (iii) Substitute—ineffectiveness of 30 minutes from May 16 through Au- TEDs. The Assistant Administrator gust 15. The tow time is measured from may require compliance with tow-time the time that the trawl door enters the restrictions, as a substitute for the water until it is removed from the TED requirement of paragraph (e)(2)(i) water. For a trawl that is not attached of this section, if he/she determines to a door, the tow time is measured that TEDs are ineffective in protecting from the time the codend enters the sea turtles. water until it is removed from the (iv) Notice; applicability; conditions. water. The Assistant Administrator will pub- (ii) Alternative—special environmental lish notification concerning any tow- conditions. (A) The Assistant Adminis- time restriction imposed under para- trator may allow compliance with tow- graphs (e)(3) (ii) or (iii) of this section time restrictions, as an alternative to in the FEDERAL REGISTER and will an- the TED requirement of paragraph nounce it in summary form on channel (e)(2)(i) of this section, if he/she deter- 16 of the marine VHF radio. A notifica- mines that the presence of algae, sea- tion of tow-time restrictions will in- weed, debris or other special environ- clude findings in support of these re- mental conditions in a particular area strictions as an alternative to, or as
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substitute for, the TED requirements for a period of up to 30 days and may be of paragraph (e)(2)(i) of this section. renewed for additional periods of up to The notification will specify the effec- 30 days each if the Assistant Adminis- tive dates, the geographic area where trator finds that the conditions that tow-time restrictions apply, and any necessitated the imposition of tow- applicable conditions or restrictions time restrictions continue to exist. The that the Assistant Administrator de- Assistant Administrator may invite termines are necessary or appropriate comments on such an action, and may to protect sea turtles and ensure com- withdraw or modify the action by fol- pliance, including, but not limited to, a lowing procedures similar to those for requirement to carry observers, or for implementation. The Assistant Admin- all shrimp trawlers in the area to syn- istrator will implement any permanent chronize their tow times so that all tow-time restriction through rule- trawl gear remains out of the water making. during certain times. A notification (4) Approved TEDs. Any netting, web- withdrawing tow-time restrictions will bing, or mesh that may be measured to include findings in support of that ac- determine compliance with this para- tion. graph (e)(4) is subject to measurement, (v) Registration. If the Assistant Ad- regardless of whether it is wet or dry. ministrator imposes restrictions under Any such measurement will be of the paragraph (e)(3) (ii) or (iii) of this sec- stretched mesh size. tion, he/she may require the owner and (i) Hard TEDs. Hard TEDs are TEDs operator of a shrimp trawler to register with rigid deflector grids and are cat- before entering an area where, and dur- egorized as ‘‘hooped hard TEDs,’’ such ing the time when, the restrictions as the NMFS and Cameron TEDs (Fig- apply. If registration is required, the ures 1 & 2), or ‘‘single-grid hard TEDs,’’ trawler’s owner and operator must sub- such as the Matagorda and Georgia mit the following information to the TEDs (Figures 3 & 4). Hard TEDs com- NMFS Regional Office: plying with the following generic de- (A) The name and official number (or sign criteria are approved TEDs: registration number) of the shrimp (A) Construction materials. A hard trawler; TED must be constructed of one or a (B) The names, mailing and street ad- combination of the following mate- dresses, and telephone numbers of the rials, with minimum dimensions as fol- trawler owner and operator; lows: (C) The permit number or other iden- (1) Solid steel rod with a minimum tification of relevant state or Federal outside diameter of 1⁄4 inch (0.64 cm); fishing permit(s); (2) Fiberglass or aluminum rod with (D) Where and when the trawler in- a minimum outside diameter of 1⁄2 inch tends to fish; (1.27 cm); or (E) Where and when the trawler will (3) Steel or aluminum tubing with a depart on any fishing trip, with suffi- minimum outside diameter of 1/2 inch cient specificity to allow for an ob- (1.27 cm) and a minimum wall thick- server to embark on the trip; and ness of 1/8 inch (0.32 cm) (also known as (F) Any changes in the information schedule 40 tubing). submitted under paragraphs (e)(3)(v) (B) Method of attachment. A hard TED (A) through (E) of this section. Failure must be sewn into the trawl around the to do so immediately will void the reg- entire circumference of the TED with istration, which will render unlawful heavy twine. any subsequent entry of the shrimp (C) Angle of deflector bars. (1) Except trawler into the area where and during as provided in paragraph (e)(4)(i)(C)(2) the time when the restrictions apply. of this section, the angle of the deflec- (vi) Procedures. The Assistant Admin- tor bars must be between 30° and 55° istrator will consult with the appro- from the normal, horizontal flow priate fishery officials (state or Fed- through the interior of the trawl. eral) where the affected shrimp fishery (2) For any shrimp trawler fishing in is located in issuing a notification con- the Gulf SFSTCA or the Atlantic cerning tow-time restrictions. An SFSTCA, a hard TED with the position emergency notification can be effective of the escape opening at the bottom of
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the net when the net is in its deployed opening cannot be narrower than the position, the angle of the deflector bars outside width of the grid minus 4 from the normal, horizontal flow inches (10.2 cm) on both sides of the through the interior of the trawl, at grid, when measured as a straight line any point, must not exceed 55°, and: width. (Figure 13 of this part illus- (i) If the deflector bars that run from trates the dimensions of this cut.) The top to bottom are attached to the bot- resulting escape opening in the net tom frame of the TED, the angle of the webbing must measure at least 32 bottom-most 4 inches (10.2 cm) of each inches (81.3 cm) in horizontal taut deflector bar, measured along the bars, length and, simultaneously, 10 inches must not exceed 45° (Figures 14a and (25.4 cm) in vertical taut height in the 14b); Gulf Area; or 35 inches (88.9 cm) in hor- (ii) If the deflector bars that run from izontal taut length and, simulta- top to bottom are not attached to the neously, 12 inches (30.5 cm) in vertical bottom frame of the TED, the angle of taut height in the Atlantic Area. The the imaginary lines connecting the vertical measurement must be taken at bottom frame of the TED to the bot- the midpoint of the horizontal meas- tom end of each deflector bar which urement. runs from top to bottom must not ex- (ii) Escape opening for leatherback tur- ceed 45° (Figure 15). tles. A single-grid hard TED escape (D) Space between bars. The space be- opening shall be enlarged to allow tween deflector bars, and between the leatherback turtles to escape by cut- deflector bars and the frame, must not ting an exit hole in the extension for- exceed 4 inches (10.2 cm). ward of the TED frame 26 inches (66 (E) Direction of bars. The deflector bars must run from top to bottom of cm) deep, on each side, by 83 inches (211 the TED, as the TED is positioned in cm) across (Figures 12a and 12b of this the net, except that up to four of the part). Excess webbing is removed by 1 bottom bars and two of the top bars, cutting across ⁄2 mesh forward of the including the frame, may run from side TED frame. The exit hole cover is made to side of the TED. by cutting a 133-inch (338-cm) by 58- (F) Position of escape opening. The en- inch (148 cm) piece of webbing no 1 tire width of the escape opening from smaller than 1 ⁄2 inch (4 cm) stretch 5 the trawl must be centered on and im- mesh and no larger than 1 ⁄8 inch (4.2 mediately forward of the frame at ei- cm) stretch mesh. The 133-inch (338 cm) ther the top or bottom of the net when edge of the cover is attached to the for- the net is in its deployed position. The ward edge of the opening (83-inch (211- escape opening must be at the top of cm) edge) with a sewing sequence of 3:2. the net when the slope of the deflector The cover should overlap 5 inches (13 bars from forward to aft is upward, and cm) of the exit hole on each side. The must be at the bottom when such slope side of the cover is attached, maintain- is downward. For a single-grid TED, ing the 5-inch (13-cm) overlap, to the the escape opening must be cut hori- side of the opening by sewing 28 inches zontally along the same plane as the (71 cm) of the cover to 26 inches (66 cm) TED, and may not be cut in a fore-and- of the opening forward of the TED aft direction. frame and by sewing 15 inches (38 cm) (G) Size of escape opening. (1) On a of the cover to 15 inches (38 cm) of the hooped hard TED, the escape opening extension behind the TED frame. The must not be smaller than 25 inches by cover may extend no more than 24 25 inches (63.5 cm by 63.5 cm) in the inches (61 cm) behind the posterior Gulf Area, or 30 inches by 30 inches edge of the TED frame. The circum- (76.2 cm by 76.2 cm) in the Atlantic ference of the exit opening must be 142 Area. A door frame may not be used inches (361 cm) when stretched. If an over the escape opening; however, a accelerator funnel is used with a sin- webbing flap may be used as provided gle-grid hard TED, modified as above, in paragraph (e)(4)(iv)(C) of this sec- it must also have a minimum circum- tion. ference of 142 inches (361 cm). (2)(i) On a single-grid hard TED, the (H) Size of hoop or grid—(1) Hooped cut in the trawl webbing for the escape hard TED. (i) An oval front hoop on a
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hard TED must have an inside hori- (ii) 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 cm) in the Gulf Area, or an inside hori- smaller than 9.8 inches (25.0 cm) in di- zontal measurement of at least 35 ameter, or one expanded polyvinyl inches (88.9 cm) and an inside vertical chloride or expanded ethylene vinyl ac- measurement of at least 30 inches (76.2 etate float, no smaller than 6.75 inches cm) in the Atlantic Area. (17.2 cm) in diameter by 8.75 inches (ii) A circular front hoop on a hard (22.2 cm) in length, must be attached. TED must have an inside diameter of (2) Float buoyancy requirements. at least 32 inches (81.3 cm) in the Gulf Floats of any size and in any combina- Area or 35 inches (88.9 cm) in the At- tion must be attached such that the lantic Area. combined buoyancy of the floats, as (2) Single-grid hard TED. A single-grid marked on the floats, equals or exceeds hard TED must have an inside hori- the weight of the hard TED, as marked zontal and vertical measurement of at on the TED. The buoyancy of the floats least 28 inches (71.1 cm) in the Gulf and the weight of the TED must be Area or 30 inches (76.2 cm) in the At- clearly marked on the floats and the lantic Area. The required inside meas- TED as follows: urements must be at the mid-point of (i) Float buoyancy markings. Marking the deflector grid. must be made in clearly legible raised or recessed lettering by the original (I) Flotation. Floats must be attached manufacturer. The marking must iden- to the top one-half of all hard TEDs tify the buoyancy of the float in water, with bottom escape openings. The expressed in grams or kilograms, and floats may be attached either outside must include the metric unit of meas- or inside the net, but not to a flap. ure. The marking may additionally in- Floats attached inside the net must be clude the buoyancy in English units. behind the rear surface. Floats must be The marking must identify the nomi- attached with heavy twine or rope. nal buoyancy for the manufactured Floats must be constructed of alu- float. minum, hard plastic, expanded poly- (ii) TED weight markings. The mark- vinyl chloride, or expanded ethylene ing must be made by a registered TED vinyl acetate unless otherwise speci- manufacturer and must be permanent fied. The requirements of this para- and clearly legible and must be accom- graph may be satisfied by compliance panied by the identifying symbol of the with either the dimension require- registered manufacturer. The marking ments of paragraph (e)(4)(i)(I)(1) of this must identify the in-air, dry weight of section, or the buoyancy requirements the TED, expressed in grams or kilo- of paragraph (e)(4)(i)(I)(2) of this sec- grams, and must include the metric tion, or the buoyancy-dimension re- unit of measure. The marking may ad- quirements of paragraph (e)(4)(i)(I)(3) ditionally include the weight in of this section. If roller gear is used English units. The marked weight pursuant to paragraph (e)(4)(iv)(E), the must represent the actual weight of roller gear must be included in the cir- the individual TED as manufactured. cumference measurement of the TED Previously manufactured TEDs may be or the total weight of the TED. marked upon return to a registered (1) Float dimension requirements. (i) TED manufacturer. Where a TED is For hard TEDs with a circumference of comprised of multiple detachable com- 120 inches (304.8 cm) or more, a mini- ponents, the weight of each component mum of either one round, aluminum or must be separately marked. A TED hard plastic float, no smaller than 9.8 manufacturer may become registered inches (25.0 cm) in diameter, or two ex- to mark TEDs by requesting registra- panded polyvinyl chloride or expanded tion in writing from the NMFS South- ethylene vinyl acetate floats, each no east Regional Director. To request reg- smaller than 6.75 inches (17.2 cm) in di- istration, the manufacturer should ameter by 8.75 inches (22.2 cm) in write to the Director, Southeast Re- length, must be attached. gion, NMFS, 9721 Executive Center Dr.
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North, St. Petersburg, FL 33702, and in- The horizontal bar must be connected clude the manufacturer’s name, ad- at both ends to the sides of the frame dress, and telephone number; the sizes, and parallel to the bottom bar of the styles, and anticipated number of TEDs frame. There must be a space no larger to be produced annually; the method of than 10 inches (25.4 cm) between the marking; and a description of the man- horizontal bar and the bottom bar of ufacturer’s distinctive, identifying the frame. An additional vertical bar symbol. Upon receipt of a complete re- runs from the middle of the bottom bar quest, the Director, Southeast Region, to the middle of the horizontal bar di- NMFS, will notify the manufacturer in viding the opening at the bottom into writing of their registration. two rectangles with an opening height (3) Buoyancy-dimension requirements. of no more than 10 inches (25.4 cm) and Floats of any size and in any combina- an opening width of no more than 14 1/ tion, provided that they are marked 2 inches (36.8 cm). If, because of the pursuant to paragraph (e)(4)(i)(I)(2)(i) width of the TED, the opening width of of this section, must be attached such the bottom rectangles exceeds the that the combined buoyancy of the maximum allowed, additional vertical floats equals or exceeds the following bars must be added. This TED must values: comply with paragraphs (e)(4)(i)(B), (i) For floats constructed of alu- (e)(4)(i)(C), (e)(4)(i)(F), and (e)(4)(i)(G) minum or hard plastic, regardless of of this section with respect to the the size of the TED grid, the combined method of attachment, the angle of the buoyancy must equal or exceed 14 lb deflector bars, the position of the es- (6.4 kg); cape opening, and the size of the escape (ii) For floats constructed of ex- opening, except that the deflector bars panded polyvinyl chloride or expanded must be positioned in the net to deflect ethylene vinyl acetate, where the cir- turtles to the escape opening in the top cumference of the TED is 120 inches of the trawl. This TED may not be con- (304.8 cm) or more, the combined buoy- figured with a bottom escape opening. ancy must equal or exceed 20 lb (9.1 Installation of an accelerator funnel is kg); or not permitted with this TED. Use of (iii) For floats constructed of ex- this TED is restricted to the Atlantic panded polyvinyl chloride or expanded summer flounder bottom trawl fishery. ethylene vinyl acetate, where the cir- (B) Jones TED (Figure 11 of this part). cumference of the TED is less than 120 The Jones TED must be constructed of inches (304.8 cm), the combined buoy- at least 1 1/4 inch (3.2 cm) outside diam- ancy must equal or exceed 10 lb (4.5 eter aluminum or steel pipe, and the kg). pipe must have a wall thickness of at (ii) Special Hard TEDs. Special hard least 1/8 inch (0.3 cm). It must be gen- TEDs are hard TEDs which do not meet erally oval in shape with a flattened all of the design and construction cri- bottom. The deflector bars must be at- teria of the generic standards. The fol- tached to the frame at a 45° angle from lowing special hard TEDs are approved the horizontal positioning downward TEDs: and each bar must be attached at only (A) Flounder TED (Figure 10 of this one end to the frame. The deflector part). The Flounder TED must be con- bars must be attached and lie in the structed of at least 1 1/4 inch (3.2 cm) same plane as the frame. The space be- outside diameter aluminum or steel tween the ends of the bottom deflector pipe with a wall thickness of at least 1/ bars and the bottom frame bar must be 8 inch (0.3 cm). It must have a rectan- no more than 3 inches (7.6 cm). The gular frame with outside dimensions spacing between the bottom three de- which can be no less than 51 inches flector bars on each side must be no (129.5 cm) in length and 32 inches (81.3 greater than 2 1/2 inches (6.4 cm). The cm) in width. It must have at least five spacing between all other deflector vertical deflector bars, with bar bars must not exceed 3 1/2 inches (8.9 spacings of no more than 4 inches (10.2 cm) and spacing between ends of oppos- cm). The vertical bars must be con- ing deflector bars also must not exceed nected to the top of the frame and to a 3 1/2 inches (8.9 cm). This TED must single horizontal bar near the bottom. comply with paragraphs (e)(4)(i)(B),
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(e)(4)(i)(C), (e)(4)(i)(F), (e)(4)(i)(G), (2) Limitations on which trawls may (e)(4)(i)(H)(2), and (e)(4)(i)(I) 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 (iii) 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. body panels of the trawl does not ex- Prior to October 13, 1999, the following ceed 4b1p and if it can be properly in- soft TEDs are approved TEDs: stalled in compliance with paragraph (A) Parker TED. The Parker TED is a (c)(1)(iii) of this section. soft TED, consisting of a single tri- (3) Panel installation—(i) Leading edge angular panel, composed of webbing of attachment. The leading edge of the ex- two different mesh sizes, that forms a cluder panel must be attached to the complete barrier inside a trawl and inside of the bottom of the trawl across that angles toward an escape opening a straight row of meshes. For a two- in the top of the trawl. seam trawl or a four-seam, tapered- (1) Excluder Panel. (Figure 5) The ex- wing trawl, the row of meshes for at- cluder panel of the Parker TED must tachment to the trawl must run the en- be constructed of a single triangular tire width of the bottom body panel, piece of 8-inch (20.3 cm) stretched mesh from seam to seam. For a four-seam, webbing and two trapezoidal pieces of straight-wing trawl, the row of meshes 4-inch (10.2-cm) stretched mesh web- for attachment to the trawl must run bing. The webbing must consist of the entire width of the bottom body number 48 (3-mm thick) or larger poly- panel and half the height of each wing propylene or polyethylene webbing panel of the trawl. Every mesh of the that is heat-set knotted or braided. leading edge of the excluder panel must The leading edge of the 8-inch (20.3-cm) be evenly sewn to this row of meshes; mesh panel must be 36 meshes wide. meshes may not be laced to the trawl. The 8-inch (20.3-cm) mesh panel must The row of meshes for attachment to be tapered on each side with all-bar the trawl must contain the following cuts to converge on an apex, such that number of meshes, depending on the the length of each side is 36 bars. The stretched mesh size used in the trawl: leading edges of the 4-inch (10.2-cm) for a mesh size of 21⁄4 inches (5.7 cm), mesh panels must be 8 meshes wide. 152–168 meshes; for a mesh size of 21⁄8 The edges of the 4-inch (10.2-cm) mesh inches (5.4 cm), 161–178 meshes; for a panels must be cut with all-bar cuts mesh size of 2 inches (5.1 cm), 171–189 running parallel to each other, such meshes; for a mesh size of 17⁄8 inches that the length of the inner edge is 72 (4.8 cm), 182–202 meshes; for a mesh size bars and the length of the outer edge is of 13⁄4 inches (4.4 cm), 196–216 meshes; 89 bars and the resulting fore-and-aft for a mesh size of 15⁄8 inches (4.1 cm), edge is 8 meshes deep. The two 4-inch 211–233 meshes; for a mesh size of 11⁄2 (10.2-cm) mesh panels must be sewn to inches (3.8 cm), 228–252 meshes; for a the 8-inch (20.3-cm) mesh panel to cre- mesh size of 13⁄8 inches (3.5 cm), 249–275 ate a single triangular excluder panel. meshes; and for a mesh size of 11⁄4 The 72-bar edge of each 4-inch (10.2-cm) inches (3.2 cm), 274–302 meshes. mesh panel must be securely joined (ii) Apex attachment. The apex of the with twine to one of the 36-bar edges of triangular excluder panel must be at- the 8-inch (20.3-cm) mesh panel, tied tached to the inside of the top body with knots at each knot of the 4-inch panel of the trawl at the centerline of (10.2-cm) webbing and at least two the trawl. The distance, measured aft wraps of twine around each bar of 4- along the centerline of the top body inch (10.2-cm) mesh and the adjoining panel from the same row of meshes for bar of the 8-inch (20.3-cm) mesh. The attachment of the excluder panel to adjoining fore-and-aft edges of the two the bottom body panel of the trawl, to 4-inch (10.2-cm) mesh panels must be the apex attachment point must con- sewn together evenly. tain the following number of meshes,
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depending on the stretched mesh size flap must not extend more than 12 used in the trawl: for a mesh size of 21⁄4 inches (30.4 cm) beyond the rear point inches (5.7 cm), 78–83 meshes; for a of the escape opening. The sides of the mesh size of 21⁄8 inches (5.4 cm), 83–88 flap may be attached to the top of the meshes; for a mesh size of 2 inches (5.1 trawl but must not be attached farther cm), 87–93 meshes; for a mesh size of 17⁄8 aft than the row of meshes through the inches (4.8 cm) , 93–99 meshes; for a rear point of the escape opening. One mesh size of 13⁄4 inches (4.4 cm) , 100–106 row of steel chain not larger than 3⁄16 meshes; for a mesh size of 15⁄8 inches inch (4.76 mm) may be sewn evenly to (4.1 cm), 107–114 meshes; for a mesh size the back edge of the flap. The stretched of 11⁄2 inches (3.8 cm), 114–124 meshes; length of the chain must not exceed 96 for a mesh size of 13⁄8 inches (3.5 cm), inches (244 cm). A Parker TED using 127–135 meshes; and for a mesh size of the escape opening described in this 11⁄4 inches (3.2 cm), 137–146 meshes. paragraph meets the requirements of (iii) Side attachment. The sides of the paragraph (e)(2)(iv)(B) of this section. excluder panel must be attached evenly (B) [Reserved] to the inside of the trawl from the out- (iv) Allowable modifications to TEDs. side attachment points of the excluder No modifications may be made to an panel’s leading edge to the apex of the approved soft TED. Unless otherwise excluder panel. Each side must be sewn prohibited in paragraph (e)(4)(ii) of this with the same sewing sequence, and, if section, only the following modifica- the sides of the excluder panel cross tions may be made to an approved hard rows of bars in the trawl, then the TED and an approved special hard crossings must be distributed evenly TED: over the length of the side attachment. (A) Floats. In addition to floats re- (4) Escape opening. The escape open- quired pursuant to paragraph (e)(4)(i)(I) ing for the Parker soft TED must of this section, floats may be attached match one of the following specifica- to the top one-half of the TED, either tions: outside or inside the net, but not to a (i) Longitudinal cut. A slit at least 56 flap. Floats attached inside the net inches (1.4 m) in taut length must be must be behind the rear surface at the cut along the centerline of the top top of the TED. body panel of the trawl net imme- (B) Accelerator funnel. An accelerator diately forward of the apex of the panel funnel may be installed in the trawl, if webbing. The slit must not be covered it is made of net webbing material with or closed in any manner. The edges and a stretched mesh size not greater than end points of the slit must not be rein- 1 5/8 inches (4.1 cm), if it has an forced in any way; for example, by at- insidehorizontal opening of at least 39 taching additional rope or webbing or inches (99.1 cm) when measured in a by changing the orientation of the web- taut position, if it is inserted in the net bing. immediately forward of the TED, and if (ii) Leatherback escape opening. A hor- its rear edge does not extend past the izontal cut extending from the attach- bars of the TED. The trailing edge of ment of one side of the deflector panel the accelerator funnel may be attached to the trawl to the attachment of the to the TED on the side opposite the es- other side of the deflector panel to the cape opening if not more than 1/3 of the trawl must be made in a single row of circumference of the funnel is at- meshes across the top of the trawl and tached, and if the inside horizontal measure at least 96 inches (244 cm) in opening of at least 39 inches (99.1 cm) is taut width. All trawl webbing above maintained. In a downward shooting the deflector panel between the 96-inch TED, only the top 1/3 of the circum- (244-cm) cut and edges of the deflector ference of the funnel may be attached panel must be removed. A rectangular to the TED. In an upward shooting flap of nylon webbing not larger than 2- TED, only the bottom 1/3 of the cir- inch (5.1-cm) stretched mesh may be cumference of the funnel may be at- sewn to the forward edge of the escape tached to the TED. opening. The width of the flap must (C) Webbing flap. A webbing flap may not be larger than the width of the for- be used to cover the escape opening if: ward edge of the escape opening. The No device holds it closed or otherwise
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restricts the opening; it is constructed support rods and axle rod must be of webbing with a stretched mesh size made from solid steel or solid alu- no larger than 1 5/8 inches (4.1 cm); it minum rod no larger than 1/2 inch (1.28 lies on the outside of the trawl; it is at- cm) in diameter. The attachment of tached along its entire forward edge the support rods to the TED shall be forward of the escape opening; it is not such that there are no protrusions attached on the sides beyond the row of (lips, sharp edges, burrs, etc.) on the meshes that lies 6 inches (15.2 cm) be- front face of the grid. The axle rod and hind the posterior edge of the grid; and support rods must lie entirely behind it does not extend more than 24 inches the plane of the face of the TED grid. (61.0 cm) beyond the posterior edge of (2) A single roller consisting of hard the grid, except for trawlers fishing in plastic tubing shall be tightly tied to the Gulf SFSTCA or Atlantic SFSTCA the back face of the TED grid with rope with a hard TED with the position of or heavy twine passed through the cen- the escape opening at the bottom of ter of the roller tubing. The roller shall the net when the net is in its deployed position, in which case the webbing lie flush against the TED. The maxi- flap must not extend beyond the pos- mum outside diameter of the roller terior edge of the grid. shall be 3 1/2 inches (8.0 cm), the mini- (D) Chafing webbing. A single piece of mum outside diameter of the roller nylon webbing, with a twine size no shall be 2 inches (5.1 cm), and the maxi- smaller than size 36 (2.46 mm in diame- mum length of the roller shall be 12 ter), may be attached outside of the es- inches (30.4 cm). The roller must lie en- cape opening webbing flap to prevent tirely behind the plane of the face of chafing on bottom opening TEDs. This the grid. webbing may be attached along its (5)(i) Revision of generic design criteria, leading edge only. This webbing may and approval of TEDs, of allowable modi- not extend beyond the trailing edge or fications of hard TEDs, and of special sides of the existing escape opening hard TEDs. The Assistant Adminis- webbing flap, and it must not interfere trator may revise the generic design or otherwise restrict the turtle escape criteria for hard TEDs set forth in opening. paragraph (e)(4)(i) of this section, may (E) Roller gear. Roller gear may be at- approve special hard TEDs in addition tached to the bottom of a TED to pre- to those listed in paragraph (e)(4)(ii) of vent chafing on the bottom of the TED this section, may approve allowable and the trawl net. When a webbing flap modifications to hard TEDs in addition is used in conjunction with roller gear, to those authorized in paragraph the webbing flap must be of a length (e)(4)(iv) of this section, or may ap- such that no part of the webbing flap prove other TEDs, by regulatory can touch or come in contact with any amendment, if, according to a NMFS- part of the roller gear assembly or the approved scientific protocol, the TED means of attachment of the roller gear demonstrates a sea turtle exclusion assembly to the TED, when the trawl rate of 97 percent or greater (or an net is in its normal, horizontal posi- equivalent exclusion rate). Two such tion. Roller gear must be constructed according to one of the following de- protocols have been published by sign criteria: NMFS (52 FR 24262, June 29, 1987; and 55 (1) A single roller consisting of hard FR 41092, October 9, 1990) and will be plastic shall be mounted on an axle used only for testing relating to hard rod, so that the roller can roll freely TED designs. Testing under any proto- about the axle. The maximum diame- col must be conducted under the super- ter of the roller shall be 6 inches (15.24 vision of the Assistant Administrator, cm), and the maximum width of the and shall be subject to all such condi- axle rod shall be 12 inches (30.4 cm). tions and restrictions as the Assistant The axle rod must be attached to the Administrator deems appropriate. Any TED by two support rods. The maxi- person wishing to participate in such mum clearance between the roller and testing should contact the Director, the TED shall not exceed 1 inch (2.5 Southeast Fisheries Science Center, cm) at the center of the roller. The NMFS.
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(ii) Upon application, the Assistant of fishing activities in the FEDERAL Administrator may issue permits, sub- REGISTER. The Assistant Administrator ject to such conditions and restrictions will provide as much advance notice as as the Assistant Administrator deems possible, consistent with the require- appropriate, authorizing public or pri- ments of the Act, and will announce vate experimentation aimed at improv- the notification in summary form on ing shrimp retention efficiency of ex- channel 16 of the marine VHF radio. isting approved TEDs and at develop- Notification of a determination con- ing additional TEDs, or conducting cerning unauthorized takings will in- fishery research, that would otherwise clude findings in support of that deter- be subject to paragraph (e)(2) of this mination; specify the fishery, including section. Applications should be ad- the target species and gear used by the dressed to the Director, Southeast Re- fishery, the area, and the times, for gion, NMFS, 9450 Koger Blvd., St. Pe- which incidental takings are not au- tersburg, FL 33702. thorized; and include such other condi- (6) Limitations on incidental takings tions and restrictions as the Assistant during fishing activities—(i) Limitations. Administrator determines are nec- The exemption for incidental takings essary or appropriate to protect sea of sea turtles in paragraph (e)(1) of this turtles and ensure compliance. Notifi- section does not authorize incidental cation of restriction of fishing activi- takings during fishing activities if the ties will include findings in support of takings: the restriction, will specify the time (A) Would violate the restrictions, and area where the restriction is appli- terms, or conditions of an incidental cable, and will specify any applicable take statement or biological opinion; conditions or restrictions that the As- (B) Would violate the restrictions, sistant Administrator determines are terms, or conditions of an incidental necessary or appropriate to protect sea take permit; or turtles and ensure compliance. Such (C) May be likely to jeopardize the conditions and restrictions may in- continued existence of a species listed clude, but are not limited to, limita- under the Act. tions on the types of fishing gear that (ii) Determination; restrictions on fish- may be used, tow-time restrictions, al- ing activities. The Assistant Adminis- teration or extension of the periods of trator may issue a determination that time during which particular tow-time incidental takings during fishing ac- requirements apply, requirements to tivities are unauthorized. Pursuant use TEDs, and requirements to provide thereto, the Assistant Administrator observers. Notification of withdrawal may restrict fishing activities in order or modification will include findings in to conserve a species listed under the support of that action. Act, including, but not limited to, re- strictions on the fishing activities of (iv) Registration. If the Assistant Ad- vessels subject to paragraph (e)(2)(i) of ministrator imposes restrictions under this section. The Assistant Adminis- paragraph (e)(6)(ii) of this section, he/ trator will take such action if he/she she may require the owner and opera- determines that restrictions are nec- tor of a vessel to register before enter- essary to avoid unauthorized takings ing an area where, and during the time that may be likely to jeopardize the when, the restrictions apply. If reg- continued existence of a listed species. istration is required, the vessel’s owner The Assistant Administrator may and operator must submit the follow- withdraw or modify a determination ing information to the NMFS Regional concerning unauthorized takings or Office: any restriction on fishing activities if (A) The name and official number (or the Assistant Administrator deter- registration number) of the vessel; mines that such action is warranted. (B) The names, mailing and street ad- (iii) Notice; applicability; conditions. dresses, and telephone numbers of the The Assistant Administrator will pub- vessel owner and operator; lish a notification of a determination (C) The permit number or other iden- concerning unauthorized takings or a tification of relevant state or Federal notification concerning the restriction fishing permit(s);
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(D) Where and when the vessel in- chapter in accordance with section tends to fish; and 10(a)(1)(B) of the Act (16 U.S.C. (E) Where and when the vessel will 1539(a)(1)(B)), and in accordance with, depart on any fishing trip, with suffi- and subject to, the provisions of parts cient specificity to allow for an ob- 220 and 222 of this chapter. Such per- server to embark on the trip. mits may be issued for the incidental (F) Any changes in the information taking of both endangered and threat- submitted under paragraphs (e)(6)(iv) ened species of sea turtles. This section (A) through (E) of this section. Failure supersedes restrictions on the scope of to do so immediately will void the reg- parts 220 and 222, including, but not istration, which will render unlawful limited to, the restrictions specified in any subsequent entry of the fishing §§ 220.3, 222.1, 222.2(a) and 222.22(a). vessel into the area where and during (f) Subsistence. The prohibition in the time when the restrictions apply. § 227.71(b) shall not apply with respect (v) Procedures. The Assistant Admin- to the taking of any member of the istrator will consult with the appro- species of green sea turtle (Chelonia priate fisheries officials (state or Fed- mydas) in waters seaward of mean low eral) where the fishing activities are tide for personal consumption by resi- located in issuing notification of a de- dents of the Trust Territory of the Pa- termination concerning unauthorized cific Islands if such taking is cus- takings or notification concerning the tomary, traditional and necessary for restriction of fishing activities. An the sustenance of such resident and his emergency notification will be effec- immediate family. Sea turtles so taken tive for a period of up to 30 days and cannot be transferred to non-residents may be renewed for additional periods or sold. of up to 30 days each. The Assistant Administrator may invite comments [43 FR 32809, July 28, 1978] on such action, and may withdraw or EDITORIAL NOTE: For FEDERAL REGISTER ci- modify the action by following proce- tations affecting § 227.72, see the List of CFR dures similar to those for implementa- Sections Affected in the Finding Aids sec- tion. The Assistant Administrator will tion of this volume. implement any permanent determina- tion or restriction through rule- EFFECTIVE DATE NOTE: At 60 FR 15516, Mar. 24, 1995 in § 227.72, paragraph (e)(4)(i)(I) was making. revised. Paragraph (e)(4)(i)(I)(2)(ii) contains (7) Incidental-take permits. The Assist- information collection requirements and will ant Administrator may issue permits not become effective until approval has been authorizing activities that would oth- given by the Office of Management and erwise be prohibited in § 227.71(a) of this Budget.
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[60 FR 15519, Mar. 24, 1995]
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FIGURE 2 (CAMERON TED) [52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 3 MATAGORDA TED [52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 4 (GEORGIA TED) [52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 5 NET DIAGRAM FOR THE EXCLUDER PANEL OF THE PARKER SOFT TED [63 FR 17958, Apr. 13, 1998]
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FIGURES 6–9b TO PART 227 [RESERVED]
[58 FR 54069, Oct. 20, 1993]
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[58 FR 54070, Oct. 20, 1993]
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[59 FR 25830, May 18, 1994]
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[59 FR 25831, May 18, 1994]
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[60 FR 15520, Mar. 24, 1995]
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[61 FR 66946, Dec. 19, 1996]
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[61 FR 66947, Dec. 19, 1996]
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PART 229—AUTHORIZATION FOR United States, other than vessels fish- COMMERCIAL FISHERIES UNDER ing for yellowfin tuna in the eastern THE MARINE MAMMAL PROTEC- tropical Pacific Ocean purse seine fish- ery, and vessels that have valid fishing TION ACT OF 1972 permits issued in accordance with sec- tion 204(b) of the Magnuson Fishery Subpart A—General Provisions Conservation and Management Act (16 Sec. U.S.C. 1824(b)). 229.1 Purpose and scope. (c) The regulations of Subpart B also 229.2 Definitions. govern the incidental taking by com- 229.3 Prohibitions. mercial fishers of marine mammals 229.4 Requirements for Category I and II from species or stocks designated fisheries. 229.5 Requirements for Category III fish- under the Act as depleted on the basis eries. of their listing as threatened species or 229.6 Reporting requirements. endangered species under the Endan- 229.7 Monitoring of incidental mortalities gered Species Act of 1973 (16 U.S.C. 1531 and serious injuries. et seq.). 229.8 Publication of List of Fisheries. (d) The regulations of this part do 229.9 Emergency regulations. not apply to the incidental taking of 229.10 Penalties. 229.11 Confidential fisheries data. California sea otters or to Northwest 229.12 Consultation with the Secretary of treaty Indian tribal members exercis- the Interior. ing treaty fishing rights. (e) Authorizations under subpart A of Subpart B—Takes of Endangered and this part are exemptions only from the Threatened Marine Mammals taking prohibitions under the Act and 229.20 Issuance of permits. not those under the Endangered Spe- cies Act of 1973. To be exempt from the Subpart C—Take Reduction Plan taking prohibitions under the Endan- Regulations and Emergency Regulations gered Species Act, specific authoriza- tion under subpart B of this part is re- 229.31 Pacific Offshore Cetacean Take Re- quired. duction Plan. (f) Authorizations under this part do 229.32 Atlantic large whale take reduction plan regulations. 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. MENTS (g) The purposes of the regulations in this part are to: AUTHORITY: 16 U.S.C. 1361 et seq. (1) Reduce the incidental mortality SOURCE: 60 FR 45100, Aug. 30, 1995, unless or serious injury of marine mammals otherwise noted. occurring in the course of commercial fishing operations below the potential Subpart A—General Provisions biological removal level for a particu- lar stock, and § 229.1 Purpose and scope. (2) Reduce the incidental mortality (a) The regulations in this part im- or serious injury of marine mammals plement sections 101(a)(5)(E) and 118 of occurring in the course of commercial the Marine Mammal Protection Act of fishing operations to insignificant lev- 1972, as amended (16 U.S.C. 1371(a)(5)(E) els approaching a zero mortality and and 1387) that provide for exceptions serious injury rate by the statutory for the taking of marine mammals in- deadline of April 30, 2001. cidental to certain commercial fishing operations from the Act’s general mor- § 229.2 Definitions. atorium on the taking of marine mam- In addition to the definitions con- mals. tained in the Act and § 216.3 of this (b) Section 118 of the Act, rather chapter, and unless the context other- than sections 103 and 104, governs the wise requires, in this part 229: incidental taking of marine mammals Act or MMPA means the Marine in the course of commercial fishing op- Mammal Protection Act of 1972, as erations by persons using vessels of the amended (16 U.S.C. 1361 et seq.).
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American lobster or lobster means evaluating other factors such as fishing Homarus americanus. techniques, gear used, methods used to Anchored gillnet means any gillnet deter marine mammals, target species, gear, including sink gillnets, that is set seasons and areas fished, qualitative anywhere in the water column and data from logbooks or fisher reports, which is anchored, secured or weighted stranding data, and the species and dis- to the bottom. tribution of marine mammals in the Assistant Administrator means the As- area, or at the discretion of the Assist- sistant Administrator for Fisheries of ant Administrator. Eligible commer- the National Oceanic and Atmospheric cial fisheries not specifically identified Administration. in the list of fisheries are deemed to be Authorization Certificate means a doc- Category II fisheries until the next list ument issued by the Assistant Admin- of fisheries is published. istrator, or designee, under the author- Category III fishery means a commer- ity of section 118 of the Act that au- cial fishery determined by the Assist- thorizes the incidental, but not inten- ant Administrator to have a remote tional, taking of marine mammals in likelihood of, or no known incidental Category I or II fisheries. mortality and serious injury of marine Breaking strength means the highest mammals. A commercial fishery that tensile force which an object can with- has a remote likelihood of causing inci- stand before breaking. dental mortality and serious injury of Bridle means the lines connecting a marine mammals is one that collec- gillnet to an anchor or buoy line. tively with other fisheries is respon- Buoy line means a line connecting sible for the annual removal of: fishing gear in the water to a buoy at (1) Ten percent or less of any marine the surface of the water. mammal stock’s potential biological Category I fishery means a commer- removal level, or cial fishery determined by the Assist- 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 mortal- itself is responsible for the annual re- ity 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 taking is incidental mortality and serious injury ‘‘remote’’ by evaluating other factors of marine mammals. A commercial such as fishing techniques, gear used, fishery that occasionally causes mor- methods used to deter marine mam- tality or serious injury of marine mam- mals, target species, seasons and areas mals is one that, collectively with fished, qualitative data from logbooks other fisheries, is responsible for the or fisher reports, stranding data, and annual removal of more than 10 per- the species and distribution of marine cent of any marine mammal stock’s po- mammals in the area or at the discre- tential biological removal level and tion of the Administrator. that is by itself responsible for the an- Commercial fishing operation means nual removal of between 1 and 50 per- the catching, taking, or harvesting of cent, exclusive, of any stock’s poten- fish from the marine environment (or tial biological removal level. In the ab- other areas where marine mammals sence of reliable information indicat- occur) that results in the sale or barter ing the frequency of incidental mortal- of all or part of the fish harvested. The ity and serious injury of marine mam- term includes licensed commercial pas- mals by a commercial fishery, the As- senger fishing vessel (as defined in sistant Administrator will determine § 216.3 of this chapter) activities and whether the taking is ‘‘occasional’’ by aquaculture activities.
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Depleted species means any species or not the purpose of, carrying out an oth- population that has been designated as erwise lawful action. depleted under the Act and is listed in Injury means a wound or other phys- § 216.15 of this chapter or part 18, sub- ical harm. Signs of injury to a marine part E of this title, or any endangered mammal include, but are not limited or threatened species of marine mam- to, visible blood flow, loss of or damage mal. to an appendage or jaw, inability to use Driftnet, drift gillnet, or drift entangle- one or more appendages, asymmetry in ment gear means gillnet gear that is not the shape of the body or body position, anchored, secured or weighted to the noticeable swelling or hemorrhage, lac- bottom. eration, puncture or rupture of eyeball, Fish with or fishing with means to use, listless appearance or inability to de- set, or haul back gear or allow gear fend itself, inability to swim or dive that is set to remain in the water. upon release from fishing gear, or signs Fisher means the vessel owner or op- of equilibrium imbalance. Any animal erator or owner or operator of gear in that ingests fishing gear, or any ani- a nonvessel fishery. mal that is released with fishing gear Fishery has the same meaning as in entangling, trailing or perforating any section 3 of the Magnuson Fishery Con- part of the body will be considered in- servation and Management Act (16 jured regardless of the absence of any U.S.C. 1802). wound or other evidence of an injury. Fishing trip means any time spent Inshore Lobster waters means all state away from port actively engaged in and Federal waters between 36°33′00.8″N commercial fishing operations. The end lat. (the Virginia/North Carolina bor- of a fishing trip will be the time of a der) and the U.S./Canada border that is fishing vessel’s return to port or the re- shoreward of the area designated below turn of a fisher from tending gear in a as ‘‘offshore lobster waters.’’ nonvessel fishery. Interaction means coming in contact Fishing vessel or vessel means any ves- with fishing gear or catch. An inter- sel, boat, ship, or other craft that is action may be characterized by a ma- used for, equipped to be used for, or of rine mammal entangled, hooked, or a type normally used for, fishing. otherwise trapped in fishing gear, re- Float-line means the rope at the top gardless of whether injury or mortality of a gillnet from which the mesh por- occurs, or situations where marine tion of the net is hung. mammals are preying on catch. Catch Gillnet means fishing gear consisting means fish or shellfish that has been of a wall of webbing or nets, designed hooked, entangled, snagged, trapped or or configured so that the webbing or otherwise captured by commercial fish- nets are held approximately vertically ing gear. in the water column designed to cap- Lead-line means the rope, weighted or ture fish by entanglement, gilling, or otherwise, to which the bottom edge of wedging. Gillnets include gillnets of all a gillnet is attached. types such as sink gillnets, other an- List of Fisheries means the most re- chored gillnets, and drift gillnets. cent final list of commercial fisheries Groundline, with reference to lobster published in the FEDERAL REGISTER by pot gear, means a line connecting lob- the Assistant Administrator, cat- ster pots in a lobster pot trawl, and, egorized according to the likelihood of with reference to gillnet gear, means a incidental mortality and serious injury line connecting a gillnet or gillnet bri- of marine mammals during commercial dle to an anchor or buoy line. fishing operations. Incidental, but not intentional, take Lobster pot means any trap, structure means the non-intentional or acciden- or other device that is placed on the tal taking of a marine mammal that ocean bottom and is designed to or is results from, but is not the purpose of, capable of catching lobsters. carrying out an otherwise lawful ac- Lobster pot trawl means two or more tion. lobster pots attached to a single Incidental mortality means the non-in- groundline. tentional or accidental death of a ma- Mid-Atlantic coastal waters means wa- rine mammal that results from, but is ters bounded by the line defined by the
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following points: The southern shore- LORAN C 9960–Y–43700 line; thence line of Long Island, New York at southwesterly to the intersection of 72°30′W, then due south to 33°51′N lat., the LORAN C lines 9960–Y–43500 and thence west to the North Carolina/ 9960–X–26400; thence southerly to the South Carolina border. intersection of the LORAN C lines 9960– Minimum population estimate means Y–42600 and 9960–X–26550; thence south- an estimate of the number of animals erly to the intersection of the LORAN in a stock that: C lines 9960–Y–42300 and 9960–X–26700; (1) Is based on the best available sci- thence southerly to the intersection of entific information on abundance, in- the LORAN C lines 9960–Y–41600 and corporating the precision and varia- 9960–X–26875; thence southerly in a line bility associated with such informa- toward the intersection of LORAN C tion; and lines 9960–Y–40600 and 9960–X–26800 but (2) Provides reasonable assurance stopping at 36°33′00.8″N lat. (the North that the stock size is equal to or great- Carolina/Virginia border); thence due er than the estimate. west to the shore. Negligible impact has the same mean- Operator, with respect to any vessel, ing as in § 228.3 of this chapter. means the master, captain, or other in- Net productivity rate means the an- dividual in charge of that vessel. nual per capita rate of increase in a Potential biological removal level means stock resulting from additions due to the maximum number of animals, not reproduction, less losses due to mortal- including natural mortalities, that ity. may be removed from a marine mam- NMFS means the National Marine mal stock while allowing that stock to Fisheries Service. reach or maintain its optimum sustain- Nonvessel fishery means a commercial able population. The potential biologi- fishing operation that uses fixed or cal removal level is the product of the other gear without a vessel, such as following factors: gear used in set gillnet, trap, beach (1) The minimum population esti- seine, weir, ranch, and pen fisheries. mate of the stock; Northeast waters means those U.S. wa- (2) One-half the maximum theoreti- ters east of 72°30′W and north of cal or estimated net productivity rate 36°33′00.8″N lat. (the Virginia-North of the stock at a small population size; Carolina border). and Observer means an individual author- (3) A recovery factor of between 0.1 ized by NMFS, or a designated contrac- and 1.0. tor, to record information on marine Regional Fishery Management Council mammal interactions, fishing oper- means a regional fishery management ations, marine mammal life history in- council established under section 302 of formation, and other scientific data, the Magnuson Fishery Conservation and collect biological specimens during and Management Act. commercial fishing activities. Serious injury means any injury that Offshore lobster waters includes all will likely result in mortality. U.S. waters seaward of the following Sink gillnet has the meaning specified lines except for waters in the Great in 50 CFR 648.2. South Channel critical right whale Sinking line means rope that sinks habitat: Beginning at the international and does not float at any point in the boundary between the U.S. and Canada; water column. Polypropylene rope is thence southerly along the boundary to not sinking line unless it contains a the LORAN C 9960–Y–44400 line; thence lead core. southwesterly along the 44400 line to Southeast waters means waters south 70°W long.; thence south along the 70° of a line extending due eastward from meridian to the LORAN C 9960–W–13700 33°51′N lat. (the North Carolina/South line; thence southeasterly to the inter- Carolina border). section with the LORAN C 9960–Y–43700 Spotter plane means a plane that is line; thence westerly to the intersec- deployed for the purpose of locating tion with the LORAN C 9960–W–14610 schools of target fish for a fishing ves- line; thence southerly along the 14610 sel that intends to set fishing gear on line to the intersection with the them.
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Stellwagen Bank/Jeffreys Ledge area Vessel owner or operator means the means all Federal waters in the Gulf of owner or operator of: Maine, except those designated as right (1) A fishing vessel that engages in a whale critical habitat, that lie south of commercial fishing operation; or the 43°15′N lat. line and west of the 70° (2) Fixed or other commercial fishing W long. line. gear that is used in a nonvessel fishery. Strategic stock means a marine mam- Vessel of the United States has the mal stock: same meaning as in section 3 of the (1) For which the level of direct Magnuson Fishery Conservation and human-caused mortality exceeds the Management Act (16 U.S.C. 1802). potential biological removal level; Weak link means a breakable device (2) Which, based on the best available that will part when subject to a certain scientific information, is declining and tension load. is likely to be listed as a threatened [60 FR 45100, Aug. 30, 1995, as amended at 62 species under the Endangered Species FR 39183, July 22, 1997] Act of 1973 within the foreseeable fu- ture; § 229.3 Prohibitions. (3) Which is listed as a threatened (a) It is prohibited to take any ma- species or endangered species under the rine mammal incidental to commercial Endangered Species Act of 1973; or fishing operations except as otherwise (4) Which is designated as depleted provided in part 216 of this chapter or under the Marine Mammal Protection in this part 229. Act of 1972, as amended. (b) It is prohibited to assault, harm, Strikenet or to fish with strikenet gear harass (including sexually harass), op- means a gillnet, or a net similar in pose, impede, intimidate, impair, or in construction to a gillnet, that is de- any way influence or interfere with an signed so that when it is deployed, it observer, or attempt the same. This encircles or encloses an area of water prohibition includes, but is not limited either with the net, or by utilizing the to, any action that interferes with an shoreline to complete encirclement, or observer’s responsibilities, or that cre- to fish with such a net and method. ates an intimidating, hostile, or offen- Take Reduction Plan means a plan de- sive environment. veloped to reduce the incidental mor- (c) It is prohibited to provide false in- tality and serious injury of marine formation when registering for an Au- mammals during commercial fishing thorization Certificate, applying for re- operations in accordance with section newal of the Authorization Certificate, 118 of the Marine Mammal Protection reporting the taking of any marine Act of 1972, as amended. mammal, or providing information to Take Reduction Team means a team any observer. established to recommend methods of (d) It is prohibited to tamper with or reducing the incidental mortality and destroy observer equipment in any serious injury of marine mammals due way. to commercial fishing operations, in (e) It is prohibited to intentionally accordance with section 118 of the Ma- lethally take any marine mammal in rine Mammal Protection Act of 1972, as the course of commercial fishing oper- amended. ations unless imminently necessary in Tended gear or tend means active fish- self-defense or to save the life of a per- ing gear that is physically attached to son in immediate danger, and such tak- a vessel or to fish so that active gear is ing is reported in accordance with the attached to the vessel. requirements of § 229.6. U.S. waters means both state and (f) It is prohibited to violate any reg- Federal waters to the outer boundaries ulation in this part or any provision of of the U.S. exclusive economic zone section 118 of the Act. along the east coast of the United (g) It is prohibited to fish with lob- States from the Canadian/U.S. border ster pot gear in the areas and for the southward to a line extending eastward times specified in § 229.32 (c)(4) through from the southernmost tip of Florida (c)(10) unless the lobster pot gear meets on the Florida shore. the marking requirements specified in
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§ 229.32(c)(1) and complies with the clo- or authorized representative of a fish- sures, modifications, and restrictions ing vessel or non-fishing gear may reg- specified in § 229.32 (c)(2) through ister under that program or how reg- (c)(10). istration will be achieved if no action (h) It is prohibited to fish with an- is required on the part of the affected chored gillnet gear in the areas and for fisher. NMFS will make additional ef- the times specified in § 229.32 (d)(3) forts to contact participants in the af- through (d)(8) unless that gillnet gear fected fishery via other appropriate meets the marking requirements speci- means of notification. fied in § 229.32(d)(1) and complies with (b) Registration. (1) The owner of a the closures, modifications, and re- vessel, or for nonvessel gear fisheries, strictions specified in § 229.32 (d)(2) the owner of gear, who participates in through (d)(8). a Category I or II fishery is required to (i) It is prohibited to fish with drift be registered for a Certificate of Au- gillnets in the areas and for the times thorization. specified in § 229.32(e)(2) unless the drift (2) Unless a notice is published in the gillnet gear meets the marking re- FEDERAL REGISTER announcing an inte- quirements specified in § 229.32(e)(1) and grated registration program, the owner complies with the restrictions specified of a vessel, or for nonvessel fishery, the in § 229.32(e)(2). owner of the gear must register for and (j) It is prohibited to fish with shark receive an Authorization Certificate. driftnet gear in the areas and for the To register, owners must submit the times specified in § 229.32(f) (2) and (3) following information using the format unless the gear meets the marking re- specified by NMFS: quirements specified in § 229.32(f)(1) and (i) Name, address, and phone number complies with the restrictions and re- of owner. quirements specified in §§ 229.32 (f)(2) (ii) Name, address, and phone number and (f)(3). of operator, if different from owner, un- [60 FR 45100, Aug. 30, 1995, as amended at 62 less the name of the operator is not FR 39184, July 22, 1997] known or has not been established at the time the registration is submitted. § 229.4 Requirements for Category I (iii) For a vessel fishery, vessel name, and II fisheries. length, home port; U.S. Coast Guard (a) General. (1) For a vessel owner or documentation number or state reg- crew members to lawfully incidentally istration number, and if applicable; take marine mammals in the course of state commercial vessel license num- a commercial fishing operation in a ber and for a nonvessel fishery, a de- Category I or II fishery, the owner or scription of the gear and state commer- authorized representative of a fishing cial license number, if applicable. vessel or nonvessel fishing gear must (iv) A list of all Category I and II have in possession a valid Certificate of fisheries in which the fisher may ac- Authorization. The owner of a fishing tively engage during the calendar year. vessel or nonvessel fishing gear is re- (v) The approximate time, duration, sponsible for obtaining a Certificate of and location of each such fishery oper- Authorization. ation, and the general type and nature (2) The granting and administration of use of the fishing gear and tech- of Authorization Certificates under niques used. this part will be integrated and coordi- (vi) A certification signed and dated nated with existing fishery license, reg- by the owner of an authorized rep- istration, or permit systems and relat- resentative of the owner as follows: ‘‘I ed programs wherever possible. These hereby certify that I am the owner of programs may include, but are not lim- the vessel, that I have reviewed all in- ited to, state or interjurisdictional formation contained on this document, fisheries programs. If the administra- and that it is true and complete to the tion of Authorization Certificates is in- best of my knowledge.’’ tegrated into a program, NMFS will (3) If a notice is published in the FED- publish a notice in the FEDERAL REG- ERAL REGISTER announcing an inte- ISTER announcing the integrated pro- grated registration program, the owner gram and summarizing how an owner of a vessel, or for nonvessel fishery, the
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owner of the gear may register by fol- and, if necessary, a decal to an owner lowing the directions provided in that or authorized representative who: notice. If a person receives a registra- (i) Submits a completed registration tion to which he or she is not entitled form and the required fee. or if the registration contains incor- (ii) Has complied with the require- rect, inaccurate or incomplete infor- ments of this section and §§ 229.6 and mation, the person shall notify NMFS 229.7. within 10 days following receipt. If a (iii) Has submitted updated registra- fisher participating in a Category I or tion or renewal registration which in- II fishery who expects to receive auto- cludes a statement (yes/no) whether matic registration does not receive any marine mammals were killed or that registration within the time speci- injuried during the current or previous fied in the notice announcing the inte- calendar year. grated registration program, the per- (2) If an integrated registration pro- son shall notify NMFS as directed in gram has been established, an Author- the notice or may apply for registra- ization Certificate or other proof of tion by submitting the information re- registration will be issued annually to quired under paragraph (b)(1)(i) each fisher registered for that fishery. through (b)(1)(vi) of this section. (c) Fee. A check or money order made (3) If a person receives a renewed Au- payable to NMFS in the amount speci- thorization Certificate or a decal to fied in the notice of the final List of which he or she is not entitled, the per- Fisheries must accompany each reg- son shall notify NMFS within 10 days istration submitted to NMFS. The following receipt. In order for a Au- amount of this fee will be based on re- thorization Certificate to be valid, the covering the administrative costs in- certification must be signed and dated curred in granting an authorization. by the owner or an authorized rep- The Assistant Administrator may resentative of the owner. waive the fee requirement for good (f) Authorization Certificate and decal cause upon the recommendation of the requirements. (1) The annual decal must Regional Director. be attached to the vessel on the port (d) Address. Unless the granting and side of the cabin or, in the absence of a administration of authorizations under cabin, on the forward port side of the part 229 is integrated and coordinated hull, and must be free of obstruction with existing fishery licenses, registra- and in good condition. The decal must tions, or related programs pursuant to be attached to the Authorization Cer- paragraph (a) of this section, requests tificate for nonvessel fisheries. for registration forms and completed (2) The Authorization Certificate, or registration forms should be sent to a copy, must be on board the vessel the NMFS Regional Offices are given: while it is operating in a Category I or (1) Alaska Region, NMFS, P.O. Box II fishery, or, in the case of nonvessel 21668, 709 West 9th Street, Juneau, AK fisheries, the Authorization Certificate 99802; telephone: 907–586-7235; with decal attached, or copy must be in (2) Northwest Region, NMFS, 7600 the possession of the person in charge Sand Point Way NE., Seattle, WA of the fishing operation. The Author- 98115-0070; telephone: 206–526-4353; ization Certificate, or copy, must be (3) Southwest Region, NMFS, 501 made available upon request to any West Ocean Blvd., Suite 4200, Long state or Federal enforcement agent au- Beach, CA 90802-4213; telephone: 310– thorized to enforce the Act, any des- 980–4001; ignated agent of NMFS, or any con- (4) Northeast Region, NMFS, 1 tractor providing observer services to Blackburn Drive, Gloucester, MA 01930; NMFS. telephone: 508–281–9254; or (3) Authorization Certificates and an- (5) Southeast Region, NMFS, 9721 Ex- nual decals are not transferable. In the ecutive Center Drive North, St. Peters- event of the sale or change in owner- burg, FL 33702; telephone: 813–570–5301. ship of the vessel, the Authorization (e) Issuance. (1) Unless an integrated Certificate is void and the new owner registration program is in place, NMFS must register for an Authorization Cer- will issue an Authorization Certificate tificate and decal.
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(4) An Authorization Certificate hold- § 229.5 Requirements for Category III er must notify the issuing office in fisheries. writing: (a) General. Vessel owners and crew (i) If the vessel or nonvessel fishing members of such vessels engaged only gear will engage in any Category I or II in Category III fisheries may inciden- fishery not listed on the initial reg- tally take marine mammals without istration form at least 30 days prior to registering for or receiving an Author- engaging in that fishery; and, ization Certificate. (ii) If there are any changes in the (b) Reporting. Vessel owners engaged mailing address or vessel ownership in a Category III fishery must comply within 30 days of such change. with the reporting requirements speci- (g) Reporting. Any Authorization Cer- fied in § 229.6. (c) Disposition of marine mammals. Any tificate holders must comply with the marine mammal incidentally taken reporting requirements specified under must be immediately returned to the § 229.6. sea with a minimum of further injury (h) Disposition of marine mammals. Any unless directed otherwise by NMFS marine mammal incidentally taken personnel, a designated contractor, or must be immediately returned to the an official onboard observer, or author- sea with a minimum of further injury, ized otherwise by a scientific research unless directed otherwise by NMFS permit in the possession of the opera- personnel, a designated contractor or tor. an official onboard observer, or author- (d) Monitoring. Vessel owners engaged ized otherwise by a scientific research in a Category III fishery must comply permit that is in the possession of the with the observer requirements speci- operator. fied under § 229.7(f). (i) Monitoring. Authorization Certifi- (e) Deterrence. When necessary to cate holders must comply with the ob- deter a marine mammal from damag- server or other monitoring require- ing fishing gear, catch, or other private property, or from endangering personal ments specified under § 229.7. safety, vessel owners and crew mem- (j) Deterrence. When necessary to bers engaged in a Category I or II fish- deter a marine mammal from damag- ery must comply with all deterrence ing fishing gear, catch, or other private provisions set forth in the Act and all property, or from endangering personal guidelines and prohibitions published safety, vessel owners and crew mem- thereunder. bers engaged in a Category I or II fish- (f) Self-defense. When imminently ery must comply with all deterrence necessary in self-defense or to save the provisions set forth in the Act and all life of a person in immediate danger, a guidelines and prohibitions published marine mammal may be lethally taken thereunder. if such taking is reported to NMFS in (k) Self defense. When imminently accordance with the requirements of necessary in self-defense or to save the § 229.6. life of a person in immediate danger, a (g) Emergency regulations. Vessel own- marine mammal may be lethally taken ers engaged in a Category III fishery if such taking is reported to NMFS in must comply with any applicable emer- accordance with the requirements of gency regulations. § 229.6. § 229.6 Reporting requirements. (l) Take reduction plans and emergency regulations. Authorization Certificate (a) Vessel owners or operators en- holders must comply with any applica- gaged in any Category I, II, or III fish- ble take reduction plans and emer- ery must report all incidental mortal- gency regulations. ity and injury of marine mammals in the course of commercial fishing oper- (m) Expiration. Authorization Certifi- ations to the Assistant Administrator, cates and annual decals expire at the or appropriate Regional Office, by mail end of each calendar year. or other means, such as fax or over- [60 FR 45100, Aug. 30, 1995, as amended at 62 night mail specified by the Assistant FR 46, Jan. 2, 1997] Administrator. Reports must be sent
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within 48 hours after the end of each (2) Record numbers of marine mam- fishing trip during which the incidental mals sighted; and mortality or injury occurred, or, for (3) Perform other scientific inves- nonvessel fisheries, within 48 hours of tigations, which may include, but are an occurrence of an incidental mortal- not limited to, sampling and ity or injury. Reports must be submit- photographing incidental mortalities ted on a standard postage-paid form as and serious injuries. provided by the Assistant Adminis- (c) Observer requirements for Author- trator. The vessel owner or operator ization Certificate holders. (1) If re- must provide the following information quested by NMFS or a designated con- on this form: tractor providing observer services to (1) The vessel name, and Federal, NMFS, an Authorization Certificate state, or tribal registration numbers of holder engaged in a Category I or II the registered vessel; fishery must take aboard an observer (2) The name and address of the ves- to accompany the vessel on fishing sel owner or operator; trips. (3) The name and description of the (2) After being notified by NMFS, or fishery, including gear type and target by a designated contractor providing species; and observer services to NMFS, that the (4) The species and number of each vessel is required to carry an observer, marine mammal incidentally killed or the Authorization Certificate holder injured, and the date, time, and ap- must comply with the notification by proximate geographic location of such providing information requested within occurrence. A description of the ani- the specified time on scheduled or an- mal(s) killed or injured must be pro- ticipated fishing trips. vided if the species is unknown. (3) NMFS, or a designated contractor (b) Participants in nonvessel fisheries providing observer services to NMFS, must provide all of the information in may waive the observer requirement paragraphs (a)(1) through (4) of this based on a finding that the facilities section with the exception of the vessel for housing the observer or for carrying name and registration number. out observer functions are so inad- equate or unsafe that the health or § 229.7 Monitoring of incidental mor- safety of the observer or the safe oper- talities and serious injuries. ation of the vessel would be jeopard- (a) Purpose. The Assistant Adminis- ized. trator will establish a program to mon- (4) The Authorization Certificate itor incidental mortality and serious holder and crew must cooperate with injury of marine mammals during the the observer in the performance of the course of commercial fishing oper- observer’s duties including: ations in order to: (i) Providing adequate accommoda- (1) Obtain statistically reliable esti- tions; mates of incidental mortality and seri- (ii) Allowing for the embarking and ous injury; debarking of the observer as specified (2) Determine the reliability of re- by NMFS personnel or designated con- ports of incidental mortality and in- tractors. The operator of a vessel must jury under § 229.6; and ensure that transfers of observers at (3) Identify changes in fishing meth- sea are accomplished in a safe manner, ods or technology that may increase or via small boat or raft, during daylight decrease incidental mortality and seri- hours if feasible, as weather and sea ous injury. conditions allow, and with the agree- (b) Observer program. Pursuant to ment of the observer involved; paragraph (a) of this section, the As- (iii) Allowing the observer access to sistant Administrator may place ob- all areas of the vessel necessary to con- servers aboard Category I and II vessels duct observer duties; as necessary. Observers may, among (iv) Allowing the observer access to other tasks: communications equipment and navi- (1) Record incidental mortality and gation equipment, when available on injury, and bycatch of other nontarget the vessel, as necessary to perform ob- species; server duties;
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(v) Providing true vessel locations by (i) Believes that the incidental mor- latitude and longitude, accurate to the tality and serious injury of marine minute, or by loran coordinates, upon mammals from such fishery may be request by the observer; contributing to the immediate and sig- (vi) Sampling marine mammal or nificant adverse impact on a species or other protected species specimens, stock listed as a threatened species or upon request by NMFS personnel; endangered species under the Endan- (vii) Sampling, retaining and storing gered Species Act of 1973 (16 U.S.C. 1531 mammal or other protected species et seq.); and specimens, upon request by NMFS per- (ii) Has complied with § 229.9(a)(3)(i) sonnel, designated contractors, or the and (ii); or observer aboard, if adequate facilities (iii) Has the consent of the vessel are available and if feasible; owner. (viii) Notifying the observer in a (2) If an observer is placed on a Cat- timely fashion of when all commercial egory III vessel, the vessel owner and/ fishing operations are to begin and end; or operator must comply with the re- quirements of § 229.7(c). (ix) Not impairing or in any way (e) Alternative observer program. The interfering with the research or obser- Assistant Administrator may establish vations being carried out; and an alternative observer program to (x) Complying with other guidelines provide statistically reliable informa- or regulations that NMFS may develop tion on the species and number of ma- to ensure the effective deployment and rine mammals incidentally taken in use of observers. the course of commercial fishing oper- (5) Marine mammals incidentally ations. The alternative observer pro- killed during fishing operations and gram may include direct observation of which are readily accessible to crew fishing activities from vessels, air- members, must be brought onboard the planes, or points on shore. vessel as biological specimens and re- tained for the purposes of scientific re- § 229.8 Publication of List of Fisheries. search if feasible and requested by (a) The Assistant Administrator will NMFS personnel, designated contrac- publish in the FEDERAL REGISTER a pro- tors, or the aboard observer. Marine posed revised List of Fisheries on or mammals so collected and retained as about July 1 of each year for the pur- biological specimens must, upon re- pose of receiving public comment. Each quest by NMFS personnel, designated year, on or about October 1, the Assist- contractors, or the observer aboard, be ant Administrator will publish a final retained in cold storage on board the revised List of Fisheries, which will be- vessel, if feasible, until removed at the come effective January 1 of the next request of NMFS personnel, designated calendar year. contractors, or the observer aboard, re- (b) The proposed and final revised trieved by authorized personnel of List of Fisheries will: NMFS, or released by the observer for (1) Categorize each commercial fish- return to the ocean. Such biological ery based on the definitions of Cat- specimens may be transported on board egory I, II, and III fisheries set forth in the vessel during the fishing trip and § 229.2; and back to port under this authorization. (2) List the marine mammals that (6) Any marine mammal incidentally interact with commercial fishing oper- taken may be retained only if author- ations and the estimated number of ized by NMFS personnel, designated vessels or persons involved in each contractors or an official observer commercial fishery. aboard, or by a scientific research per- (c) The Assistant Administrator may mit that is in the possession of the op- publish a revised List of Fisheries at erator. other times, after notification and op- (d) Observer requirements for Category portunity for public comment. The re- III fisheries. (1) The Assistant Adminis- vised final List of Fisheries will be- trator may place observers on Category come effective no sooner than 30 days III vessels if the Assistant Adminis- after publication in the FEDERAL REG- trator: ISTER.
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§ 229.9 Emergency regulations. mortality and serious injury to marine (a) If the Assistant Administrator mammals from such stock. finds that the incidental mortality or (b) Prior to taking any action under serious injury of marine mammals § 229.9(a)(1) through (3), the Assistant from commercial fisheries is having, or Administrator will consult with the is likely to have, an immediate and Marine Mammal Commission, all ap- significant adverse impact on a stock propriate Regional Fishery Manage- or species, the Assistant Administrator ment Councils, state fishery managers, will: and the appropriate take reduction (1) In the case of a stock or species team, if established. for which a take reduction plan is in ef- (c) Any emergency regulations issued fect— under this section: (i) Prescribe emergency regulations (1) Shall be published in the FEDERAL that, consistent with such plan to the REGISTER and will remain in effect for maximum extent practicable, reduce no more than 180 days or until the end incidental mortality and serious injury of the applicable commercial fishing in that fishery; and season, whichever is earlier, except as (ii) Approve and implement on an ex- provided in paragraph (d) of this sec- pedited basis, any amendments to such tion; and plan that are recommended by the (2) May be terminated by notification Take Reduction Team to address such in the FEDERAL REGISTER at an earlier adverse impact; date if the Assistant Administrator de- (2) In the case of a stock or species termines that the reasons for the emer- for which a take reduction plan is gency regulations no longer exist. being developed— (d) If the Assistant Administrator (i) Prescribe emergency regulations finds that incidental mortality and se- to reduce such incidental mortality rious injury of marine mammals in a and serious injury in that fishery; and commercial fishery is continuing to (ii) Approve and implement, on an ex- have an immediate and significant ad- pedited basis, such plan, which will verse impact on a stock or species, the provide methods to address such ad- Assistant Administrator may extend verse impact if still necessary; the emergency regulations for an addi- (3) In the case of a stock or species tional period of not more than 90 days for which a take reduction plan does or until reasons for the emergency reg- not exist and is not being developed, or ulations no longer exist, whichever is in the case of a Category III fishery earlier. that the Assistant Administrator be- lieves may be contributing to such ad- § 229.10 Penalties. verse impact, (i) Prescribe emergency regulations (a) Except as provided for in para- to reduce such incidental mortality graphs (b) and (c) of this section, any and serious injury in that fishery, to person who violates any regulation the extent necessary to mitigate such under this part or any provision of sec- adverse impact; tion 118 of the MMPA shall be subject (ii) Immediately review the stock as- to all penalties set forth in the Act. sessment for such stock or species and (b) The owner or master of a vessel the classification of such commercial that fails to comply with a take reduc- fishery under this section to determine tion plan shall be subject to the pen- if a take reduction team should be es- alties of sections 105 and 107 of the Act, tablished; and and may be subject to the penalties of (iii) Where necessary to address such section 106 of the Act. adverse impact on a species or stock (c) The owner of a vessel engaged in listed as a threatened species or endan- a Category I or II fishery who fails to gered species under the Endangered ensure that a decal, or other physical Species Act (16 U.S.C. 1531 et seq.), evidence of such authorization issued place observers on vessels in a Cat- by NMFS, is displayed on the vessel or egory III fishery if the Assistant Ad- is in possession of the operator of the ministrator has reason to believe such vessel shall be subject to a penalty of vessels may be causing the incidental not more than $100.
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(d) Failure to comply with take re- fails to comply with other require- duction plans or emergency regulations ments of these regulations; issued under this part may result in (3) A suspended Authorization Cer- suspension or revocation of an Author- tificate may be reinstated at any time ization Certificate, and failure to com- at the discretion of the Assistant Ad- ply with a take reduction plan is also ministrator provided the Assistant Ad- subject to the penalties of sections 105 ministrator has determined that the and 107 of the Act, and may be subject reasons for the suspension no longer to the penalties of section 106 of the apply or corrective actions have been Act. taken. (e) For fishers operating in Category I or II fisheries, failure to report all in- § 229.11 Confidential fisheries data. cidental injuries and mortalities with- (a) Proprietary information collected in 48 hours of the end of each fishing under this part is confidential and in- trip, or failure to comply with require- cludes information, the unauthorized ments to carry an observer, will sub- disclosure of which could be prejudicial ject such persons to the penalties of or harmful, such as information or sections 105 and 107 and may subject data that are identifiable with an indi- them to the penalties of section 106 of vidual fisher. Proprietary information the Act, which will result in suspen- obtained under part 229 will not be dis- sion, revocation, or denial of an Au- closed, in accordance with NOAA Ad- thorization Certificate until such re- ministrative Order 216–100, except: quirements have been fulfilled. (1) To Federal employees whose du- (f) For fishers operating in Category ties require access to such information; III fisheries, failure to report all inci- (2) To state employees under an dental injuries and mortalities within agreement with NMFS that prevents 48 hours of the end of each fishing trip public disclosure of the identity or will subject such persons to the pen- business of any person; alties of sections 105 and 107, and may (3) When required by court order; or subject them to section 106, of the Act. (4) In the case of scientific informa- (g) Suspension, revocation or denial of tion involving fisheries, to employees Authorization Certificates. (1) Until the of Regional Fishery Management Coun- Authorization Certificate holder com- cils who are responsible for fishery plies with the regulations under this management plan development and part, the Assistant Administrator shall monitoring. suspend or revoke an Authorization (5) To other individuals or organiza- Certificate or deny an annual renewal tions authorized by the Assistant Ad- of an Authorization Certificate in ac- ministrator to analyze this informa- cordance with the provisions in 15 CFR tion, so long as the confidentiality of part 904 if the Authorization Certifi- individual fishers is not revealed. cate holder fails to report all inciden- (b) Information will be made avail- tal mortality and serious injury of ma- able to the public in aggregate, sum- rine mammals as required under § 229.6; mary, or other such form that does not or fails to take aboard an observer if disclose the identity or business of any requested by NMFS or its designated person in accordance with NOAA Ad- contractors. ministrative Order 216–100 (see AD- (2) The Assistant Administrator may DRESSES). Aggregate or summary suspend or revoke an Authorization form means data structured so that the Certificate or deny an annual renewal identity of the submitter cannot be de- of an Authorization Certificate in ac- termined either from the present re- cordance with the provisions in 15 CFR lease of the data or in combination part 904 if the Authorization Certifi- with other releases. cate holder fails to comply with any applicable take reduction plan, take § 229.12 Consultation with the Sec- reduction regulations, or emergency retary of the Interior. regulations developed under this sub- The Assistant Administrator will part or subparts B and C of this part or consult with the Secretary of the Inte- if the Authorization Certificate holder rior prior to taking actions or making
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determinations under this part that af- may, within 45 days of such publica- fect or relate to species or population tion, submit to the Assistant Adminis- stocks of marine mammals for which trator written data or views with re- the Secretary of the Interior is respon- spect to the listed fisheries. As soon as sible under the Act. practicable after the end of the 45 days following publication, NMFS will pub- Subpart B—Takes of Endangered lish in the FEDERAL REGISTER a list of and Threatened Marine Mammals the fisheries for which the determina- tions listed in paragraph (a) of this sec- § 229.20 Issuance of permits. tion have been made. This publication (a) Determinations. During a period of will set forth a summary of the infor- up to 3 consecutive years, NMFS will mation used to make the determina- allow the incidental, but not the inten- tions. tional, taking by persons using vessels (c) Issuance of authorization. The As- of the United States or foreign vessels sistant Administrator will issue appro- that have valid fishing permits issued priate permits for vessels in fisheries by the Assistant Administrator in ac- that are required to register under cordance with section 204(b) of the § 229.4 and for which determinations Magnuson Fishery Conservation and under the procedures of paragraph (b) Management Act (16 U.S.C. 1824(b)), of this section can be made. while engaging in commercial fishing (d) Category III fisheries. Vessel own- operations, of marine mammals from a ers engaged only in Category III fish- species or stock designated as depleted eries for which determinations are because of its listing as an endangered made under the procedures of para- species or threatened species under the graph (b) of this section will not be Endangered Species Act of 1973 if the subject to the penalties of this Act for Assistant Administrator determines the incidental taking of marine mam- that: mals to which this subpart applies, as (1) The incidental mortality and seri- long as the vessel owner or operator of ous injury from commercial fisheries such vessel reports any incidental mor- will have a negligible impact on such tality or injury of such marine mam- species or stock; mals in accordance with the require- (2) A recovery plan has been devel- ments of § 229.6. oped or is being developed for such spe- (e) Emergency authority. During the cies or stock pursuant to the Endan- course of the commercial fishing sea- gered Species Act of 1973; and son, if the Assistant Administrator de- (3) Where required under regulations termines that the level of incidental in subpart A of this part: mortality or serious injury from com- (i) A monitoring program has been mercial fisheries for which such a de- established under § 229.7; termination was made under this sec- (ii) Vessels engaged in such fisheries tion has resulted or is likely to result are registered in accordance with in an impact that is more than neg- § 229.4; and ligible on the endangered or threatened (iii) A take reduction plan has been species or stock, the Assistant Admin- developed or is being developed for istrator will use the emergency author- such species or stock in accordance ity of § 229.9 to protect such species or with regulations at subpart C of this stock, and may modify any permit part. granted under this paragraph as nec- (b) Procedures for making determina- essary. tions. In making any of the determina- (f) Suspension, revocation, modification tions listed in paragraph (a) of this sec- and amendment. The Assistant Admin- tion, the Assistant Administrator will istrator may, pursuant to the provi- publish an announcement in the FED- sions of 15 CFR part 904, suspend or re- ERAL REGISTER of fisheries having voke a permit granted under this sec- takes of marine mammals listed under tion if the Assistant Administrator de- the Endangered Species Act, including termines that the conditions or limita- a summary of available information re- tions set forth in such permit are not garding the fisheries interactions with being complied with. The Assistant Ad- listed species. Any interested party ministrator may amend or modify,
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after notification and opportunity for tenders, or attached to the floatline public comment, the list of fisheries with lanyards, must be within 3 ft (0.91 published in accordance with § 229.21(b) m) of the floatline. Pingers attached whenever the Assistant Administrator with lanyards to the leadline must be determines there has been a significant within 6 ft (1.82 m) of the leadline. change in the information or condi- Pingers on or near the floatline and on tions used to determine such a list. or near the leadline must be staggered, (g) Southern sea otters. This subpart such that the horizontal distance be- does not apply to the taking of South- tween a pinger on or near the floatline ern (California) sea otters. and a pinger on the leadline is no more than 150 ft (45.5 m). Any materials used Subpart C—Take Reduction Plan to weight pingers must not change its Regulations and Emergency specifications set forth under para- Regulations graph (c)(1) of this section. (4) The pingers must be operational § 229.31 Pacific Offshore Cetacean and functioning at all times during de- Take Reduction Plan. ployment. (a) Purpose and scope. The purpose of (5) If requested, NMFS may authorize this section is to implement the Pa- the use of pingers with specifications cific Offshore Cetacean Take Reduction or pinger configurations differing from Plan. Paragraphs (b) through (d) of this those set forth in paragraphs (c)(1) and section apply to all U.S. drift gillnet (c)(3) of this section for limited, experi- fishing vessels operating in waters sea- mental purposes within a single fishing ward of the coast of California or Or- season. egon, including adjacent high seas wa- (d) Skipper education workshops. After ters. For purposes of this section, the notification from NMFS, vessel opera- fishing season is defined as beginning tors must attend a skipper education May 1 and ending on January 31 of the workshop before commencing fishing following year. each fishing season. For the 1997/1998 (b) Extenders. An extender is a line fishing season, all vessel operators that attaches a buoy (float) to a drift must have attended one skipper edu- gillnet’s floatline. The floatline is at- cation workshop by October 30, 1997. tached to the top of the drift gillnet. NMFS may waive the requirement to All extenders (buoy lines) must be at attend these workshops by notice to all least 6 fathoms (36 ft; 10.9 m) in length vessel operators. during all sets. Accordingly, all [62 FR 51813, Oct. 3, 1997, as amended at 63 FR floatlines must be fished at a minimum 27861, May 21, 1998] of 36 feet (10.9 m) below the surface of the water. § 229.32 Atlantic large whale take re- (c) Pingers. (1) For the purposes of duction plan regulations. this paragraph (c), a pinger is an acous- (a)(1) Regulated waters. The regula- tic deterrent device which, when im- tions in this section apply to all U.S. mersed in water, broadcasts a 10 kHz (± waters except for the areas exempted 2 kHz) sound at 132 dB (± 4 dB) re 1 in paragraph (a)(2) of this section. micropascal at 1 m, lasting 300 milli- (2) Exempted waters. The regulations seconds (+ 15 milliseconds), and repeat- in this section do not apply to waters ing every 4 seconds (+ .2 seconds); and landward of the following lines: remains operational to a water depth of at least 100 fathoms (600 ft or 182.88 Maine and New Hampshire m). (2) While at sea, drift gillnet vessels 44° 49.52′ N 66° 56.10′ W TO 44° 48.90′ N 66° 57.00′ with gillnets onboard must carry W enough pingers to meet the configura- 44° 38.60′ N 67° 11.50′ W TO 44° 36.26′ N 67° 15.70′ tion requirements set forth under para- W 44° 36.26′ N 67° 15.70′ W TO 44° 27.80′ N 67° 32.85′ graph (c)(3) of this section. W (3) Pingers must be attached on or 44° 27.80′ N 67° 32.85′ W TO 44° 26.48′ N 67° 36.00′ near the floatline and on or near the W leadline and spaced no more than 300 ft 44° 26.48′ N 67° 36.00′ W TO 44° 21.75′ N 67° 51.85′ (90.9 m) apart. Pingers attached on ex- W
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44° 21.75′ N 67° 51.85′ W TO 44° 19.60′ N 68° 03.00′ 37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ W W (Chincoteague to Ship Shoal Inlet) 44° 19.45′ N 68° 02.00′ W TO 44° 14.40′ N 68° 11.55′ 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W W (Little Inlet) 44° 14.15′ N 68° 11.90′ W TO 44° 13.25′ N 68° 20.20′ 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.50′ W W (Smith Island Inlet) 44° 13.25′ N 68° 20.20′ W TO 44° 13.71′ N 68° 28.31′ W North Carolina to Florida 44° 13.21′ N 68° 28.92′ W TO 44° 10.48′ N 68° 35.80′ W All marine and tidal waters landward 44° 10.48′ N 68° 35.80′ W TO 44° 08.80′ N 68° 40.80′ of the 72 COLREGS demarcation line W (International Regulations for Prevent- 44° 08.80′ N 68° 40.80′ W TO 44° 02.25′ N 68° 48.25′ ing Collisions at Sea, 1972), as depicted W or noted on nautical charts published 44° 02.10′ N 68° 48.40′ W TO 43° 51.75′ N 69° 17.10′ by the National Oceanic and Atmos- W pheric Administration (Coast Charts ° ′ ° ′ ° ′ ° ′ 43 51.75 N 69 17.10 W TO 43 48.15 N 69 35.90 1:80,000 scale), and as described in 33 W 43° 48.15′ N 69° 35.90′ W TO 43° 42.00′ N 69° 51.10′ CFR part 80. W (b) Gear marking provisions—(1) Gear 43° 42.00′ N 69° 50.10′ W TO 43° 33.47′ N 70° 12.35′ marking required for specified gear—(i) W Specified gear. Specified fishing gear 43° 33.47′ N 70° 12.35′ W TO 43° 21.90′ N 70° 24.90′ W consists of lobster pot gear in inshore and offshore lobster waters, anchored Rhode Island gillnet gear in northeast waters and in mid-Atlantic coastal waters; drift 41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° 30.85′ gillnet gear in mid-Atlantic coastal W (Pt. Judith Pond Inlet) waters; and shark driftnet gear in 41° 21.31′ N 71° 38.30′ W TO 41° 21.30′ N 71° 38.33′ W (Ninigret Pond Inlet) southeast waters. 41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° 43.10′ (ii) Requirement. From January 1, W (Quonochontaug Pond Inlet) 1998, and as otherwise required in para- graphs (c)(1), (d)(1), (e)(1), and (f)(1) of New York this section, any person who owns or fishes with specified fishing gear must West of the line from the Northern mark that gear as specified in para- fork of the eastern end of Long Island, graphs (b)(2) and (b)(3) of this section, NY (Orient Pt.) to Plum Island to Fish- unless otherwise required by the As- er’s Island to Watch Hill, RI. (Long Is- sistant Administrator under paragraph land Sound) (g) of this section. ° ′ ° ′ ° ′ ° ′ 41 11.40 N 72 09.70 W TO 41 04.50 N 71 51.60 (2) Color code. Gear must be marked W (Gardiners Bay) 40° 50.30′ N 72° 28.50′ W TO 40° 50.36′ N 72° 28.67′ as specified with the appropriate colors W (Shinnecock Bay Inlet) to designate gear-types as follows: 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ Lobster pot gear in inshore lobster waters— W (Moriches Bay Inlet) red and green 40° 37.73′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ Lobster pot gear in offshore lobster waters— W (Fire Island Inlet) red and blue 40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ Anchored gillnet gear in northeast waters— W (Jones Inlet) green and yellow Anchored gillnet gear in mid-Atlantic wa- New Jersey ters—green and black Mid-Atlantic driftnet gear—blue and yellow ° ′ ° ′ ° ′ ° ′ 39 45.90 N 74 05.90 W TO 39 45.15 N 74 06.20 Shark driftnet gear—blue and black W (Barnegat Inlet) 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ (3) Markings. Each color of the color W (Beach Haven to Brigantine Inlet) codes must be permanently marked on 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ or along the line or lines specified W (Cape May Inlet) under paragraphs (c)(1), (d)(1), (e)(1), 39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ and (f)(1) of this section. Each color W (Delaware Bay) mark of the color codes must be clearly visible when the gear is hauled or re- Maryland/Virginia moved from the water. Each mark 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ must be at least 4 inches (10.2 cm) long. W (Ocean City Inlet) The two color marks must be placed
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within 6 inches (15.2 cm) of each other. (ii) Winter restricted period. The win- (For example, buoy lines of inshore lob- ter restricted period for this area is ster pot gear must have a red mark and from January 1 through May 15 of each a green mark, each at least 4 inches year, unless the Assistant Adminis- long, with the red and green marks trator revises the restricted period in placed within 6 inches of each other.) If accordance with paragraph (g) of this the color of the rope is the same or section. The Assistant Administrator similar to a color code, a white mark may waive the restrictions of these may be substituted for that color code. paragraphs through a document in the In marking or affixing the color code FEDERAL REGISTER if it is determined or associated neutral band, the line that right whales have left the critical may be dyed, painted, or marked with habitat and are unlikely to return for thin colored whipping line, thin colored the remainder of the winter restricted plastic or heat shrink tubing, or other period. During the winter restricted pe- material, or thin line may be woven riod, no person may fish with lobster into or through the line, or the line pot gear in the Cape Cod Bay Re- may be marked as approved in writing stricted Area unless that person’s gear by the Assistant Administrator. If the complies with the following require- Assistant Administrator revises the ments: gear marking requirements under para- (A) Weak links. All buoy lines are at- graph (g) of this section, the gear must tached to the buoy with a weak link. be marked in compliance with those re- The breaking strength of this weak quirements. link must be no more than 1100 lb; (c) Restrictions applicable to lobster pot (B) Multiple pot trawls. All pots are gear in regulated waters—(1) Gear mark- set in trawls of four or more pots. Sin- ing requirements. No person may fish gle pots and two or three pot trawls are with lobster pot gear in regulated wa- not allowed. ters unless that gear is marked by gear (C) Sinking buoy lines. All buoy lines are sinking line except the bottom por- type and region according to the gear tion of the line, which may be a section marking code specified under para- of floating line not to exceed 1/3 the graph (b) of this section. From January overall length of the buoy line. 1, 1998, all buoy lines used in connec- (D) Sinking ground line. All ground tion with lobster pot gear must be lines are made entirely of sinking line. marked within 2 ft (0.6 m) of the top of (iii) Other restricted period. From May the buoy line (or 2 ft below a weak 16 through December 31 of each year, link) and midway along the length of no person may fish with lobster pot the buoy line. gear in the Cape Cod Bay Restricted (2) No line floating at the surface. No Area unless that person’s gear complies person may fish with lobster pot gear with at least two of the characteristics that has any portion of the buoy line of the Lobster Take Reduction Tech- floating at the surface at any time, ex- nology List in paragraph (c)(11) of this cept that, if there are more than one section. The Assistant Administrator buoy attached to a single buoy line or may revise this restricted period in ac- if there are a high flyer and a buoy cordance with paragraph (g) of this sec- used together on a single buoy line, tion. floating line may be used between (5) Great South Channel Restricted Lob- these objects. ster Area—(i) Area. The Great South (3) No wet storage of gear. No person Channel restricted area consists of the may leave lobster pot gear in the water Great South Channel Critical Habitat without hauling it out of the water at area specified under 50 CFR 216.13(a) least once in 30 days. unless the Assistant Administrator (4) Cape Cod Bay Restricted area—(i) changes that area in accordance with Area. The Cape Cod Bay restricted area paragraph (g) of this section. consists of the Cape Cod Bay Critical (ii) Spring closed period. The spring Habitat area specified under 50 CFR closed period for this area is from April 216.13(b), unless the Assistant Adminis- 1 through June 30 of each year unless trator extends that area in accordance the Assistant Administrator revises with paragraph (g) of this section. the closed period in accordance with
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paragraph (g) of this section. During vise this requirement in accordance the spring closed period, no person may with paragraph (g) of this section. fish with or set lobster pot gear in the (8) Southern offshore lobster waters—(i) Great South Channel restricted lobster Area. The southern offshore waters area unless the Assistant Adminis- area includes all offshore lobster wa- trator specifies gear modifications or ters south of 41°30′ N lat., except for alternative fishing practices in accord- areas included in the Great South ance with paragraph (g) of this section Channel Critical Habitat. and the gear or practices comply with (ii) Gear requirements. From December those specifications. 1 through March 31, no person may fish (iii) Other restricted period. From July with lobster pot gear in the southern 1 through March 31 no person may fish offshore lobster waters area unless that with lobster pot gear in the Great person’s gear complies with at least South Channel Restricted Lobster Area one of the characteristics of the Lob- unless that person’s gear complies with ster Take Reduction Technology List at least two of the characteristics of in paragraph (c)(11) of this section. The the Lobster Take Reduction Tech- Assistant Administrator may revise nology List in paragraph (c)(11) of this this requirement in accordance with section. The Assistant Administrator paragraph (g) of this section. may revise this restricted period in ac- (9) Northern inshore lobster waters—(i) cordance with paragraph (g) of this sec- Area. Northern inshore lobster waters tion. consist of all inshore lobster waters ° ′ (6) Stellwagen Bank/Jeffreys Ledge Re- north of 41 30 N lat., except the Cape stricted Area—(i) Area. The Stellwagen Cod Bay restricted area, Great South Bank/Jeffreys Ledge restricted area Channel restricted area and the consists of all Federal waters of the Stellwagen Bank/Jeffreys Ledge re- Gulf of Maine that lie to the south of stricted area. (ii) Gear requirements. No person may the 43°15′ N lat. line and west of the 70° fish with lobster pot gear in the north- W long. line, except for right whale ern inshore lobster waters area unless critical habitat, unless the Assistant that person’s gear complies with at Administrator changes that area in ac- least one of the characteristics of the cordance with paragraph (g) of this sec- Lobster Take Reduction Technology tion. List in paragraph (c)(11) of this section. (ii) Gear Requirements. No person may The Assistant Administrator may re- fish with lobster pot gear in the vise this requirement in accordance Stellwagen Bank/Jeffreys Ledge Re- with paragraph (g) of this section. stricted Area unless that person’s gear (10) Southern inshore lobster waters—(i) complies with at least two of the char- Area. The southern inshore lobster wa- acteristics of the Lobster Take Reduc- ters consist of all inshore lobster wa- tion Technology List in paragraph ters south of 41°30′ N lat., except the (c)(11) of this section. The Assistant Great South Channel restricted area. Administrator may revise this require- (ii) Gear requirements. From December ment in accordance with paragraph (g) 1 through March 31, no person may fish of this section. with lobster pot gear in the southern (7) Northern offshore lobster waters—(i) inshore lobster waters area unless that Area. The northern offshore waters person’s gear complies with at least area includes all offshore lobster wa- one of the characteristics of the Lob- ters north of 41°30′ N lat., except for ster Take Reduction Technology List areas included in the Great South in paragraph (c)(11) of this section. The Channel Critical Habitat. Assistant Administrator may revise (ii) Gear requirements. No person may this requirement in accordance with fish with lobster pot gear in the north- paragraph (g) of this section. ern offshore lobster waters area unless (11) Lobster Take Reduction Technology that person’s gear complies with at List. The following gear characteristics least one of the characteristics of the comprise the Lobster Take Reduction Lobster Take Reduction Technology Technology List: List in paragraph (c)(11) of this section. (i) All buoy lines are 7⁄16 inches in di- The Assistant Administrator may re- ameter or less.
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(ii) All buoys are attached to the under paragraph (g) of this section. buoy line with a weak link having a During the winter restricted period, no maximum breaking strength of up to person may fish with anchored gillnet 1100 lb. Weak links may include swiv- gear in the Cape Cod Bay restricted els, plastic weak links, rope of appro- area unless the Assistant Adminis- priate diameter, hog rings, rope stapled trator specifies gear modifications or to a buoy stick, or other materials or alternative fishing practices under devices approved in writing by the As- paragraph (g) of this section and the sistant Administrator. gear or practices comply with those (iii) For gear set in offshore lobster specifications. The Assistant Adminis- areas only, all buoys are attached to trator may waive this closure for the the buoy line with a weak link having remaining portion of any year through a maximum breaking strength of up to a notification in the FEDERAL REG- 3780 lb. ISTER if NMFS determines that right (iv) For gear set in offshore lobster whales have left the critical habitat areas only, all buoys are attached to and are unlikely to return for the re- the buoy line by a section of rope no mainder of the season. 3 more than ⁄4 the diameter of the buoy (iii) Other restricted period. From May line. 16 through December 31 of each year, (v) All buoy lines are composed en- no person may fish with anchored tirely of sinking line. gillnet gear in the Cape Cod Bay Re- (vi) All ground lines are made of stricted Area unless that person’s gear sinking line. complies with at least two of the char- (d) Restrictions applicable to anchored acteristics of the Gillnet Take Reduc- gillnet gear in regulated waters—(1) tion Technology List in paragraph Marking requirements. No person may (d)(9) of this section. The Assistant Ad- fish with anchored gillnet gear in ministrator may revise this restricted northeast or mid-Atlantic waters un- period in accordance with paragraph less that gear is marked according to (g) of this section. the gear marking code specified under paragraph (b) of this section. From (4) Great South Channel restricted January 1, 1998, all buoy lines used in gillnet area—(i) Area. The Great South connection with anchored gillnets Channel restricted gillnet area consists must be marked within 2 ft (0.6 m) of of the area bounded by lines connecting ° ′ the top of the buoy line (or two ft the following four points: 41 02.2 N/ ° ′ ° ′ ° ′ ° ′ below a weak link) and midway along 69 02 W., 41 43.5 N/69 36.3 W., 42 10 N/ ° ′ ° ′ ° ′ the length of the buoy line. 68 31 W., and 41 38 N/68 13 W., unless (2) No line floating at the surface. No the Assistant Administrator changes person may fish with anchored gillnet that area in accordance with paragraph gear that has any portion of the buoy (g) of this section. This area includes line floating at the surface at any the Great South Channel critical habi- time, except that, if there are more tat area specified under 50 CFR than one buoy attached to a single 216.13(a), except for the ‘‘sliver area’’ buoy line or if there are a high flyer identified below. and a buoy used together on a single (ii) Spring closed period. The spring buoy line, floating line may be used be- closed period for this area is from April tween these objects. 1 through June 30 of each year unless (3) Cape Cod Bay restricted area—(i) the Assistant Administrator revises Area. The Cape Cod Bay restricted area the closed period in accordance with consists of the Cape Cod Bay Critical paragraph (g) of this section. During Habitat area specified under 50 CFR the spring closed period, no person may 216.13(b), unless the Assistant Adminis- set or fish with anchored gillnet gear trator extends that area under para- in the Great South Channel restricted graph (g) of this section. gillnet area unless the Assistant Ad- (ii) Winter restricted period. The win- ministrator specifies gear modifica- ter restricted period for this area is tions or alternative fishing practices in from January 1 through May 15 of each accordance with paragraph (g) of this year, unless the Assistant Adminis- section and the gear or practices com- trator revises the restricted period ply with those specifications.
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(iii) Other restricted period. From July the Great South Channel restricted 1 through March 31 no person may fish gillnet area and Great South Channel with lobster pot gear in the Great sliver restricted areas and the South Channel restricted gillnet area Stellwagen Bank/Jeffreys Ledge re- unless that person’s gear complies with stricted area. at least two of the characteristics of (ii) Gear requirements. No person may the Gillnet Take Reduction Tech- fish with anchored gillnet gear in the nology List in paragraph (d)(9) of this other northeast waters area unless that section. The Assistant Administrator person’s gear complies with at least may revise this restricted period in ac- one of the characteristics of the Gillnet cordance with paragraph (g) of this sec- Take Reduction Technology List in tion. paragraph (d)(9) of this section. The As- (5) Great South Channel sliver restricted sistant Administrator may revise these area—(i) Area. The Great South Chan- requirements in accordance with para- nel sliver restricted area consists of graph (g) of this section. the area bounded by lines connecting (8) Mid-Atlantic coastal waters area— the following points: 41°02.2′ N/69°02′ W., (i) Area. The mid-Atlantic coastal wa- 41°43.5′ N/69°36.3′ W., 41°40′ N/69°45′ W., ters area is defined in § 229.2. and 41°00′ N/69°05′ W., unless the Assist- (ii) Gear requirements. From December ant Administrator changes that area in 1 through March 31, no person may fish accordance with paragraph (g) of this with anchored gillnets in mid-Atlantic section. coastal waters area unless that per- (ii) Gear requirements. No person may son’s gear complies with at least one of fish with anchored gillnet gear in the the characteristics of the Gillnet Take Great South Channel sliver restricted Reduction Technology List in para- area unless that person’s gear complies graph (d)(9) of this section. The Assist- with at least two of the characteristics ant Administrator may revise these re- of the Gillnet Take Reduction Tech- quirements in accordance with para- nology List in paragraph (d)(9) of this graph (g) of this section. section. The Assistant Administrator (9) Gillnet Take Reduction Technology may revise these requirements in ac- List. The following gear characteristics cordance with paragraph (g) of this sec- comprise the Gillnet Take Reduction tion. Technology List: (6) Stellwagen Bank/Jeffreys Ledge re- (i) All buoy lines are 7⁄16 inches in di- stricted area—(i) Area. The Stellwagen ameter or less. Bank/Jeffreys Ledge restricted area (ii) All buoys are attached to the consists of all Federal waters of the buoy line with a weak link having a Gulf of Maine that lie to the south of maximum breaking strength of up to the 43°15# N. lat. line and west of the 1100 lb. Weak links may include swiv- 70° W long. line, except right whale els, plastic weak links, rope of appro- critical habitat, unless the Assistant priate diameter, hog rings, rope stapled Administrator changes that area in ac- to a buoy stick, or other materials or cordance with paragraph (g) of this sec- devices approved in writing by the As- tion. sistant Administrator. (ii) Gear requirements. No person may (iii) Gear is anchored with the hold- fish with anchored gillnet gear in the ing power of a 22 lb. danforth-style an- Stellwagen Bank/Jeffreys Ledge re- chor at each end. stricted area unless that person’s gear (iv) Gear is anchored with a 50 lb complies with at least two of the char- dead weight at each end. acteristics of the Gillnet Take Reduc- (v) Nets are attached to a lead line tion Technology List in paragraph weighing 100 lb or more per 300 feet. (d)(9) of this section. The Assistant Ad- (vi) Weak links with a breaking ministrator may revise these require- strength of up to 1100 lb are installed in ments in accordance with paragraph (g) the float rope between net panels. of this section. (vii) All buoy lines are composed en- (7) Other northeast waters area—(i) tirely of sinking line. Area. The other northeast waters area (e) Restrictions applicable to mid-Atlan- consists of all northeast waters except tic driftnet gear—(1) Gear marking re- for the Cape Cod Bay restricted area, quirements. No person may fish in mid-
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Atlantic coastal waters with drift ministrator changes that area in ac- gillnet gear unless that gear is marked cordance with paragraph (g) of this sec- by gear type and region according to tion. the gear marking code specified under (3) Restrictions—(i) Closure. Except as paragraph (b) of this section. From provided under paragraph (f)(3)(iii) of January 1, 1998, all buoy lines used in this section, no person may fish with connection with driftnet gear in the driftnet gear in the SEUS restricted mid-Atlantic must be marked within 2 area during the closed period. The ft (0.6 m) of the top of the buoy line closed period for this area is from No- and midway along the length of the vember 1 through March 31 of the fol- buoy line according to gear type and lowing year, unless the Assistant Ad- region. ministrator changes that closed period (2) Restrictions. From January 1, 1998, in accordance with paragraph (g) of during the winter/spring restricted pe- this section. riod, no person may fish at night with (ii) Observer requirement. No person driftnet gear in the mid-Atlantic coast- may fish with driftnet gear in the al waters area unless that gear is tend- SEUS observer area from November 1 ed. Before a vessel returns to port, all through March 31 of the following year driftnet gear set by that vessel in the unless the operator of the vessel calls mid-Atlantic coastal waters area must the SE Regional Office in St. Peters- be removed from the water and stowed burg, FL, not less than 48 hours prior on board the vessel. The winter/spring to departing on any fishing trip in restricted period for this area is from order to arrange for observer coverage. December 1 through March 31 unless If the Regional Office requests that an the Assistant Administrator revises observer be taken on board a vessel that restricted period in accordance during a fishing trip at any time from with paragraph (g) of this section. November 1 through March 31 of the (f) Restrictions applicable to shark following year, no person may fish with driftnet gear—(1) Gear marking require- driftnet gear aboard that vessel in the ments. No person may fish with drift SEUS observer area unless an observer gillnet gear in southeast waters unless is on board that vessel during the trip. that gear is marked according to the (iii) Special provision for strikenets. gear marking code specified under Fishing with strikenet gear is exempt paragraph (b) of this section. From No- from the restriction under paragraph vember 1, 1998, all buoy lines must be (e)(3)(i) of this section if: marked within 2 ft (0.6 m) of the top of (A) No nets are set at night or when the buoy line and midway along the visibility is less than 500 yards (460 m). length of the buoy line. From Novem- (B) Each set is made under the obser- ber 1, 1999, each net panel must be vation of a spotter plane. marked along both the float line and (C) No net is set within 3 nautical the lead line at least once every 100 miles of a right, humpback, or fin feet (30.8 m). whale. (2) Management areas—(i) SEUS re- (D) If a right, humpback or fin whale stricted area. The southeast U.S. re- moves within 3 nautical miles of the stricted area consists of the area from set gear, the gear is removed imme- 32°00′ N lat. (near Savannah, GA) south diately from the water. to 27°51′ N lat. (near Sebastian Inlet, (g) Other provisions. In addition to FL), extending from the shore eastward any other emergency authority under to 80°00′ W long., unless the Assistant the Marine Mammal Protection Act, Administrator changes that area in ac- the Endangered Species Act, the Mag- cordance with paragraph (g) of this sec- nuson-Stevens Fishery Conservation tion. and Management Act, or other appro- (ii) SEUS observer area. The SEUS ob- priate authority, the Assistant admin- server area consists of the SEUS re- istrator may take action under this stricted area and an additional area section in the following situations: along the coast south to 26°46.5′ N lat. (1) Entanglements in critical habitat. If (near West Palm Beach, FL) and ex- a serious injury or mortality of a right tending from the shore eastward out to whale occurs in the Cape Cod Bay criti- 80°00′ W long., unless the Assistant Ad- cal habitat from January 1 through
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May 15, in the Great South Channel re- (i) NMFS verifies that certain gear stricted areas from April 1 through characteristics are both operationally June 30, or in the SEUS restricted area effective and reduce serious injuries from November 1 through March 31 as and mortalities of endangered whales; a result of an entanglement by gear (ii) New gear technology is developed types allowed to be used in those areas and determined to be appropriate; and times, the Assistant Administrator (iii) Revised breaking strengths are shall close that area to that gear type determined to be appropriate; for the rest of that time period and for (iv) New marking systems are devel- that same time period in each subse- oped and determined to be appropriate; quent year, unless the Assistant Ad- (v) NMFS determines that right ministrator revises the restricted pe- whales are remaining longer than ex- riod in accordance with paragraph pected in a closed area or have left ear- (g)(2) of this section or unless other lier than expected; measures are implemented under para- (vi) NMFS determines that the graph (g)(2) of this section. boundaries of a closed area are not ap- (2) Other special measures. The Assist- propriate; ant Administrator may revise the re- (vii) Gear testing operations are con- quirements of this section through sidered appropriate; or (viii) Similar situations occur. publication of a rule in the FEDERAL REGISTER if: [62 FR 39184, July 22, 1997]
[63 FR 27861, May 21, 1998]
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