Title 50 Wildlife and Fisheries Parts 228 to 599

Revised as of October 1, 2020

Containing a codification of documents of general applicability and future effect

As of October 1, 2020

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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Legal Status and Use of Seals and Logos The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510). It is prohibited to use NARA’s official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist’s designee. Any person using NARA’s official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0–16 ISBN prefix is for U.S. Government Publishing Office Official Edi- tions only. The Superintendent of Documents of the U.S. Govern- ment Publishing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.

U.S. GOVERNMENT PUBLISHING OFFICE U.S. Superintendent of Documents • Washington, DC 20402–0001 http://bookstore.gpo.gov Phone: toll-free (866) 512-1800; DC area (202) 512-1800

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Page Explanation ...... v

Title 50:

Chapter II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce (Continued) ...... 3

Chapter III—International Fishing and Related Activities ...... 139

Chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fish- eries Service, National Oceanic and Atmospheric Administra- tion, Department of Commerce); Endangered Species Com- mittee Regulations ...... 337

Chapter V—Marine Mammal Commission ...... 413

Finding Aids:

Table of CFR Titles and Chapters ...... 439

Alphabetical List of Agencies Appearing in the CFR ...... 459

List of CFR Sections Affected ...... 469

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To cite the regulations in this volume use title, part and section number. Thus, 50 CFR 228.1 refers to title 50, part 228, section 1.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2020), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Sep<11>2014 10:08 Jun 25, 2021 Jkt 250245 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Q:\50\50V11.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume.

VerDate Sep<11>2014 10:08 Jun 25, 2021 Jkt 250245 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Q:\50\50V11.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Publishing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Publishing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.govinfo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800, or 866- 512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) website for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s website at www.archives.gov/federal-register. The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

OLIVER A. POTTS, Director, Office of the Federal Register October 1, 2020

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Title 50—WILDLIFE AND FISHERIES is composed of thirteen volumes. The parts in these volumes are arranged in the following order: Parts 1–16; part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a) to (h)), part 17 (17.99(i) to end of part 17), parts 18–199, parts 200–227, parts 228–599, parts 600–659, and part 660 to end. The first nine volumes consist of parts 1–16, part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a) to 17.99(h)), part 17 (17.99(i) to end of part 17), and parts 18–199 and contain the current regulations issued under chapter I—United States Fish and Wildlife Service, Department of the Interior. The tenth volume (parts 200–227) contains the current regulations issued under chapter II—National Ma- rine Fisheries Service, National Oceanic and Atmospheric Administration, De- partment of Commerce. The eleventh volume (parts 228–599) contains the remaining current regulations issued under chapter II—National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, Department of Com- merce; and the current regulations issued under chapter III—International Fish- ing and Related Activities; chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Com- merce); Endangered Species Committee regulations; and chapter V—Marine Mam- mal Commission. The twelfth and thirteenth volumes (parts 600–659 and part 660 to end) contain the current regulations issued under chapter VI—Fishery Con- servation and Management, National Oceanic and Atmospheric Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2020.

Alphabetical listings of endangered and threatened wildlife and plants appear in §§ 17.11 and 17.12.

The OMB control numbers for the National Oceanic and Atmospheric Adminis- tration appear in 15 CFR 902.1.

For this volume, Ann Worley was Chief Editor. The Code of Federal Regula- tions publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

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(This book contains parts 228 to 599)

Part

CHAPTER II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce (Continued) ...... 228 CHAPTER III—International Fishing and Related Activities .. 300 CHAPTER IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce); En- dangered Species Committee Regulations ...... 401 CHAPTER V—Marine Mammal Commission ...... 501

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SUBCHAPTER A—GENERAL PROVISIONS [RESERVED]

SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]

SUBCHAPTER C—MARINE MAMMALS

Part Page 228 Notice and hearing on section 103(d) regulations .... 5 229 Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972 ...... 11

SUBCHAPTER D—WHALING 230 Whaling provisions...... 61

SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]

SUBCHAPTER F—AID TO FISHERIES 253 Fisheries assistance programs ...... 64 259 Capital construction fund tax regulations ...... 80

SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PROD- UCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS 260 Inspection and certification ...... 88

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Part Page 261 United States standards for grades ...... 118

SUBCHAPTER H—FISH AND SEAFOOD PROMOTION 270 Species-specific Seafood Marketing Councils ...... 120

SUBCHAPTERS I–J [RESERVED]

SUBCHAPTER K—CONTINENTAL SHELF 296 Fishermen’s Contingency Fund ...... 132 297–299 [Reserved]

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PART 228—NOTICE AND HEARING regulations must be made on the ON SECTION 103(d) REGULATIONS record after opportunity for an agency hearing on such regulations and, in the Sec. case of a waiver, on the determination 228.1 Basis and purpose. by the Assistant Administrator to 228.2 Definitions. waive the moratorium pursuant to sec- 228.3 Scope of regulations. tion 101(a)(3)(A) of the Act (16 U.S.C. 228.4 Notice of hearing. 1371(a)(3)(A)). 228.5 Notification by interested persons. (b) The purpose of this part is to es- 228.6 Presiding officer. tablish rules of practice and procedure 228.7 Direct testimony submitted as written documents. for all hearings conducted pursuant to 228.8 Mailing address. section 103(d) of the Act. 228.9 Inspection and copying of documents. 228.10 Ex parte communications. § 228.2 Definitions. 228.11 Prehearing conference. (a) Party means, for the purposes of 228.12 Final agenda of the hearing. this subpart: 228.13 Determination to cancel the hearing. (1) The Assistant Administrator or 228.14 Rebuttal testimony and new issues of fact in final agenda. the Assistant Administrator’s rep- 228.15 Waiver of right to participate. resentative; 228.16 Conduct of the hearing. (2) A person who has notified the As- 228.17 Direct testimony. sistant Administrator by specified 228.18 Cross-examination. dates of his or her intent to participate 228.19 Oral and written arguments. in the hearing pursuant to §§ 228.5 and 228.20 Recommended decision, certification 228.14(b). of the transcript and submission of com- (b) Witness means, for the purpose of ments on the recommended decision. 228.21 Assistant Administrator’s decision. this part, any person who submits written direct testimony on the proposed AUTHORITY: 16 U.S.C. 1361 et seq. regulations. A person may be both a SOURCE: 65 FR 39560, June 27, 2000, unless party and a witness. otherwise noted. § 228.3 Scope of regulations. § 228.1 Basis and purpose. The procedural regulations in this (a) Sections 101(a)(2), 101(a)(3)(A), and part govern the practice and procedure 101(b) of the Marine Mammal Protec- in hearings held under section 103(d) of tion Act of 1972 (16 U.S.C. 1371(a)(2), the Act. These hearings will be gov- 1371(a)(3)(A), and 1371(b)) and these reg- erned by the provisions of 5 U.S.C. 556 ulations authorize the Assistant Ad- and section 557 of the Administrative ministrator of the National Marine Procedure Act. The regulations shall Fisheries Service, to: be construed to secure the just, speedy (1) Impose regulations governing the and inexpensive determination of all taking of marine mammals incidental issues raised with respect to any waiv- to commercial fishing operations; er or regulation proposed pursuant to (2) Waive the moratorium and to section 103(d) of the Act with full pro- adopt regulations with respect to the tection for the rights of all persons af- taking and importing of animals from fected thereby. each species of marine mammals under the Assistant Administrator’s jurisdic- § 228.4 Notice of hearing. tion; (a) A notice of hearing on any pro- (3) Prescribe regulations governing posed regulations shall be published in the taking of depleted marine mam- the FEDERAL REGISTER, together with mals by any Indian, Aleut or Eskimo, the Assistant Administrator’s proposed respectively. In prescribing regulations determination to waive the morato- to carry out the provisions of said sec- rium pursuant to section 101(a)(3)(A) of tions, the Act refers the Assistant Ad- the Act (16 U.S.C. 1371(a)(3)(A)), where ministrator to section 103 (16 U.S.C. applicable. 1373). In accordance with section 103(d), (b) The notice shall state:

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(1) The nature of the hearing; (2) Evaluate direct testimony sub- (2) The place and date of the hearing. mitted pursuant to these regulations, The date shall not be less than 60 days make a preliminary determination of after publication of notice of the hear- the issues, conduct a prehearing con- ing; ference to determine the issues for the (3) The legal authority under which hearing agenda, and cause to be pub- the hearing is to be held; lished in the FEDERAL REGISTER a final (4) The proposed regulations and hearing agenda; waiver, where applicable, and a sum- (3) Rule upon motions, requests and mary of the statements required by admissibility of direct testimony; section 103(d) of the Act (16 U.S.C. (4) Administer oaths and affirma- 1373(d)); tions, question witnesses and direct (5) Issues of fact which may be involved in the hearing; witnesses to testify; (6) If a draft Environmental Impact (5) Modify or waive any rule (after Statement is required, the date of pub- notice) when determining that no lication of the draft and the place(s) party will be prejudiced; where the draft and comments thereon (6) Receive written comments and may be viewed and copied; hear oral arguments; (7) Any written advice received from (7) Render a recommended decision; the Marine Mammal Commission; and (8) The place(s) where records and (8) Do all acts and take all measures, submitted direct testimony will be including regulation of media cov- kept for public inspection; erage, for the maintenance of order at (9) The final date for filing with the and the efficient conduct of the pro- Assistant Administrator a notice of in- ceeding. tent to participate in the hearing pur- (c) In case of the absence of the origi- suant to § 228.5; nal presiding officer or the original (10) The final date for submission of presiding officer’s inability to act, the direct testimony on the proposed regu- powers and duties to be performed by lations and waiver, if applicable, and the original presiding officer under this the number of copies required; subpart in connection with a pro- (11) The docket number assigned to ceeding may, without abatement of the the case which shall be used in all subproceeding, be assigned to any other sequent proceedings; and presiding officer unless otherwise or- (12) The place and date of the pre- dered by the Assistant Administrator. hearing conference. (d) The presiding officer may upon § 228.5 Notification by interested per- the presiding officer’s own motion sons. withdraw as presiding officer in a pro- Any person desiring to participate as ceeding if the presiding officer deems a party shall notify the Assistant Ad- himself or herself to be disqualified. ministrator, by certified mail, on or be- (e) A presiding officer may be re- fore the date specified in the notice. quested to withdraw at any time prior to the recommended decision. Upon the § 228.6 Presiding officer. filing by an interested person in good (a) Upon publication of the notice of faith of a timely and sufficient affi- hearing pursuant to § 228.4, the Assist- davit alleging the presiding officer’s ant Administrator shall appoint a pre- personal bias, malice, conflict of inter- siding officer pursuant to 5 U.S.C. 3105. est or other basis which might result in No individual who has any conflict of prejudice to a party, the hearing shall interest, financial or otherwise, shall recess. The Assistant Administrator serve as presiding officer in such pro- shall immediately determine the mat- ceeding. ter as a part of the record and decision (b) The presiding officer, in any pro- in the proceeding, after making such ceeding under this subpart, shall have investigation or holding such hearings, power to: or both, as the Assistant Administrator (1) Change the time and place of the may deem appropriate in the cir- hearing and adjourn the hearing; cumstances.

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§ 228.7 Direct testimony submitted as § 228.8 Mailing address. written documents. Unless otherwise specified in the no- (a) Unless otherwise specified, all di- tice of hearing, all direct testimony rect testimony, including accom- shall be addressed to the Presiding Of- panying exhibits, must be submitted to ficer, c/o Assistant Administrator, Na- the presiding officer in writing no later tional Marine Fisheries Service, 1315 than the dates specified in the notice of East-West Highway, Silver Spring, MD the hearing (§ 228.4), the final hearing 20910. All affidavits and exhibits shall agenda (§ 228.12), or within 15 days after be clearly marked with the docket number of the proceedings. the conclusion of the prehearing conference (§ 228.14) as the case may be. All § 228.9 Inspection and copying of doc- direct testimony shall be in affidavit uments. form and exhibits constituting part of Any document in a file pertaining to such testimony, referred to in the affi- any hearing authorized by this subpart davit and made a part thereof, must be or any document forming part of the attached to the affidavit. Direct testi- record of such a hearing may be in- mony submitted with exhibits must spected and/or copied in the Office of state the issue to which the exhibit re- the Assistant Administrator, National lates; if no such statement is made, the Marine Fisheries Service, 1315 East- presiding officer shall determine the West Highway, Silver Spring, MD relevance of the exhibit to the issues 20910–unless the file is in the care and published in the FEDERAL REGISTER. custody of the presiding officer, in (b) The direct testimony submitted which case the presiding officer shall shall contain: notify the parties as to where and when (1) A concise statement of the wit- the record may be inspected. ness’ interest in the proceeding and his § 228.10 Ex parte communications. position regarding the issues presented. (a) After notice of a hearing is pub- If the direct testimony is presented by lished in the FEDERAL REGISTER, all a witness who is not a party, the wit- communications, whether oral or writ- ness shall state the witness’ relation- ten, involving any substantive or pro- ship to the party; and cedural issue and directed either to the (2) Facts that are relevant and mate- presiding officer or to the Assistant rial. Administrator, Deputy Assistant Ad- (c) The direct testimony may propose ministrator, or Chief of the Marine issues of fact not defined in the notice Mammal Division, National Marine of the hearing and the reason(s) why Fisheries Service, without reference to such issues should be considered at the these rules of procedure, shall be hearing. deemed ex parte communications and (d) Ten copies of all direct testimony are not to be considered part of the must be submitted unless the notice of record for decision. the hearing specifies otherwise. (b) A record of oral conversations (e) Upon receipt, direct testimony shall be made by the persons who are contacted. All communications shall shall be assigned a number and be available for public viewing at the stamped with that number and the place(s) specified in the notice of hear- docket number. ing. (f) Contemporaneous with the publi- (c) The presiding office shall not con- cation of the notice of hearing, the As- sult any person or party on any fact in sistant Administrator’s direct testi- issue or on the merits of the matter mony in support of the proposed regu- unless notice and opportunity is given lations and waiver, where applicable, for all parties to participate. shall be available for public inspection as specified in the notice of hearing. § 228.11 Prehearing conference. The Assistant Administrator may sub- (a) After an examination of all the di- mit additional direct testimony during rect testimony submitted pursuant to the time periods allowed for submis- § 228.7, the presiding officer shall make sion of such testimony by witnesses. a preliminary determination of issues

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of fact which may be addressed at the interests are adverse on the issues prehearing. sented. (b) The presiding officer’s preliminary determination shall be made § 228.13 Determination to cancel the available at the place or places pro- hearing. vided in the notice of the hearing (a) If the presiding officer concludes (§ 228.4(b)(8)) at least 5 days before the that no issues of fact are presented by prehearing conference. the direct testimony submitted, the (c) The purpose of the prehearing presiding officer shall publish such conference shall be to enable the pre- conclusion and notice in the FEDERAL siding officer to determine, on the REGISTER that a hearing shall not be basis of the direct testimony submitted held and shall also publish a date for and prehearing discussions: filing written comments on the pro- (1) Whether the presiding officer’s posed regulations. Written comments preliminary determination of issues of may include proposed findings and con- fact for the hearing has omitted any clusions, arguments or briefs. significant issues; (b) A person need not be a party to (2) What facts are not in dispute; submit any written comments. (3) Which witnesses may appear at (c) Promptly after expiration of the the hearing; and period for receiving written comments, (4) The nature of the interest of each the presiding officer shall make a rec- party and which parties’ interests are ommended decision based on the adverse. record, which in this case shall consist (d) Only parties may participate in of the direct testimony and written the hearing conference and a party comments submitted. He shall transfer may appear in person or be represented to the Assistant Administrator his rec- by counsel. ommended decision, the record and a (e) Parties who do not appear at the certificate stating that the record con- prehearing conference shall be bound tains all the written direct testimony by the conference’s determinations. and comments submitted. The Assist- ant Administrator shall then make a § 228.12 Final agenda of the hearing. final decision in accordance with these (a) After the prehearing conference, regulations (§ 228.21). the presiding officer shall prepare a final agenda which shall be published § 228.14 Rebuttal testimony and new in the FEDERAL REGISTER within 10 issues of fact in final agenda. days after the conclusion of the con- (a) Direct testimony to rebut testi- ference. A copy of the final agenda mony offered during the time period shall be mailed to all parties. specified in the notice of hearing may (b) The final agenda shall list: be submitted pursuant to these regula- (1) All the issues which the hearing tions within fifteen days after the con- shall address, the order in which those clusion of the prehearing conference issues shall be presented, and the di- unless the presiding officer otherwise rect testimony submitted which bears specifies in the final agenda. on the issues; and (b) If the final agenda presents issues (2) A final date for submission of di- not included in the notice of the hear- rect testimony on issues of fact not ining published pursuant to § 228.4: cluded in the notice of hearing if such (1) Any person interested in partici- issues are presented. The final agenda pating at the hearing on such issues may also specify a final date for sub- presented shall notify the Assistant mission of direct testimony to rebut Administrator by certified mail of an testimony previously submitted during intent to participate not later than 10 the time specified in the notice of the days after publication of the final hearing. agenda. Such person may present di- (c) The presiding officer shall publish rect testimony or cross-examine wit- with the final agenda a list of witnesses only on such issues presented nesses who may appear at the hearing, unless that person previously notified a list of parties, the nature of the in- the Assistant Administrator pursuant terest of each party, and which parties’ to § 228.5; and

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(2) Additional written direct testi- tion will follow if the objection is over- mony concerning such issues may be ruled by the presiding officer. The submitted within the time provided in transcript shall not include argument the final agenda. Such direct testi- or debate thereon except as ordered by mony will comply with the require- the presiding officer. The ruling by the ments of § 228.7. presiding officer on any objection shall be a part of the transcript and shall be § 228.15 Waiver of right to participate. subject to review at the same time and Persons who fail to notify the Assist- in the same manner as the Assistant ant Administrator pursuant to §§ 228.5 Administrator’s final decision. Only and 228.14 shall be deemed to have objections made before the presiding waived their right to participate as officer may subsequently be relied parties in any part of the hearing. upon in the proceedings. (e) All motions and requests shall be § 228.16 Conduct of the hearing. addressed to, and ruled on by, the pre- (a) The hearing shall be held at the siding officer, if made prior to his cer- time and place fixed in the notice of tification of the transcript or by the the hearing, unless the presiding offi- Assistant Administrator if made there- cer changes the time or place. If a after. change occurs, the presiding officer shall publish the change in the FED- § 228.17 Direct testimony. ERAL REGISTER and shall expeditiously (a) Only direct testimony submitted notify all parties by telephone or by by affidavit as provided in these regu- mail: Provided, that if that change in lations and introduced at the hearing time or place of hearing is made less by a witness shall be considered part of than 5 days before the date previously the record. Such direct testimony shall fixed for the hearing, the presiding offi- not be read into evidence but shall be- cer shall also announce, or cause to be come a part of the record subject to ex- announced, the change at the time and clusion of irrelevant and immaterial place previously fixed for the hearing. parts thereof; (b) The presiding officer shall, at the (b) The witness introducing direct commencement of the hearing, intro- testimony shall: duce into the record: the notice of (1) State his or her name, address and hearing as published in the FEDERAL occupation; REGISTER; all subsequent documents (2) State qualifications for intro- published in the FEDERAL REGISTER; the draft Environmental Impact State- ducing the direct testimony. If an ex- ment if it is required and the com- pert, the witness shall briefly state the ments thereon and agency responses to scientific or technical training which the comments; and a list of all parties. qualifies the witness as an expert; Direct testimony shall then be received (3) Identify the direct testimony pre- with respect to the matters specified in viously submitted in accordance with the final agenda in such order as the these regulations; and presiding officer shall announce. With (4) Submit to appropriate cross and respect to direct testimony submitted direct examination. Cross-examination as rebuttal testimony or in response to shall be by a party whose interests are new issues presented by the prehearing adverse on the issue presented, to the conference, the presiding officer shall witness’, if the witness is a party, or to determine the relevancy of such testi- the interests of the party who pre- mony. sented the witness. (c) The hearing shall be publicly con- (c) A party shall be deemed to have ducted and reported verbatim by an of- waived the right to introduce direct ficial reporter. testimony if such party fails to present (d) If a party objects to the admission a witness to introduce the direct testi- or rejection of any direct testimony or mony. to any other ruling of the presiding of- (d) Official notice may be taken of ficer during the hearing, he or she shall such matters as are judicially noticed state briefly the grounds of such objec- by the courts of the United States: tion, whereupon an automatic excep- Provided, that parties shall be given

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adequate notice, by the presiding offi- extent necessary for the expeditious cer, at the hearing, of matters so no- disposition of the proceeding. ticed and shall be given adequate op- (b) The presiding officer shall an- portunity to show that such facts are nounce at the hearing a reasonable pe- inaccurate or are erroneously noticed. riod of time within which any interested person may file with the pre- § 228.18 Cross-examination. siding officer any written comments on (a) The presiding officer may: the proposed regulations and waiver, (1) Require the cross-examiner to including proposed findings and conclu- outline the intended scope of the cross- sions and written arguments or briefs, examination; which are based upon the record and (2) Prohibit parties from cross-exam- citing where practicable the relevant ining witnesses unless the presiding of- page or pages of the transcript. If a ficer has determined that the cross-ex- party filing a brief desires the pre- aminer has an adverse interest on the siding officer to reconsider any objec- facts at issue to the party-witness or tion made by such party to a ruling of the party presenting the witness. For the presiding officer, the party shall the purposes of this subsection, the As- specifically identify such rulings by sistant Administrator’s or his or her reference to the pertinent pages of the representative’s interest shall be con- transcript and shall state their argu- sidered adverse to all parties; ments thereon as a part of the brief. (3) Limit the number of times any (c) Oral or written arguments shall party or parties having a common in- be limited to issues arising from direct terest may cross-examine an ‘‘adverse’’ testimony on the record. witness on the same matter; and (4) Exclude cross-examination ques- § 228.20 Recommended decision, cer- tions that are immaterial, irrelevant tification of the transcript and sub- or unduly repetitious. mission of comments on the rec- (b) Any party shall be given an op- ommended decision. portunity to appear, either in person or (a) Promptly after expiration of the through an authorized counsel or rep- period for receiving written briefs, the resentative, to cross-examine wit- presiding officer shall make a rec- nesses. Before cross-examining a wit- ommended decision based on the record ness, the party or counsel shall state and transmit the decision to the As- his or her name, address and occupa- sistant Administrator. The rection. If counsel cross-examines the wit- ommended decision shall include: ness, counsel shall state for the record (1) A statement containing a descrip- the authority to act as counsel. Cross- tion of the history of the proceedings; examiners shall be assumed to be fa- (2) Findings on the issues of fact with miliar with the direct testimony. the reasons therefor; and (c) Any party or party’s counsel who (3) Rulings on issues of law. fails to appear at the hearing to cross- (b) The presiding officer shall also examine an ‘‘adverse’’ witness shall be transmit to the Assistant Adminis- deemed to have waived the right to trator the transcript of the hearing, cross-examine that witness. the original and all copies of the direct (d) Scientific, technical or commer- testimony, and written comments. The cial publications may only be utilized presiding officer shall attach to the for the limited purposes of impeaching original transcript of the hearing a cer- witnesses under cross-examination un- tificate stating that, to the best of his less previously submitted and intro- knowledge and belief, the transcript is duced in accordance with these regula- a true transcript of the testimony tions. given at the hearing except in such particulars as are specified. § 228.19 Oral and written arguments. (c) Immediately after receipt of the (a) The presiding officer may, in his recommended decision, the Assistant or her discretion, provide for oral argu- Administrator shall give notice thereof ment at the end of the hearing. Such in the FEDERAL REGISTER, send copies argument, when permitted, may be of the recommended decision to all par- limited by the presiding officer to the ties, and provide opportunity for the

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submission of comments. The rec- PART 229—AUTHORIZATION FOR ommended decision may be reviewed COMMERCIAL FISHERIES UNDER and/or copied in the office of the As- THE MARINE MAMMAL PROTEC- sistant Administrator, National Ma- TION ACT OF 1972 rine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. Subpart A—General Provisions (d) Within 20 days after the notice of receipt of the recommended decision Sec. 229.1 Purpose and scope. has been published in the FEDERAL 229.2 Definitions. REGISTER, any interested person may 229.3 Prohibitions. file with the Assistant Administrator 229.4 Requirements for Category I and II any written comments on the rec- fisheries. ommended decision. All comments, in- 229.5 Requirements for Category III fish- cluding recommendations from or con- eries. 229.6 Reporting requirements. sultation with the Marine Mammal 229.7 Monitoring of incidental mortalities Commission, must be submitted during and serious injuries. the 20-day period to the Assistant Ad- 229.8 Publication of List of Fisheries. ministrator at the previously men- 229.9 Emergency regulations. tioned address. 229.10 Penalties. 229.11 Confidential fisheries data. § 228.21 Assistant Administrator’s deci- 229.12 Consultation with the Secretary of sion. the Interior. (a) Upon receipt of the recommended Subpart B—Takes of Endangered and decision and transcript and after the Threatened Marine Mammals 20-day period for receiving written 229.20 Issuance of permits. comments on the recommended decision has passed, the Assistant Adminis- Subpart C—Take Reduction Plan trator shall make a final decision on Regulations and Emergency Regulations the proposed regulations and waiver, 229.30 Basis. where applicable. The Assistant Ad- 229.31 Pacific Offshore Cetacean Take Re- ministrator’s decision may affirm, duction Plan. modify, or set aside, in whole or in 229.32 Atlantic large whale take reduction part, the recommended findings, con- plan regulations. clusions and decision of the presiding 229.33 Harbor Porpoise Take Reduction Plan officer. The Assistant Administrator Regulations—New England. 229.34 Harbor Porpoise Take Reduction may also remand the hearing record to Plan—Mid-Atlantic. the presiding officer for a fuller devel- 229.35 Bottlenose Dolphin Take Reduction opment of the record. Plan. (b) The Assistant Administrator’s de- 229.36 Atlantic Pelagic Longline Take Re- cision shall include: duction Plan (PLTRP). (1) A statement containing a descrip- FIGURE 1 TO PART 229—DRIFT GILLNET PINGER tion of the history of the proceeding; CONFIGURATION AND EXTENDER REQUIRE- MENTS (2) Findings on the issues of fact with 229.37 False Killer Whale Take Reduction the reasons therefor; and Plan.

(3) Rulings on issues of law. AUTHORITY: 16 U.S.C. 1361 et seq.; § 229.32(f) (4) The Assistant Administrator’s de- also issued under 16 U.S.C. 1531 et seq. cision shall be published in the FED- SOURCE: 60 FR 45100, Aug. 30, 1995, unless ERAL REGISTER. If the waiver is ap- otherwise noted. proved, the final adopted regulations shall be promulgated with the decision. Subpart A—General Provisions § 229.1 Purpose and scope. (a) The regulations in this part implement sections 101(a)(5)(E) and 118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1371(a)(5)(E)

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and 1387) that provide for exceptions fishing operations to insignificant lev- for the taking of marine mammals in- els approaching a zero mortality and cidental to certain commercial fishing serious injury rate by the statutory operations from the Act’s general mor- deadline of April 30, 2001. atorium on the taking of marine mam- [60 FR 45100, Aug. 30, 1995, as amended at 64 mals. FR 9086, Feb. 24, 1999] (b) Section 118 of the Act, rather than sections 103 and 104, governs the § 229.2 Definitions. incidental taking of marine mammals In addition to the definitions con- in the course of commercial fishing op- tained in the Act and § 216.3 of this erations by persons using vessels of the chapter, and unless otherwise defined United States, other than vessels fish- in this chapter, the terms in this chap- ing for yellowfin tuna in the eastern ter have the following meaning: tropical Pacific Ocean purse seine fish- Act or MMPA means the Marine ery, and vessels that have valid fishing Mammal Protection Act of 1972, as permits issued in accordance with sec- amended (16 U.S.C. 1361 et seq.). tion 204(b) of the Magnuson Fishery American lobster or lobster means Conservation and Management Act (16 Homarus americanus. U.S.C. 1824(b)). Anchored gillnet means any gillnet (c) The regulations of Subpart B also gear, including an anchored float govern the incidental taking by com- gillnet, sink gillnet or stab net, that is mercial fishers of marine mammals set anywhere in the water column and from species or stocks designated which is anchored, secured, or weighted under the Act as depleted on the basis to the bottom of the sea. Also called a of their listing as threatened species or set gillnet. endangered species under the Endan- Assistant Administrator means the As- gered Species Act of 1973 (16 U.S.C. 1531 sistant Administrator for Fisheries of et seq.). the National Oceanic and Atmospheric (d) The regulations of this part do Administration. not apply to the incidental taking of Authorization Certificate means a doc- California sea otters or to Northwest ument issued by the Assistant Admin- treaty Indian tribal members exer- istrator, or designee, under the author- cising treaty fishing rights. ity of section 118 of the Act that au- (e) Authorizations under subpart A of thorizes the incidental, but not inten- this part are exemptions only from the tional, taking of marine mammals in taking prohibitions under the Act and Category I or II fisheries. not those under the Endangered Spe- Bitter end means the end of a line cies Act of 1973. To be exempt from the that detaches from a weak link. taking prohibitions under the Endan- Bottom portion of the line means, for gered Species Act, specific authoriza- buoy lines, the portion of the line in tion under subpart B of this part is re- the water column that is closest to the quired. fishing gear. (f) Authorizations under this part do Breaking strength means the highest not apply to the intentional lethal tak- tensile force which an object can with- ing of marine mammals in the course stand before breaking. of commercial fishing operations ex- Bridle means the lines connecting a cept as provided for under §§ 229.4(k) gillnet to an anchor or buoy line. and 229.5(f). Buoy line means a line connecting (g) The purposes of the regulations in fishing gear in the water to a buoy at this part are to: the surface of the water. (1) Reduce the incidental mortality Category I fishery means a commer- or serious injury of marine mammals cial fishery determined by the Assist- occurring in the course of commercial ant Administrator to have frequent in- fishing operations below the potential cidental mortality and serious injury biological removal level for a par- of marine mammals. A commercial ticular stock, and fishery that frequently causes mor- (2) Reduce the incidental mortality tality or serious injury of marine mam- or serious injury of marine mammals mals is one that is by itself responsible occurring in the course of commercial for the annual removal of 50 percent or

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more of any stock’s potential biologi- mation indicating the frequency of in- cal removal level. cidental mortality and serious injury Category II fishery means a commer- of marine mammals by a commercial cial fishery determined by the Assist- fishery, the Assistant Administrator ant Administrator to have occasional will determine whether the incidental incidental mortality and serious injury serious injury or mortality is ‘‘remote’’ of marine mammals. A commercial by evaluating other factors such as fishery that occasionally causes mor- fishing techniques, gear used, methods tality or serious injury of marine mam- used to deter marine mammals, target mals is one that, collectively with species, seasons and areas fished, quali- other fisheries, is responsible for the tative data from logbooks or fisher re- annual removal of more than 10 per- ports, stranding data, and the species cent of any marine mammal stock’s po- and distribution of marine mammals in tential biological removal level and the area or at the discretion of the As- that is by itself responsible for the an- sistant Administrator. nual removal of between 1 and 50 per- Commercial fishing operation means cent, exclusive, of any stock’s poten- the catching, taking, or harvesting of tial biological removal level. In the ab- fish from the marine environment (or sence of reliable information indi- other areas where marine mammals cating the frequency of incidental mor- occur) that results in the sale or barter tality and serious injury of marine of all or part of the fish harvested. The mammals by a commercial fishery, the term includes licensed commercial pas- Assistant Administrator will deter- senger fishing vessel (as defined in mine whether the incidental serious in- § 216.3 of this chapter) activities and jury or mortality is ‘‘occasional’’ by aquaculture activities. evaluating other factors such as fishing Depleted species means any species or techniques, gear used, methods used to population that has been designated as deter marine mammals, target species, depleted under the Act and is listed in seasons and areas fished, qualitative § 216.15 of this chapter or part 18, sub- data from logbooks or fisher reports, part E of this title, or any endangered stranding data, and the species and dis- or threatened species of marine mam- tribution of marine mammals in the mal. area, or at the discretion of the Assist- Driftnet, drift gillnet, or drift entangle- ant Administrator. Eligible commer- ment gear means a gillnet or gillnets cial fisheries not specifically identified that is/are unattached to the ocean in the list of fisheries are deemed to be bottom and not anchored, secured or Category II fisheries until the next list weighted to the bottom, regardless of of fisheries is published. whether attached to a vessel. Category III fishery means a commer- Fisher or fisherman means the vessel cial fishery determined by the Assist- owner or operator, or the owner or op- ant Administrator to have a remote erator of gear in a nonvessel fishery. likelihood of, or no known incidental mortality and serious injury of marine Fishery has the same meaning as in mammals. A commercial fishery that section 3 of the Magnuson Fishery Con- has a remote likelihood of causing inci- servation and Management Act (16 dental mortality and serious injury of U.S.C. 1802). marine mammals is one that collec- Fishing or to fish means any commer- tively with other fisheries is respon- cial fishing operation activity that in- sible for the annual removal of: volves: (1) Ten percent or less of any marine (1) The catching, taking, or har- mammal stock’s potential biological vesting of fish; removal level, or (2) The attempted catching, taking, (2) More than 10 percent of any ma- or harvesting of fish; rine mammal stock’s potential biologi- (3) Any other activity that can rea- cal removal level, yet that fishery by sonably be expected to result in the itself is responsible for the annual re- catching, taking, or harvesting of fish; moval of 1 percent or less of that or stock’s potential biological removal (4) Any operations at sea in support level. In the absence of reliable infor- of, or in preparation for, any activity

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described in paragraphs (1), (2), or (3) of that ingests fishing gear, or any ani- this definition. mal that is released with fishing gear Fishing trip means any time spent entangling, trailing or perforating any away from port actively engaged in part of the body will be considered in- commercial fishing operations. The end jured regardless of the absence of any of a fishing trip will be the time of a wound or other evidence of an injury. fishing vessel’s return to port or the re- Insignificance threshold means the turn of a fisher from tending gear in a upper limit of annual incidental mor- nonvessel fishery. tality and serious injury of marine Fishing vessel or vessel means any ves- mammal stocks by commercial fish- sel, boat, ship, or other craft that is eries that can be considered insignifi- used for, equipped to be used for, or of cant levels approaching a zero mor- a type normally used for, fishing. tality and serious injury rate. An insig- Float-line means the rope at the top nificance threshold is estimated as 10 of a gillnet from which the mesh por- percent of the Potential Biological Re- tion of the net is hung. moval level for a stock of marine mam- Gillnet means fishing gear consisting mals. If certain parameters (e.g., max- of a wall of webbing (meshes) or nets, imum net productivity rate or the re- designed or configured so that the web- covery factor in the calculation of the bing (meshes) or nets are placed in the stock’s potential biological removal water column, usually held approxi- level) can be estimated or otherwise mately vertically, and are designed to modified from default values, the As- capture fish by entanglement, gilling, sistant Administrator may use a modi- or wedging. The term ‘‘gillnet’’ in- fication of the number calculated from cludes gillnets of all types, including the simple formula for the insignifi- but not limited to sink gillnets, other cance threshold. The Assistant Admin- anchored gillnets (e.g., anchored float istrator may also use a modification of gillnets, stab, and set nets), and drift the simple formula when information gillnets. Gillnets may or may not be is insufficient to estimate the level of attached to a vessel. mortality and serious injury that Groundline, with reference to trap/pot would have an insignificant effect on gear, means a line connecting traps in the affected population stock and pro- a trap trawl, and, with reference to vide a rationale for using the modifica- gillnet gear, means a line connecting a tion. gillnet or gillnet bridle to an anchor. Interaction means coming in contact Hard lay lines mean lines that are at with fishing gear or catch. An inter- least as stiff as 5⁄16 inch (0.8 cm) diameter line composed of polyester wrapped action may be characterized by a ma- around a blend of polypropylene and rine mammal entangled, hooked, or polyethylene and 42 visible twists of otherwise trapped in fishing gear, re- strands per foot of line. gardless of whether injury or mortality Incidental means, with respect to an occurs, or situations where marine act, a non-intentional or accidental act mammals are preying on catch. Catch that results from, but is not the pur- means fish or shellfish that has been pose of, carrying out an otherwise law- hooked, entangled, snagged, trapped or ful action. otherwise captured by commercial fish- Injury means a wound or other phys- ing gear. ical harm. Signs of injury to a marine Large mesh gillnet means a gillnet mammal include, but are not limited constructed with a mesh size of 7 to, visible blood flow, loss of or damage inches (17.78 cm) to 18 inches (45.72 cm). to an appendage or jaw, inability to use Lead-line means the rope, weighted or one or more appendages, asymmetry in otherwise, to which the bottom edge of the shape of the body or body position, a gillnet is attached. noticeable swelling or hemorrhage, lac- List of Fisheries means the most re- eration, puncture or rupture of eyeball, cent final list of commercial fisheries listless appearance or inability to de- published in the FEDERAL REGISTER by fend itself, inability to swim or dive the Assistant Administrator, cat- upon release from fishing gear, or signs egorized according to the likelihood of of equilibrium imbalance. Any animal incidental mortality and serious injury

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of marine mammals during commercial reproduction, less losses due to mor- fishing operations. tality. Mesh size means the distance between Night means any time between one inside knot to inside knot. Mesh size is half hour before sunset and one half measured as described in § 648.80(f)(1) of hour after sunrise. this title. NMFS means the National Marine Mid-Atlantic coastal waters means wa- Fisheries Service. ters bounded by the line defined by the Nonvessel fishery means a commercial following points: The southern shore- fishing operation that uses fixed or line of Long Island, New York at 72°30′ other gear without a vessel, such as W, then due south to 33°51′ N lat., gear used in set gillnet, trap, beach thence west to the North Carolina/ seine, weir, ranch, and pen fisheries. South Carolina border. Observer means an individual author- Minimum population estimate means ized by NMFS, or a designated con- an estimate of the number of animals tractor, to record information on main a stock that: rine mammal interactions, fishing op- (1) Is based on the best available sci- erations, marine mammal life history entific information on abundance, in- information, and other scientific data, corporating the precision and varia- and collect biological specimens during bility associated with such informa- commercial fishing activities. tion; and Offshore pound net means a pound net (2) Provides reasonable assurance with any part of the leader (from the that the stock size is equal to or great- most offshore pole at the pound end of er than the estimate. the leader to the most inshore pole of Modified pound net leader means a the leader) in water greater than or pound net leader that is affixed to or equal to 14 feet (4.3 m) at any tidal con- resting on the sea floor and made of a dition. lower portion of mesh and an upper Operator, with respect to any vessel, portion of only vertical lines such that means the master, captain, or other in- the mesh size is equal to or less than 8 dividual in charge of that vessel. inches (20.3 cm) stretched mesh; at any Potential biological removal level means particular point along the leader, the the maximum number of animals, not height of the mesh from the seafloor to including natural mortalities, that the top of the mesh must be no more may be removed from a marine mam- than one-third the depth of the water mal stock while allowing that stock to at mean lower low water directly above reach or maintain its optimum sustain- that particular point; the mesh is held able population. The potential biologi- in place by a bottom chain that forms cal removal level is the product of the the lowermost part of the pound net following factors: leader; the vertical lines extend from (1) The minimum population esti- the top of the mesh up to a top line, mate of the stock; which is a line that forms the upper- (2) One-half the maximum theo- most part of the pound net leader; the retical or estimated net productivity vertical lines are equal to or greater rate of the stock at a small population than 5⁄16 inch (0.8 cm) in diameter and size; and strung vertically at a minimum of (3) A recovery factor of between 0.1 every 2 feet (61 cm); and the vertical and 1.0. lines are hard lay lines. Pound net means a fixed entrapment Nearshore pound net means a pound gear attached to posts or stakes with net with every part of the leader (from three continuous sections from off- the most offshore pole at the pound end shore to inshore consisting of: of the leader to the most inshore pole (1) A pound made of mesh netting of the leader) in less than 14 feet (4.3 m) that entraps the fish; of water at any tidal condition. (2) At least one heart made of a mesh Negligible impact has the same mean- netting that is generally in the shape ing as in § 216.103 of this chapter. of a heart and aids in funneling fish Net productivity rate means the an- into the pound; and nual per capita rate of increase in a (3) A leader, which is a long, straight stock resulting from additions due to element consisting of mesh or vertical

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lines that directs the fish offshore to- Stowed means traps/pots and gillnets wards the pound. that are unavailable for immediate use Qualified individual means an indi- and further, all gillnets are stored in vidual ascertained by NMFS to be rea- accordance with the following: sonably able, though training or expe- (1) All nets are covered with canvas rience, to identify a right whale. Such or other similar material and lashed or individuals include, but are not limited otherwise securely fastened to the to, NMFS staff, U.S. Coast Guard and deck, rail, or drum, and all buoys larg- Navy personnel trained in whale identi- er than 6 inches (15.24 cm) in diameter, fication, scientific research survey per- high flyers, and anchors are discon- sonnel, whale watch operators and nat- nected; and uralists, and mariners trained in whale (2) Any other method of stowage au- species identification through thorized in writing by the Regional Ad- disentanglement training or some ministrator and subsequently pub- other training program deemed ade- lished in the FEDERAL REGISTER. quate by NMFS. Strategic stock means a marine mam- Regional Fishery Management Council mal stock: means a regional fishery management (1) For which the level of direct council established under section 302 of human-caused mortality exceeds the the Magnuson Fishery Conservation potential biological removal level; and Management Act. (2) Which, based on the best available Reliable report means a credible right scientific information, is declining and whale sighting report based upon which is likely to be listed as a threatened a DAM zone would be triggered. species under the Endangered Species Seine means a net that fishes Act of 1973 within the foreseeable fu- vertically in the water, is pulled by ture; hand or by power, and captures fish by (3) Which is listed as a threatened encirclement and confining fish within species or endangered species under the itself or against another net, the shore Endangered Species Act of 1973; or or bank as a result of net design, con- (4) Which is designated as depleted struction, mesh size, webbing diameter, or method in which it is used. In some under the Marine Mammal Protection regions, the net is typically con- Act of 1972, as amended. structed with a capture bag in the cen- Sunrise means the time of sunrise as ter of the net which concentrates the determined for the date and location in fish as the net is closed. The Nautical Almanac, prepared by the Serious injury means any injury that U.S. Naval Observatory. will likely result in mortality. Sunset means the time of sunset as Sink gillnet or stab net means any determined for the date and location in gillnet, anchored or otherwise, that is The Nautical Almanac, prepared by the designed to be, or is fished on or near U.S. Naval Observatory. the bottom in the lower third of the Take Reduction Plan means a plan de- water column. veloped to reduce the incidental mor- Sinking line means, for both ground- tality and serious injury of marine lines and buoy lines, line that has a mammals during commercial fishing specific gravity greater than or equal operations in accordance with section to 1.030, and, for groundlines only, does 118 of the Marine Mammal Protection not float at any point in the water col- Act of 1972, as amended. umn. Take Reduction Team means a team Small mesh gillnet means a gillnet established to recommend methods of constructed with a mesh size of greater reducing the incidental mortality and than 5 inches (12.7 cm) to less than 7 serious injury of marine mammals due inches (17.78 cm). to commercial fishing operations, in Spotter plane means a plane that is accordance with section 118 of the Ma- deployed for the purpose of locating rine Mammal Protection Act of 1972, as schools of target fish for a fishing ves- amended. sel that intends to set fishing gear on Tended gear or tend means fishing them. gear that is physically attached to a

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vessel in a way that is capable of har- § 229.3 Prohibitions. vesting fish, or to fish with gear at- (a) It is prohibited to take any ma- tached to the vessel. rine mammal incidental to commercial Tie-down refers to twine used be- fishing operations except as otherwise tween the floatline and the lead line as provided in part 216 of this chapter or a way to create a pocket or bag of net- in this part 229. ting to trap fish alive. (b) It is prohibited to assault, harm, Tie loops means the loops on a gillnet harass (including sexually harass), op- panel used to connect net panels to the pose, impede, intimidate, impair, or in buoy line, groundline, bridle or each any way influence or interfere with an other. observer, or attempt the same. This Trap/Pot means any structure or prohibition includes, but is not limited other device, other than a net or to, any action that interferes with an longline, that is placed, or designed to observer’s responsibilities, or that cre- be placed, on the ocean bottom and is ates an intimidating, hostile, or offen- designed for or is capable of, catching sive environment. species including but not limited to (c) It is prohibited to provide false in- lobster, crab (red, Jonah, rock, and formation when registering for an Au- blue), hagfish, finfish (black sea bass, thorization Certificate, applying for re- scup, tautog, cod, haddock, pollock, newal of the Authorization Certificate, redfish (ocean perch), and white hake), reporting the injury or mortality of conch/whelk, and shrimp. any marine mammal, or providing in- means two or more Trap/pot trawl formation to any observer. trap/pots attached to a single ground- (d) It is prohibited to tamper with or line. destroy observer equipment in any Up and down line means the line that way. connects the float-line and lead-line at (e) It is prohibited to retain any ma- the end of each gillnet net panel. rine mammal incidentally taken in U.S. waters means both state and commercial fishing operations unless Federal waters to the outer boundaries authorized by NMFS personnel, by des- of the U.S. exclusive economic zone ignated contractors or an official ob- along the east coast of the United server, or by a scientific research per- States from the Canadian/U.S. border mit that is in the possession of the ves- southward to a line extending eastward sel operator. from the southernmost tip of Florida (f) It is prohibited to intentionally on the Florida shore. lethally take any marine mammal in Vessel owner or operator means the the course of commercial fishing oper- owner or operator of: ations unless imminently necessary in (1) A fishing vessel that engages in a self-defense or to save the life of a per- commercial fishing operation; or son in immediate danger, and such tak- (2) Fixed or other commercial fishing ing is reported in accordance with the gear that is used in a nonvessel fishery. requirements of § 229.6. Vessel of the United States has the (g) It is prohibited to violate any reg- same meaning as in section 3 of the ulation in this part or any provision of Magnuson Fishery Conservation and section 118 of the Act. Management Act (16 U.S.C. 1802). (h) It is prohibited to own, operate, Weak link means a breakable compo- or be on board a vessel subject to the nent of gear that will part when sub- Atlantic Large Whale Take Reduction ject to a certain tension load. Plan except if that vessel and all fish- [60 FR 45100, Aug. 30, 1995, as amended at 62 ing gear comply with all applicable FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, provisions of § 229.32. 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. (i) It is prohibited to fish for, catch, 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1141, take, harvest or possess fish or wildlife Jan. 9, 2002; 67 FR 1313, Jan. 10, 2002; 69 FR while on board a vessel subject to the 6584, Feb. 11, 2004; 69 FR 43345, July 20, 2004; 71 FR 24796, Apr. 26, 2006; 72 FR 34642, June 25, Atlantic Large Whale Take Reduction 2007; 72 FR 57180, Oct. 5, 2007; 73 FR 51241, Plan, except if that vessel and all fish- Oct. 2, 2008; 75 FR 7396, Feb. 19, 2010; 79 FR ing gear is in compliance with all ap- 36610, June 27, 2014; 80 FR 6929, Feb. 9, 2015] plicable provisions of § 229.32.

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(j) Any person or vessel claiming the vessel unless stowed, or fail to remove, benefit of any exemption or exception any gillnet or pound net from the wa- under § 229.32 has the burden of proving ters specified in § 229.35(c) unless the that the exemption or exception, is ap- gear complies with the specified re- plicable. strictions set forth in § 229.35(d). (k)–(l) [Reserved] (2) It is prohibited to set, fish with, (m) It is prohibited to fish with, set, or fail to remove a modified pound net haul back, possess on board a vessel leader in the Bottlenose Dolphin Pound unless stowed in accordance with Net Regulated Area unless the fisher- § 229.2, or fail to remove sink gillnet man has on board the vessel a valid gear or gillnet gear capable of catching modified pound net leader compliance multispecies from the areas and for the training certificate issued by NMFS. times specified in § 229.33(a)(1), (a)(3), (t) It is prohibited to deploy or fish (a)(6), and (a)(8). This prohibition also with pelagic longline gear in the Mid- applies to areas where pingers are re- Atlantic Bight unless the vessel: quired, unless the vessel owner or oper- (1) Complies with the placard posting ator complies with the pinger provi- requirement specified in § 229.36(c); and sions specified in § 229.33 (a)(2) through (2) Complies with the gear restric- (a)(5) and (a)(7). This prohibition does tions specified in § 229.36(e). not apply to vessels fishing with a sin- (u) It is prohibited to deploy or fish gle pelagic gillnet (as described and with pelagic longline gear in the Cape used as set forth in § 648.81(f)(2)(ii) of Hatteras Special Research Area unless this title). the vessel is in compliance with the ob- (n) It is prohibited to fish with, set, server and research requirements speci- haul back, possess on board a vessel fied in § 229.36(d). unless stowed in accordance with (v) It is prohibited to deep-set from a § 229.2, or fail to remove gillnet gear vessel registered for use under a Hawaii from the areas and for the times as longline limited access permit unless specified in § 229.34 (b)(1)(i), (b)(2)(i), the vessel complies with the gear re- (b)(3)(i), or (b)(4)(i). quirements specified in § 229.37(c)(1) and (o) It is prohibited to fish with, set, (c)(2) . haul back, possess on board a vessel (w) It is prohibited to fish with unless stowed in accordance with longline gear in the Main Hawaiian Is- lands Longline Fishing Prohibited § 229.2, or fail to remove any large mesh Area, as defined in § 229.37(d)(1). or small mesh gillnet gear from the (x) It is prohibited to deep-set in the areas and for the times specified in Southern Exclusion Zone, as defined in § 229.34(b) unless the gear complies with § 229.37(d)(2), during the time the area the specified gear restrictions set forth is closed to deep-set longline fishing in the provisions of paragraphs pursuant to § 229.37(e). (b)(1)(ii) or (iii), (b)(2)(ii) or (iii), (y) It is prohibited to fish with (b)(3)(ii) or (iii), or (b)(4)(ii) or (iii) of longline gear from a vessel registered § 229.34. for use under a Hawaii longline limited (p) It is prohibited to fish with, set, access permit in violation of the ma- haul back, possess on board a vessel rine mammal handling and release re- unless stowed in accordance with quirements at § 229.37(f). § 229.2, or fail to remove sink gillnet gear or gillnet gear capable of catching [60 FR 45100, Aug. 30, 1995, as amended at 62 multispecies in areas where pingers are FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, required, as specified under § 229.33 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. (a)(2) through (a)(5) and (a)(7), unless 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1313, Jan. 10, 2002; 67 FR 59477, Sept. 23, 2002; 71 FR the operator on board the vessel during 24796, Apr. 26, 2006; 72 FR 57180, Oct. 5, 2007; 74 fishing operations possesses and re- FR 23357, May 19, 2009; 75 FR 7396, Feb. 19, tains on board the vessel a valid pinger 2010; 77 FR 71284, Nov. 29, 2012; 79 FR 36610, training authorization issued by NMFS June 27, 2014; 80 FR 6929, Feb. 9, 2015] as specified under § 229.33(c). (q)–(r) [Reserved] § 229.4 Requirements for Category I (s) General Bottlenose Dolphin Take and II fisheries. Reduction Plan. (1) It is prohibited to (a) General. (1) For a vessel owner or set, fish with, or possess on board a crew members to lawfully incidentally

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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) A certification signed and dated sponsible for obtaining a Certificate of by the owner of an authorized rep- Authorization. resentative of the owner as follows: ‘‘I (2) The granting and administration hereby certify that I am the owner of of Authorization Certificates under the vessel, that I have reviewed all in- this part will be integrated and coordi- formation contained on this document, nated with existing fishery license, reg- and that it is true and complete to the istration, or permit systems and re- best of my knowledge.’’ lated programs wherever possible. (vi) A check or money order made These programs may include, but are payable to NMFS in the amount speci- not limited to, state or interjurisdic- fied in the notice of the final List of tional fisheries programs. If the admin- Fisheries must accompany each registration of Authorization Certificates istration submitted to NMFS. The is integrated into a program, NMFS amount of this fee will be based on re- will publish a notice in the FEDERAL covering the administrative costs in- REGISTER announcing the integrated curred in granting an authorization. program and summarizing how an The Assistant Administrator may owner or authorized representative of a waive the fee requirement for good fishing vessel or non-fishing gear may cause upon the recommendation of the register under that program or how Regional Director. registration will be achieved if no action is required on the part of the af- (3) If a notice is published in the FED- fected fisher. NMFS will make addi- ERAL REGISTER announcing an inte- tional efforts to contact participants in grated registration program, the owner the affected fishery via other appro- of a vessel, or for nonvessel fishery, the priate means of notification. owner of the gear may register by fol- (b) Registration. (1) The owner of a lowing the directions provided in that vessel, or for nonvessel gear fisheries, notice. If a person receives a registra- the owner of gear, who participates in tion to which he or she is not entitled a Category I or II fishery is required to or if the registration contains incor- be registered for a Certificate of Au- rect, inaccurate or incomplete infor- thorization. mation, the person shall notify NMFS (2) Unless a notice is published in the within 10 days following receipt. If a FEDERAL REGISTER announcing an inte- fisher participating in a Category I or grated registration program, the owner II fishery who expects to receive auto- of a vessel, or for nonvessel fishery, the matic registration does not receive owner of the gear must register for and that registration within the time speci- receive an Authorization Certificate. fied in the notice announcing the inte- To register, owners must submit the grated registration program, the per- following information using the format son shall notify NMFS as directed in specified by NMFS: the notice or may apply for registra- (i) Name, address, and phone number tion by submitting the information re- of owner. quired under paragraph (b)(1)(i) (ii) Name, address, and phone number through (b)(1)(vi) of this section. of operator, if different from owner, un- (c) Address. Unless the granting and less the name of the operator is not administration of authorizations under known or has not been established at this part 229 is integrated and coordi- the time the registration is submitted. nated with existing fishery licenses, (iii) For a vessel fishery, vessel name, registrations, or related programs pur- length, home port; U.S. Coast Guard suant to paragraph (a) of this section, documentation number or state reg- requests for registration forms and istration number, and if applicable; completed registration and renewal

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forms should be sent to the NMFS Re- II fishery, or, in the case of nonvessel gional Offices as follows: fisheries, the Authorization Certificate (1) Alaska Region, NMFS, P.O. Box with decal attached, or copy must be in 21668, 709 West 9th Street, Juneau, AK the possession of the person in charge 99802; telephone: 907–586-7235; of the fishing operation. The Author- (2) Northwest Region, NMFS, 7600 ization Certificate, or copy, must be Sand Point Way NE., Seattle, WA made available upon request to any 98115-0070; telephone: 206–526-4353; state or Federal enforcement agent au- (3) Southwest Region, NMFS, 501 thorized to enforce the Act, any des- West Ocean Blvd., Suite 4200, Long ignated agent of NMFS, or any con- Beach, CA 90802–4213; telephone: 562– tractor providing observer services to 980–4001; NMFS. (4) Northeast Region, NMFS, 1 (3) Authorization Certificates and de- Blackburn Drive, Gloucester, MA 01930; cals are not transferable. In the event telephone: 978–281–9254; or of the sale or change in ownership of (5) Southeast Region, NMFS, 9721 Ex- the vessel, the Authorization Certifi- ecutive Center Drive North, St. Peters- cate is void and the new owner must burg, FL 33702; telephone: 727–570–5312. register for an Authorization Certifi- (d) Issuance. (1) For integrated fish- cate and decal. eries, an Authorization Certificate or (4) An Authorization Certificate hold- other proof of registration will be er must notify the issuing office in issued annually to each fisher reg- writing: istered for that fishery. (i) If the vessel or nonvessel fishing (2) For all other fisheries (i.e., non- gear will engage in any Category I or II integrated fisheries), NMFS will issue fishery not listed on the initial reg- an Authorization Certificate and, if istration form at least 30 days prior to necessary, a decal to an owner or au- engaging in that fishery; and, thorized representative who: (i) Submits a completed registration (ii) If there are any changes in the form and the required fee. mailing address or vessel ownership (ii) Has complied with the require- within 30 days of such change. ments of this section and §§ 229.6 and (f) Reporting. Any Authorization Cer- 229.7. tificate holders must comply with the (iii) Has submitted updated registra- reporting requirements specified under tion or renewal registration which in- § 229.6. cludes a statement (yes/no) whether (g) Disposition of marine mammals. Any any marine mammals were killed or in- marine mammal incidentally taken jured during the current or previous must be immediately returned to the calendar year. sea with a minimum of further injury, (3) If a person receives a renewed Au- unless directed otherwise by NMFS thorization Certificate or a decal to personnel, a designated contractor or which he or she is not entitled, the per- an official observer, or authorized oth- son shall notify NMFS within 10 days erwise by a scientific research permit following receipt. that is in the possession of the oper- (e) Authorization Certificate and decal ator. requirements. (1) If a decal has been (h) Monitoring. Authorization Certifi- issued under the conditions specified in cate holders must comply with the ob- paragraph (e)(2) of this section, the server or other monitoring require- decal must be attached to the vessel on ments specified under § 229.7. the port side of the cabin or, in the ab- (i) Deterrence. When necessary to sence of a cabin, on the forward port deter a marine mammal from dam- side of the hull, and must be free of ob- aging fishing gear, catch, or other pri- struction and in good condition. The vate property, or from endangering decal must be attached to the Author- personal safety, vessel owners and crew ization Certificate for nonvessel fish- members engaged in a Category I or II eries. fishery must comply with all deter- (2) The Authorization Certificate, or rence provisions set forth in the Act a copy, must be on board the vessel and all guidelines and prohibitions pub- while it is operating in a Category I or lished thereunder.

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(j) Self defense. When imminently nec- accordance with the requirements of essary in self-defense or to save the life § 229.6. of a person in immediate danger, a ma- (g) Emergency regulations. Vessel own- rine mammal may be lethally taken if ers engaged in a Category III fishery such taking is reported to NMFS in ac- must comply with any applicable emer- cordance with the requirements of gency regulations. § 229.6. (k) Take reduction plans and emer- [60 FR 45100, Aug. 30, 1995, as amended at 64 gency regulations. Authorization Cer- FR 9087, Feb. 24, 1999] tificate holders must comply with any applicable take reduction plans and § 229.6 Reporting requirements. emergency regulations. (a) Vessel owners or operators en- (l) Expiration. Authorization Certifi- gaged in any commercial fishery must cates expire at the end of each calendar report all incidental mortality and in- year. jury of marine mammals in the course of commercial fishing operations to the [60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR 9086, Feb. 24, 1999] Assistant Administrator, or appropriate Regional Office, by mail or other § 229.5 Requirements for Category III means, such as fax or overnight mail fisheries. specified by the Assistant Adminis- (a) General. Vessel owners and crew trator. Reports must be sent within 48 members of such vessels engaged only hours after the end of each fishing trip in Category III fisheries may inciden- during which the incidental mortality tally take marine mammals without or injury occurred, or, for nonvessel registering for or receiving an Author- fisheries, within 48 hours of an occur- ization Certificate. rence of an incidental mortality or in- (b) Reporting. Vessel owners engaged jury. Reports must be submitted on a in a Category III fishery must comply standard postage-paid form as provided with the reporting requirements speci- by the Assistant Administrator. The fied in § 229.6. vessel owner or operator must provide (c) Disposition of marine mammals. Any the following information on this form: marine mammal incidentally taken (1) The vessel name, and Federal, must be immediately returned to the state, or tribal registration numbers of sea with a minimum of further injury the registered vessel; unless directed otherwise by NMFS (2) The name and address of the ves- personnel, a designated contractor, or sel owner or operator; an official observer, or authorized oth- (3) The name and description of the erwise by a scientific research permit fishery, including gear type and target in the possession of the operator. species; and (d) Monitoring. Vessel owners engaged in a Category III fishery must comply (4) The species and number of each with the observer requirements speci- marine mammal incidentally killed or fied under § 229.7(d). injured, and the date, time, and ap- (e) Deterrence. When necessary to proximate geographic location of such deter a marine mammal from dam- occurrence. A description of the ani- aging fishing gear, catch, or other pri- mal(s) killed or injured must be pro- vate property, or from endangering vided if the species is unknown. personal safety, vessel owners and crew (b) Participants in nonvessel fisheries members engaged in commercial fish- must provide all of the information in ing operations must comply with all paragraphs (a)(1) through (a)(4) of this deterrence provisions set forth in the section except, instead of providing the Act and all guidelines and prohibitions vessel name and vessel registration published thereunder. number, participants in nonvessel fish- (f) Self-defense. When imminently eries must provide the gear permit necessary in self-defense or to save the number. life of a person in immediate danger, a marine mammal may be lethally taken [60 FR 45100, Aug. 30, 1995, as amended at 64 if such taking is reported to NMFS in FR 9087, Feb. 24, 1999]

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§ 229.7 Monitoring of incidental mor- (4) The vessel owner/operator and talities and serious injuries. crew must cooperate with the observer (a) Purpose. The Assistant Adminis- in the performance of the observer’s trator will establish a program to mon- duties including: itor incidental mortality and serious (i) Providing, at no cost to the ob- injury of marine mammals during the server, the United States government, course of commercial fishing oper- or the designated observer provider, ations in order to: food, toilet, bathing, sleeping accom- (1) Obtain statistically reliable esti- modations, and other amenities that mates of incidental mortality and seri- are equivalent to those provided to the ous injury; crew, unless other arrangements are (2) Determine the reliability of re- approved in advance by the Regional ports of incidental mortality and in- Administrator; jury under § 229.6; and (ii) Allowing for the embarking and (3) Identify changes in fishing meth- debarking of the observer as specified ods or technology that may increase or by NMFS personnel or designated con- decrease incidental mortality and seri- tractors. The operator of a vessel must ous injury. ensure that transfers of observers at (b) Observer program. Pursuant to sea are accomplished in a safe manner, paragraph (a) of this section, the As- via small boat or raft, during daylight sistant Administrator may observe hours if feasible, as weather and sea Category I and II vessels as necessary. Observers may, among other tasks: conditions allow, and with the agree- (1) Record incidental mortality and ment of the observer involved; injury, and bycatch of other nontarget (iii) Allowing the observer access to species; all areas of the vessel necessary to con- (2) Record numbers of marine mam- duct observer duties; mals sighted; and (iv) Allowing the observer access to (3) Perform other scientific inves- communications equipment and navi- tigations, which may include, but are gation equipment, when available on not limited to, sampling and the vessel, as necessary to perform ob- photographing incidental mortalities server duties; and serious injuries. (v) Providing true vessel locations by (c) Observer requirements for partici- latitude and longitude, accurate to the pants in Category I and II fisheries. (1) If minute, or by loran coordinates, upon requested by NMFS or by a designated request by the observer; contractor providing observer services (vi) Sampling, retaining, and storing to NMFS, a vessel owner/operator must of marine mammal specimens, other take aboard an observer to accompany protected species specimens, or target the vessel on fishing trips. or non-target catch specimens, upon (2) After being notified by NMFS, or request by NMFS personnel, designated by a designated contractor providing contractors, or the observer, if ade- observer services to NMFS, that the quate facilities are available and if fea- vessel is required to carry an observer, sible; the vessel owner/operator must comply (vii) Notifying the observer in a with the notification by providing in- timely fashion of when all commercial formation requested within the speci- fishing operations are to begin and end; fied time on scheduled or anticipated fishing trips. (viii) Not impairing or in any way (3) NMFS, or a designated contractor interfering with the research or obser- providing observer services to NMFS, vations being carried out; and may waive the observer requirement (ix) Complying with other guidelines based on a finding that the facilities or regulations that NMFS may develop for housing the observer or for carrying to ensure the effective deployment and out observer functions are so inad- use of observers. equate or unsafe that the health or (5) Marine mammals or other speci- safety of the observer or the safe oper- mens identified in paragraph (c)(4)(vi) ation of the vessel would be jeopard- of this section, which are readily acces- ized. sible to crew members, must be

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brought on board the vessel and re- pose of receiving public comment. Each tained for the purposes of scientific re- year, on or about October 1, the Assist- search if feasible and requested by ant Administrator will publish a final NMFS personnel, designated contrac- revised List of Fisheries, which will be- tors, or the observer. Specimens so col- come effective January 1 of the next lected and retained must, upon request calendar year. by NMFS personnel, designated con- (b) The proposed and final revised tractors, or the observer, be retained in List of Fisheries will: cold storage on board the vessel, if fea- (1) Categorize each commercial fish- sible, until removed at the request of ery based on the definitions of Cat- NMFS personnel, designated contrac- egory I, II, and III fisheries set forth in tors, or the observer, retrieved by au- § 229.2; and thorized personnel of NMFS, or re- (2) List the marine mammals that leased by the observer for return to the have been incidentally injured or killed ocean. These biological specimens may by commercial fishing operations and be transported on board the vessel dur- the estimated number of vessels or per- ing the fishing trip and back to port sons involved in each commercial fish- under this authorization. ery. (d) Observer requirements for partici- (c) The Assistant Administrator may pants in Category III fisheries. (1) The publish a revised List of Fisheries at Assistant Administrator may place ob- other times, after notification and op- servers on Category III vessels if the portunity for public comment. Assistant Administrator: (d) The revised final List of Fisheries (i) Believes that the incidental mor- will become effective no sooner than 30 tality and serious injury of marine days after publication in the FEDERAL mammals from such fishery may be REGISTER. contributing to the immediate and sig- [60 FR 45100, Aug. 30, 1995, as amended at 64 nificant adverse impact on a species or FR 9087, Feb. 24, 1999] stock listed as a threatened species or endangered species under the Endan- § 229.9 Emergency regulations. gered Species Act of 1973 (16 U.S.C. 1531 (a) If the Assistant Administrator et seq.); and finds that the incidental mortality or (ii) Has complied with § 229.9(a)(3)(i) serious injury of marine mammals and (ii); or from commercial fisheries is having, or (iii) Has the consent of the vessel is likely to have, an immediate and owner. significant adverse impact on a stock (2) If an observer is placed on a Cat- or species, the Assistant Administrator egory III vessel, the vessel owner and/ will: or operator must comply with the re- (1) In the case of a stock or species quirements of § 229.7(c). for which a take reduction plan is in ef- (e) Alternative observer program. The fect— Assistant Administrator may establish (i) Prescribe emergency regulations an alternative observer program to that, consistent with such plan to the provide statistically reliable informa- maximum extent practicable, reduce tion on the species and number of ma- incidental mortality and serious injury rine mammals incidentally taken in in that fishery; and the course of commercial fishing oper- (ii) Approve and implement on an ex- ations. The alternative observer pro- pedited basis, any amendments to such gram may include direct observation of plan that are recommended by the fishing activities from vessels, air- Take Reduction Team to address such planes, or points on shore. adverse impact; [60 FR 45100, Aug. 30, 1995, as amended at 64 (2) In the case of a stock or species FR 9087, Feb. 24, 1999] for which a take reduction plan is being developed— § 229.8 Publication of List of Fisheries. (i) Prescribe emergency regulations (a) The Assistant Administrator will to reduce such incidental mortality publish in the FEDERAL REGISTER a pro- and serious injury in that fishery; and posed revised List of Fisheries on or (ii) Approve and implement, on an ex- about July 1 of each year for the pur- pedited basis, such plan, which will

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provide methods to address such adverse impact on a stock or species, the verse impact if still necessary; Assistant Administrator may extend (3) In the case of a stock or species the emergency regulations for an addi- for which a take reduction plan does tional period of not more than 90 days not exist and is not being developed, or or until reasons for the emergency reg- in the case of a Category III fishery ulations no longer exist, whichever is that the Assistant Administrator be- earlier. lieves may be contributing to such adverse impact, [60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999] (i) Prescribe emergency regulations to reduce such incidental mortality § 229.10 Penalties. and serious injury in that fishery, to the extent necessary to mitigate such (a) Except as provided for in para- adverse impact; graphs (b) and (c) of this section, any (ii) Immediately review the stock as- person who violates any regulation sessment for such stock or species and under this part or any provision of sec- the classification of such commercial tion 118 of the MMPA shall be subject fishery under this section to determine to all penalties set forth in the Act. if a take reduction team should be es- (b) The owner or master of a vessel tablished and if recategorization of the that fails to comply with a take reduc- fishery is warranted; and tion plan shall be subject to the pen- (iii) Where necessary to address such alties of sections 105 and 107 of the Act, adverse impact on a species or stock and may be subject to the penalties of listed as a threatened species or endan- section 106 of the Act. gered species under the Endangered (c) The owner of a vessel engaged in Species Act (16 U.S.C. 1531 et seq.), a Category I or II fishery who fails to place observers on vessels in a Cat- ensure that a decal, or other physical egory III fishery if the Assistant Ad- evidence of such authorization issued ministrator has reason to believe such by NMFS, is displayed on the vessel or vessels may be causing the incidental is in possession of the operator of the mortality and serious injury to marine vessel shall be subject to a penalty of mammals from such stock. not more than $100. (b) Prior to taking any action under (d) Failure to comply with take re- § 229.9(a)(1) through (3), the Assistant duction plans or emergency regulations Administrator will consult with the issued under this part may result in Marine Mammal Commission, all ap- suspension or revocation of an Author- propriate Regional Fishery Manage- ization Certificate, and failure to comment Councils, state fishery managers, ply with a take reduction plan or emer- and the appropriate take reduction gency regulation is also subject to the team, if established. penalties of sections 105 and 107 of the (c) Any emergency regulations issued Act, and may be subject to the pen- under this section: alties of section 106 of the Act. (1) Shall be published in the FEDERAL (e) For fishers operating in Category REGISTER and will remain in effect for I or II fisheries, failure to report all in- no more than 180 days or until the end cidental injuries and mortalities with- of the applicable commercial fishing in 48 hours of the end of each fishing season, whichever is earlier, except as trip, or failure to comply with require- provided in paragraph (d) of this sec- ments to carry an observer, will sub- tion; and ject such persons to the penalties of (2) May be terminated by notification sections 105 and 107 and may subject in the FEDERAL REGISTER at an earlier them to the penalties of section 106 of date if the Assistant Administrator de- the Act, which will result in suspen- termines that the reasons for the emer- sion, revocation, or denial of an Au- gency regulations no longer exist. thorization Certificate until such re- (d) If the Assistant Administrator quirements have been fulfilled. finds that incidental mortality and se- (f) For fishers operating in Category rious injury of marine mammals in a III fisheries, failure to report all inci- commercial fishery is continuing to dental injuries and mortalities within have an immediate and significant ad- 48 hours of the end of each fishing trip

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will subject such persons to the pen- public disclosure of the identity or alties of sections 105 and 107, and may business of any person; subject them to section 106, of the Act. (3) When required by court order; or (g) Suspension, revocation or denial of (4) In the case of scientific informa- Authorization Certificates. (1) Until the tion involving fisheries, to employees Authorization Certificate holder com- of Regional Fishery Management Coun- plies with the regulations under this cils who are responsible for fishery part, the Assistant Administrator shall management plan development and suspend or revoke an Authorization monitoring. Certificate or deny an annual renewal (5) To other individuals or organiza- of an Authorization Certificate in actions authorized by the Assistant Ad- cordance with the provisions in 15 CFR ministrator to analyze this informa- part 904 if the Authorization Certifi- tion, so long as the confidentiality of cate holder fails to report all inci- individual fishers is not revealed. dental mortality and injury of marine (b) Information will be made avail- mammals as required under § 229.6; or able to the public in aggregate, sum- fails to take aboard an observer if re- mary, or other such form that does not quested by NMFS or its designated disclose the identity or business of any contractors. person in accordance with NOAA Ad- (2) The Assistant Administrator may ministrative Order 216–100. Aggregate suspend or revoke an Authorization or summary form means data struc- Certificate or deny an annual renewal tured so that the identity of the sub- of an Authorization Certificate in ac- mitter cannot be determined either cordance with the provisions in 15 CFR from the present release of the data or part 904 if the Authorization Certifi- in combination with other releases. cate holder fails to comply with any applicable take reduction plan, take [60 FR 45100, Aug. 30, 1995, as amended at 64 reduction regulations, or emergency FR 9088, Feb. 24, 1999] regulations developed under this subpart or subparts B and C of this part or § 229.12 Consultation with the Sec- retary of the Interior. if the Authorization Certificate holder fails to comply with other require- The Assistant Administrator will ments of these regulations; consult with the Secretary of the Inte- (3) A suspended Authorization Cer- rior prior to taking actions or making tificate may be reinstated at any time determinations under this part that af- at the discretion of the Assistant Ad- fect or relate to species or population ministrator provided the Assistant Ad- stocks of marine mammals for which ministrator has determined that the the Secretary of the Interior is respon- reasons for the suspension no longer sible under the Act. apply or corrective actions have been taken. Subpart B—Takes of Endangered [60 FR 45100, Aug. 30, 1995, as amended at 64 and Threatened Marine Mammals FR 9088, Feb. 24, 1999] § 229.20 Issuance of permits. § 229.11 Confidential fisheries data. (a) Determinations. During a period of (a) Proprietary information collected up to 3 consecutive years, NMFS will under this part is confidential and in- allow the incidental, but not the inten- cludes information, the unauthorized tional, taking by persons using vessels disclosure of which could be prejudicial of the United States or foreign vessels or harmful, such as information or that have valid fishing permits issued data that are identifiable with an indi- by the Assistant Administrator in ac- vidual fisher. Proprietary information cordance with section 204(b) of the obtained under part 229 will not be dis- Magnuson Fishery Conservation and closed, in accordance with NOAA Ad- Management Act (16 U.S.C. 1824(b)), ministrative Order 216–100, except: while engaging in commercial fishing (1) To Federal employees whose du- operations, of marine mammals from a ties require access to such information; species or stock designated as depleted (2) To state employees under an because of its listing as an endangered agreement with NMFS that prevents species or threatened species under the

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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, may, within 45 days of such publica- after notification and opportunity for tion, submit to the Assistant Adminis- public comment, the list of fisheries trator written data or views with re- published in accordance with para- spect to the listed fisheries. As soon as graph (b) of this section whenever the practicable after the end of the 45 days Assistant Administrator determines following publication, NMFS will pub- there has been a significant change in lish in the FEDERAL REGISTER a list of the information or conditions used to the fisheries for which the determina- determine such a list. tions listed in paragraph (a) of this sec- (g) Southern sea otters. This subpart tion have been made. This publication does not apply to the taking of South- will set forth a summary of the infor- ern (California) sea otters. mation used to make the determinations. [60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999] (c) Issuance of authorization. The As- sistant Administrator will issue appropriate permits for vessels in fisheries Subpart C—Take Reduction Plan that are required to register under Regulations and Emergency § 229.4 and for which determinations Regulations under the procedures of paragraph (b) of this section can be made. § 229.30 Basis. (d) Category III fisheries. Vessel own- Section 118(f)(9) of the Act authorizes ers engaged only in Category III fish- the Director, NMFS, to impose regula- eries for which determinations are tions governing commercial fishing op- made under the procedures of para- erations, when necessary, to imple- graph (b) of this section will not be ment a take reduction plan in order to

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protect or restore a marine mammal (6) Any materials used to weight stock or species covered by such a plan. pingers must not change its specifica- [64 FR 9088, Feb. 24, 1999] tions set forth under paragraph (c)(1) of this section. § 229.31 Pacific Offshore Cetacean (7) The pingers must be operational Take Reduction Plan. and functioning at all times during de- (a) Purpose and scope. The purpose of ployment. this section is to implement the Pa- (8) If requested, NMFS may authorize cific Offshore Cetacean Take Reduction the use of pingers with specifications Plan. Paragraphs (b) through (d) of this or pinger configurations differing from section apply to all U.S. drift gillnet those set forth in paragraphs (c)(1) and fishing vessels operating in waters sea- (c)(3) of this section for limited, experi- ward of the coast of California or Or- mental purposes within a single fishing egon, including adjacent high seas wa- season. ters. For purposes of this section, the (d) Skipper education workshops. After fishing season is defined as beginning notification from NMFS, vessel opera- May 1 and ending on January 31 of the tors must attend a skipper education following year. workshop before commencing fishing (b) Extenders. An extender is a line each fishing season. For the 1997/1998 that attaches a buoy (float) to a drift fishing season, all vessel operators gillnet’s floatline. The floatline is at- must have attended one skipper edu- tached to the top of the drift gillnet. cation workshop by October 30, 1997. All extenders (buoy lines) must be at NMFS may waive the requirement to least 6 fathoms (36 ft; 10.9 m) in length attend these workshops by notice to all during all sets. Accordingly, all vessel operators. floatlines must be fished at a minimum of 36 feet (10.9 m) below the surface of [62 FR 51813, Oct. 3, 1997, as amended at 63 FR the water. 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999] (c) Pingers. (1) For the purposes of this paragraph (c), a pinger is an acous- § 229.32 Atlantic large whale take reduction plan regulations. tic deterrent device which, when immersed in water, broadcasts a 10 kHz (a)(1) Purpose and scope. The purpose (±2 kHz) sound at 132 dB (±4 dB) re 1 of this section is to implement the At- micropascal at 1 m, lasting 300 milli- lantic Large Whale Take Reduction seconds (+ 15 milliseconds), and repeat- Plan to reduce incidental mortality ing every 4 seconds (+ .2 seconds); and and serious injury of fin, humpback, remains operational to a water depth and right whales in specific Category I of at least 100 fathoms (600 ft or 182.88 and Category II commercial fisheries m). from Maine through Florida. Specific (2) While at sea, operators of drift Category I and II commercial fisheries gillnet vessels with gillnets onboard within the scope of the Plan are identi- must carry enough pingers on the ves- fied and updated in the annual List of sel to meet the requirements set forth Fisheries. The measures identified in under paragraphs (c)(3) through(6) of the Atlantic Large Whale Take Reduc- this section. tion Plan are also intended to benefit (3) Floatline. Pingers shall be at- minke whales, which are not des- tached within 30 ft (9.14 m) of the ignated as a strategic stock, but are floatline and spaced no more than 300 known to be taken incidentally in ft (91.44 m) apart. gillnet and trap/pot fisheries. The gear (4) Leadline. Pingers shall be attached types affected by this plan include within 36 ft (10.97 m) of the leadline and gillnets (e.g., anchored, drift, and spaced no more than 300 ft (91.44 m) shark) and traps/pots. The Assistant apart. Administrator may revise the require- (5) Staggered Configuration. Pingers ments set forth in this section in ac- attached within 30 ft (9.14 m) of the cordance with paragraph (i) of this sec- floatline and within 36 ft (10.97 m) of tion. the leadline shall be staggered such (2) Regulated waters. (i) The regula- that the horizontal distance between tions in this section apply to all U.S. them is no more than 150 ft (45.5 m). waters in the Atlantic except for the

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areas exempted in paragraph (a)(3) of 44°45.51′ N. lat., 67°02.87′ W. long. (R ‘‘28M’’ this section. Whistle, Baileys Mistake) (ii) The six-mile line referred to in 44°37.70′ N. lat., 67°09.75′ W. long. (Obstruc- tion, Southeast of Cutler) paragraph (c)(2)(iii) of this section is a 44°27.77′ N. lat., 67°32.86′ W. long. (Freeman line connecting the following points Rock, East of Great Wass Island) (Machias Seal to Isle of Shoals): 44°25.74′ N. lat., 67°38.39′ W. long. (R ‘‘2SR’’ Bell, Seahorse Rock, West of Great Wass 44°31.98′ N. lat., 67°9.72′ W. long (Machias Island) Seal) 44°21.66′ N. lat., 67°51.78′ W. long. (R N ‘‘2’’, 44°3.42′ N. lat., 68°10.26′ W. long (Mount Petit Manan Island) Desert Island) 44°19.08′ N. lat., 68°02.05′ W. long. (R ‘‘2S’’ 43°40.98′ N. lat., 68°48.84′ W. long (Matinicus) Bell, Schoodic Island) 43°39.24′ N. lat., 69°18.54′ W. long (Monhegan) 44°13.55′ N. lat., 68°10.71′ W. long. (R ‘‘8BI’’ 43°29.4′ N. lat., 70°5.88′ W. long (Casco Bay) Whistle, Baker Island) 42°55.38′ N. lat., 70°28.68′ W. long (Isle of 44°08.36′ N. lat., 68°14.75′ W. long. (Southern Shoals) Point, Great Duck Island) (iii) The pocket waters referred to in 43°59.36′ N. lat., 68°37.95′ W. long. (R ‘‘2’’ Bell, paragraph (c)(2)(iii) of this section are Roaring Bull Ledge, Isle Au Haut) ° ′ ° ′ defined as follows: 43 59.83 N. lat., 68 50.06 W. long. (R ‘‘2A’’ Bell, Old Horse Ledge) West of Monhegan Island in the area north of 43°56.72′ N. lat., 69°04.89′ W. long. (G ‘‘5TB’’ the line 43°42.17′ N. lat., 69°34.27′ W. long Bell, Two Bush Channel) and 43°42.25′ N. lat., 69°19.3′ W. long 43°50.28′ N. lat., 69°18.86′ W. long. (R ‘‘2 OM’’ East of Monhegan Island in the area located Whistle, Old Man Ledge) north of the line 43°44′ N. lat., 69°15.08′ W. 43°48.96′ N. lat., 69°31.15′ W. long. (GR C ‘‘PL’’, long and 43°48.17′ N. lat., 69°8.02′ W. long Pemaquid Ledge) South of Vinalhaven Island in the area lo- 43°43.64′ N. lat., 69°37.58′ W. long. (R ‘‘2BR’’ cated west of the line 43°52.31′ N. lat., Bell, Bantam Rock) 68°40′ W. long and 43°58.12′ N. lat., 68°32.95′ 43°41.44′ N. lat., 69°45.27′ W. long. (R ‘‘20ML’’ W. long Bell, Mile Ledge) South of Bois Bubert Island in the area lo- 43°36.04′ N. lat., 70°03.98′ W. long. (RG N ‘‘BS’’, cated northwest of the line 44°19.27′ N. Bulwark Shoal) ° ′ ° ′ lat., 67°49.5′ W. long and 44°23.67′ N. lat., 43 31.94 N. lat., 70 08.68 W. long. (G ‘‘1’’, East 67°40.5′ W. long Hue and Cry) 43°27.63′ N. lat., 70°17.48′ W. long. (RW ‘‘WI’’ (3) Exempted waters. (i) The regula- Whistle, Wood Island) tions in this section do not apply to 43°20.23′ N. lat., 70°23.64′ W. long. (RW ‘‘CP’’ waters landward of the 72 COLREGS Whistle, Cape Porpoise) ° ′ ° ′ demarcation lines (International Regu- 43 04.06 N. lat., 70 36.70 W. long. (R N ‘‘2MR’’, Murray Rock) lations for Preventing Collisions at 43°02.93′ N. lat., 70°41.47′ W. long. (R ‘‘2KR’’ Sea, 1972), as depicted or noted on nau- Whistle, Kittery Point) tical charts published by the National 43°02.55′ N. lat., 70°43.33′ W. long. (Odiornes Oceanic and Atmospheric Administra- Pt., Portsmouth, New Hampshire) tion (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80 with the New Hampshire exception of the COLREGS lines for New Hampshire state waters are exempt Casco Bay (Maine), Portsmouth Harbor from the minimum number of traps per trawl (New Hampshire), Gardiners Bay and requirement in paragraph (c)(2)(iii) of this section. Harbor waters landward of the fol- Long Island Sound (New York), and the lowing lines are exempt from all the regula- state of Massachusetts. tions in this section. (ii) Other exempted waters. A line from 42°53.691′ N. lat., 70°48.516′ W. long. to 42°53.516′ N. lat., 70°48.748′ W. Maine long. (Hampton Harbor) The regulations in this section do not A line from 42°59.986′ N. lat., 70°44.654′ W. apply to waters landward of a line con- long. to 42°59.956′ N., 70°44.737′ W. long. necting the following points (Quoddy Nar- (Rye Harbor) rows/US-Canada border to Odiornes Pt., Rhode Island Portsmouth, New Hampshire): 44°49.67′ N. lat., 66°57.77′ W. long. (R N ‘‘2’’, Rhode Island state waters are exempt from Quoddy Narrows) the minimum number of traps per trawl re- 44°48.64′ N. lat., 66°56.43′ W. long. (G ‘‘1’’ Whis- quirement in paragraph (c)(2)(iii) of this sec- tle, West Quoddy Head) tion. Harbor waters landward of the fol- 44°47.36′ N. lat., 66°59.25′ W. long. (R N ‘‘2’’, lowing lines are exempt from all the regula- Morton Ledge) tions in this section.

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A line from 41°22.441′ N. lat., 71°30.781′ W. (5) Net panel weak link and anchoring long. to 41°22.447′ N. lat., 71°30.893′ W. exemption. The anchored gillnet fish- long. (Pt. Judith Pond Inlet) eries regulated under this section are ° ′ ° ′ A line from 41 21.310 N. lat., 71 38.300 W. exempt from the requirement to install long. to 41°21.300′ N. lat., 71°38.330′ W. long. (Ninigret Pond Inlet) weak links in the net panel and anchor A line from 41°19.875′ N. lat., 71°43.061′ W. each end of the net string if the float- long. to 41°19.879′ N. lat., 71°43.115′ W. line is at a depth equal to or greater long. (Quonochontaug Pond Inlet) than 280 fathoms (1,680 ft or 512.1 m). A line from 41°19.660′ N. lat., 71°45.750′ W. (6) Island buffer. Those fishing in wa- long. to 41°19.660′ N. lat., 71°45.780′ W. ters within 1⁄4 nautical miles of the fol- long. (Weekapaug Pond Inlet) lowing Maine islands are exempt from A line from 41°26.550′ N. lat., 71°26.400′ W. long. to 41°26.500′ N. lat, 71°26.505′ W. long. the minimum number of traps per (Pettaquamscutt Inlet) trawl requirement in paragraph (c)(2)(iii) of this section: Monhegan Is- New York land, Matinicus Island Group (Metinic The regulations in this section do not Island, Small Green Island, Large apply to waters landward of a line that fol- Green Island, Seal Island, Wooden Ball lows the territorial sea baseline through Island, Matinicus Island, Ragged Is- Block Island Sound (Watch Hill Point, RI, to land) and Isles of Shoals Island Group Montauk Point, NY). (Duck Island, Appledore Island, Cedar Massachusetts Island, Smuttynose Island). (b) Gear marking requirements—(1) The regulations in this section do not Specified areas. The following areas are apply to waters landward of the first bridge over any embayment, harbor, or inlet in specified for gear marking purposes: Massachusetts. The following Massachusetts Northern Inshore State Trap/Pot Wa- state waters are exempt from the minimum ters, Cape Cod Bay Restricted Area, number of traps per trawl requirement in Massachusetts Restricted Area, paragraph (c)(2)(iii) of this section: Stellwagen Bank/Jeffreys Ledge Re- From the New Hampshire border to 70° W stricted Area, Northern Nearshore longitude south of Cape Cod, waters in EEZ Trap/Pot Waters Area, Great South Nearshore Management Area 1 and the Outer Channel Restricted Trap/Pot Area, Cape Lobster Management Area (as defined in the American Lobster Fishery regulations Great South Channel Restricted under § 697.18 of this title), from the shore- Gillnet Area, Great South Channel line to 3 nautical miles from shore, and in- Sliver Restricted Area, Southern Near- cluding waters of Cape Cod Bay southeast of shore Trap/Pot Waters Area, Offshore a straight line connecting 41° 55.8′ N lat., Trap/Pot Waters Area, Other Northeast 70°8.4′ W long. and 41°47.2′ N lat., 70°19.5′ W Gillnet Waters Area, Mid/South Atlan- long. tic Gillnet Waters Area, Other South- ° From 70 W longitude south of Cape Cod to east Gillnet Waters Area, Southeast the Rhode Island border, all Massachusetts state waters in EEZ Nearshore Management U.S. Restricted Areas, and Southeast Area 2 and the Outer Cape Lobster Manage- U.S. Monitoring Area. ment Area (as defined in the American Lob- (i) Jordan Basin. The Jordan Basin ster Fishery regulations under § 697.18 of this Restricted Area is bounded by the fol- title), including federal waters of Nantucket lowing points connected by straight Sound west of 70° W longitude. lines in the order listed: South Carolina Point N. Lat. W. Long. The regulations in this section do not apply to waters landward of a line con- JBRA1 ...... 43°15′ 68°50′ necting the following points from 32°34.717′ JBRA2 ...... 43°35′ 68°20′ N. lat., 80°08.565′ W. long. to 32°34.686′ N. lat., JBRA3 ...... 43°25′ 68°05′ 80°08.642′ W. long. (Captain Sams Inlet) JBRA4 ...... 43°05′ 68°20′ JBRA5 ...... 43°05′ 68°35′ (4) Sinking groundline exemption. The JBRA1 ...... 43°15′ 68°50′ fisheries regulated under this section are exempt from the requirement to (ii) Jeffreys Ledge Restricted Area—The have groundlines composed of sinking Jeffreys Ledge Restricted Area is line if their groundline is at a depth bounded by the following points con- equal to or greater than 280 fathoms nected by a straight line in the order (1,680 ft or 512.1 m). listed:

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Point N. Lat. W. Long. (iii) Surface buoy markings. Trap/pot and gillnet gear regulated under this JLRA1 ...... 43°15′ 70°25′ JLRA2 ...... 43°15′ 70°00′ section must mark all surface buoys to JLRA3 ...... 42°50′ 70°00′ identify the vessel or fishery with one JLRA4 ...... 42°50′ 70°25′ of the following: The owner’s motor- ° ′ ° ′ JLRA1 ...... 43 15 70 25 boat registration number, the owner’s (2) Markings. All specified gear in U.S. vessel documentation number, the specified areas must be marked with Federal commercial fishing permit the color code shown in paragraph number, or whatever positive identi- (b)(3) of this section. The color of the fication marking is required by the color code must be permanently vessel’s home-port state. When mark- marked on or along the line or lines ing of surface buoys is not already re- specified below under paragraphs quired by state or Federal regulations, (b)(2)(i) and (ii) of this section. Each the letters and numbers used to mark color mark of the color codes must be the gear to identify the vessel or fish- clearly visible when the gear is hauled ery must be at least 1 inch (2.5 cm) in or removed from the water, including if height in block letters or arabic num- the color of the rope is the same as or bers in a color that contrasts with the similar to the respective color code. background color of the buoy. A bro- The rope must be marked at least three chure illustrating the techniques for times (top, middle, bottom) and each marking gear is available from the Re- mark must total 12-inch (30.5 cm) in gional Administrator, NMFS, Greater length. If the mark consists of two col- Atlantic Region upon request. ors then each color mark may be 6-inch (3) Color code. Gear must be marked (15.25 cm) for a total mark of 12-inch with the appropriate colors to des- (30.5 cm). In marking or affixing the ignate gear types and areas as follows: color code, the line may be dyed, painted, or marked with thin colored whip- COLOR CODE SCHEME ping line, thin colored plastic, or heat- Plan management area Color shrink tubing, or other material; or a thin line may be woven into or through Trap/Pot Gear the line; or the line may be marked as Massachusetts Restricted Area ...... Red. approved in writing by the Assistant Northern Nearshore ...... Red. Administrator. A brochure illustrating Northern Inshore State ...... Red. Stellwagen Bank/Jeffreys Ledge Re- Red. the techniques for marking gear is stricted Area. available from the Regional Adminis- Great South Channel Restricted Area Red. trator, NMFS, Greater Atlantic Region overlapping with LMA 2 and/or Outer Cape. upon request. Exempt RI state waters (single traps) Red and Blue. (i) Buoy line markings. All buoy lines Exempt MA state waters in LMA 1 Red and White. must be marked as stated above. Shark (single traps). gillnet gear in the Southeast U.S. Re- Exempt MA state waters in LMA 2 Red and Black. (single traps). stricted Area S, Southeast U.S. Moni- Exempt MA state waters in Outer Red and Yellow. toring Area and Other Southeast Cape (single traps). Gillnet Waters, greater than 4 feet (1.22 Isles of Shoals, ME (single traps) ..... Red and Orange. Southern Nearshore ...... Orange. m) long must be marked within 2 feet Southeast Restricted Area North Blue and Orange. (0.6 m) of the top of the buoy line (clos- (State Waters). est to the surface), midway along the Southeast Restricted Area North Green and Orange. (Federal Waters). length of the buoy line, and within 2 Offshore ...... Black. feet (0.6 m) of the bottom of the buoy Great South Channel Restricted Area Black. line. overlapping with LMA 2/3 and/or (ii) Net panel markings. Shark gillnet LMA 3. Jordan Basin ...... Black and Purple gear net panels in the Southeast U.S. (LMA 3); Red and Restricted Area S, Southeast U.S. and Purple (LMA Monitoring Area and Other Southeast 1). Gillnet Waters is required to be Jeffreys Ledge ...... Red and Green. marked. The net panel must be marked Gillnet excluding shark gillnet along both the floatline and the Cape Cod Bay Restricted Area ...... Green. leadline at least once every 100 yards Stellwagen Bank/Jeffreys Ledge Re- Green. (91.4 m). stricted Area.

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COLOR CODE SCHEME—Continued the table in paragraph (c)(2)(iii) of this section. Plan management area Color (i) Single traps and multiple-trap Great South Channel Restricted Area Green. trawls. All traps must be set according Great South Channel Restricted Sliv- Green. to the configuration outlined in the er Area. Other Northeast Gillnet Waters ...... Green. Table (c)(2)(iii) of this section. Trawls Jordan Basin ...... Green and Yellow. up to and including 5 or fewer traps Jeffreys Ledge ...... Green and Black. must only have one buoy line unless Mid/South Atlantic Gillnet Waters ...... Blue. specified otherwise in Table (c)(2)(iii) Southeast US Restricted Area South Yellow. Other Southeast Gillnet Waters ...... Yellow. of this section. (ii) Buoy line weak links. All buoys, ″ Shark Gillnet (with webbing of 5 or greater) flotation devices and/or weights (ex- Southeast US Restricted Area South Green and Blue. cept traps/pots, anchors, and leadline Southeast Monitoring Area ...... Green and Blue. woven into the buoy line), such as sur- Other Southeast Waters ...... Green and Blue. face buoys, high flyers, sub-surface (c) Restrictions applicable to trap/pot buoys, toggles, window weights, etc., gear in regulated waters—(1) Universal must be attached to the buoy line with trap/pot gear requirements. In addition to a weak link placed as close to each in- the gear marking requirements listed dividual buoy, flotation device and/or in paragraph (b) and the area-specific weight as operationally feasible and measures listed in paragraphs (c)(2) that meets the following specifica- through (10) of this section, all trap/pot tions: gear in regulated waters, including the (A) The breaking strength of the Northern Inshore State Trap/Pot Wa- weak links must not exceed the break- ters Area, must comply with the uni- ing strength listed in paragraph versal gear requirements listed below.1 (c)(2)(iii) of this section for a specified (i) No buoy line floating at the surface. management area. No person or vessel may fish with trap/ (B) The weak link must be chosen pot gear that has any portion of the from the following list approved by buoy line floating at the surface at any NMFS: swivels, plastic weak links, time when the buoy line is directly rope of appropriate breaking strength, connected to the gear at the ocean bot- hog rings, rope stapled to a buoy stick, tom. If more than one buoy is attached or other materials or devices approved to a single buoy line or if a high flyer in writing by the Assistant Adminis- and a buoy are used together on a sin- trator. A brochure illustrating the gle buoy line, floating line may be used techniques for making weak links is between these objects. available from the Regional Adminis- (ii) No wet storage of gear. Trap/pot trator, NMFS, Greater Atlantic Region gear must be hauled out of the water at upon request. least once every 30 days. (C) Weak links must break cleanly (iii) Groundlines. All groundlines leaving behind the bitter end of the must be composed entirely of sinking line. The bitter end of the line must be line. The attachment of buoys, toggles, free of any knots when the weak link or other floatation devices to ground- breaks. Splices are not considered to be lines is prohibited. knots for the purposes of this provi- (2) Area specific gear requirements. sion. Trap/pot gear must be set according to (iii) Table of Area Specific Gear Re- the requirements outlined below and in quirements

Minimum number traps/ Location Mgmt area trawl Weak link strength

ME State and Pocket Waters 1 .... Northern Inshore State ...... 2 (1 endline) ...... ≤600 lbs. ME Zones A–G (3–6 miles) 1 ...... Northern Nearshore ...... 3 (1 endline) ...... ≤600 lbs. ME Zones A–C (6–12 miles) 1 ..... Northern Nearshore ...... 5 (1 endline) ...... ≤600 lbs. ME Zones D–G (6–12 miles) 1 ..... Northern Nearshore ...... 10 ...... ≤600 lbs.

1 Fishermen are also encouraged to main- an entanglement threat and are thus pref- tain their buoy lines to be as knot-free as erable to knots. possible. Splices are considered to be less of

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Minimum number traps/ Location Mgmt area trawl Weak link strength

ME Zones A–E (12 + miles) ...... Northern Nearshore and Offshore ...... 15 ...... ≤600 lbs (≤1500 lbs in offshore, 2,000 lbs if red crab trap/pot). ME Zones F–G (12 + miles) ...... Northern Nearshore and Offshore ...... 15 (Mar 1–Oct 31) 20 ≤600 lbs (≤1500 lbs (Nov 1–Feb 28/29). in offshore, 2,000 lbs if red crab trap/pot). MA State Waters 2 ...... Northern Inshore State and Massachu- No minimum number of ≤600 lbs. setts Restricted Area. traps per trawl. Trawls up to and including 3 or fewer traps must only have one buoy line. Other MA State Waters ...... Northern Inshore State and Massachu- 2 (1 endline) Trawls up ≤600 lbs. setts Restricted Area. to and including 3 or fewer traps must only have one buoy line. NH State Waters ...... Northern Inshore State ...... No minimum trap/trawl .. ≤600 lbs. LMA 1 (3–12 miles) ...... Northern Nearshore and Massachusetts 10 ...... ≤600 lbs. Restricted Area and Stellwagen Bank/ Jeffreys Ledge Restricted Area. LMA 1 (12 + miles) ...... Northern Nearshore ...... 20 ...... ≤600 lbs. LMA1/OC Overlap (0–3 miles) ..... Northern Inshore State and Massachu- No minimum number of ≤600 lbs. setts Restricted Area. traps per trawl. OC (0–3 miles) ...... Northern Inshore State and Massachu- No minimum number of ≤600 lbs. setts Restricted Area. traps per trawl. OC (3–12 miles) ...... Northern Nearshore and Massachusetts 10 ...... ≤600 lbs. Restricted Area. OC (12 + miles)...... Northern Nearshore and Great South 20 ...... ≤600 lbs. Channel Restricted Area. RI State Waters ...... Northern Inshore State ...... No minimum number of ≤600 lbs. traps per trawl.. LMA 2 (3–12 miles) ...... Northern Nearshore ...... 10 ...... ≤600 lbs. LMA 2 (12 + miles) ...... Northern Nearshore and Great South 20 ...... ≤600 lbs. Channel Restricted Area. LMA 2/3 Overlap (12 + miles) ...... Offshore and Great South Channel Re- 20 ...... ≤1500 lbs (2,000 lbs stricted Area. if red crab trap/ pot). LMA 3 (12 + miles) ...... Offshore waters North of 40° and Great 20 ...... ≤1500 lbs (2,000 lbs South Channel Restricted Area. if red crab trap/ pot). LMA 4,5,6 ...... Southern Nearshore ...... ≤600 lbs. FL State Waters ...... Southeast US Restricted Area North i ...... 1 ...... ≤200 lbs. GA State Waters ...... Southeast US Restricted Area North 3 ..... 1 ...... ≤600 lbs. SC State Waters ...... Southeast US Restricted Area North 3 ..... 1 ...... ≤600 lbs. Federal Waters off FL, GA, SC .... Southeast US Restricted Area North 3 ..... 1 ...... ≤600 lbs. 1 The pocket waters and 6-mile line as defined in paragraphs (a)(2)(ii)–(a)(2)(iii) of this section. 2 MA State waters as defined as paragraph (a)(3)(iii) of this section. 3 See § 229.32(f)(1) for description of area.

(3) Massachusetts Restricted Area—(i) (ii) Closure. From February 1 to April Area. The Massachusetts restricted 30, it is prohibited to fish with, set, or area is bounded by the following points possess trap/pot gear in this area un- connected by straight lines in the order less stowed in accordance with § 229.2. listed, and bounded on the west by the (iii) Area-specific gear or vessel require- shoreline of Cape Cod, Massachusetts. ments. From May 1 through January 31, Point N. lat. W. long. no person or vessel may fish with or possess trap/pot gear in the Massachu- MRA1 ...... 42°12′ 70°44′ setts Restricted Area unless that gear MRA2 ...... 42°12′ 70°30′ MRA3 ...... 42°30′ 70°30′ complies with the gear marking re- MRA4 ...... 42°30′ 69°45′ quirements specified in paragraph (b) MRA5 ...... 41°56.5′ 69°45′ MRA6 ...... 41°21.5′ 69°16′ of this section, the universal trap/pot MRA7 ...... 41°15.3′ 69°57.9′ gear requirements specified in para- MRA8 ...... 41°20.3′ 70°00′ graph (c)(1) of this section, and the ° ′ ° ′ MRA9 ...... 41 40.2 70 00 area-specific requirements listed in

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(c)(2) of this section, or unless the gear (6) Offshore Trap/Pot 4 Waters Area—(i) is stowed as specified in § 229.2. Area. The Offshore Trap/Pot Waters (4) Great South Channel Restricted Area includes all Federal waters of the Trap/Pot Area—(i) Area. The Great EEZ Offshore Management Area 3, in- South Channel Restricted Trap/Pot cluding the area known as the Area 2/ Area consists of the area bounded by 3 Overlap and Area 3/5 Overlap as de- the following points. fined in the American Lobster Fishery regulations at § 697.18 of this title, with Point N. Lat. W. Long. the exception of the Great South Chan- nel Restricted Trap/Pot Area and ° ′ ° ′ GSC1 ...... 41 40 69 45 Southeast Restricted Area, and extend- GSC2 ...... 41°0′ 69°05′ GSC3 ...... 41°38′ 68°13′ ing south along the 100-fathom (600-ft GSC4 ...... 42°10′ 68°31′ or 182.9-m) depth contour from 35°14′ N. lat. south to 27°51′ N. lat., and east to (ii) Closure. From April 1 through the eastern edge of the EEZ. June 30, it is prohibited to fish with, (ii) Year-round area-specific gear or set, or possess trap/pot gear in this vessel requirements. No person or vessel area unless stowed in accordance with may fish with or possess trap/pot gear § 229.2. in the Offshore Trap/Pot Waters Area (iii) Area-specific gear or vessel require- that overlaps an area from the U.S./ Canada border south to a straight line ments. From July 1 through March 31, from 41°18.2′ N. lat., 71°51.5′ W. long. no person or vessel may fish with or (Watch Hill Point, RI) south to 40°00′ N. possess trap/pot gear in the Great lat., and then east to the eastern edge South Channel Restricted Trap/Pot of the EEZ, unless that gear complies Area unless that gear complies with with the gear marking requirements the gear marking requirements speci- specified in paragraph (b) of this sec- fied in paragraph (b) of this section, tion, the universal trap/pot gear re- the universal trap/pot gear require- quirements specified in paragraph (c)(1) ments specified in paragraph (c)(1) of of this section, and the area-specific re- this section, and the area-specific requirements listed in (c)(2) of this sec- quirements listed in (c)(2) of this section, or unless the gear is stowed as tion, or unless the gear is stowed as specified in § 229.2. specified in § 229.2. (iii) Seasonal area-specific gear or ves- (5) Stellwagen Bank/Jeffreys Ledge Re- sel requirements. From September 1 to stricted Area—(i) Area. The Stellwagen May 31, no person or vessel may fish Bank/Jeffreys Ledge Restricted Area with or possess trap/pot gear in the Off- includes all Federal waters of the Gulf shore Trap/Pot Waters Area that over- of Maine, except those designated as laps an area bounded on the north by a the Massachusetts Restricted Area in straight line from 41°18.2′ N. lat., ° ′ paragraph (c)(3) of this section, that lie 71 51.5 W. long. (Watch Hill Point, RI) ° ′ south of 43°15′ N. lat. and west of 70°00′ south to 40 00 N. lat. and then east to W. long. the eastern edge of the EEZ, and bounded on the south by a line at 32°00′ (ii) Year round area-specific gear or N. lat., and east to the eastern edge of vessel requirements. No person or vessel the EEZ, unless that gear complies may fish with or possess trap/pot gear with the gear marking requirements in the Stellwagen Bank/Jeffreys Ledge specified in paragraph (b) of this sec- Restricted Area unless that gear com- tion, the universal trap/pot gear re- plies with the gear marking require- quirements specified in paragraph (c)(1) ments specified in paragraph (b) of this of this section, and area-specific re- section, the universal trap/pot gear requirements in (c)(2) or unless the gear quirements specified in paragraph (c)(1) is stowed as specified in § 229.2. of this section, and the area-specific re- (iv) Seasonal area-specific gear or vessel quirements listed in paragraph (c)(2) of requirements. From November 15 to this section, or unless the gear is stowed as specified in § 229.2. 4 Fishermen using red crab trap/pot gear should refer to § 229.32(c)(10) for the restrictions applicable to red crab trap/pot fishery.

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April 15, no person or vessel may fish eral waters of EEZ Nearshore Manage- with or possess trap/pot gear in the Off- ment Area 1, Area 2, and the Outer shore Trap/Pot Waters Area that over- Cape Lobster Management Area (as de- laps an area from 32°00′ N. lat. south to fined in the American Lobster Fishery 29°00′ N. lat. and east to the eastern regulations at 50 CFR 697.18 of this edge of the EEZ, unless that gear com- title), with the exception of the Great plies with the gear marking require- South Channel Restricted Trap/Pot ments specified in paragraph (b) of this Area, Massachusetts Restricted Area, section, the universal trap/pot gear re- Stellwagen Bank/Jeffreys Ledge Re- quirements specified in paragraph (c)(1) stricted Area, and Federal waters west of this section, the area-specific re- of 70°00′ N. lat. in Nantucket Sound (in- quirements in paragraph (c)(2) of this cluded in the Northern Inshore State section or unless the gear is stowed as Trap/Pot Waters Area) and those wa- specified in § 229.2. ters exempted under paragraph (a)(3) of (v) Seasonal area-specific gear or vessel this section. requirements. From December 1 to (ii) Year-round area-specific gear or March 31, no person or vessel may fish vessel requirements. No person or vessel with or possess trap/pot gear in the Off- may fish with or possess trap/pot gear shore Trap/Pot Waters Area that over- in the Northern Nearshore Trap/Pot laps an area from 29°00′ N. lat. south to Waters Area unless that gear complies 27°51′ N. lat. and east to the eastern with the gear marking requirements edge of the EEZ, unless that gear com- specified in paragraph (b) of this sec- plies with the gear marking require- tion, the universal trap/pot gear re- ments specified in paragraph (b) of this quirements specified in paragraph (c)(1) section, the universal trap/pot gear re- of this section, the area-specific requirements specified in paragraph (c)(1) quirements in paragraph (c)(2) of this of this section, the area-specific re- section, or unless the gear is stowed as quirements in paragraph (c)(2) in this specified in § 229.2. section, or unless the gear is stowed as (9) Southern Nearshore 5 Trap/Pot Wa- specified in § 229.2. ters Area—(i) Area. The Southern Near- (vi) [Reserved] shore Trap/Pot Waters Area includes (7) Northern Inshore State Trap/Pot all state and Federal waters which fall Waters Area—(i) Area. The Northern within EEZ Nearshore Management Inshore State Trap/Pot Waters Area in- Area 4, EEZ Nearshore Management cludes the state waters of Rhode Is- Area 5, and EEZ Nearshore Manage- land, Massachusetts, New Hampshire, ment Area 6 (as defined in the Amer- and Maine, with the exception of Mas- ican Lobster Fishery regulations in 50 sachusetts Restricted Area and those CFR 697.18, and excluding the Area 3/5 waters exempted under paragraph (a)(3) Overlap), and inside the 100-fathom of this section. Federal waters west of (600-ft or 182.9-m) depth contour line 70°00′ N. lat. in Nantucket Sound are from 35°30′ N. lat. south to 27°51′ N. lat. also included in the Northern Inshore and extending inshore to the shoreline State Trap/Pot Waters Area. or exemption line, with the exception (ii) Year-round area-specific gear or of those waters exempted under para- vessel requirements. No person or vessel graph (a)(3) of this section and those may fish with or possess trap/pot gear waters in the Southeast Restricted in the Northern Inshore State Trap/Pot Area defined in paragraph (f)(1) of this Waters Area unless that gear complies section. with the gear marking requirements (ii) Year-round area-specific gear or specified in paragraph (b) of this sec- vessel requirements. No person or vessel tion, the universal trap/pot gear re- may fish with or possess trap/pot gear quirements specified in paragraph (c)(1) in the Southern Nearshore Trap/Pot of this section, the area-specific re- Waters Area that is east of a straight quirements in (c)(2) of this section or line from 41°18.2′ N. lat., 71°51.5′ W. unless the gear is stowed as specified in long. (Watch Hill Point, RI) south to § 229.2. (8) Northern Nearshore Trap/Pot Waters 5 Fishermen using red crab trap/pot gear Area—(i) Area. The Northern Nearshore should refer to § 229.32(c)(10) for the restric- Trap/Pot Waters Area includes all Fed- tions applicable to red crab trap/pot fishery.

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40°00′ N. lat., unless that gear complies area-specific requirements in (c)(2) of with the gear marking requirements this section or unless the gear is specified in paragraph (b) of this sec- stowed as specified in § 229.2. tion, the universal trap/pot gear re- (vi) [Reserved] quirements specified in paragraph (c)(1) (10) Restrictions applicable to the red of this section, the area-specific re- crab trap/pot fishery—(i) Area. The red quirements in paragraph (c)(2) of this crab trap/pot fishery is regulated in the section or unless the gear is stowed as waters identified in paragraphs (c)(6)(i) specified in § 229.2. and (c)(9)(i) of this section. (iii) Seasonal area-specific gear or ves- (ii) Year-round area-specific gear or sel requirements. From September 1 to vessel requirements. No person or vessel May 31, no person or vessel may fish may fish with or possess red crab trap/ with or possess trap/pot gear in the pot gear in the area identified in para- Southern Nearshore Trap/Pot Waters graph (c)(10)(i) of this section that Area that overlaps an area bounded on overlaps an area from the U.S./Canada the north by a straight line from border south to a straight line from 41° ° ′ ° ′ 41 18.2 N. lat., 71 51.5 W. long. (Watch 18.2′ N. lat., 71°51.5′ W. long. (Watch Hill ° ′ Hill Point, RI) south to 40 00 N. lat. Point, RI) south to 40°00′ N. lat., and and then east to the eastern edge of the then east to the eastern edge of the EEZ, and bounded on the south by EEZ, unless that gear complies with 32°00′ N. lat., and east to the eastern the gear marking requirements speci- edge of the EEZ, unless that gear com- fied in paragraph (b) of this section, plies with the gear marking require- the universal trap/pot gear requirements specified in paragraph (b) of this ments specified in paragraph (c)(1) of section, the universal trap/pot gear re- this section, the area-specific require- quirements in paragraph (c)(1) of this ments in paragraph (c)(2) of this sec- section, the area-specific requirements tion or unless the gear is stowed as in paragraph (c)(2) of this section or specified in § 229.2. unless the gear is stowed as specified in § 229.2. (iii) Seasonal area-specific gear or ves- (iv) Seasonal area-specific gear or vessel sel requirements. From September 1 to requirements. From November 15 to May 31, no person or vessel may fish April 15, no person or vessel may fish with or possess red crab trap/pot gear with or possess trap/pot gear in the in the area identified in paragraph Southern Nearshore Trap/Pot Waters (c)(10)(i) of this section that overlaps Area that overlaps an area from 32°00′ an area bounded on the north by a N. lat. south to 29°00′ N. lat. and east to straight line from 41°18.2′ N. lat., the eastern edge of the EEZ, unless 71°51.5′ W. long. (Watch Hill Point, RI) that gear complies with the gear mark- south to 40°00′ N. lat. and then east to ing requirements specified in para- the eastern edge of the EEZ, and graph (b) of this section, the universal bounded on the south by a line at 32°00′ trap/pot gear requirements specified in N. lat., and east to the eastern edge of paragraph (c)(1) of this section, the the EEZ, unless that gear complies area-specific requirements in para- with the gear marking requirements graph (c)(2) of this section or unless the specified in paragraph (b) of this sec- gear is stowed as specified in § 229.2. tion, the universal trap/pot gear re- (v) Seasonal area-specific gear or vessel quirements specified in paragraph (c)(1) requirements. From December 1 to of this section, the area-specific re- March 31, no person or vessel may fish quirements in (c)(2) of this section or with or possess trap/pot gear in the unless the gear is stowed as specified in Southern Nearshore Trap/Pot Waters § 229.2. Area that overlaps an area from 29°00′ (iv) Seasonal area-specific gear or vessel N. lat. south to 27°51′ N. lat. and east to requirements. From November 15 to the eastern edge of the EEZ, unless April 15, no person or vessel may fish that gear complies with the gear mark- with or possess red crab trap/pot gear ing requirements specified in para- in the area identified in paragraph graph (b) of this section, the universal (c)(11)(i) of this section that overlaps trap/pot gear requirements specified in an area from 32°00′ N. lat. south to paragraph (c)(1) of this section, the 29°00′ N. lat. and east to the eastern

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edge of the EEZ, unless that gear comment under paragraph (a)(4) of this sec- plies with the gear marking require- tion. The attachment of buoys, toggles, ments specified in paragraph (b) of this or other floatation devices to ground- section, the universal trap/pot gear re- lines is prohibited. quirements specified in paragraph (c)(1) (2) Area specific gear restrictions. No of this section, the area-specific re- person or vessel may fish with or pos- quirements in paragraph (c)(2) of this sess anchored gillnet gear in Areas ref- section or unless the gear is stowed as erenced in paragraphs (d)(3) through specified in § 229.2. (d)(8) of this section, unless that gear (v) Seasonal area-specific gear or vessel complies with the gear requirements requirements. From December 1 to specified in paragraph (d)(1) of this sec- March 31, no person or vessel may fish tion, and the area specific require- with or possess red crab trap/pot gear ments listed below, or unless the gear in the area identified in paragraph is stowed as specified in § 229.2. (c)(11)(i) of this section that overlaps (i) Buoy line weak links. All buoys, an area from 29°00′ N. lat. south to flotation devices and/or weights (ex- 27°51′ N. lat. and east to the eastern cept gillnets, anchors, and leadline edge of the EEZ, unless that gear com- woven into the buoy line), such as sur- plies with the gear marking require- face buoys, high flyers, sub-surface ments specified in paragraph (b) of this buoys, toggles, window weights, etc., section, the universal trap/pot gear re- must be attached to the buoy line with quirements specified in paragraph (c)(1) a weak link placed as close to each in- of this section, the area-specific re- dividual buoy, flotation device and/or quirements in (c)(2) of this section or weight as operationally feasible and unless the gear is stowed as specified in that meets the following specifica- § 229.2. tions: (vi) [Reserved] (A) The weak link must be chosen (d) Restrictions applicable to anchored from the following list approved by gillnet gear—(1) Universal anchored NMFS: Swivels, plastic weak links, gillnet gear requirements. In addition to rope of appropriate breaking strength, the area-specific measures listed in hog rings, rope stapled to a buoy stick, paragraphs (d)(3) through (d)(8) of this or other materials or devices approved section, all anchored gillnet gear in in writing by the Assistant Adminis- regulated waters must comply with the trator. A brochure illustrating the universal gear requirements listed techniques for making weak links is 6 below. available from the Regional Adminis- (i) No buoy line floating at the surface. trator, NMFS, Greater Atlantic Region No person or vessel may fish with an- upon request. chored gillnet gear that has any por- (B) The breaking strength of the tion of the buoy line floating at the weak links must not exceed 1,100 lb surface at any time when the buoy line (499.0 kg). is directly connected to the gear at the (C) Weak links must break cleanly ocean bottom. If more than one buoy is leaving behind the bitter end of the attached to a single buoy line or if a line. The bitter end of the line must be high flyer and a buoy are used together free of any knots when the weak link on a single buoy line, sinking and/or breaks. Splices are not considered to be neutrally buoyant line must be used between these objects. knots for the purposes of this provi- (ii) No wet storage of gear. Anchored sion. gillnet gear must be hauled out of the (ii) Net panel weak links. The breaking water at least once every 30 days. strength of each weak link must not (iii) Groundlines. All groundlines exceed 1,100 lb (499.0 kg). The weak link must be composed entirely of sinking requirements apply to all variations in line unless exempted from this require- panel size. All net panels in a string must contain weak links that meet one of the following two configurations un- 6 Fishermen are also encouraged to maintain their buoy lines to be as knot-free as less exempted from this requirement possible. Splices are considered to be less of under paragraph (a)(5) of this section: an entanglement threat and are thus pref- (A) Configuration 1. (1) The weak link erable to knots. must be chosen from the following list

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approved by NMFS: Plastic weak links weak link must be placed at least or rope of appropriate breaking every 25 fathoms (150 ft or 45.7 m) along strength. If rope of appropriate break- the floatline. ing strength is used throughout the (iii) Anchoring systems. All anchored floatline or as the up and down line, or gillnets, regardless of the number of if no up and down line is present, then net panels, must be secured at each end individual weak links are not required of the net string with a burying anchor on the floatline or up and down line. A (an anchor that holds to the ocean bot- brochure illustrating the techniques tom through the use of a fluke, spade, for making weak links is available plow, or pick) having the holding ca- from the Regional Administrator, pacity equal to or greater than a 22-lb NMFS, Greater Atlantic Region upon (10.0-kg) Danforth-style anchor unless request; and exempted from this requirement under (2) One weak link must be placed in paragraph (a)(5) of this section. Dead the center of each of the up and down weights do not meet this requirement. lines at both ends of the net panel; and A brochure illustrating the techniques (3) One weak link must be placed as for rigging anchoring systems is avail- close as possible to each end of the net able from the Regional Administrator, panels on the floatline; and NMFS, Greater Atlantic Region. (4) For net panels of 50 fathoms (300 (3) Cape Cod Bay Restricted Area—(i) ft or 91.4 m) or less in length, one weak Area. The Cape Cod Bay restricted area link must be placed in the center of the is bounded by the following points and floatline; or on the south and east by the interior (5) For net panels greater than 50 shoreline of Cape Cod, Massachusetts. fathoms (300 ft or 91.4 m) in length, one weak link must be placed at least Point N. lat. W. long. every 25 fathoms (150 ft or 45.7 m) along CCB1 ...... 41°46.8′ 70°30′ the floatline. CCB2 ...... 42°12′ 70°30′ (B) Configuration 2. (1) The weak link CCB3 ...... 42°12′ 70°15′ must be chosen from the following list CCB4 ...... 42°04.8′ 70°10′ approved by NMFS: Plastic weak links or rope of appropriate breaking (ii) Closure. During January 1 strength. If rope of appropriate break- through May 15 of each year, no person ing strength is used throughout the or vessel may fish with or possess an- floatline or as the up and down line, or chored gillnet gear in the Cape Cod Bay if no up and down line is present, then Restricted Area unless the Assistant individual weak links are not required Administrator specifies gear restric- on the floatline or up and down line. A tions or alternative fishing practices in brochure illustrating the techniques accordance with paragraph (i) of this for making weak links is available section and the gear or practices com- from the Regional Administrator, ply with those specifications, or unless NMFS, Greater Atlantic Region upon the gear is stowed as specified in § 229.2. request; and The Assistant Administrator may (2) One weak link must be placed in waive this closure for the remaining the center of each of the up and down portion of the winter restricted period lines at both ends of the net panel; and in any year through a notification in (3) One weak link must be placed be- the FEDERAL REGISTER if NMFS deter- tween the floatline tie loops between mines that right whales have left the net panels; and restricted area and are unlikely to re- (4) One weak link must be placed turn for the remainder of the season. where the floatline tie loops attaches (iii) Area-specific gear or vessel require- to the bridle, buoy line, or groundline ments. From May 16 through December at the end of a net string; and 31 of each year, no person or vessel (5) For net panels of 50 fathoms (300 may fish with or possess anchored ft or 91.4 m) or less in length, one weak gillnet gear in the Cape Cod Bay Re- link must be placed in the center of the stricted Area unless that gear complies floatline; or with the gear marking requirements (6) For net panels greater than 50 specified in paragraph (b) of this sec- fathoms (300 ft or 91.4 m) in length, one tion, the universal anchored gillnet

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gear requirements specified in para- nel Sliver Restricted Area unless that graph (d)(1) of this section, and the gear complies with the gear marking area-specific requirements listed in requirements specified in paragraph (b) paragraph (d)(2) of this section, or un- of this section, the universal anchored less the gear is stowed as specified in gillnet gear requirements specified in § 229.2. paragraph (d)(1) of this section, and the (4) Great South Channel Restricted area-specific requirements listed in Gillnet Area—(i) Area. The Great South paragraph (d)(2) of this section or un- Channel Restricted Gillnet Area con- less the gear is stowed as specified in sists of the area bounded by lines con- § 229.2. necting the following four points: (6) Stellwagen Bank/Jeffreys Ledge Re- Point N. lat. W. long. stricted Area—(i) Area. The Stellwagen Bank/Jeffreys Ledge Restricted Area GSC1 ...... 41°02.2′ 69°02′ includes all Federal waters of the Gulf GSC2 ...... 41°43.5′ 69°36.3′ GSC3 ...... 42°10′ 68°31′ of Maine, except those designated as GSC4 ...... 41°38′ 68°13′ the Cape Cod Bay Restricted Area in paragraph (d)(3) of this section that lie (ii) Closure. From April 1 through south of 43°15′ N. lat. and west of 70°00′ June 30 of each year, no person or ves- W. long. sel may fish with or possess anchored (ii) Year-round area-specific gear or gillnet gear in the Great South Chan- vessel requirements. No person or vessel nel Restricted Gillnet Area unless the may fish with or possess anchored Assistant Administrator specifies gear gillnet gear in the Stellwagen Bank/ restrictions or alternative fishing prac- Jeffreys Ledge Restricted Area unless tices in accordance with paragraph (i) that gear complies with the gear mark- of this section and the gear or prac- ing requirements specified in para- tices comply with those specifications, or unless the gear is stowed as specified graph (b) of this section, the universal in § 229.2. anchored gillnet gear requirements (iii) Area-specific gear or vessel require- specified in paragraph (d)(1) of this sec- ments. From July 1 through March 31 of tion, and the area-specific require- each year, no person or vessel may fish ments listed in paragraph (d)(2) of this with or possess anchored gillnet gear in section or unless the gear is stowed as the Great South Channel Restricted specified in § 229.2. Gillnet Area unless that gear complies (7) Other Northeast Gillnet Waters with the gear marking requirements Area—(i) Area. The Other Northeast specified in paragraph (b) of this sec- Gillnet Waters Area consists of all tion, the universal anchored gillnet state and Federal U.S. waters from the gear requirements specified in para- U.S./Canada border to Long Island, NY, graph (d)(1) of this section, and the at 72°30′ W. long. south to 36°33.03′ N. area-specific requirements listed in lat. and east to the eastern edge of the paragraph (d)(2) of this section or un- EEZ, with the exception of the Cape less the gear is stowed as specified in Cod Bay Restricted Area, Stellwagen § 229.2. Bank/Jeffreys Ledge Restricted Area, (5) Great South Channel Sliver Re- Great South Channel Restricted stricted Area—(i) Area. The Great South Gillnet Area, Great South Channel Channel Sliver Restricted Area con- Sliver Restricted Area, and exempted sists of the area bounded by lines con- waters listed in paragraph (a)(3) of this necting the following points: section. (ii) Year-round area-specific gear or Point N. lat. W. long. vessel requirements. No person or vessel GSCRA1 ...... 41°02.2′ 69°02′ may fish with or possess anchored GSCRA2 ...... 41°43.5′ 69°36.3′ gillnet gear in the Other Northeast GSCRA3 ...... 41°40′ 69°45′ GSCRA4 ...... 41°00′ 69°05′ Gillnet Waters Area that overlaps an area from the U.S./Canada border south (ii) Year-round area-specific gear or to a straight line from 41°18.2′ N. lat., vessel requirements. No person or vessel 71°51.5′ W. long. (Watch Hill Point, RI) may fish with or possess anchored south to 40°00′ N. lat. and then east to gillnet gear in the Great South Chan- the eastern edge of the EEZ, unless

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that gear complies with the gear mark- Waters Area overlaps the Southeast ing requirements specified in para- U.S. Restricted Area and its restricted graph (b) of this section, the universal period as specified in paragraphs (f)(1) anchored gillnet gear requirements and (f)(2) of this section, then the clo- specified in paragraph (d)(1) of this sec- sure and exemption for the Southeast tion, and the area-specific require- U.S. Restricted Area as specified in ments listed in paragraph (d)(2) of this paragraph (f)(2) of this section applies. section or unless the gear is stowed as (A) Buoy line weak links. All buoys, specified in § 229.2. flotation devices and/or weights (ex- (iii) Seasonal area-specific gear or ves- cept gillnets, anchors, and leadline sel requirements. From September 1 to woven into the buoy line), such as sur- May 31, no person or vessel may fish face buoys, high flyers, sub-surface with or possess anchored gillnet gear in buoys, toggles, window weights, etc., the Other Northeast Gillnet Waters must be attached to the buoy line with Area that is south of a straight line a weak link placed as close to each in- from 41°18.2′ N. lat., 71 °51.5′ W. long. dividual buoy, flotation device and/or (Watch Hill Point, RI) south to 40°00′ N. weight as operationally feasible and lat. and then east to the eastern edge that meets the following specifica- of the EEZ, unless that gear complies tions: with the gear marking requirements (1) The weak link must be chosen specified in paragraph (b) of this sec- from the following list approved by tion, the universal anchored gillnet NMFS: Swivels, plastic weak links, gear requirements specified in para- rope of appropriate breaking strength, graph (d)(1) of this section, and the hog rings, rope stapled to a buoy stick, area-specific requirements listed in or other materials or devices approved paragraph (d)(2) of this section or unin writing by the Assistant Adminis- less the gear is stowed as specified in trator. A brochure illustrating the § 229.2. techniques for making weak links is (8) Mid/South Atlantic Gillnet Waters— available from the Regional Adminis- (i) Area. The Mid/South Atlantic trator, NMFS, Greater Atlantic Region Gillnet Waters consists of all U.S. wa- upon request. ters bounded on the north from Long (2) The breaking strength of the weak Island, NY, at 72°30′ W. long. south to links must not exceed 1,100 lb (499.0 36°33.03′ N. lat. and east to the eastern kg). edge of the EEZ, and bounded on the (3) Weak links must break cleanly south by 32°00′ N. lat., and east to the leaving behind the bitter end of the eastern edge of the EEZ. When the Mid/ line. The bitter end of the line must be South Atlantic Gillnet Waters Area free of any knots when the weak link overlaps the Southeast U.S. Restricted breaks. Splices are not considered to be Area and its restricted period as speci- knots for the purposes of this provi- fied in paragraphs (f)(1) and (f)(2) of sion. this section, then the closure and ex- (B) Net panel weak links. The weak emption for the Southeast U.S. Re- link requirements apply to all vari- stricted Area as specified in paragraph ations in panel size. All net panels (f)(2) of this section applies. must contain weak links that meet the (ii) Area-specific gear or vessel require- following specifications unless exempt- ments. From September 1 through May ed under paragraph (a)(5) of this sec- 31, no person or vessel may fish with or tion: possess anchored gillnet gear in the (1) The breaking strength for each of Mid/South Atlantic Gillnet Waters un- the weak links must not exceed 1,100 lb less that gear complies with the gear (499.0 kg). marking requirements specified in (2) The weak link must be chosen paragraph (b) of this section, the uni- from the following list approved by versal anchored gillnet gear require- NMFS: Plastic weak links or rope of ments specified in paragraph (d)(1) of appropriate breaking strength. If rope this section, and the following area- of appropriate breaking strength is specific requirements, or unless the used throughout the floatline then in- gear is stowed as specified in § 229.2. dividual weak links are not required. A When the Mid/South Atlantic Gillnet brochure illustrating the techniques

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for making weak links is available fications found in paragraph from the Regional Administrator, (d)(2)(ii)(A) or (d)(2)(ii)(B) of this sec- NMFS, Greater Atlantic Region upon tion. request. (iv) Regardless of the number of net (3) Weak links must be placed in the panels, all anchored gillnets must be center of the floatline of each gillnet secured at the offshore end of the net net panel up to and including 50 fath- string with a burying anchor (an an- oms (300 ft or 91.4 m) in length, or at chor that holds to the ocean bottom least every 25 fathoms (150 ft or 45.7 m) through the use of a fluke, spade, plow, along the floatline for longer panels. or pick) having a holding capacity (C) Additional anchoring system and equal to or greater than an 8-lb (3.6-kg) net panel weak link requirements. All Danforth-style anchor, and at the gillnets must return to port with the inshore end of the net string with a vessel unless the gear meets the fol- dead weight equal to or greater than 31 lowing specifications: lb (14.1 kg). (1) Anchoring systems. All anchored (e) Restrictions applicable to drift gillnets, regardless of the number of gillnet gear—(1) Cape Cod Bay Restricted net panels, must be secured at each end Area—(i) Area. The Cape Cod Bay Re- of the net string with a burying anchor stricted Area is bounded by the fol- (an anchor that holds to the ocean bot- lowing points and on the south and tom through the use of a fluke, spade, east by the interior shoreline of Cape plow, or pick) having the holding ca- Cod, Massachusetts. pacity equal to or greater than a 22-lb (10.0-kg) Danforth-style anchor unless Point N. lat. W. long. exempted under paragraph (a)(5) of this CCB1 ...... 41°46.8′ 70°30′ section. Dead weights do not meet this CCB2 ...... 42°12′ 70°30′ requirement. A brochure illustrating CCB3 ...... 42°12′ 70°15′ the techniques for rigging anchoring CCB4 ...... 42°04.8′ 70°10′ systems is available from the Regional Administrator, NMFS, Greater Atlan- (ii) Closure. From January 1 through tic Region upon request. April 30 of each year, no person or ves- (2) Net panel weak links. Net panel sel may fish with or possess drift weak links must meet the specifica- gillnet gear in the Cape Cod Bay Re- tions in this paragraph. The breaking stricted Area unless the Assistant Ad- strength of each weak link must not ministrator specifies gear restrictions exceed 1,100 lb (499.0 kg). The weak link or alternative fishing practices in ac- requirements apply to all variations in cordance with paragraph (e)(1)(i) of panel size. All net panels in a string this section and the gear or practices must contain weak links that meet one comply with those specifications, or of the following two configurations unless the gear is stowed as specified in found in paragraph (d)(2)(ii)(A) or § 229.2. The Assistant Administrator (d)(2)(ii)(B) of this section. may waive this closure for the remain- (3) Additional provision for North Caro- ing portion of the winter restricted pe- lina. All gillnets set 300 yards (274.3 m) riod in any year through a notification or less from the shoreline in North in the FEDERAL REGISTER if NMFS de- Carolina must meet the anchoring sys- termines that right whales have left tem and net panel weak link require- the restricted area and are unlikely to ments in paragraphs (d)(8)(ii)(C)(1) and return for the remainder of the season. (d)(8)(ii)(C)(2) of this section, or the fol- (iii) Area-specific gear or vessel require- lowing: ments. From May 1 through December (i) The entire net string must be less 31 of each year, no person or vessel than 300 yards (274.3 m) from shore. may fish with or possess drift gillnet (ii) The breaking strength of each gear in the Cape Cod Bay Restricted weak link must not exceed 600 lb (272.2 Area unless that gear complies with kg). The weak link requirements apply the gear marking requirements speci- to all variations in panel size. fied in paragraph (b) of this section, or (iii) All net panels in a string must unless the gear is stowed as specified in contain weak links that meet one of § 229.2. Additionally, no person or vessel the following two configuration speci- may fish with or possess drift gillnet

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gear at night in the Cape Cod Bay Re- Point N. lat. W. long. stricted Area unless that gear is tend- ° ′ ° ′ ed, or unless the gear is stowed as spec- GSCRA1 ...... 41 02.2 69 02 GSCRA2 ...... 41°43.5′ 69°36.3′ ified in § 229.2. During that time, all GSCRA3 ...... 41°40′ 69°45′ drift gillnet gear set by that vessel in GSCRA4 ...... 41°00′ 69°05′ the Cape Cod Bay Restricted Area must be removed from the water and stowed (ii) Year-round area-specific gear or on board the vessel before a vessel re- vessel requirements. No person or vessel turns to port. may fish with or possess drift gillnet (2) Great South Channel Restricted gear in the Great South Channel Sliver Gillnet Area—(i) Area. The Great South Restricted Gillnet Area unless that Channel Restricted Gillnet Area con- gear complies with the gear marking sists of the area bounded by lines con- requirements specified in paragraph (b) necting the following four points: of this section, or unless the gear is stowed as specified in § 229.2. Addition- Point N. Lat. W. Long. ally, no person or vessel may fish with or possess drift gillnet gear at night in GSC1 ...... 41°02.2′ 69°02′ GSC2 ...... 41°43.5′ 69°36.3′ the Great South Channel Sliver Re- GSC3 ...... 42°10′ 68°31′ stricted Area unless that gear is tend- GSC4 ...... 41°38′ 68°13′ ed, or unless the gear is stowed as specified in § 229.2. During that time, all (ii) Closure. From April 1 through drift gillnet gear set by that vessel in June 30 of each year, no person or ves- the Great South Channel Sliver Re- sel may set, fish with or possess drift stricted Area must be removed from gillnet gear in the Great South Chan- the water and stowed on board the ves- nel Restricted Gillnet Area unless the sel before a vessel returns to port. Assistant Administrator specifies gear (4) Stellwagen Bank/Jeffreys Ledge Re- restrictions or alternative fishing prac- stricted Area—(i) Area. The Stellwagen tices in accordance with paragraph (i) Bank/Jeffreys Ledge Restricted Area of this section and the gear or prac- includes all Federal waters of the Gulf tices comply with those specifications, of Maine, except those designated the or unless the gear is stowed as specified Cape Cod Bay Restricted Area in para- in § 229.2. graph (e)(1), that lie south of 43°15′ N. (iii) Area-specific gear or vessel require- lat. and west of 70°00′ W. long. ments. From July 1 through March 31 of (ii) Year-round area-specific gear or each year, no person or vessel may fish vessel requirements. No person or vessel with or possess drift gillnet gear in the may fish with or possess drift gillnet Great South Channel Restricted gear in the Stellwagen Bank/Jeffreys Gillnet Area unless that gear complies Ledge Restricted Area unless that gear with the gear marking requirements complies with the gear marking re- specified in paragraph (b) of this sec- quirements specified in paragraph (b) tion, or unless the gear is stowed as of this section, or unless the gear is specified in § 229.2. Additionally, no per- stowed as specified in § 229.2. Addition- son or vessel may fish with or possess ally, no person or vessel may fish with drift gillnet gear at night in the Great or possess drift gillnet gear at night in South Channel Restricted Gillnet Area the Stellwagen Bank/Jeffreys Ledge unless that gear is tended, or unless Area unless that gear is tended, or un- the gear is stowed as specified in § 229.2. less the gear is stowed as specified in During that time, all drift gillnet gear § 229.2. During that time, all drift set by that vessel in the Great South gillnet gear set by that vessel in the Channel Restricted Gillnet Area must Stellwagen Bank/Jeffreys Ledge Re- be removed from the water and stowed stricted Area must be removed from on board the vessel before a vessel re- the water and stowed on board the ves- turns to port. sel before a vessel returns to port. (3) Great South Channel Sliver Re- (5) Other Northeast Gillnet Waters stricted Area—(i) Area. The Great South Area—(i) Area. The Other Northeast Channel Sliver Restricted Area con- Gillnet Waters Area consists of all sists of the area bounded by lines con- state and Federal U.S. waters from the necting the following points: U.S./Canada border to Long Island, NY,

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at 72°30′ W. long. south to 36°33.03′ N. 36°33.03′ N. lat. and east to the eastern lat. and east to the eastern edge of the edge of the EEZ, and bounded on the EEZ, with the exception of the Cape south by 32°00′ N. lat., and east to the Cod Bay Restricted Area, Stellwagen eastern edge of the EEZ. When the Mid/ Bank/Jeffreys Ledge Restricted Area, South Atlantic Gillnet Waters Area Great South Channel Restricted overlaps the Southeast U.S. Restricted Gillnet Area, Great South Channel Area and its restricted period as speci- Sliver Restricted Area, and exempted fied in paragraphs (f)(1) and (f)(2) of waters listed in paragraph (a)(3) of this this section, then the closure and ex- section. emption for the Southeast U.S. Re- (ii) Year-round area-specific gear or stricted Area as specified in paragraph vessel requirements. No person or vessel (f)(2) of this section applies. may fish with or possess drift gillnet (ii) Area-specific gear or vessel require- gear in the Other Northeast Gillnet ments. From September 1 through May Waters Area unless that gear complies 31, no person or vessel may fish with or with the gear marking requirements possess drift gillnet gear at night in specified in paragraph (b) of this sec- the Mid/South Atlantic Gillnet Waters tion, or unless the gear is stowed as Area unless: specified in § 229.2. Additionally, no per- (A) The gear complies with gear son or vessel may fish with or possess marking requirements specified in drift gillnet gear at night in the Other paragraph (b) of this section; Northeast Gillnet Waters Area unless (B) The gear is tended; and that gear is tended, or unless the gear (C) All gear is removed from the is stowed as specified in § 229.2. During water and stowed on board the vessel that time, all drift gillnet gear set by before a vessel returns to port. No per- that vessel in the Other Northeast son or vessel may possess drift gillnet Gillnet Waters Area must be removed at night in the Mid/South Atlantic from the water and stowed on board Gillnet Waters unless the gear is the vessel before a vessel returns to stowed as specified in § 229.2. When the port. Mid/South Atlantic Gillnet Waters (iii) Seasonal area-specific gear or ves- Area overlaps the Southeast U.S. Re- sel requirements. From September 1 to stricted Area and its restricted period May 31, no person or vessel may fish as specified in paragraphs (f)(1) and with or possess drift gillnet gear in the (f)(2) of this section, then the closure Other Northeast Gillnet Waters Area and exemption for the Southeast U.S. that is south of a straight line from Restricted Area as specified in para- 41°18.2′ N. lat., 71°51.5′ W. long. (Watch graph (f)(2) of this section applies. Hill Point, RI) south to 40°00′ N. lat. (f) Restrictions applicable to the South- and then east to the eastern edge of the east U.S. Restricted Area—(1) Area. The EEZ, unless that gear complies with Southeast U.S. Restricted Area con- the gear marking requirements speci- sists of the area bounded by straight fied in paragraph (b) of this section, or lines connecting the following points in unless the gear is stowed as specified in the order stated from south to north: § 229.2. Additionally, no person or vessel may fish with or possess drift gillnet Point N. lat. W. long. gear at night in the Other Northeast SERA1 ...... 27°51′ (1) Gillnet Waters Area unless that gear is SERA2 ...... 27°51′ 80°00′ tended, or unless the gear is stowed as SERA3 ...... 32°00′ 80°00′ SERA4 ...... 32°36′ 78°52′ specified in § 229.2. During that time, SERA5 ...... 32°51′ 78°36′ all drift gillnet gear set by that vessel SERA6 ...... 33°15′ 78°24′ in the Other Northeast Gillnet Waters SERA7 ...... 33°27′ 78°04′ Area must be removed from the water SERA8 ...... (2) 78°33.9′ and stowed on board the vessel before a 1 Florida shoreline. 2 vessel returns to port. South Carolina shoreline. (6) Mid/South Atlantic Gillnet Waters (i) Southeast U.S. Restricted Area N. Area—(i) Area. The Mid/South Atlantic The Southeast U.S. Restricted Area N Gillnet Waters consists of all U.S. wa- consists of the Southeast U.S. Re- ters bounded on the north from Long stricted Area from 29°00′ N. lat. north- Island, NY at 72°30′ W. long. south to ward.

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(ii) Southeast U.S. Restricted Area S. City, FL, not less than 48 hours prior The Southeast U.S. Restricted Area S to departing on any fishing trip in consists of the Southeast U.S. Re- order to arrange for observer coverage. stricted Area southward of 29°00′ N. lat. If the Panama City Laboratory re- (2) Restricted periods, closure, and ex- quests that an observer be taken on emptions—(i) Restricted periods. The re- board a vessel during a fishing trip at stricted period for the Southeast U.S. any time from December 1 through Restricted Area N is from November 15 March 31 south of 29°00′ N. lat., no per- through April 15, and the restricted pe- son may fish with such gillnet aboard riod for the Southeast U.S. Restricted that vessel in the Southeast U.S. Re- Area S is from December 1 through stricted Area S unless an observer is on March 31. board that vessel during the trip. (ii) Closure for gillnets. (A) Except as (iv) Exemption for Spanish Mackerel provided under paragraph (f)(2)(v) of component of the Southeast Atlantic this section, fishing with or possessing gillnet fishery. Fishing with gillnet for gillnet in the Southeast U.S. Re- Spanish mackerel is exempt from the stricted Area N during the restricted restrictions under paragraph period is prohibited. (f)(2)(ii)(B) of this section from Decem- (B) Except as provided under para- ber 1 through December 31, and from graph (f)(2)(iii) of this section and March 1 through March 31 if: (f)(2)(iv) of this section, fishing with (A) Gillnet mesh size is between 3.5 gillnet in the Southeast U.S. Re- inches (8.9 cm) and 47⁄8 inches (12.4 cm) stricted Area S during the restricted stretched mesh; period is prohibited. (B) A valid commercial vessel permit (iii) Exemption for Southeastern U.S. for Spanish mackerel has been issued Atlantic shark gillnet fishery. Fishing to the vessel in accordance with with gillnet for sharks with webbing of § 622.4(a)(2)(iv) of this title and is on 5 inches (12.7 cm) or greater stretched board; mesh is exempt from the restrictions (C) No person may fish with, set, under paragraph (f)(2)(ii)(B) of this sec- place in the water, or have on board a tion if: vessel a gillnet with a float line longer (A) The gillnet is deployed so that it than 800 yards (2,400 ft, 732 m); encloses an area of water; (D) No person may fish with, set, or (B) A valid commercial directed place in the water more than one shark limited access permit has been gillnet at any time; issued to the vessel in accordance with (E) No more than two gillnets, in- 50 CFR § 635.4(e) and is on board; cluding any net in use, may be pos- (C) No net is set at night or when vis- sessed at any one time; provided, how- ibility is less than 500 yards (1,500 ft, ever, that if two gillnets, including any 460 m); net in use, are possessed at any one (D) The gillnet is removed from the time, they must have stretched mesh water before night or immediately if sizes (as allowed under the regulations) visibility decreases below 500 yards that differ by at least .25 inch (.64 cm); (1,500 ft, 460 m); (F) No person may soak a gillnet for (E) Each set is made under the obser- more than 1 hour. The soak period be- vation of a spotter plane; gins when the first mesh is placed in (F) No gillnet is set within 3 nautical the water and ends either when the miles (5.6 km) of a right, humpback, or first mesh is retrieved back on board fin whale; the vessel or the gathering of the (G) The gillnet is removed imme- gillnet is begun to facilitate retrieval diately from the water if a right, on board the vessel, whichever occurs humpback, or fin whale moves within 3 first; providing that, once the first nautical miles (5.6 km) of the set gear; mesh is retrieved or the gathering is (H) The gear complies with the gear begun, the retrieval is continuous until marking requirements specified in the gillnet is completely removed from paragraph (b) of this section; and the water; (I) The operator of the vessel calls (G) No net is set at night or when vis- the Southeast Fisheries Science Center ibility is less than 500 yards (1,500 ft, Panama City Laboratory in Panama 460 m);

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(H) The gillnet is removed from the (E) The buoy line is made of sinking water before night or immediately if line; visibility decreases below 500 yards (F) The gear complies with gear (1,500 ft, 460 m); marking requirements as specified in (I) No net is set within 3 nautical paragraph (b) of this section; and miles (5.6 km) of a right, humpback, or (G) Trap/pot gear that is deployed in fin whale; the EEZ (as defined in § 600.10 of this (J) The gillnet is removed imme- title) is brought back to port at the diately from the water if a right, conclusion of each fishing trip. humpback, or fin whale moves within 3 (g) Restrictions applicable to the Other nautical miles (5.6 km) of the set gear; Southeast Gillnet Waters—(1) Area. The and Other Southeast Gillnet Waters Area ° ′ (K) The gear complies with the gear includes all waters bounded by 32 00 N. marking requirements specified in lat. on the north (near Savannah, GA), ° ′ paragraph (b) of this section, the uni- 26 46.50 N. lat. on the south (near West ° ′ versal anchored gillnet gear require- Palm Beach, FL), 80 00 W. long. on the ments specified in paragraph (d)(1) of west, and the EEZ boundary on the this section, and the area-specific re- east. quirements for anchored gillnets speci- (2) Closure for gillnets. Fishing with or fied in paragraphs (d)(8)(ii)(A) through possessing gillnet gear in the Other Southeast Gillnet Waters Area north of (d)(8)(ii)(D) of this section for the Mid/ 29°00′ N. lat. from November 15 through South Atlantic Gillnet Waters. April 15 or south of 29°00′ N. lat. from (v) Exemption for vessels in transit with December 1 through March 31 is al- Possession of gillnet gillnet aboard. lowed if one of the following exemp- aboard a vessel in transit is exempt tions applies: from the restrictions under paragraph (i) Exemption for Southeastern U.S. At- (f)(2)(ii)(A) of this section if: All nets lantic shark gillnet fishery. Fishing with are covered with canvas or other simi- or possessing gillnet gear with webbing lar material and lashed or otherwise of 5 inches (12.7 cm) or greater securely fastened to the deck, rail, or stretched mesh is allowed if: drum; and all buoys, high flyers, and (A) The gear is marked as required in anchors are disconnected from all paragraph (b) of this section. gillnets. No fish may be possessed (B) No net is set within 3 nautical aboard such a vessel in transit. miles (5.6 km) of a right, humpback, or (vi) Restrictions for trap/pot gear. Fish- fin whale; and ing with trap/pot gear in the Southeast (C) The gear is removed immediately U.S. Restricted Area N during the re- from the water if a right, humpback, or stricted period is allowed if: fin whale moves within 3 nautical (A) Trap/pot gear is not fished in a miles (5.6 km) of the set gear. trap/pot trawl; (ii) Exemption for Southeast Atlantic (B) All buoys or flotation devices are gillnet fishery. Fishing with or pos- attached to the buoy line with a weak sessing gillnet gear is allowed if: link that meets the requirements of (A) The gear is marked as required in paragraph (c)(2)(ii) of this section. The paragraph (b) of this section; or weak link has a maximum breaking (B) The gear is fished south of 27°51′ strength of 600 lbs (272 kg) except in N. Florida State waters where the max- (iii) Exemption for vessels in transit imum breaking strength is 200 lbs with gillnet aboard. Possession of gillnet (91kg); gear aboard a vessel in transit is al- (C) The buoy line has a maximum lowed if: breaking strength of 2,200 lbs (998 kg) (A) All nets are covered with canvas except in Florida State waters where or other similar material and securely the maximum breaking strength is fastened to the deck, rail, or drum; and 1,500 lbs (630 kg); (B) All buoys, high flyers, and an- (D) The entire buoy line must be free chors are disconnected from all of objects (e.g., weights, floats, etc.) ex- gillnets. cept where it attaches to the buoy and (h) Restrictions applicable to the South- trap/pot; east U.S. Monitoring Area—(1) Area. The

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Southeast U.S. Monitoring Area con- (i.e., trap/pot or gillnet) for the rest of sists of the area from 27°51′ N. lat. (near that time period and for that same Sebastian Inlet, FL) south to 26°46.50′ time period in each subsequent year, N. lat. (near West Palm Beach, FL), ex- unless the Assistant Administrator re- tending from the shoreline or exemp- vises the restricted period in accord- tion line out to 80°00′ W. long. ance with paragraph (i)(2) of this sec- (2) Restrictions for Southeastern U.S. tion or unless other measures are im- Atlantic shark gillnet fishery. Fishing plemented under paragraph (i)(2) of with or possessing gillnet gear with this section. webbing of 5 inches (12.7 cm) or greater (2) Other special measures. The Assist- stretched mesh from December 1 ant Administrator may, in consulta- through March 31 is allowed if: tion with the Take Reduction Team, (i) The gear complies with the gear revise the requirements of this section marking requirements specified in through a publication in the FEDERAL paragraph (b) of this section; REGISTER if: (ii) The vessel owner/operator is in (i) NMFS verifies that certain gear compliance with the vessel monitoring characteristics are both operationally system (VMS) requirements found in 50 effective and reduce serious injuries CFR 635.69; and and mortalities of endangered whales; (iii) The vessel owner/operator and (ii) New gear technology is developed crew are in compliance with observer and determined to be appropriate; requirements found in § 229.7. (iii) Revised breaking strengths are (3) Restrictions for Southeastern U.S. determined to be appropriate; Atlantic shark gillnet fishery vessels in (iv) New marking systems are devel- transit. Possession of gillnet gear with oped and determined to be appropriate; webbing of 5 inches (12.7 cm) or greater (v) NMFS determines that right stretched mesh aboard a vessel in tran- whales are remaining longer than ex- sit from December 1 through March 31 pected in a closed area or have left ear- is allowed if: lier than expected; (i) All gear is stowed as specified in (vi) NMFS determines that the 50 CFR 229.2; and boundaries of a closed area are not ap- (ii) The vessel owner/operator is in propriate; compliance with the vessel monitoring (vii) Gear testing operations are con- system (VMS) requirements found in 50 sidered appropriate; or CFR 635.69. (viii) Similar situations occur. (i) Other provisions. In addition to any [79 FR 36610, June 27, 2014; 79 FR 49718, Aug. other emergency authority under the 22, 2014, as amended at 79 FR 73852, Dec. 12, Marine Mammal Protection Act, the 2014; 80 FR 30375, May 28, 2015] Endangered Species Act, the Magnu- son-Stevens Fishery Conservation and § 229.33 Harbor Porpoise Take Reduc- Management Act, or other appropriate tion Plan Regulations—New Eng- authority, the Assistant Administrator land. may take action under this section in (a) Restrictions—(1) Northeast Closure the following situations: Area—(i) Area restrictions. From August (1) Entanglements in critical habitat or 15 through September 13, it is prohib- restricted areas. If a serious injury or ited to fish with, set, haul back, pos- mortality of a right whale occurs in sess on board a vessel unless stowed in the Cape Cod Bay Restricted Area from accordance with § 229.2, or fail to re- January 1 through May 15, in the Great move sink gillnet gear or gillnet gear South Channel Restricted Area from capable of catching multispecies from April 1 through June 30, the Southeast the Northeast Closure Area. This re- U.S. Restricted Area N from November striction does not apply to vessels fish- 15 to April 15, or the Southeast U.S. ing with a single pelagic gillnet (as de- Restricted Area S from December 1 scribed and used as set forth in through March 31 as the result of an § 648.81(f)(2)(ii) of this title). entanglement by trap/pot or gillnet (ii) Area boundaries. The Northeast gear allowed to be used in those areas Closure Area is bounded by straight and times, the Assistant Administrator lines connecting the following points in shall close that area to that gear type the order stated:

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NORTHEAST CLOSURE AREA board a vessel unless stowed in accordance with § 229.2, or fail to remove sink Point N. Lat. W. Long. gillnet gear or gillnet gear capable of NE1 ...... 44°27.3′ ...... 68°55.0′ (ME catching multispecies from the Massa- shoreline) chusetts Bay Management Area. These NE2 ...... 43°29.6′ ...... 68°55.0′ restrictions do not apply to vessels NE3 ...... 44°04.4′ ...... 67°48.7′ NE4 ...... 44°06.9′ ...... 67°52.8′ fishing with a single pelagic gillnet (as NE5 ...... 44°31.2′ ...... 67°02.7′ described in § 648.81(f)(2)(ii) of this NE6 ...... 44°45.8′ ...... 67°02.7′ (ME title). shoreline) (ii) Area boundaries. The Massachu- (2) Mid-Coast Management Area—(i) setts Bay Management Area is bounded Area restrictions. From September 15 by straight lines connecting the fol- through May 31, it is prohibited to fish lowing points in the order stated: with, set, haul back, possess on board a MASSACHUSETTS BAY MANAGEMENT AREA vessel unless stowed in accordance with § 229.2, or fail to remove sink Point N. Lat. W. Long. gillnet gear or gillnet gear capable of MB1 ...... 42°30.0′ ...... 70°50.1′ (MA catching multispecies from the Mid- shoreline) Coast Management Area, unless the MB2 ...... 42°30.0′ ...... 70°30.0′ gillnet gear is equipped with pingers in MB3 ...... 42°15.0′ ...... 70°30.0′ MB4 ...... 42°15.0′ ...... 70°00.0′ accordance with paragraphs (b) and (c) MB5 ...... 42°00.0′ ...... 70°00.0′ of this section. This prohibition does MB6 ...... 42°00.0′ ...... 70°01.2′ (MA not apply to vessels fishing with a sin- shoreline) MB7 ...... 42°00.0′ ...... 70°04.8′ (MA gle pelagic gillnet (as described and shoreline) used as set forth in § 648.81(f)(2)(ii) of MB8 ...... 42°00.0′ ...... 70°42.2′ (MA this title). shoreline) (ii) Area boundaries. The Mid-Coast Management Area is the area bounded (4) Stellwagen Bank Management by straight lines connecting the fol- Area—(i) Area restrictions. From Novem- lowing points in the order stated: ber 1 through May 31, it is prohibited to fish with, set, haul back, possess on MID-COAST MANAGEMENT AREA board a vessel unless stowed in accordance with § 229.2, or fail to remove sink Point N. Lat. W. Long. gillnet gear or gillnet gear capable of MC1 ...... 42°30.0′ ...... 70°50.1′ (MA catching multispecies from the shoreline) Stellwagen Bank Management Area, MC2 ...... 42°30.0′ ...... 70°15.0′ unless the gillnet gear is equipped with MC3 ...... 42°40.0′ ...... 70°15.0′ MC4 ...... 42°40.0′ ...... 70°00.0′ pingers in accordance with paragraphs MC5 ...... 43°00.0′ ...... 70°00.0′ (b) and (c) of this section. This restric- MC6 ...... 43°00.0′ ...... 69°30.0′ tion does not apply to vessels fishing MC7 ...... 43°30.0′ ...... 69°30.0′ MC8 ...... 43°30.0′ ...... 69°00.0′ with a single pelagic gillnet (as de- MC9 ...... 44°17.8′ ...... 69°00.0′ (ME scribed in § 648.81(f)(2)(ii) of this title). shoreline) (ii) Area boundaries. The Stellwagen Bank Management Area is bounded by (3) Massachusetts Bay Management straight lines connecting the following Area—(i) Area restrictions. From Novem- points in the order stated: ber 1 through February 28/29 and from April 1 through May 31, it is prohibited STELLWAGEN BANK MANAGEMENT AREA to fish with, set, haul back, possess on board a vessel unless stowed in accord- Point N. Lat. W. Long. ance with § 229.2, or fail to remove sink SB1 ...... 42°30.0′ ...... 70°30.0′ gillnet gear or gillnet gear capable of SB2 ...... 42°30.0′ ...... 70°15.0′ SB3 ...... 42°15.0′ ...... 70°15.0′ catching multispecies from the Massa- SB4 ...... 42°15.0′ ...... 70°30.0′ chusetts Bay Management Area, unless SB1 ...... 42°30.0′ ...... 70°30.0′ the gillnet gear is equipped with pingers in accordance with paragraphs (5) Southern New England Management (b) and (c) of this section. From March Area—(i) Area restrictions. From Decem- 1 through March 31, it is prohibited to ber 1 through May 31, it is prohibited fish with, set, haul back, possess on to fish with, set, haul back, possess on

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board a vessel unless stowed in accord- (7) Offshore Management Area—(i) ance with § 229.2, or fail to remove sink Area restrictions. From November 1 gillnet gear or gillnet gear capable of through May 31, it is prohibited to fish catching multispecies from the South- with, set, haul back, possess on board a ern New England Management Area, vessel unless stowed in accordance unless the gillnet gear is equipped with with § 229.2, or fail to remove sink pingers in accordance with paragraphs gillnet gear or gillnet gear capable of (b) and (c) of this section. This prohibi- catching multispecies from the Off- tion does not apply to vessels fishing shore Management Area, unless the with a single pelagic gillnet (as de- gillnet gear is equipped with pingers in scribed in § 648.81(f)(2)(ii) of this title). accordance with paragraphs (b) and (c) (ii) Area boundaries. The Southern of this section. This restriction does New England Management Area is not apply to vessels fishing with a sin- bounded by straight lines connecting gle pelagic gillnet (as described in the following points in the order stat- § 648.81(f)(2)(ii) of this title). ed: (ii) Area boundaries. The Offshore Management Area is bounded by SOUTHERN NEW ENGLAND MANAGEMENT AREA straight lines connecting the following points in the order stated: Point N. Lat. W. Long.

SNE1 ...... Western boundary as specified 1. OFFSHORE MANAGEMENT AREA SNE2 ...... 40°00.0′ ...... 72°30.0′ SNE3 ...... 40°00.0′ ...... 69°30.0′ Point N. Lat. W. Long. SNE4 ...... 42°15.0′ ...... 69°30.0′ ° ′ ° ′ SNE5 ...... 42°15.0′ ...... 70°00.0′ OFS1 ...... 42 50.0 ...... 69 30.0 ° ′ ° ′ SNE6 ...... 41°58.3′ ...... 70°00.0′ (MA OFS2 ...... 43 10.0 ...... 69 10.0 ° ′ ° ′ shoreline) OFS3 ...... 43 10.0 ...... 67 40.0 OFS4 ...... 43°05.8′ ...... 67°40.0′ (EEZ bound- 1 Bounded on the west by a line running from the Rhode Is- ary) ° ′ ° ′ land shoreline at 41 18.2 N. lat. and 71 51.5 W. long. OFS5 ...... 42°53.1′ ...... 67°44.5′ (EEZ bound- (Watch Hill, RI), southwesterly through Fishers Island, NY, to Race Point, Fishers Island, NY; and from Race Point, Fishers ary) Island, NY; southeasterly to the intersection of the 3-nautical OFS6 ...... 42°47.3′ ...... 67°40.0′ (EEZ bound- mile line east of Montauk Point; southwesterly along the 3- ary) nautical mile line to the intersection of 72°30.0′ W. long. OFS7 ...... 42°10.0′ ...... 67°40.0′ OFS8 ...... 42°10.0′ ...... 69°30.0′ (6) Cape Cod South Closure Area—(i) OFS1 ...... 42°50.0′ ...... 69°30.0′ Area restrictions. From March 1 through March 31, it is prohibited to fish with, (8) Cashes Ledge Closure Area—(i) Area set, haul back, possess on board a ves- restrictions. During the month of Feb- sel unless stowed in accordance with ruary, it is prohibited to fish with, set, § 229.2, or fail to remove sink gillnet haul back, possess on board a vessel gear or gillnet gear capable of catching unless stowed in accordance with multispecies from the Cape Cod South § 229.2, or fail to remove sink gillnet Closure Area. This prohibition does not gear or gillnet gear capable of catching apply to vessels fishing with a single multispecies from the Cashes Ledge pelagic gillnet (as described in Closure Area. This restriction does not § 648.81(f)(2)(ii) of this title). apply to vessels fishing with a single (ii) Area boundaries. The Cape Cod pelagic gillnet (as described in South Closure Area is bounded by § 648.81(f)(2)(ii) of this title). straight lines connecting the following (ii) Area boundaries. The Cashes points in the order stated: Ledge Closure Area is bounded by straight lines connecting the following CAPE COD SOUTH CLOSURE AREA points in the order stated: Point N. Lat. W. Long. CASHES LEDGE CLOSURE AREA CCS1 ...... 41°19.6′ ...... 71°45.0′ (RI shoreline) Point N. Lat. W. Long. CCS2 ...... 40°40.0′ ...... 71°45.0′ CCS3 ...... 40°40.0′ ...... 70°30.0′ CL1 ...... 42°30.0′ ...... 69°00.0′ CCS4 ...... 41°20.9′ ...... 70°30.0′ CL2 ...... 42°30.0′ ...... 68°30.0′ CCS5 ...... 41°23.1′ ...... 70°30.0′ CL3 ...... 43°00.0′ ...... 68°30.0′ CCS6 ...... 41°33.1′ ...... 70°30.0′ (MA CL4 ...... 43°00.0′ ...... 69°00.0′ shoreline) CL1 ...... 42°30.0′ ...... 69°00.0′

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(b) Pingers—(1) Pinger specifications. § 229.34 Harbor Porpoise Take Reduc- For the purposes of this subpart, a tion Plan Regulations—Mid-Atlan- pinger is an acoustic deterrent device tic. which, when immersed in water, broad- (a)(1) Regulated waters. The regula- casts a 10 kHz (plus or minus 2 kHz) tions in this section apply to all waters sound at 132 dB (plus or minus 4 dB) re in the Mid-Atlantic bounded on the 1 micropascal at 1 m, lasting 300 milli- east by 72°30′ W. long. at the southern seconds (plus or minus 15 milliseconds), coast of Long Island, NY at 40°50.1′ N. and repeating every 4 seconds (plus or lat. and on the south by the NC/SC bor- minus 0.2 seconds). der (33°51.1′ N. lat.), except for the (2) Pinger attachment. An operating areas exempted in paragraph (a)(2) of and functional pinger must be attached this section. at each end of a string of gillnets and (2) Exempted waters. The regulations at the bridle of every net, or every 300 within this section are not applicable feet (91.4 m or 50 fathoms), whichever is to waters landward of the first bridge closer. over any embayment, harbor, or inlet, (c) Pinger training and authorization. or to waters landward of the following The operator of a vessel may not fish lines: with, set, haul back, possess on board a New York vessel unless stowed in accordance 40°45.70′ N., 72°45.15′ W. to 40°45.72′ N., with § 229.2, or fail to remove sink 72°45.30′ W. (Moriches Bay Inlet) gillnet gear or gillnet gear capable of 40°37.32′ N., 73°18.40′ W. to 40°38.00′ N., catching multispecies in closed areas 73°18.56′ W. (Fire Island Inlet) where pingers are required as specified 40°34.40′ N., 73°34.55′ W. to 40°35.08′ N., under paragraph (b) of this section, un- 73°35.22′ W. (Jones Inlet) less the operator has satisfactorily re- New Jersey/Delaware ceived pinger training and possesses 39°45.90′ N., 74°05.90′ W. to 39°45.15′ N., and retains on board the vessel a valid 74°06.20′ W. (Barnegat Inlet) pinger training authorization issued by 39°30.70′ N., 74°16.70′ W. to 39°26.30′ N., NMFS. 74°19.75′ W. (Beach Haven to Brigan- (d) [Reserved] tine Inlet) (e) Research permits. An exemption to 38°56.20′ N., 74°51.70′ W. to 38°56.20′ N., the requirements set forth in this sec- 74°51.90′ W. (Cape May Inlet) tion may be acquired for the purposes All marine and tidal waters landward of conducting scientific or gear re- of the 72 COLREGS demarcation line search within the restricted areas de- (International Regulations for Pre- scribed in this section. A scientific re- venting Collisions at Sea, 1972), as de- search permit must be acquired picted or noted on nautical charts pub- through NMFS’s existing permit appli- lished by NOAA (Coast Charts 1:80,000 cation process, administered by NMFS. scale), and as described in 33 CFR part (f) Other special measures. The Assist- 80. (Delaware Bay) ant Administrator may, after consulta- Maryland/Virginia tion with the Take Reduction Team, 38°19.48′ N., 75°05.10′ W. to 38°19.35′ N., revise the requirements of this section 75°05.25′ W. (Ocean City Inlet) through notification published in the All marine and tidal waters landward FEDERAL REGISTER if: of the 72 COLREGS demarcation line (1) NMFS determines that pinger op- (International Regulations for Pre- erating effectiveness in the commercial venting Collisions at Sea, 1972), as de- fishery is inadequate to reduce bycatch picted or noted on nautical charts pub- below the stock’s PBR level. lished by NOAA (Coast Charts 1:80,000 (2) NMFS determines that the bound- scale), and as described in 33 CFR part ary or timing of a closed area is inap- 80. (Chincoteague to Ship Shoal Inlet) propriate, or that gear modifications 37°11.10′ N., 75°49.30′ W. to 37°10.65′ N., (including pingers) are not reducing by- 75°49.60′ W. (Little Inlet) catch to below the PBR level. 37°07.00′ N., 75°53.75′ W. to 37°05.30′ N., ° ′ [75 FR 7396, Feb. 19, 2010, as amended at 78 75 56. W. (Smith Island Inlet) FR 61826, Oct. 4, 2013] North Carolina

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All marine and tidal waters landward (C) Size of nets. Individual nets or net of the 72 COLREGS demarcation line panels are not more than 300 ft (91.44 m (International Regulations for Pre- or 50 fathoms) in length. venting Collisions at Sea, 1972), as de- (D) Number of nets. The total number picted or noted on nautical charts pub- of individual nets or net panels for a lished by NOAA (Coast Charts 1:80,000 vessel, including all nets on board the scale), and as described in 33 CFR part vessel, hauled by the vessel, or de- 80. ployed by the vessel, does not exceed (b) Restrictions—(1) Waters off New Jer- 80. sey Management Area. The Waters off (E) Number of nets per string. The New Jersey Management Area is total number of nets or net panels in a bounded by straight lines connecting net string does not exceed 16. the following points in the order stat- (F) Tie-down system. The gillnet gear ed: is equipped with tie-downs spaced not more than 24 ft (7.3 m) apart along the WATERS OFF NEW JERSEY MANAGEMENT AREA floatline, and each tie-down is not more than 48 inches (18.90 cm) in length Point N. Lat. W. Long. from the point where it connects to the WNJ1 ...... 40°50.1′ ...... 72°30.0′ (NY floatline to the point where it connects shoreline) to the lead line. WNJ2 ...... 38°47.0′ ...... 72°30.0′ WNJ3 ...... 38°47.0′ ...... 75°05.0′ (DE (iii) Gear limitations and require- shoreline) ments—small mesh gillnet gear. From January 1 through April 30, no person (i) Closure. From April 1 through may fish with, set, haul back, possess April 20, it is prohibited to fish with, on board a vessel unless stowed in ac- set, haul back, possess on board a ves- cordance with § 229.2, or fail to remove sel unless stowed in accordance with any small mesh gillnet gear in the Wa- § 229.2, or fail to remove any large mesh ters off New Jersey Management Area gillnet gear from the Waters off New unless the gear complies with the spec- Jersey Management Area. ified gear characteristics described in (ii) Gear limitations and requirements— paragraphs (b)(1)(iii)(A) through (F) of large mesh gillnet gear. From January 1 this section. During this period, no ves- through April 30, except during April 1 sel may enter or remain in the Waters through April 20, as described in para- off New Jersey Management Area with graph (b)(1)(i) of this section, no person small mesh gillnet gear on board, un- may fish with, set, haul back, possess less the gear complies with the speci- on board a vessel unless stowed in ac- fied gear characteristics described in cordance with § 229.2, or fail to remove paragraphs (b)(1)(iii)(A) through (F) of any large mesh gillnet gear in the Wa- this section, or is stowed in accordance ters off New Jersey Management Area, with § 229.2. In order to comply with unless the gear complies with the spec- these specified gear characteristics, ified gear characteristics described in the gear must have all the following paragraphs (b)(1)(ii)(A) through (F) of characteristics: this section. During this period, no ves- (A) Floatline length. The floatline is sel may enter or remain in the Waters not more than 3,000 ft (914.4 m) in off New Jersey Management Area with length. large mesh gillnet gear on board, un- (B) Twine size. The twine is at least less the gear complies with the speci- 0.031 inches (0.81 mm) in diameter. fied gear characteristics described in (C) Size of nets. Individual nets or net paragraphs (b)(1)(ii)(A) through (F) of panels are not more than 300 ft (91.4 m this section, or is stowed in accordance or 50 fathoms) in length. with § 229.2. In order to comply with (D) Number of nets. The total number these specified gear characteristics, of individual nets or net panels for a the gear must have all the following vessel, including all nets on board the characteristics: vessel, hauled by the vessel or deployed (A) Floatline length. The floatline is by the vessel, does not exceed 45. not more than 4,800 ft (1,463.0 m). (E) Number of nets per string. The (B) Twine size. The twine is at least total number of nets or net panels in a 0.035 inches (0.90 mm) in diameter. net string does not exceed 10.

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(F) Tie-down system. Tie-downs are (B) Twine size. The twine is at least prohibited. 0.035 inches (0.90 mm) in diameter. (2) Mudhole North Management Area. (C) Size of nets. Individual nets or net The Mudhole North Management Area panels are not more than 300 ft (91.44 m is bounded by straight lines connecting or 50 fathoms) in length. the following points in the order stat- (D) Number of nets. The total number ed: of individual nets or net panels for a vessel, including all nets on board the MUDHOLE NORTH MANAGEMENT AREA vessel, hauled by the vessel or deployed by the vessel, does not exceed 80. Point N. Lat. W. Long. (E) Number of nets per string. The MN1 ...... 40°28.1′ ...... 74°00.0′ (NJ total number of nets or net panels in a shoreline) net string does not exceed 13. MN2 ...... 40°30.0′ ...... 74°00.0′ (F) Tie-down system. The gillnet gear MN3 ...... 40°30.0′ ...... 73°20.0′ MN4 ...... 40°05.0′ ...... 73°20.0′ is equipped with tie-downs spaced not MN5 ...... 40°05.0′ ...... 74°02.0′ (NJ more than 24 ft (7.3 m) apart along the shoreline) floatline, and each tie-down is not more than 48 inches (18.90 cm) in length (i) Closures. From February 15 from the point where it connects to the through March 15, it is prohibited to floatline to the point where it connects fish with, set, haul back, possess on to the lead line. board a vessel unless stowed in accord- (iii) Gear limitations and require- ance with § 229.2, or fail to remove any ments—small mesh gillnet gear. From large or small mesh gillnet gear from January 1 through April 30, except dur- the Mudhole North Management Area. ing February 15 through March 15 as In addition, from April 1 through April described in paragraph (b)(2)(i) of this 20, it is prohibited to fish with, set, section, no person may fish with, set, haul back, possess on board a vessel haul back, possess on board a vessel unless stowed in accordance with unless stowed in accordance with § 229.2, or fail to remove any large mesh § 229.2, or fail to remove any small gillnet gear from the Mudhole North mesh gillnet gear in the Mudhole North Management Area. Management Area unless the gear com- (ii) Gear limitations and requirements— plies with the specified gear character- large mesh gillnet gear. From January 1 istics described in paragraphs through April 30, except during Feb- (b)(2)(iii)(A) through (F) of this section. ruary 15 through March 15 and April 1 During this period, no vessel may enter through April 20 as described in para- or remain in the Mudhole North Man- graph (b)(2)(i) of this section, no person agement Area with small mesh gillnet may fish with, set, haul back, possess gear on board unless the gear complies on board a vessel unless stowed in ac- with the specified gear characteristics cordance with § 229.2, or fail to remove described in paragraphs (b)(2)(iii)(A) any large mesh gillnet gear in the Mud- through (F) of this section, or is stowed hole North Management Area unless in accordance with § 229.2. In order to the gear complies with the specified comply with these specified gear char- gear characteristics described in para- acteristics, the gear must have all the graphs (b)(2)(ii)(A) through (F) of this following characteristics: section. During this period, no vessel (A) Floatline length. The floatline is may enter or remain in the Mudhole not more than 3,000 ft (914.4 m) in North Management Area with large length. mesh gillnet gear on board, unless the (B) Twine size. The twine is at least gear complies with the specified gear 0.031 inches (0.81 mm) in diameter. characteristics described in paragraphs (C) Size of nets. Individual nets or net (b)(2)(ii)(A) through (F) of this section, panels are not more than 300 ft (91.4 m or is stowed in accordance with § 229.2. or 50 fathoms) in length. In order to comply with these specified (D) Number of nets. The total number gear characteristics, the gear must of individual nets or net panels for a have all the following characteristics: vessel, including all nets on board the (A) Floatline length. The floatline is vessel, hauled by the vessel or deployed not more than 3,900 ft (1,188.7 m). by the vessel, does not exceed 45.

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(E) Number of nets per string. The (B) Twine size. The twine is at least total number of nets or net panels in a 0.035 inches (0.90 mm) in diameter. net string does not exceed 10. (C) Size of nets. Individual nets or net (F) Tie-down system. Tie-downs are panels are not more than 300 ft (91.44 m prohibited. or 50 fathoms) in length. (3) Mudhole South Management Area. (D) Number of nets. The total number The Mudhole South Management Area of individual nets or net panels for a is bounded by straight lines connecting vessel, including all nets on board the the following points in the order stat- vessel, hauled by the vessel or deployed ed: by the vessel, does not exceed 80. (E) Number of nets per string. The MUDHOLE SOUTH MANAGEMENT AREA total number of nets or net panels in a net string does not exceed 13. Point N. Lat. W. Long. (F) Tie-down system. The gillnet gear MS1 ...... 40°05.0′ ...... 73°31.0′ is equipped with tie-downs spaced not MS2 ...... 40°05.0′ ...... 73°00.0′ more than 24 ft (7.3 m) apart along the MS3 ...... 39°51.0′ ...... 73°00.0′ MS4 ...... 39°51.0′ ...... 73°31.0′ floatline, and each tie-down is not MS1 ...... 40°05.0′ ...... 73°31.0′ more than 48 inches (18.90 cm) in length from the point where it connects to the (i) Closures. From February 1 through floatline to the point where it connects March 15, it is prohibited to fish with, to the lead line. set, haul back, possess on board a ves- (iii) Gear limitations and require- sel unless stowed in accordance with ments—small mesh gillnet gear. From § 229.2, or fail to remove any large or January 1 through April 30 of each small mesh gillnet gear in the Mudhole year, except during February 1 through South Management Area. In addition, March 15 as described in paragraph from April 1 through April 20, it is pro- (b)(3)(i) of this section, no person may hibited to fish with, set, haul back, fish with, set, haul back, possess on possess on board a vessel unless stowed board a vessel unless stowed in accord- in accordance with § 229.2, or fail to re- ance with § 229.2, or fail to remove any move any large mesh gillnet gear from small mesh gillnet gear in the Mudhole the Mudhole South Management Area. South Management Area unless the (ii) Gear limitations and requirements— gear complies with the specified gear large mesh gillnet gear. From January 1 characteristics described in paragraphs through April 30, except during Feb- (b)(3)(iii)(A) through (F) of this section. ruary 1 through March 15 and April 1 During this period, no vessel may enter through April 20 as described in para- or remain in the Mudhole South Man- graph (b)(3)(i) of this section, no person agement Area with small mesh gillnet may fish with, set, haul back, possess gear on board unless the gear complies on board a vessel unless stowed in ac- with the specified gear characteristics cordance with § 229.2, or fail to remove described in paragraphs (b)(3)(iii)(A) any large mesh gillnet gear in the Mud- through (F) of this section, or is stowed hole South Management Area unless in accordance with § 229.2. In order to the gear complies with the specified comply with these specified gear char- gear characteristics described in para- acteristics, the gear must have all the graphs (b)(3)(ii)(A) through (F) of this following characteristics: section. During this period, no vessel (A) Floatline length. The floatline is may enter or remain in the Mudhole not more than 3,000 ft (914.4 m) in South Management Area with large length. mesh gillnet gear on board, unless the (B) Twine size. The twine is at least gear complies with the specified gear 0.031 inches (0.81 mm) in diameter. characteristics described in paragraphs (C) Size of nets. Individual nets or net (b)(3)(ii)(A) through (F) of this section, panels are not more than 300 ft (91.4 m or is stowed in accordance with § 229.2. or 50 fathoms) in length. In order to comply with these specified (D) Number of nets. The total number gear characteristics, the gear must of individual nets or net panels for a have all the following characteristics: vessel, including all nets on board the (A) Floatline length. The floatline is vessel, hauled by the vessel or deployed not more than 3,900 ft (1,188.7 m). by the vessel, does not exceed 45.

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(E) Number of nets per string. The (C) Size of nets. Individual nets or net total number of nets or net panels in a panels are not more than 300 ft (91.4 m net string does not exceed 10. or 50 fathoms) in length. (F) Tie-down system. Tie-downs are (D) Number of nets. The total number prohibited. of individual nets or net panels for a (4) Southern Mid-Atlantic Management vessel, including all nets on board the Area. The Southern Mid-Atlantic Man- vessel, hauled by the vessel or deployed agement Area is bounded by straight by the vessel, does not exceed 80. lines connecting the following points in (E) Number of nets per string. The the order stated: total number of nets or net panels in a net string does not exceed 13. SOUTHERN MID-ATLANTIC MANAGEMENT AREA (F) Tie-down system. The gillnet gear is equipped with tie-downs spaced not Point N. Lat. W. Long. more than 24 ft (7.3 m) apart along the floatline, and each tie-down is not SMA1 ...... 38°47.0′ ...... 75°05.0′ (DE shoreline) more than 48 inches (18.90 cm) in length SMA2 ...... 38°47.0′ ...... 72°30.0′ from the point where it connects to the SMA3 ...... 33°51.1′ ...... 72°30.0′ floatline to the point where it connects SMA4 ...... 33°51.1′ ...... 78°32.5′ (NC/SC bor- to the lead line. der) (iii) Gear limitations and requirements—small mesh gillnet gear. From (i) Closures. From February 15 February 1 through April 30, no person through March 15, it is prohibited to may fish with, set, haul back, possess fish with, set, haul back, possess on on board a vessel unless stowed in ac- board a vessel unless stowed in accord- cordance with § 229.2, or fail to remove ance with § 229.2, or fail to remove any any small mesh gillnet gear in the large mesh gillnet gear from the Southern Mid-Atlantic Management Southern Mid-Atlantic Management Area unless the gear complies with the Area. specified gear characteristics described (ii) Gear limitations and requirements— in paragraphs (b)(4)(iii)(A) through (F) large mesh gillnet gear. From February 1 of this section. During this period, no through April 30, except during Feb- vessel may enter or remain in the ruary 15 through March 15 as described Southern Mid-Atlantic Management in paragraph (b)(4)(i) of this section, no Area with small mesh gillnet gear on person may fish with, set, haul back, board, unless the gear complies with possess on board a vessel unless stowed the specified gear characteristics de- in accordance with § 229.2, or fail to re- scribed in paragraphs (b)(4)(iii)(A) move any large mesh gillnet gear in through (F) of this section, or is stowed the Southern Mid-Atlantic Manage- in accordance with § 229.2. In order to ment Area unless the gear complies comply with these specified gear char- with the specified gear characteristics acteristics, the gear must have all the described in paragraphs (b)(4)(ii)(A) following characteristics: through (F) of this section. During this (A) Floatline length. The floatline is period, no vessel may enter or remain no longer than 2,118 ft (645.6 m). in the Southern Mid-Atlantic Manage- (B) Twine size. The twine is at least ment Area with large mesh gillnet gear 0.031 inches (0.81 mm) in diameter. on board, unless the gear complies with (C) Size of nets. Individual nets or net the specified gear characteristics de- panels are not more than 300 ft (91.4 m scribed in paragraphs (b)(4)(ii)(A) or 50 fathoms) in length. through (F) of this section, or is stowed (D) Number of nets. The total number in accordance with § 229.2. In order to of individual nets or net panels for a comply with these specified gear char- vessel, including all nets on board the acteristics, the gear must have all the vessel, hauled by the vessel or deployed following characteristics: by the vessel, does not exceed 45. (A) Floatline length. The floatline is (E) Number of nets per string. The not more than 3,900 ft (1,188.7 m) in total number of nets or net panels in a length. net string does not exceed 7. (B) Twine size. The twine is at least (F) Tie-down system. Tie-downs are 0.035 inches (0.90 mm) in diameter. prohibited.

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(c) Research permits. An exemption to Beach means landward of and includ- the requirements set forth in this sec- ing the mean low water line. tion may be acquired for the purposes Beach/water interface means the mean of conducting scientific or gear re- low water line. search within the restricted areas de- Bottlenose Dolphin Pound Net Regu- scribed in this section. A scientific related Area means all Virginia marine search permit must be acquired waters of the Atlantic Ocean within 3 through NMFS’ existing permit appli- nautical miles (5.56 km) of shoreline cation process, administered by NMFS. and all adjacent tidal waters, bounded (d) Other special measures. The Assist- on the north by 38°01.6′ N. (Maryland/ ant Administrator may revise the re- Virginia border) and on the south by quirements of this section through no- 36°33′ N (Virginia/North Carolina bor- tification published in the FEDERAL der); and all southern Virginia waters REGISTER if NMFS determines that the of the mainstem Chesapeake Bay boundary or timing of a closed area is bounded on the south and west by the inappropriate, or that gear modifica- Hampton Roads Bridge Tunnel across tions are not reducing bycatch to the James River and the Coleman Me- below the stock’s PBR level. morial Bridge across the York River; and north and east by the following [75 FR 7399, Feb. 19, 2010] points connected by straight lines in the order listed: § 229.35 Bottlenose Dolphin Take Re- duction Plan. Point Area description

(a) Purpose and scope. The purpose of 1 ...... Where 37°19.0′ N. lat. meets the shoreline of this section is to implement the the Severn River fork, near Stump Point, Vir- Bottlenose Dolphin Take Reduction ginia (western portion of Mobjack Bay), which is approximately 76°26.75′ W. long. Plan (BDTRP) to reduce incidental 2 ...... 37°19.0′ N. lat., 76°13.0′ W. long. mortality and serious injury of stra- 3 ...... 37°13.0′ N. lat., 76°13.0′ W. long. tegic stocks of bottlenose dolphins 4 ...... Where 37°13.0′ N. lat. meets the eastern within the Western North Atlantic shoreline of Chesapeake Bay, Virginia, near Elliotts Creek, which is approximately coastal morphotype in specific Cat- 76°00.75′ W. long. egory I and II commercial fisheries from New Jersey through Florida. Spe- Large mesh gillnet means a gillnet cific Category I and II commercial fish- constructed with a mesh size greater eries within the scope of the BDTRP than or equal to 7–inches (17.8 cm) are indentified and updated in the an- stretched mesh. nual List of Fisheries. Gear restricted Medium mesh gillnet means a gillnet by this section includes small, me- constructed with a mesh size of greater dium, and large mesh gillnets and than 5–inches (12.7 cm) to less than 7– pound nets. The geographic scope of inches (17.8 cm) stretched mesh. the BDTRP is all tidal and marine wa- New Jersey, Delaware, and Maryland ters within 6.5 nautical miles (12 km) of State waters means the area consisting shore from the New York-New Jersey of all marine and tidal waters, within 3 border southward to Cape Hatteras, nautical miles (5.56 km) of shore, North Carolina, and within 14.6 nau- bounded on the north by 40o 30′ N. (New tical miles (27 km) of shore from Cape York/New Jersey border at the coast) Hatteras, southward to, and including and on the south by 38o 01.6′ N. (Mary- the east coast of Florida down to the land/Virginia border at the coast). fishery management council demarca- Night means any time between one tion line between the Atlantic Ocean hour after sunset and one hour prior to and the Gulf of Mexico (as described in sunrise. § 600.105 of this title). Northern North Carolina State waters (b) Definitions. In addition to the defi- means the area consisting of all marine nitions contained in the Act, §§ 216.3 and tidal waters, within 3 nautical and 229.2 of this chapter, the terms de- miles (5.56 km) of shore, bounded on fined in this section shall have the fol- the north by 36° 33′ N. (Virginia/North lowing definitions, even if a contrary Carolina border at the coast) and on definition exists in the Act, § 216.3, or the south by 34° 35.4′ N. (Cape Lookout, § 229.2: North Carolina).

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Northern Virginia State waters means ginia (37° 52′ N. 75° 24.30′ W. to 37° 11.90′ the area consisting of all marine and N. 75° 48.30′ W) and South Carolina, tidal waters, within 3 nautical miles Georgia, and Florida waters, those wa- (5.56 km) of shore, bounded on the ters landward of the 72 COLREGS de- north by 38° 01.6′ N. (Virginia/Maryland marcation line (International Regula- border at the coast) and on the south tions for Preventing Collisions at Sea, by 37° 07.23′ N. (Cape Charles Light on 1972), as depicted or noted on nautical Smith Island in the Chesapeake Bay charts published by the National Oce- mouth). anic and Atmospheric Administration Small mesh gillnet means a gillnet (Coast Charts 1:80,000 scale), and as de- constructed with a mesh size of less scribed in 33 CFR part 80 are excluded than or equal to 5–inches (12.7 cm) from the regulations. stretched mesh. (2) Pound nets. The regulations per- South Carolina, Georgia, and Florida taining to pound nets in this section waters means the area consisting of all apply to the Bottlenose Dolphin Pound marine and tidal waters, within 14.6 Net Regulated Area. nautical miles (27 km) of shore, bound- (d) Regional management measures—(1) ed on the north by a line extending in New Jersey, Delaware, and Maryland a direction of 135°34′55″ from true north State waters—(i) Medium and large mesh from the North Carolina/South Caro- gillnets. From June 1 through October lina border at 33°51′07.9″ N. and 31, in New Jersey, Delaware, and Mary- 78°32′32.6″ W., and on the south by the land state waters, no person may fish fishery management council demarca- with any medium or large mesh an- tion line between the Atlantic Ocean chored gillnet gear at night unless such and the Gulf of Mexico (as described in person remains within 0.5 nautical mile § 600.105 of this title). (0.93 km) of the closest portion of each Southern North Carolina State waters gillnet and removes all such gear from means the area consisting of all marine the water and stows it on board the and tidal waters, within 3 nautical vessel before the vessel returns to port. miles (5.56 km) of shore, bounded on (ii) [Reserved] the north by 34°35.4′ N. (Cape Lookout, (2) Virginia state waters—(i) Medium North Carolina), and on the south by a and large mesh gillnets. From June 1 line extending in a direction of through October 31, in Southern Vir- 135°34′55″ from true north from the ginia State waters and Northern Vir- North Carolina/South Carolina border ginia State waters, no person may fish at 33°51′07.9″ N. and 78°32′32.6″ W. with any medium or large mesh an- Southern Virginia State waters means chored gillnet gear at night unless such the area consisting of all marine and person remains within 0.5 nautical mile tidal waters, within 3 nautical miles (0.93 km) of the closest portion of each (5.56 km) of shore, bounded on the gillnet and removes all such gear from north by 37° 07.23′ N. (Cape Charles the water and stows it on board the Light on Smith Island in the Chesa- vessel before the vessel returns to port. peake Bay mouth) and on the south by (ii) Pound nets. (A) Year-round, any 36° 33′ N. (Virginia/North Carolina bor- offshore pound net in the Bottlenose der at the coast). Dolphin Pound Net Regulated Area (c) BDTRP regulated waters—(1) must use a modified pound net leader. Gillnets. The regulations pertaining to (B) Year-round, any nearshore and gillnets in this section apply to New offshore pound nets set in the Jersey, Delaware, and Maryland State Bottlenose Dolphin Pound Net Regu- waters; Northern North Carolina State lated Area must have all three contin- waters; Northern Virginia State wa- uous sections as defined in 50 CFR ters; South Carolina, Georgia, and 229.2, except that one or more sections Florida waters; Southern North Caro- may be missing for a maximum period lina State waters; and Southern Vir- of 10 days for purposes of setting, re- ginia State waters as defined in moving, and/or repairing pound nets. § 229.35(b), except for the waters identi- (C) The pound net licensee and the fied in § 229.34(a)(2), with the following vessel operator of any offshore pound modification and addition. From Chin- net set in the Bottlenose Dolphin coteague to Ship Shoal Inlet in Vir- Pound Net Regulated Area must have

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completed modified pound net leader stowed, or fail to remove from the compliance training and possess on water, any large mesh gillnet at night. board the vessel a valid modified pound (6) South Carolina, Georgia, and Flor- net leader compliance training certifi- ida waters—(i) Gillnets. Year-round, in cate issued by NMFS. NMFS retains South Carolina, Georgia, and Florida discretion to provide exemptions in waters, no person may fish with any limited circumstances where appro- gillnet gear unless such person remains priate. Notice will be given by NMFS within 0.25 nautical miles (0.46 km) of announcing the times and locations of the closest portion of the gillnet. Gear modified pound net leader compliance shall be removed from the water and training. stowed on board the vessel before the (3) Southern Virginia State waters—(i) vessel returns to port. Large mesh gillnets. From November 1 (ii) [Reserved] through December 31, in Southern Vir- [71 FR 24796, Apr. 26, 2006, as amended at 73 ginia State waters, no person may fish FR 77533, Dec. 19, 2008; 77 FR 45270, July 31, with, possess on board a vessel unless 2012; 80 FR 6929, Feb. 9, 2015] stowed, or fail to remove from the water, any large mesh gillnet gear at § 229.36 Atlantic Pelagic Longline Take Reduction Plan (PLTRP). night. (ii) [Reserved] (a) Purpose and scope. The purpose of (4) Northern North Carolina State wa- this section is to implement the ters—(i) Small mesh gillnets. From May 1 PLTRP to reduce incidental mortality through October 31, in Northern North and serious injury of long-finned and Carolina State waters, no person may short-finned pilot whales and Risso’s fish with any small mesh gillnet gear dolphins in the Atlantic pelagic longer than 1,000 feet (304.8 m). longline fishery off the U.S. east coast, a component of the Atlantic Ocean, (ii) Medium mesh gillnets. From No- Caribbean, Gulf of Mexico large vember 1 through April 30 of the fol- pelagics longline fishery. lowing year, in Northern North Caro- (1) Persons subject to this section. The lina State waters, no person may fish regulations in this section apply to the with any medium mesh gillnet at owner and operator of any vessel that night. has been issued or is required to be (iii) Large mesh gillnets. (A) From issued an Atlantic HMS tunas, sword- April 15 through December 15, in fish, or shark permit under § 635.4 of Northern North Carolina State waters, this title and that has pelagic longline no person may fish with any large gear onboard as described under mesh gillnet. § 635.21(c) of this title. (B) From December 16 through April (2) Geographic scope. The geographic 14 of the following year, in Northern scope of the PLTRP is the Atlantic North Carolina State waters, no person Federal EEZ off the U.S. East Coast. may fish with any large mesh gillnet The regulations specified in paragraphs without tie-downs at night. (b) through (d) of this section apply (5) Southern North Carolina State wa- throughout the Atlantic Federal EEZ ters—(i) Medium mesh gillnets. From No- off the U.S. East Coast. The regulation vember 1 through April 30 of the fol- specified in paragraph (e) of this sec- lowing year, in Southern North Caro- tion applies to all U.S. Atlantic pelagic lina State waters, no person may fish longline vessels operating in the EEZ with any medium mesh gillnet at portion of the Mid-Atlantic Bight. night. (b) Definitions. In addition to the (ii) Large mesh gillnets. (A) From definitions contained in the MMPA and April 15 through December 15, in §§ 216.3 and 229.2 of this chapter, the fol- Southern North Carolina State waters, lowing definitions apply. no person may fish with any large (1) Cape Hatteras Special Research Area mesh gillnet. (CHSRA) means all waters inside and (B) From December 16 through April including the rectangular boundary de- 14 of the following year, in Southern scribed by the following lines: 35° N. North Carolina State waters, no person lat., 75° W. long., 36° 25’ N. lat., and 74° may fish, possess on board unless 35’ W. long.

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(2) Mid-Atlantic Bight means the area wise be required to carry an observer, bounded by straight lines connecting but is inadequate or unsafe for pur- the mid-Atlantic states’ internal wa- poses of carrying an observer and for ters and extending to 71° W. long. be- allowing operation of normal observer tween 35° N. lat. and 43° N. lat. functions, is prohibited from deploying (3) Observer means an individual au- or fishing with pelagic longline gear in thorized by NMFS, or a designated con- the CHSRA. tractor, placed aboard a commercial (2) Special research requirements. In ad- fishing vessel to record information on dition to observing normal fishing ac- marine mammal interactions, fishing tivities, observers may conduct addi- operations, marine mammal life his- tional scientific investigations aboard tory information, and other scientific your vessel designed to support the data; to collect biological specimens; goals of the PLTRP. The observer will and to perform other scientific inves- inform you of the specific additional tigations. investigations that may be conducted (4) Pelagic longline has the same during your trip. An observer may di- meaning as in § 635.2 of this title. rect you to modify your fishing behav- (c) Marine Mammal Handling and Re- ior, gear, or both. Instead of carrying lease Placard. The placard, ‘‘Marine an observer, you may be required to Mammal Handling/Release Guidelines: carry and deploy gear provided by A Quick Reference for Atlantic Pelagic NMFS or an observer or modify your Longline Gear,’’ must be kept posted fishing practices. By calling in per inside the wheelhouse and on the work- § 229.36(d)(1), you are agreeing to take ing deck. You may contact the NMFS an observer. You are also acknowl- Southeast Regional Office at (727) 824– edging you are both willing and able to 5312 to request additional copies of the participate in research, as per this placard. paragraph, in the CHSRA consistent (d) CHSRA—(1) Special observer re- with the PLTRP without any com- quirements. If you deploy or fish with pensation. If you are assigned any spe- pelagic longline gear in the CHSRA, or cial research requirements, you must intend to do so, you must call NMFS participate in the research for the du- Southeast Fisheries Science Center ration of the assignment. If you do not (SEFSC), 1–888–254–2558, at least 48 participate in the research, you are hours, but no more than 96 hours, prior prohibited from deploying or fishing to embarking on your fishing trip. This with pelagic longline gear in the requirement is in addition to any exist- CHSRA for that fishing trip. ing selection and notification require- (3) Exception for transit. If pelagic ment for observer coverage by the Pe- longline gear is appropriately stowed, a lagic Observer Program. If, upon call- vessel may transit through the CHSRA ing in, you are informed by the NMFS without meeting the observer and re- SEFSC that no observer will be as- search requirements specified in signed and that no special research re- § 229.36(d)(1) and § 229.36(d)(2). For the quirements will apply for that trip, purpose of this paragraph, transit then you need not wait until your stat- means non-stop progression through ed date and time of departure and may the area. Pelagic longline gear is ap- depart on your fishing trip imme- propriately stowed if all gangions, diately. If you are assigned an ob- hooks, and buoys are disconnected server, you must take the observer dur- from the mainline; hooks are not bait- ing that fishing trip. If you do not take ed; longline left on the drum is covered the observer, you are prohibited from with a tarp; and all other gear compo- deploying or fishing with pelagic nents are either stowed below deck or longline gear in the CHSRA for that secured on deck and covered with a fishing trip. You must comply with all tarp. provisions of § 229.7, Monitoring of inci- (e) Gear restrictions. No person may dental mortalities and serious injuries. deploy a pelagic longline that exceeds In addition, all provisions of 50 CFR 20 nautical miles (nm) (37.04 km) in 600.746, Observers, apply. No waivers length in the Mid-Atlantic Bight, in- will be granted under § 229.7(c)(3) or cluding in the CHSRA, unless they § 600.746(f). A vessel that would other- have a written letter of authorization

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from the Director, NMFS Southeast is prohibited in the portion of the EEZ Fishery Science Center to use a pelagic around Hawaii bounded by straight longline exceeding 20 nm (37.04 km) in lines connecting the following coordi- the CHSRA in support research for re- nated in the order listed: ducing bycatch of marine mammals in the pelagic longline fishery. Point N. lat. W. long. ° ′ ° ′ [74 FR 23358, May 19, 2009] A ...... 18 05 155 40 B ...... 18°20′ 156°25′ C ...... 20°00′ 157°30′ § 229.37 False Killer Whale Take Re- D ...... 20°40′ 161°40′ duction Plan. E ...... 21°40′ 161°55′ F ...... 23°00′ 161°30′ (a) Purpose and scope. The purpose of G ...... 23°05′ 159°30′ this section is to implement the False H ...... 22°55′ 157°30′ Killer Whale Take Reduction Plan to I ...... 21°30′ 155°30′ J ...... 19°50′ 153°50′ reduce mortality and serious injury of K ...... 19°00′ 154°05′ the Hawaii Pelagic and Hawaii Insular A ...... 18°05′ 155°40′ stocks of false killer whales in the Ha- waii-based deep-set and shallow-set pe- (2) Southern Exclusion Zone. Deep- lagic longline fisheries. The require- set longline fishing is prohibited in the ments in this section apply to vessel Southern Exclusion Zone when the owners and operators, and vessels reg- zone is closed to protect false killer istered for use with Hawaii longline whales pursuant to the procedures out- limited access permits issued under lined in paragraph (e) of this section. § 665.801(b) of this title. The Southern Exclusion Zone is the (b) Definitions. In addition to the defi- portion of the EEZ around Hawaii nitions contained in § 229.2, terms in bounded by 165° 00′ W. longitude on the this section have the following mean- west, 154° 30′ W. longitude on the east, ings: the Papahanaumokuakea Marine Na- (1) Deep-set or Deep-setting has the tional Monument and the Main Hawai- same meaning as the definition at ian Islands Longline Fishing Prohib- § 665.800 of this title. ited Area on the north, and the EEZ (2) Longline gear has the same mean- boundary on the south. ing as the definition at § 665.800 of this (e) Southern Exclusion Zone trigger and title. procedures. (1) The Assistant Adminis- (c) Gear requirements. (1) While deep- trator will publish in the FEDERAL setting, the owner and operator of a REGISTER the expected observer cov- vessel registered for use under a Hawaii erage for a fishing year, the potential longline limited access permit must biological removal level for the Hawaii use only hooks meeting the following Pelagic stock of false killer whales, specifications: and the associated trigger calculated (i) Circle hook with hook shank con- using the specifications in paragraph taining round wire that can be meas- (e)(2) of this section. This trigger will ured with a caliper or other appro- remain in effect until superseded by priate gauge, with a wire diameter not publication of a revised trigger. to exceed 4.5 mm (0.177 in); and (2) As used in this section, trigger (ii) Offset not to exceed 10 degrees. means the number of observed false (2) While deep-setting, owners and op- killer whale mortalities or serious in- erators of vessels registered for use juries in the deep-set longline fishery under a valid Hawaii longline limited that occur in the EEZ around Hawaii, access permit must use leaders and and that serves as the bycatch thresh- branch lines that all have a diameter of old for closing the Southern Exclusion 2.0 mm or larger if the leaders and Zone to deep-set longline fishing. The branch lines are made of monofilament trigger is calculated as the larger of nylon. If any other material is used for these two values: a leader or branch line, that material (i) Two; or must have a breaking strength of at (ii) The smallest number of observed least 400 lb (181 kg). false killer whale mortalities or seri- (d) Prohibited area management. (1) ous injuries that, when extrapolated Main Hawaiian Islands Longline Fish- based on the percentage observer cov- ing Prohibited Area. Longline fishing erage in the deep-set longline fishery

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for that year, exceeds the Hawaii Pe- sistant Administrator would reopen lagic false killer whale stock’s poten- the Southern Exclusion Zone if one or tial biological removal level. more of the follow criteria were met: (3) Unless otherwise subject to para- (i) The Assistant Administrator de- graph (e)(4) of this section, if there is termines, upon consideration of the an observed false killer whale mor- False Killer Whale Take Reduction tality or serious injury in the EEZ Team’s recommendations and evalua- around Hawaii on a declared deep-set tion of all relevant circumstances, that longline trip that meets the estab- reopening of the Southern Exclusion lished trigger for a given fishing year, Zone is warranted; the Southern Exclusion Zone will be (ii) In the 2-year period immediately closed to deep-set longline fishing until following the date of the Southern Ex- the end of that fishing year. clusion Zone closure, the deep-set (4) If during the same calendar year longline fishery has zero observed false following closure of the Southern Ex- killer whale incidental mortalities and clusion Zone in accordance with para- serious injuries within the remaining graph (e)(3) of this section, there is one open areas of the EEZ around Hawaii; observed false killer whale mortality (iii) In the 2-year period immediately or serious injury on a declared deep-set following the date of the closure, the longline trip anywhere in the EEZ deep-set longline fishery has reduced around Hawaii, then NMFS shall im- its total rate of false killer whale inci- mediately convene the False Killer dental mortality and serious injury (in- Whale Take Reduction Team. cluding the EEZ around Hawaii, the (5) If in the subsequent calendar year high seas, and the EEZ around John- following closure of the Southern Ex- ston Atoll (but not Palmyra Atoll) by clusion Zone in accordance with para- an amount equal to or greater than the graph (e)(3) of this section, there is an rate that would be required to reduce observed false killer whale mortality false killer whale incidental mortality or serious injury in the EEZ around and serious injury within the EEZ Hawaii on a declared deep-set longline around Hawaii to below the Hawaii Pe- trip that meets the established trigger lagic false killer whale stock’s poten- for a given fishing year, the Southern tial biological removal level; or Exclusion Zone will be closed to deep- (iv) The average estimated level of set longline fishing until the area is re- false killer whale incidental mortality opened by the Assistant Administrator and serious injury in the deep-set as per criteria in paragraph (e)(7) of longline fishery within the remaining this section. open areas of the EEZ around Hawaii (6) Upon determining that closing the for up to the 5 most recent years is Southern Exclusion Zone is warranted below the potential biological removal pursuant to the procedures in para- level for the Hawaii Pelagic stock of graphs (e)(1) through (e)(5) of this sec- false killer whales at that time. tion, the Assistant Administrator will (8) Upon determining that reopening provide notice to Hawaii longline per- the Southern Exclusion Zone is war- mit holders and the False Killer Whale ranted pursuant to the procedures in Take Reduction Team, publish a notice paragraph (e)(7) of this section, the As- in the FEDERAL REGISTER, and post in- sistant Administrator will provide no- formation on the NMFS Pacific Islands tice to Hawaii longline permit holders Regional Office web site. The notice and the False Killer Whale Take Re- will announce that the fishery will be duction Team, publish a notice in the closed beginning at a specified date, FEDERAL REGISTER, and post informa- which is not earlier than 7 days and not tion on the NMFS Pacific Islands Re- later than 15 days, after the date of fil- gional Office web site. The notice will ing the closure notice for public inspec- announce that the fishery will be re- tion at the Office of the Federal Reg- opened beginning at a specified date, ister. which is not earlier than 7 days and not (7) Reopening criteria. If the Southern later than 15 days, after the date of fil- Exclusion Zone is closed pursuant to ing the closure notice for public inspec- the procedure in paragraphs (e)(1) tion at the Office of the Federal Reg- through (e)(6) of this section, the As- ister.

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(f) Marine mammal handling and re- (3) A NMFS-approved placard setting lease. (1) Each year, both the owner and forth marine mammal handling and/or the operator of a vessel registered for release procedures must be posted on use with a longline permit issued under the longline vessel in a conspicuous § 665.801 of this title must attend and be place that is regularly accessible and certified for completion of a workshop visible to the crew. conducted by NMFS on interaction (4) A NMFS-approved placard in- mitigation techniques for sea turtles, structing vessel crew to notify the cap- seabirds, and marine mammals, as retain in the event of a marine mammal quired under § 665.814 of this title. interaction must be posted on the (2) Longline vessel operators (cap- longline vessel in a conspicuous place tains) must supervise and be in visual that is regularly accessible and visible and/or verbal contact with the crew to the crew. during any handling or release of ma- [77 FR 71285, 71286, Nov. 29, 2012, as amended rine mammals. at 77 FR 71286, 71286, Nov. 29, 2012]

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FIGURE 1 TO PART 229—DRIFT GILLNET PINGER CONFIGURATION AND EXTENDER REQUIREMENTS

[64 FR 3434, Jan. 22, 1999]

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PART 230—WHALING PROVISIONS (4) Any Coast Guard personnel accompanying and acting under the di- Sec. rection of any person described in para- 230.1 Purpose and scope. graph (1) of this definition. 230.2 Definitions. Calf means any whale less than 1 230.3 General prohibitions. year old or having milk in its stomach. 230.4 Aboriginal subsistence whaling. Commission means the International 230.5 Licenses for aboriginal subsistence Whaling Commission established by ar- whaling. ticle III of the Convention. 230.6 Quotas and other restrictions. Convention means the International 230.7 Salvage of stinkers. 230.8 Reporting by whaling captains. Convention for the Regulation of Whal- ing signed at Washington on December AUTHORITY: 16 U.S.C. 916 et seq. 2, 1946. SOURCE: 61 FR 29631, June 11, 1996, unless Cooperative agreement means a writ- otherwise noted. ten agreement between the National Oceanic and Atmospheric Administra- § 230.1 Purpose and scope. tion and a Native American whaling The purpose of the regulations in this organization for the cooperative man- part is to implement the Whaling Con- agement of aboriginal subsistence vention Act (16 U.S.C. 916 et seq.) by whaling operations. prohibiting whaling except for aborigi- Landing means bringing a whale or nal subsistence whaling allowed by the any parts thereof onto the ice or land International Whaling Commission. in the course of whaling operations. Provisions of the Marine Mammal Pro- Native American whaling organization tection Act of 1972 (16 U.S.C. 1361 et means an entity recognized by the Na- seq.) and the Endangered Species Act of tional Oceanic and Atmospheric Ad- 1973 (16 U.S.C. 1531 et seq.) also pertain ministration as representing and gov- to human interactions with whales. erning Native American whalers for Rules elsewhere in this chapter govern the purposes of cooperative manage- such topics as scientific research per- ment of aboriginal subsistence whal- mits, and incidental take and harassing. ment of marine mammals. Regulations of the Commission means the regulations in the Schedule an- § 230.2 Definitions. nexed to and constituting a part of the Aboriginal subsistence whaling means Convention, as modified, revised, or whaling authorized by paragraph 13 of amended by the Commission from time the Schedule annexed to and consti- to time. tuting a part of the Convention. Stinker means a dead, unclaimed Assistant Administrator means the As- whale found upon a beach, stranded in sistant Administrator for Fisheries of shallow water, or floating at sea. the National Oceanic and Atmospheric Strike means hitting a whale with a Administration. harpoon, lance, or explosive device. Authorized officer means: Wasteful manner means a method of (1) Any commissioned, warrant, or whaling that is not likely to result in petty officer of the U.S. Coast Guard; the landing of a struck whale or that (2) Any special agent or enforcement does not include all reasonable efforts officer of the National Marine Fish- to retrieve the whale. eries Service; Whale products means any unproc- (3) Any officer designated by the head essed part of a whale and blubber, of a Federal or state agency that has meat, bones, whale oil, sperm oil, sper- entered into an agreement with the maceti, meal, and baleen. Secretary of Commerce or the Com- Whaling means the scouting for, mandant of the Coast Guard to enforce hunting, striking, killing, flensing, or the provisions of the Whaling Conven- landing of a whale, and the processing tion Act; or of whales or whale products.

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Whaling captain or captain means any (e) No person may receive money for Native American who is authorized by participation in aboriginal subsistence a Native American whaling organiza- whaling. tion to be in charge of a vessel and (f) No person may sell or offer for whaling crew. sale whale products from whales taken Whaling crew means those Native in an aboriginal subsistence hunt, ex- Americans under the control of a cap- cept that authentic articles of Native tain. handicrafts may be sold or offered for Whaling village means any U.S. vil- sale. lage recognized by the Commission as (g) No whaling captain shall continue having a cultural and/or subsistence to whale after: need for whaling. (1) The quota set for his/her village by the relevant Native American whal- § 230.3 General prohibitions. ing organization is reached; (2) The license under which he/she is (a) No person shall engage in whaling whaling is suspended as provided in in a manner that violates the Conven- § 230.5(b); or tion, any regulation of the Commis- (3) The whaling season for that spe- sion, or this part. cies has been closed pursuant to § 230.6. (b) No person shall engage in whaling (h) No whaling captain shall claim without first having obtained a license domicile in more than one whaling vil- or scientific research permit issued by lage. the Assistant Administrator. (i) No person may salvage a stinker (c) No person shall ship, transport, without complying with the provisions purchase, sell, offer for sale, import, of § 230.7. export, or possess any whale or whale (j) No whaling captain shall engage products taken or processed in viola- in whaling with a harpoon, lance, or tion of the Convention, any regulation explosive dart that does not bear a per- of the Commission, or this part, except manent distinctive mark identifying as specified in § 230.4(f). the captain as the owner thereof. (d) No person shall fail to make, (k) No whaling captain shall engage keep, submit, or furnish any record or in whaling in a wasteful manner. report required of him/her by the Con- § 230.5 Licenses for aboriginal subsist- vention, any regulation of the Commis- ence whaling. sion, or this part. (e) No person shall refuse to permit (a) A license is hereby issued to whal- any authorized officer to enforce the ing captains identified by the relevant Convention, any regulation of the Com- Native American whaling organization. mission, or this part. (b) The Assistant Administrator may suspend the license of any whaling cap- § 230.4 Aboriginal subsistence whaling. tain who fails to comply with the regulations in this part. (a) No person shall engage in aboriginal subsistence whaling, except a whal- § 230.6 Quotas and other restrictions. ing captain licensed pursuant to § 230.5 (a) Quotas for aboriginal subsistence or a member of a whaling crew under whaling shall be set in accordance with the control of a licensed captain. the regulations of the Commission. (b) No whaling captain shall engage Quotas shall be allocated to each whal- in whaling that is not in accordance ing village or captain by the appro- with the regulations of the Commis- priate Native American whaling orga- sion, this part, and the relevant coop- nization. The Assistant Administrator erative agreement. shall publish in the FEDERAL REGISTER, (c) No whaling captain shall engage at least annually, aboriginal subsist- in whaling for any calf or any whale ence whaling quotas and any other lim- accompanied by a calf. itations on aboriginal subsistence (d) No whaling captain shall engage whaling deriving from regulations of in whaling without an adequate crew the Commission. These quotas and re- or without adequate supplies and strictions shall also be incorporated in equipment. the relevant cooperative agreements.

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(b) The relevant Native American § 230.5 to provide a written statement of whaling organization shall monitor the his/her name and village of domicile whale hunt and keep tally of the num- and a description of the distinctive ber of whales landed and struck. When marking to be placed on each harpoon, a quota is reached, the organization lance, and explosive dart. shall declare the whaling season closed, (b) Each whaling captain shall pro- and there shall be no further whaling vide to the relevant Native American under that quota during the calendar whaling organization an oral or writ- year. If the organization fails to close ten report of whaling activities includ- the whaling season after the quota has ing but not limited to the striking, at- been reached, the Assistant Adminis- tempted striking, or landing of a whale trator may close it by filing notifica- and, where possible, specimens from tion in the FEDERAL REGISTER. landed whales. The Assistant Adminis- trator is authorized to provide techno- § 230.7 Salvage of stinkers. logical assistance to facilitate prompt (a) Any person salvaging a stinker reporting and collection of specimens shall submit to the Assistant Adminis- from landed whales, including but not trator or his/her representative an oral limited to ovaries, ear plugs, and ba- or written report describing the cir- leen plates. The report shall include at cumstances of the salvage within 12 least the following information: hours of such salvage. He/she shall pro- (1) The number, dates, and locations vide promptly to the Assistant Admin- of each strike, attempted strike, or istrator or his/her representative each landing. harpoon, lance, or explosive dart found (2) The length (taken as the straight- in or attached to the stinker. The de- line measurement from the tip of the vice shall be returned to the owner upper jaw to the notch between the tail thereof promptly, unless it is retained flukes) and the sex of the whales land- as evidence of a possible violation. ed. (b) There shall be a rebuttable pre- (3) The length and sex of a fetus, if sumption that a stinker has been present in a landed whale. struck by the captain whose mark ap- (4) An explanation of circumstances pears on the harpoon, lance, or explo- associated with the striking or at- sive dart found in or attached thereto, tempted striking of any whale not and, if no strike has been reported by landed. such captain, such strike shall be (c) If the relevant Native American deemed to have occurred at the time of whaling organization fails to provide recovery of the device. the National Marine Fisheries Service the required reports, the Assistant Ad- § 230.8 Reporting by whaling captains. ministrator may require the reports to (a) The relevant Native American be submitted by the whaling captains whaling organization shall require each directly to the National Marine Fish- whaling captain licensed pursuant to eries Service.

SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]

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PART 253—FISHERIES ASSISTANCE credit determinations and holds and PROGRAMS services all credit collateral. (b) Subpart C of this part implements Subpart A—General Public Law 99–659 (16 U.S.C. 4100 et seq.), which has two objectives: Sec. (1) Promote and encourage State ac- 253.1 Purpose. tivities in support of the management Subpart B—Fisheries Finance Program of interjurisdictional fishery resources identified in interstate or Federal fish- 253.10 General definitions. ery management plans; and 253.11 General FFP credit standards and re- (2) Promote and encourage manage- quirements. 253.12 Credit application. ment of interjurisdictional fishery re- 253.13 Initial investigation and approval. sources throughout their range. 253.14 Loan documents. (3) The scope of this part includes 253.15 Recourse against other parties. guidance on making financial assist- 253.16 Actual cost. ance awards to States or Interstate 253.17 Insurance. Commissions to undertake projects in 253.18 Closing. support of management of interjuris- 253.19 Dual-use CCF. 253.20 Fees. dictional fishery resources in both the 253.21 Demand by guaranteed noteholder executive economic zone (EEZ) and and payment. State waters, and to encourage States 253.22 Program operating guidelines. to enter into enforcement agreements 253.23 Default and liquidation. with either the Department of Com- 253.24 Enforcement violations and adverse merce or the Department of the Inte- actions. rior. 253.25 Other administrative requirements. 253.26 Traditional loans. 253.27 IFQ financing. Subpart B—Fisheries Finance 253.28 Halibut sablefish IFQ loans. Program 253.29 CDQ loans. 253.30 Crab IFQ loans. 253.31 Harvesting rights loans. § 253.10 General definitions. 253.32–253.49 [Reserved] The terms used in this subpart have the following meanings: Subpart C—Interjurisdictional Fisheries Act means Chapter 537 of Title 46 of 253.50 Definitions. the U.S. Code, (46 U.S.C. 53701–35), as 253.51 Apportionment. may be amended from time to time. 253.52 State projects. Actual cost means the sum of all 253.53 Other funds. amounts for a project paid by an obli- 253.54 Administrative requirements. gor (or related person), as well as all AUTHORITY: 46 U.S.C. 53701 and 16 U.S.C. amounts that the Program determines 4101 et seq. the obligor will become obligated to SOURCE: 75 FR 78623, Dec. 16, 2010, unless pay, as such amounts are calculated by otherwise noted. § 253.16. Applicant means the individual or en- Subpart A—General tity applying for a loan (the prospective obligor). § 253.1 Purpose. Application means the documents pro- (a) The regulations in this part per- vided to or requested by NMFS from an tain to fisheries assistance programs. applicant to apply for a loan. Subpart B of this part governs the Application fee means 0.5 percent of Fisheries Finance Program (FFP or the the dollar amount of financing re- Program), which makes capacity neu- quested. tral long-term direct fisheries and Approval in principle letter (AIP) aquaculture loans. The FFP conducts means a written communication from all credit investigations, makes all NMFS to the applicant expressing the

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agency’s commitment to provide fi- other right, approval, or privilege to nancing for a project, subject to all ap- engage in fishing. plicable regulatory and Program re- Fishery facility means land, land quirements and in accordance with the structures, water craft that do not en- terms and conditions contained in the gage in fishing, and equipment used for AIP. transporting, unloading, receiving, Aquaculture facility means land, holding, processing, preserving, or dis- structures, appurtenances, labora- tributing fish for commercial purposes tories, water craft built in the U.S., (including any water craft used for and any equipment used for the hatch- charter fishing). ing, caring for, or growing fish, under Fishing means: controlled circumstances for commer- (1) The catching, taking, or har- cial purposes, as well as the unloading, vesting of fish; receiving, holding, processing, or dis- (2) The attempted catching, taking, tribution of such fish. or harvesting of fish; Capital Construction Fund (CCF), as (3) Any other activity which can rea- described under 46 U.S.C. 53501–17, al- sonably be expected to result in the lows owners of eligible vessels to re- catching, taking, or harvesting of fish; serve capital for replacement vessels, (4) Any operations at sea in support additional vessels, reconstruction of of, or in preparation for, any activity vessels, or reconstructed vessels, built described in paragraphs (1) through (3) in the United States and documented of this section. under the laws of the United States, for (5) Fishing does not include any sci- operation in the fisheries of the United entific research activity which is con- States. ducted by a scientific research vessel. Captain means a vessel operator or a Fishing industry for the purposes of vessel master. this part, means the broad sector of the national economy comprised of persons Charter fishing means fishing from a or entities that are engaged in or sub- vessel carrying a ‘‘passenger for hire,’’ stantially associated with fishing, in- as defined in 46 U.S.C. 2101(21a), such cluding aquaculture, charter operators, passenger being engaged in rec- guides, harvesters, outfitters, proc- reational fishing, from whom consider- essors, suppliers, among others, with- ation is provided as a condition of car- out regard to the location of their ac- riage on the vessel, whether directly or tivity or whether they are engaged in indirectly flowing to the owner, fishing for wild stocks or aquaculture. charterer, operator, agent, or any Guarantee means a guarantor’s con- other person having an interest in the tractual promise to repay indebtedness vessel. if an obligor fails to repay as agreed. Citizen means a ‘‘citizen of the United Guarantee fee means one percent of a States,’’ as described in 46 U.S.C. 104, guaranteed note’s average annual un- or an entity who is a citizen for the paid principal balance. purpose of documenting a vessel in the Guaranteed note means a promissory coastwise trade under 46 U.S.C. 50501. note from an obligor to a noteholder, Crewman means any individual, other the repayment of which the United than a captain, a passenger for hire, or States guarantees. a fisheries observer working on a vessel IFQ means Individual Fishing Quota, that is engaged in fishing. which is a Federal permit under a lim- Demand means a noteholder’s request ited access system to harvest a quan- that a debtor or guarantor pay a note’s tity of fish, expressed by a unit or full principal and interest balance. units representing a percentage of the Facility means a fishery or an aqua- total allowable catch of a fishery that culture facility. may be received or held for exclusive Fish means finfish, mollusks, crusta- use by a person. IFQ does not include ceans and all other forms of aquatic community development quotas. animal and plant life, other than ma- Noteholder means a guaranteed note rine mammals and birds. payee. Fisheries harvest authorization means Obligor means a party primarily lia- any transferable permit, license or ble for payment of the principal of or

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interest on an obligation, used inter- burses applicants for previous expendi- changeably with the terms ‘‘note tures. payor’’ or ‘‘notemaker.’’ Refinancing/assumption fee means a Origination year means the year in one time fee assessed on the principal which an application for a loan is ac- amount of an existing FFP note to be cepted for processing. refinanced or assumed. Program means the Fisheries Finance Refurbishing means any reconstruc- Program, Financial Services Division, tion, reconditioning, or other improve- National Marine Fisheries Service, Na- ment of existing vessels or facilities, tional Oceanic and Atmospheric Ad- but does not include routine repairs or ministration, U.S. Department of Com- activities characterized as mainte- merce. nance. Project means: Security documents mean all docu- (1) The refinancing or construction of ments related to the collateral secur- a new fishing vessel or the financing or ing the U.S. Note’s repayment and all refinancing of a fishery or aquaculture other assurances, undertakings, and facility or the refurbishing or purchase contractual arrangements associated of an existing vessel or facility, includ- with financing or guarantees provided ing, but not limited to, architectural, by NMFS. engineering, inspection, delivery, out- means any stock fitting, and interest costs, as well as Underutilized fishery the cost of any consulting contract the of fish (a) harvested below its optimum Program requires; yield or (b) limited to a level of harvest (2) The purchase or refinance of any or cultivation below that cor- limited access privilege, IFQ, fisheries responding to optimum yield by the access right, permit, or other fisheries lack of aggregate facilities. harvest authorization, for which the U.S. means the United States of actual cost of the purchase of such au- America and, for citizenship purposes, thorization would be eligible under the includes the fifty states, Common- Act for direct loans; wealth of Puerto Rico, American (3) Activities (other than fishing ca- Samoa, the Territory of the U.S. Vir- pacity reduction, as set forth in part gin Islands, Guam, the Republic of the 600.1000 of this title) that assist in the Marshal Islands, the Federated States transition to reduced fishing capacity; of Micronesia, the Commonwealth of (4) Technologies or upgrades designed the Northern Mariana Islands, and any to improve collection and reporting of other commonwealth, territory, or pos- fishery-dependent data, to reduce by- session of the United States, or any po- catch, to improve selectivity or reduce litical subdivision of any of them. adverse impacts of fishing gear, or to U.S. Note means a promissory note improve safety; or payable by the obligor to the United (5) Any other activity that helps de- States. velop the U.S. fishing industry, includ- Useful life means the period during ing, but not limited to, measures de- which project property will, as deter- signed or intended to improve a ves- mined by the Program, remain eco- sel’s fuel efficiency, to increase fish- nomically productive. eries exports, to develop an underuti- Vessel means any vessel documented lized fishery, or to enhance financial under U.S. law and used for fishing. stability, financial performance, growth, productivity, or any other Wise use means the development, ad- business attribute related to fishing or vancement, management, conserva- fisheries. tion, and protection of fishery re- RAM means the Restricted Access sources, that is not inconsistent with Management division in the Alaska Re- the National Standards for Fishery gional Office of NMFS or the office Conservation and Management (16 that undertakes the duties of this divi- U.S.C. 1851) and any other relevant cri- sion to issue or manage quota shares. teria, as may be specified in applicable Refinancing means newer debt that statutes, regulations, Fishery Manage- either replaces older debt or reim- ment Plans, or NMFS guidance.

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§ 253.11 General FFP credit standards credit, non-current assets readily capa- and requirements. ble of generating working capital, a (a) Principal. Unless explicitly stated guarantor with sufficient financial re- otherwise in these regulations or appli- sources, etc.). cable statutes, the amount of any loan (g) Audited financial statements. Au- may not exceed 80 percent of actual dited financial statements will ordi- cost, as such term is described in narily be required for any obligor with § 253.16; provided that the Program may large or financially complex oper- approve an amount that is less, in ac- ations, as determined by the program, cordance with its credit determination. whose financial condition the Program (b) Interest rate. Each loan’s annual believes cannot be otherwise assessed interest rate will be 2 percent greater with reasonable certainty. than the U.S. Department of Treas- (h) Consultant services. Expert con- ury’s cost of borrowing public funds of sulting services may be necessary to an equivalent maturity at the time the help the Program assess a project’s loan closes. economic, technical, or financial feasi- (c) Ability and experience requirements. bility. The Program will notify the ap- An obligor and the majority of its prin- plicant if an expert is required. The cipals must demonstrate the ability, Program will select and employ the experience, resources, character, rep- necessary consultant, but require the utation, and other qualifications the applicant to reimburse the Program for Program deems necessary for success- any fees charged by the consultant. In fully operating the project property the event that an application requires and protecting the Program’s interest expert consulting services, the loan in the project. will not be closed until the applicant (d) Lending restrictions. Unless it can fully reimburses the Program for the document that unique or extraordinary consulting fees. This cost may, at the circumstances exist, the Program will Program’s discretion, be included in not provide financing: the amount of the note. For a declined (1) For venture capital purposes; or application, the Program may reim- (2) To an applicant who cannot docu- burse itself from the application fee as ment successful fishing industry abil- described in § 253.12, including any por- ity and experience of a duration, de- tion known as the commitment fee gree, and nature that the Program that could otherwise be refunded to the deems necessary to successfully repay applicant. the requested loan. (i) Property inspections. The Program (e) Income and expense projections. The may require adequate condition and Program, using conservative income valuation inspection of all property and expense projections for the project used as collateral as the basis for as- property’s operation, must determine sessing the property’s worth and suit- that projected net earnings can service ability for lending. The Program may all debt, properly maintain the project also require these at specified periods property, and protect the Program’s in- during the life of the loan. These must terest against risks of loss, including be conducted by competent and impar- the industry’s cyclical economics. tial inspectors acceptable to the Pro- (f) Working capital. The Program gram. Inspection cost(s) will be at an must determine that a project has suf- applicant’s expense. Those occurring ficient initial working capital to before application approval may be in- achieve net earnings projections, fund cluded in actual cost, as actual cost is all foreseeable contingencies, and pro- described in § 253.16. tect the Program’s interest in the (j) Collateral. The Program shall have project. In making its determination, first lien(s) on all primary project the Program will use a conservative as- property pledged as collateral. The sessment of an applicant’s financial Program, at its discretion, may request condition, and at the Program’s discre- additional collateral and will consider tion, some portion of projected work- any additional collateral in its credit ing capital needs may be met by some- determinations. thing other than current assets minus (k) No additional liens. All primary liabilities (i.e., by a line or letter of project property pledged as collateral,

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including any additional collateral, The Program will not issue an AIP let- shall be free of additional liens, unless ter if any of the application fee re- the Program, at the request of the ap- mains unpaid. No portion of the appli- plicant, expressly waives this require- cation fee shall be refunded once the ment in writing. Program issues an AIP letter. (l) General FFP credit standards apply. (c) False statement. A false statement Unless explicitly stated otherwise in on an application is grounds for denial these rules, all FFP direct lending is or termination of funds, grounds for subject to the above general credit possible punishment by a fine or im- standards and requirements found in prisonment as provided in 18 U.S.C. §§ 253.12 through 253.30. The Program 1001 and an event of a security default. may adjust collateral, guarantee and other requirements to reflect indi- § 253.13 Initial investigation and ap- vidual credit risks. proval. (m) Adverse legal proceedings. The (a) The Program shall undertake a Program, at its own discretion, may due diligence investigation of every ap- decline or hold in abeyance any loan plication it receives to determine if, in approval or disbursement(s) to any ap- the Program’s sole judgment, the applicant found to have outstanding law- plication is both: suits, citations, hearings, liabilities, (1) Eligible for a loan because it appeals, sanctions or other pending ac- meets applicable loan requirements; tions whose negative outcome could and significantly impact, in the opinion of (2) Qualified for a loan because the the Program, the financial cir- project is deemed an acceptable credit cumstances of the applicant. risk. (b) The Program will approve eligible § 253.12 Credit application. and qualified applicants by evaluating (a) Applicant. (1) An applicant must the information obtained during the be a U.S. citizen and be eligible to doc- application and investigation process. ument a vessel in the coastwise trade: (c) Among other investigations, ap- and plicants may be subject to a back- (2) Only the legal title holder of ground check, fisheries violations project property, or its parent com- check and credit review. Background pany (or the lessee of an appropriate checks are intended to reveal if any long-term lease) may apply for a loan; key individuals associated with the ap- and plicant have been convicted of or are (3) An applicant and the majority of presently facing criminal charges such its principals must generally have the as fraud, theft, perjury, or other mat- ability, experience, resources, char- ters which significantly reflect on the acter, reputation, and other qualifica- applicant’s honesty or financial integ- tions the Program deems necessary for rity. successfully operating, utilizing, or (d) The Program, at its own discre- carrying out the project and protecting tion, may decline or delay approval of the Program’s interest; and any loans or disbursements to any ap- (4) Applicants should apply to the applicant found to have outstanding cita- propriate NMFS Regional Financial tions, notices of violations, or other Services Branch to be considered. pending legal actions or unresolved (b) Application fee. An application fee claims. of 0.5 percent of the dollar amount of (e) The Program may place any an application is due when the applica- terms and conditions on such approvals tion is formally accepted. Upon sub- that the Program, in its sole discre- mission, 50 percent of the application tion, deems necessary and appropriate. fee, known as the ‘‘filing fee,’’ is non- (f) Credit decision. (1) The Program refundable; the remainder, known as shall issue to approved applicants an the ‘‘commitment fee,’’ may be re- AIP letter, which shall describe the funded if the Program declines an ap- terms and conditions of the loan, in- plication or an applicant withdraws its cluding (but not limited to) loan application before the Program issues amounts, maturities, additional collat- an AIP letter, as described in § 253.13(e). eral, repayment sources or guarantees.

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Such terms and conditions are at the commodate the obligor, including addi- Program’s sole discretion and shall tional interest charges and fees. also be incorporated in security documents that the Program prepares. An § 253.15 Recourse against parties. applicant’s non-acceptance of any (a) Form. Recourse by borrowers or terms and conditions may result in an guarantors may be by a repayment applicant’s disqualification. guarantee, irrevocable letter of credit, (2) Any application the Program additional tangible or intangible col- deems ineligible or unqualified will be lateral, or other form acceptable to the declined. Program. (b) Principals accountable. The prin- § 253.14 Loan documents. cipal parties in interest, who ulti- (a) U.S. Note. (1) The U.S. Note will be mately stand most to benefit from the in the form the Program prescribes. project, will ordinarily be held finan- (2) The U.S. Note evidences the obli- cially accountable for the project’s per- gor’s indebtedness to the United formance. The Program may require States. recourse against: (i) For financing approved after Octo- (1) All major shareholders of a close- ber 11, 1996, the U.S. Note evidences the ly-held corporate obligor; obligor’s actual indebtedness to the (2) The parent corporation of a sub- U.S.; and sidiary corporate obligor; (ii) For financing originating before (3) The related business entities of October 11, 1996, that continues to be the obligor if the Program determines associated with a Guaranteed Note, the that the obligor lacks substantial U.S. Note shall evidence the obligor’s pledged assets other than the project actual indebtedness to the U.S. upon property or is otherwise lacking in any the Program’s payment of any or all of credit factor required to approve the the sums due under the Guaranteed application; Note or otherwise disbursed on the ob- (4) Any or all major limited partners; ligor’s behalf. (5) Non-obligor spouses of applicants (iii) The U.S. Note will, among other or obligors in community property things, contain provisions to add to its states; and/or principal balance all amounts the Pro- (6) Against any others it deems nec- gram advances or incurs, including ad- essary to protect its interest. ditional interest charges and costs in- (c) Recourse against parties. Should curred to protect its interest or accom- the Program determine that a sec- modate the obligor. ondary means of repayment from other (3) The U.S. Note shall be assignable sources is necessary (including the net by the Program, at its sole discretion. worth of parties other than the obli- (b) Security documents. (1) Each secu- gor), the Program may require secured rity document will be in the form the or unsecured recourse against any such Program prescribes. secondary repayment sources. (2) The Program will, at a minimum, (d) Recourse unavailable. Where appro- require the pledge of adequate collat- priate recourse is unavailable, the con- eral, generally in the form of a security servatively projected net liquidating interest or mortgage against all prop- value of the obligor’s assets (as such erty associated with a project or secu- assets are pledged to the Program) rity as otherwise required by the Pro- must, in the Program’s credit judg- gram. ment, substantially exceed all pro- (3) The Program will require such jected Program exposure or other risks other security as it deems necessary of loss. and appropriate, given the circumstances of each obligor and the § 253.16 Actual cost. project. Actual cost shall be determined as (4) The security documents will, follows: among other things, contain provisions (a) The actual cost of a vessel shall to secure the repayment of all addi- be the sum of: tional amounts the Program advances (1) The total cost of the project de- or incurs to protect its interest or ac- preciated on a straight-line basis, over

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the project property’s useful life, using (b) Insurers must be acceptable to a 10-percent salvage value; and the Program. (2) The current market value of ap- (c) Insurance must be in such forms purtenant limited access privileges or and amounts and against such risks the transferable limited access privileges Program deems necessary to protect vested in the name of the obligor, the the United States’ interest. subject vessel or their owners, provided (d) Insurance must be endorsed to in- that such privileges are utilized by or clude the requirements the Program aboard the subject vessel and will be deems necessary and appropriate. pledged as collateral for the subject (1) Normally and as appropriate, the FFP financing. Program will be named as an addi- (b) The actual cost of a facility shall tional insured, mortgagee, or loss be the sum of: payee, for the amount of its interest; (1) The total cost of the project, not any waiver of this requirement must be including land, depreciated on a in writing; straightline basis over the Project Property’s useful life, using a 10-per- (2) Cancellation will require adequate cent salvage value; advance written notice; (2) The current market value of the (3) The Program will be adequately land that will be pledged as collateral protected against other insureds’ for the subject FFP financing, provided breaches of policy warranties, neg- that such land is utilized by the facil- ligence, omission, etc., in the case of ity; and marine insurance, vessel seaworthiness (3) The net present value of the pay- will be required; ments due under a long term lease of (4) The insured must provide cov- land or marine use rights, provided erage for any other risk or casualty the that they meet the following require- Program may require. ments: (i) The project property must be lo- § 253.18 Closing. cated at such leased space or directly (a) Approval in principle letters. Every use such marine use rights; closing will be in strict accordance (ii) Such lease or marine use right with a final approval in principle let- must have a duration the Program ter. deems sufficient; and (b) Contracts. Promissory notes, secu- (iii) The lease or marine use right rity documents, and any other docu- must be assigned to the Program such ments the Program may require will be that the Program may foreclose and on standard Program forms that may transfer such lease to another party. (c) The actual cost of a transferable not be altered without Program writ- limited access privilege shall be deter- ten approval. The Program will ordi- mined as follows: narily prepare all contracts, except (1) For financing the purchase of lim- certain pledges involving real property ited access privileges, the actual cost or other matters involving local law, shall be the purchase cost. which will be prepared by each obli- (2) For refinancing limited access gor’s attorney at the direction and ap- privileges, the actual cost shall be the proval of the Program. current market value. (c) Additional requirements. At its dis- (d) The actual cost of any Project cretion the Program may require serv- that includes any combination of items ices from applicant’s attorneys, other described in paragraphs (a), (b) or (c) of contractors or agents. Real property this section shall be the sum of such services required from an applicant’s calculations. attorney or agent may include, but are not limited to: Title search, title insur- § 253.17 Insurance. ance, mortgage and other document (a) All insurable collateral property preparation, document execution and and other risks shall be continuously recording, escrow and disbursement, insured so long as any balance of prin- and legal opinions and other assur- cipal or interest on a Program loan or ances. The Program will notify the ap- guarantee remains outstanding. plicant in advance if any such services

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are required of the applicant’s attor- ‘‘U.S. Department of Commerce, Na- neys, contractors or other agents. Ap- tional Oceanic and Atmospheric Ad- plicants are responsible for all attor- ministration, National Marine Fish- ney’s fees, as well as those of any other eries Service,’’ to such address as the private contractor. Attorneys and Program may designate. To ensure other contractors must be satisfactory proper crediting, each check should in- to the Program. clude the official case number the Pro- (d) Closing schedules. The Program gram assigns. will not be liable for adverse interest- rate fluctuations, loss of commitments, § 253.21 Demand by guaranteed or other consequences of an inability noteholder and payment. by any of the parties to meet the clos- Every demand by the guaranteed ing schedule. noteholder must be delivered in writing to the Program and must include the § 253.19 Dual-use CCF. noteholder’s certified record of the The Program may require the pledge date and amount of each payment of a CCF account or annual deposits of made on the guaranteed note and the some portion of the project property’s manner of its application. The only pe- net income into a dual-use CCF. A riod during which a guaranteed dual-use CCF provides the normal CCF noteholder can make demand for a pay- tax-deferral benefits, but also gives the ment default begins on the thirty-first Program control of CCF withdrawals, day of the payment default and con- recourse against CCF deposits, ensures tinues through the ninetieth day of a an emergency refurbishing reserve payment default. The noteholder must (tax-deferred) for project property, and possess evidence of the demand’s time- provides additional collateral. ly delivery.

§ 253.20 Fees. § 253.22 Program operating guidelines. (a) Application fee. See §§ 253.10 and The Program may issue policy and 253.12(b). administrative guidelines, as the need (b) Guarantee fee. For existing Guar- arises. anteed Loans, an annual guarantee fee will be due in advance and will be based § 253.23 Default and liquidation. on the guaranteed note’s repayment Upon default under the terms of any provisions for the prospective year. note, guarantee, security agreement, The first annual guarantee fee is due at mortgage, or other security document guarantee closing. Each subsequent the Program shall take remedial ac- guarantee fee is due and payable on the tions including, but not limited to, guarantee closing’s anniversary date. where appropriate, retaking or arrest Each is fully earned when due, and of collateral, foreclosure, restruc- shall not subsequently be refunded for turing, debarment, referral for debt any reason. collection, or liquidation as it deems (c) Refinancing or assumption fee. The best able to protect the U.S. Govern- Program will assess a fee of one quar- ment’s interest. ter of one (1) percent of the note to be refinanced or assumed. This fee is due § 253.24 Enforcement violations and upon application for refinancing or as- adverse actions. sumption of a guaranteed or direct (a) Compliance with applicable law. All loan. Upon submission, the fee shall be applicants and Program participants non-refundable. The Program may shall comply with applicable law. waive a refinancing or assumption fee’s (b) Applicant disqualification. (1) Any payment when the refinancing or as- issuance of any citation or Notice of sumption’s primary purpose will ben- Violation and Assessment by NMFS en- efit the United States. forcement or other enforcement au- (d) Where payable. Fees are payable thority may constitute grounds for the by check to ‘‘U.S. Department of Com- Program to: merce/NOAA.’’ Other than those col- (i) Delay application or approval lected at application or closing, fees processing; are payable by mailing checks to the (ii) Delay loan closing;

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(iii) Delay disbursement of loan pro- istered foreign organization number). ceeds; Recipients who either fail to provide (iv) Disqualify an applicant or obli- their TIN or provide an incorrect TIN gor; or may have application processing or (v) Declare default. funding suspended until the require- (2) The Program will not approve ment is met. loans or disburse funds to any appli- (d) Audit inquiry. An audit of a Pro- cant found to have an outstanding, gram loan may be conducted at any final and unappealable fisheries fine or time. Auditors, selected at the discre- other unresolved penalty until either: tion of the Program or other agency of Such fine is paid or penalty has been the United States, shall have access to resolved; or the applicant enters into any and all books, documents, papers an agreement to pay the penalty and and records of the obligor or any other makes all payments or installments as party to a financing that the auditor(s) they are due. Failure to pay or resolve deem(s) pertinent, whether written, any such fine or penalty in a reason- printed, recorded, produced or repro- able period of time will result in the duced by any mechanical, magnetic or applicant’s disqualification. other process or medium. (c) Foreclosure in addition to other pen- (e) Paperwork Reduction Act. The ap- alties. In the event that a person with plication requirements contained in an outstanding balance on a Program these rules have been approved under loan or guarantee violates any owner- OMB control number 0648–0012. The ap- ship, lease, use, or other provision of plications for the halibut/sablefish QS applicable law, such person may be crew member eligibility certificate subject to foreclosure of property, in have been approved under OMB control addition to any fines, sanctions, or number 0648–0272. Notwithstanding any other penalties. other provisions of law, no person is required to respond to, nor shall any per- § 253.25 Other administrative require- son be subject to a penalty for failure ments. to comply with, a collection of infor- (a) Debt Collection Act. In accordance mation subject to the requirements of with the provisions of the Debt Collec- the Paperwork Reduction Act unless tion Improvement Act of 1996, a person that collection of information displays may not obtain any Federal financial a currently valid OMB control number. assistance in the form of a loan (other than a disaster loan) or loan guarantee § 253.26 Traditional loans. if the person has an outstanding debt (a) Eligible projects. Financing or refi- (other than a debt under the Internal nancing up to 80 percent of a project’s Revenue Code of 1986) with any Federal actual cost shall be available to any agency which is in a delinquent status, citizen who is determined to be eligible as determined under standards pre- and qualified under the Act and these scribed by the Secretary of the Treas- rules, except— ury. (1) The Program will not finance the (b) Certifications. Applicants must cost of new vessel construction. submit a completed Form CD–511, (2) The Program will not finance a ‘‘Certifications Regarding Debarment, vessel refurbishing project that materi- Suspension and Other Responsibility ally increases an existing vessel’s har- Matters; Drug-Free Workplace Re- vesting capacity. quirements and Lobbying,’’ or its (b) Financing or refinancing. (1) equivalent or successor form, if any. Projects, other than those specified in (c) Taxpayer identification. An appli- paragraphs (a) (1) and (a)(2) of this sec- cant classified for tax purposes as an tion, may be financed, as well as refi- individual, limited liability company, nanced. partnership, proprietorship, corpora- (2) Notwithstanding paragraph (a)(1) tion, or legal entity is required to sub- of this section, the Program may refi- mit along with the application a tax- nance the construction cost of a vessel payer identification number (TIN) (so- whose construction cost has already cial security number, employer identi- been financed (or otherwise paid) prior fication number as applicable, or reg- to the submission of a loan application.

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(3) Notwithstanding paragraph (a)(2) for purchasing, individual fishing of this section, the Program may refi- quotas in accordance with the applica- nance the refurbishing cost of a vessel ble sections of the Magnuson-Stevens whose initial refurbishing cost has al- Fishery Conservation and Management ready been financed (or otherwise paid) Act or any other statute. prior to the submission of a loan application. § 253.28 Halibut sablefish IFQ loans. (4) The Program may finance or refi- (a) Specific definitions. For the pur- nance the purchase or refurbishment of poses of this section, the following any vessel or facility for which the definitions apply: Secretary has: (1) Entry-level fishermen means fish- (i) Accelerated and/or paid out- ermen who do not own any IFQ in the standing debts or obligations; year they apply for a loan. (ii) Acquired; or (2) Fishermen who fish from small (iii) Sold at foreclosure. vessels means fishermen wishing to (c) Existing vessels and facilities. The purchase IFQ for use on Category B, Program may finance the purchase of Category C, or Category D vessels, but an existing vessel or existing fishery who do not own, in whole or in part, facility if such vessel or facility will be any Category A or Category B vessels, refurbished in the United States and as such vessels are defined in 50 CFR will be used in the fishing industry. 679.40(a)(5) of this title. (d) Fisheries modernization. Notwith- (3) Halibut sablefish quota share standing any of this part, the Program means a halibut or sablefish permit, may finance or refinance any: the face amount of which is used as the (1) Activities that assist in the tran- basis for the annual calculation of a sition to reduced fishing capacity; or person’s halibut or sablefish IFQ, also (2) Technologies or upgrades designed abbreviated as ‘‘HSQS’’ or ‘‘halibut/sa- to: blefish QS.’’ (i) Improve collection and reporting (4) Halibut/Sablefish IFQ means the of fishery-dependent data; annual catch limit of halibut or sable- (ii) Reduce bycatch; fish that may be harvested by a person (iii) Improve selectivity; who is lawfully allocated halibut or sa- (iv) Reduce adverse impacts of fish- blefish quota share, a harvest privilege ing gear; or for a specific portion of the total allow- (v) Improve safety. able catch of halibut or sablefish. (e) Guaranty transition. Upon applica- (b) Entry level fishermen. The Program tion by the obligor, any guaranteed may finance up to 80 percent of the loans originated prior to October 11, cost of purchasing HSQS by an entry 1996, may be refinanced as direct loans, level fisherman who: regardless of the original purpose of (1) Does not own any halibut/sable- the guaranteed loan. fish QS during the origination year; (f) Maturity. Maturity may not ex- (2) Applies for a loan to purchase a ceed 25 years, but shall not exceed the quantity of halibut/sablefish QS that is project property’s useful life. The Pro- not greater than the equivalent of 8,000 gram, at its sole discretion, may set a lb. (3,628.7 kg) of IFQ during the origi- shorter maturity period. nation year; (g) Credit standards. Traditional loans (3) Possesses the appropriate transfer are subject to all Program general eligibility documentation duly issued credit standards and requirements. Col- by RAM for HSQS; lateral, guarantee and other require- (4) Intends to be present aboard the ments may be adjusted in accordance vessel, as may be required by applica- with the Program’s assessment of indi- ble regulations; and vidual credit risks. (5) Meets all other Program eligibility, qualification, lending and credit § 253.27 IFQ financing. requirements. The Program may finance or refi- (c) Fishermen fishing from small vessels. nance the project cost of purchasing, The Program may finance up to 80 per- including the reimbursement of obli- cent of the cost of purchasing HSQS by gors for expenditures previously made a fisherman who fishes from a small

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vessel, provided that any such fisher- (f) Repayment. Repayment will be by man shall: equal quarterly installments of prin- (1) Apply for a loan to purchase hal- cipal and interest. ibut or sablefish QS for use on vessel (g) Security. Although quota share(s) Categories B, C, or D, as defined under will be the primary collateral for a 50 CFR 679.40(a)(5) of this title; HSQS loan, the Program may require (2) Not own an aggregate quantity of additional security pledges to maintain halibut/sablefish QS (including the the priority of the Program’s security loan QS) of more than the equivalent of interest. The Program, at its option, 50,000 lb. (22,679.6 kg) of IFQ during the may also require all parties with sig- origination year; nificant ownership interests to personally guarantee loan repayment for any (3) Not own, in whole or in part, di- applicant that is a corporation, part- rectly or indirectly (including through nership, or other entity. Subject to the stock or other ownership interest) any Program’s credit risk determination, vessel of the type that would have been some projects may require additional assigned Category A or Category B security, collateral, or credit enhance- HSQS under 50 CFR 679.40(a)(5); ment. (4) Possess the appropriate transfer (h) Crew member transfer eligibility cer- eligibility documentation duly issued tification. The Program will accept by the RAM for HSQS; RAM certification as proof that appli- (5) Intend to be present aboard the cants are eligible to hold HSQS. The vessel, as may be required by applica- application of any person determined ble regulations, as IFQ associated with by RAM to be unable to receive such halibut/sablefish QS financed by the certification will be declined. Appli- loan is harvested; and cants who fail to obtain appropriate (6) Meet all other Program eligi- transfer eligibility certification within bility, qualification, lending and credit 45 working days of the date of applica- requirements. tion may lose their processing priority. (d) Refinancing. (1) The Program may (i) Program credit standards. HSQS refinance any existing debts associated loans, regardless of purpose, are sub- with HSQS an applicant currently ject to all Program general credit holds, provided that— standards and requirements. Collat- (i) The HSQS being refinanced would eral, guarantee and other requirements have been eligible for Program financ- may be adjusted to individual credit ing at the time the applicant purchased risks. it, and § 253.29 CDQ loans. (ii) The applicant meets the Pro- gram’s applicable lending require- (a) FFP actions. The Program may fi- ments. nance or refinance up to 80 percent of a project’s actual cost. (2) The refinancing is in an amount (b) Eligible projects. Eligible projects up to 80 percent of HSQS’ current mar- include the purchase of all or part of ket value; however, the Program will ownership interests in fishing or proc- not disburse any amount that exceeds essing vessels, shoreside fish processing the outstanding principal balance, plus facilities, permits, quota, and coopera- accrued interest (if any), of the exist- tive rights in any of the Bering Sea and ing HSQS debt being refinanced. Aleutian Islands fisheries. (3) In the event that the current mar- (c) Eligible entities. The following ket value of HSQS and principal loan communities, in accordance with appli- balance do not meet the 80 percent re- cable law and regulations are eligible quirement in paragraph (d)(2) of this to participate in the loan program: section, applicants seeking refinancing (1) The villages of Akutan, Atka, may be required to provide additional False Pass, Nelson Lagoon, Nikolski, down payment. and Saint George through the Aleutian (e) Maturity. Loan maturity may not Pribilof Island Community Develop- exceed 25 years, but may be shorter de- ment Association. pending on credit and other consider- (2) The villages of Aleknagik, Clark’s ations. Point, Dillingham, Egegik, Ekuk,

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Ekwok, King Salmon/Savonoski, Crab IFQ, also abbreviated as ‘‘Crab Levelock, Manokotak, Naknek, Pilot QS.’’ Point, Port Heiden, Portage Creek, (b) Crab captains or crewmen. The Pro- South Naknek, Togiak, Twin Hills, and gram may finance up to 80 percent of Ugashik through the Bristol Bay Eco- the cost of purchasing Crab QS by a nomic Development Corporation. citizen: (3) The village of Saint Paul through (1) Who is or was: the Central Bering Sea Fishermen’s As- (i) A captain of a crab fishing vessel, sociation. or (4) The villages of Chefornak, (ii) A crew member of a crab fishing Chevak, Eek, Goodnews Bay, Hooper vessel; Bay, Kipnuk, Kongiganak, Kwigillingok, Mekoryuk, Napakiak, (2) Who has been issued the appro- Napaskiak, Newtok, Nightmute, priate documentation of eligibility by Oscarville, Platinum, Quinhagak, RAM; Scammon Bay, Toksook Bay, (3) Whose aggregate holdings of QS Tuntutuliak, and Tununak through the will not exceed any limit on Crab QS Coastal Villages Region Fund. holdings that may be in effect in the (5) The villages of Brevig Mission, Crab FMP implementing regulations or Diomede, Elim, Gambell, Golovin, applicable statutes in effect at the Koyuk, Nome, Saint Michael, time of loan closing; and will not hold Savoonga, Shaktoolik, Stebbins, Tell- either individually or collectively, er, Unalakleet, Wales, and White based on the initial QS pool, as pub- Mountain through the Norton Sound lished in 50 CFR part 680, Table 8; and Economic Development Corporation. (4) Who, at the time of initial appli- (6) The villages of Alakanuk, cation, meets all other applicable eligi- Emmonak, Grayling, Kotlik, Mountain bility requirements to fish for crab or Village, and Nunam Iqua through the hold Crab QS contained in the Crab Yukon Delta Fisheries Development FMP implementing regulations or ap- Association. plicable statutes in effect at the time (7) Any new groups established by ap- of loan closing. plicable law. (c) Refinancing. (1) The Program may (d) Loan terms. (1) CDQ loans may refinance any existing debts associated have terms up to thirty years, but shall with Crab QS that an applicant cur- not exceed the project property’s useful rently holds, provided that: life. The Program, at its sole discre- (i) The Crab QS being refinanced tion, may set a shorter maturity pe- would have been eligible for Program riod. financing at the time the applicant (2) CDQ loans are subject to all Pro- purchased it; gram general credit standards and requirements. Collateral, guarantee and (ii) The applicant meets the Pro- other requirements may be adjusted to gram’s applicable lending require- individual credit risks. ments; and (iii) The applicant would meet the re- § 253.30 Crab IFQ loans. quirements found in the Crab FMP im- (a) Specific definitions. For the pur- plementing regulations at the time any poses of this section, the following such refinancing loan would close. definitions apply: (2) The Program may refinance an (1) Crab means those crab species amount up to 80 percent of Crab QS’s managed under the Fishery Manage- current market value; however, the ment Plan for Bering Sea/Aleutian Is- Program will not disburse any amount land (BSAI) King and Tanner Crab. that exceeds the outstanding principal (2) Crab FMP means the Fishery balance, plus accrued interest (if any), Management Plan for BSAI King and of the existing Crab QS debt being refi- Tanner Crab. nanced. (3) Crab quota share means a BSAI (3) In the event that the current mar- King and Tanner Crab permit, the base ket value of Crab QS and current prin- amount of which is used as a basis for cipal balance do not meet the 80 per- the annual calculation of a person’s cent requirement in paragraph (c)(2) of

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this section, applicants seeking refi- 3 of the Magnuson-Stevens Fishery nancing may be required to provide ad- Conservation and Management Act (16 ditional down payment. U.S.C. 1802). (d) Maturity. Loan maturity may not (b) Loan requirements and limitations. exceed 25 years, but may be shorter de- These loan requirements and limita- pending on credit and other consider- tions apply to individuals or entities ations. who seek to finance or refinance the (e) Repayment. Repayment schedules acquisition of harvesting rights. will be set by the loan documents. (1) The borrower must meet all regu- (f) Security. Although the quota share latory and statutory requirements to will be the primary collateral for a hold the harvesting rights at the time Crab QS loan, the Program may re- any such loan or refinancing loan quire additional security pledges to would close. maintain the priority of the Program’s (2) NMFS will accept and consider security interest. The Program, at its the input of a Regional Fishery Man- option, may also require all parties agement Council at any time regarding with significant ownership interests to the availability of loans in a fishery personally guarantee loan repayment under the Council’s authority. for any applicant that is a corporation, (i) The Council may submit an expla- partnership, or other entity. Subject to nation to NMFS, in writing, as to why the Program’s credit risk determina- the availability of financing for har- tion, some projects may require addi- vesting rights in a fishery would harm tional security, collateral, or credit en- the achievement of the goals and objec- hancement. tives of the Fishery Management Plan (g) Crew member transfer eligibility cer- applicable to the fishery. If NMFS ac- tification. The Program will accept cepts the Council’s reasoning, har- RAM transfer eligibility certification vesting rights loans will not be pro- as proof that applicants are eligible to vided, or will cease to be provided, in hold Crab QS. The application of any that fishery. person determined by RAM to be un- (ii) If NMFS determines that har- able to receive such certification will vesting rights loans will not be pro- be declined. Applicants who fail to ob- vided in a fishery, NMFS will publish a tain appropriate transfer eligibility notice in the FEDERAL REGISTER noti- certification within 45 working days of fying the public that new loans will not the date of application may lose their be made in that fishery. processing priority. (iii) In such a scenario, pending ap- (h) Crab Quota Share Ownership Limi- plications will be returned and loan tation. A program obligor must comply fees returned as exceptional cir- with all applicable maximum amounts, cumstances justify the action. as may be established by NMFS regula- (3) The harvesting rights to be fi- tions, policy or North Pacific Fishery nanced must be issued in a manner in Management Council action. which they can be individually identi- (i) Program credit standards. Crab QS fied such that a valid and specific secu- loans are subject to all Program gen- rity interest can be recorded. This de- eral credit standards and requirements. termination shall be solely made by Collateral, guarantee and other re- the Program. quirements may be adjusted to indi- (c) Refinancing. (1) The Program may vidual credit risks. refinance any existing debts associated with harvesting rights a borrower cur- § 253.31 Harvesting rights loans. rently holds, provided that: (a) Specific definitions. For the pur- (i) The harvesting rights being refi- poses of this section, the following nanced would have been eligible for definitions apply: Program financing at the time the bor- (1) Harvesting right(s) means any rower purchased them, if Program fi- privilege to harvest fish in a fishery nancing had been available; that is federally managed under a lim- (ii) The borrower meets all other ap- ited access system. plicable lending requirements; and (2) Limited access system has the same (iii) The refinancing is in an amount meaning given to that term in section up to 80 percent of the harvesting

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rights’ current market value, as deter- Adopt means to implement an inter- mined at the sole discretion of the Pro- state fishery management plan by gram, and subject to the limitation State action or regulation. that the Program will not disburse any Commercial fishery failure means a se- amount that exceeds the outstanding rious disruption of a fishery resource principal balance, plus accrued interest affecting present or future productivity (if any), of the existing harvesting due to natural or undetermined causes. rights’ debt being refinanced or its fair It does not include either: market value, whichever is less. (1) The inability to harvest or sell (2) In the event that the current mar- raw fish or manufactured and processed ket value of harvesting rights and prin- fishery merchandise; or cipal loan balance do not meet the 80 (2) Compensation for economic loss percent requirement in paragraph suffered by any segment of the fishing (c)(1)(iii) of this section, borrowers industry as the result of a resource dis- seeking refinancing may be required to aster. provide additional down payment. Enforcement agreement means a writ- (d) Maturity. Loan maturity may not ten agreement, signed and dated, be- exceed 25 years, but may be shorter de- tween a state agency and either the pending on credit and other consider- Secretary of the Interior or Secretary ations. of Commerce, or both, to enforce Fed- (e) Repayment. Repayment will be by eral and state laws pertaining to the equal quarterly installments of prin- protection of interjurisdictional fish- cipal and interest. ery resources. (f) Security. Although harvesting Federal fishery management plan right(s) will be the primary collateral means a plan developed and approved for a loan, the Program may require under the Magnuson Fishery Conserva- additional security pledges to maintain tion and Management Act (16 U.S.C. the priority of the Program’s security 1801 et seq.). interest. The Program, at its option, Fisheries management means all ac- may also require all parties with sig- tivities concerned with conservation, nificant ownership interests to person- restoration, enhancement, or utiliza- ally guarantee loan repayment for any tion of fisheries resources, including borrower that is a corporation, part- research, data collection and analysis, nership, or other entity, including col- monitoring, assessment, information lateral to secure the guarantees. Some dissemination, regulation, and enforce- projects may require additional secu- ment. rity, collateral, or credit enhancement Fishery resource means finfish, mol- as determined, in the sole discretion, lusks, and crustaceans, and any form of by the Program. marine or Great Lakes animal or plant (g) Program credit standards. Har- life, including habitat, other than ma- vesting rights loans, regardless of pur- rine mammals and birds. pose, are subject to all Program gen- Interjurisdictional fishery resource eral credit standards and requirements. means: Collateral, guarantee and other re- (1) A fishery resource for which a quirements may be adjusted to indi- fishery occurs in waters under the ju- vidual credit risks. risdiction of one or more states and the [83 FR 24232, May 25, 2018] U.S. Exclusive Economic Zone; or (2) A fishery resource for which an §§ 253.32–253.49 [Reserved] interstate or a Federal fishery management plan exists; or Subpart C—Interjurisdictional (3) A fishery resource which migrates Fisheries between the waters under the jurisdiction of two or more States bordering § 253.50 Definitions. on the Great Lakes. The terms used in this subpart have Interstate Commission means a com- the following meanings: mission or other administrative body Act means the Interjurisdictional established by an interstate compact. Fisheries Act of 1986, Public Law 99–659 Interstate compact means a compact (Title III). that has been entered into by two or

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more states, established for purposes of or the Commonwealth of the Northern conserving and managing fishery re- Mariana Islands. sources throughout their range, and State agency means any department, consented to and approved by Congress. agency, commission, or official of a Interstate Fisheries Research Program state authorized under the laws of the means research conducted by two or State to regulate commercial fisheries more state agencies under a formal or enforce laws relating to commercial interstate agreement. fisheries. Interstate fishery management plan Value means the monetary worth of means a plan for managing a fishery fishery resources used in developing resource developed and adopted by the the apportionment formula, which is member states of an Interstate Marine equal to the price paid at the first Fisheries Commission, and contains in- point of landing. formation regarding the status of the Volume means the weight of the fish- fishery resource and fisheries, and rec- ery resource as landed, at the first ommends actions to be taken by the point of landing. States to conserve and manage the fishery resource. § 253.51 Apportionment. Landed means the first point of off- (a) Apportionment formula. The loading fishery resources. amount of funds apportioned to each NMFS Regional Director means the Di- state is to be determined by the Sec- rector of any one of the five National retary as the ratio which the equally Marine Fisheries Service regions. weighted average of the volume and Project means an undertaking or a value of fishery resources harvested by proposal for research in support of domestic commercial fishermen and management of an interjurisdictional landed within such state during the 3 fishery resource or an interstate fish- most recent calendar years for which ery management plan. data satisfactory to the Secretary are Research means work or investigative available bears to the total equally study, designed to acquire knowledge weighted average of the volume and of fisheries resources and their habitat. value of all fishery resources harvested Secretary means the Secretary of by domestic commercial fishermen and Commerce or his/her designee. landed within all of the states during State means each of the several those calendar years. states, the District of Columbia, the (1) The equally weighted average Commonwealth of Puerto Rico, Amer- value is determined by the following ican Samoa, the Virgin Islands, Guam, formula:

(2) Upon appropriation of funds by (iii) Instruct NMFS Regional Direc- Congress, the Secretary will take the tors to promptly notify states of funds’ following actions: availability. (i) Determine each state’s share ac- (b) No state, under the apportion- cording to the apportionment formula. ment formula in paragraph (a) of this (ii) Certify the funds to the respec- section, that has a ratio of one-third of tive NMFS Regional Director.

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1 percent or higher may receive an ap- § 253.52 State projects. portionment for any fiscal year that is (a) General—(1) Designation of state less than 1 percent of the total amount agency. The Governor of each state of funds available for that fiscal year. shall notify the Secretary of which (c) If a State’s ratio under the appor- agency of the state government is au- tionment formula in paragraph (b) of thorized under its laws to regulate this section is less than one-third of 1 commercial fisheries and is, therefore, percent, that state may receive funding designated receive financial assistance if the state: awards. An official of such agency shall (1) Is signatory to an interstate fish- certify which official(s) is authorized ery compact; in accordance with state law to com- (2) Has entered into an enforcement mit the state to participation under agreement with the Secretary and/or the Act, to sign project documents, and the Secretary of the Interior for a fish- to receive payments. ery that is managed under an inter- (2) States that choose to submit pro- state fishery management plan; posals in any fiscal year must so notify (3) Borders one or more of the Great the NMFS Regional Director before the Lakes; end of the third quarter of that fiscal (4) Has entered into an interstate co- year. operative fishery management agree- (3) Any state may, through its state ment and has in effect an interstate agency, submit to the NMFS Regional Director a completed NOAA Grants and fisheries management plan or an inter- Cooperative Agreement Application state fisheries research Program; or Package with its proposal for a project, (5) Has adopted a Federal fishery which may be multiyear. Proposals management plan for an interjurisdic- must describe the full scope of work, tional fishery resource. specifications, and cost estimates for (d) Any state that has a ratio of less such project. than one-third of 1 percent and meets (4) States may submit a proposal for any of the requirements set forth in a project through, and request pay- paragraphs (c)(1) through (5) of this ment to be made to, an Interstate Fish- section may receive an apportionment eries Commission. Any payment so for any fiscal year that is not less than made shall be charged against the ap- 0.5 percent of the total amount of funds portionment of the appropriate available for apportionment for such state(s). Submitting a project through fiscal year. one of the Commissions does not re- (e) No state may receive an appor- move the matching funds requirement tionment under this section for any fis- for any state, as provided in paragraph cal year that is more than 6 percent of (c) of this section. the total amount of funds available for (b) Evaluation of projects. The Sec- apportionment for such fiscal year. retary, before approving any proposal (f) Unused apportionments. Any part of for a project, will evaluate the proposal an apportionment for any fiscal year to as to its applicability, in accordance with 16 U.S.C. 4104(a)(2). any state: (c) State matching requirements. The (1) That is not obligated during that Federal share of the costs of any year; project conducted under this subpart, (2) With respect to which the state including a project submitted through notifies the Secretary that it does not an Interstate Commission, cannot ex- wish to receive that part; or ceed 75 percent of the total estimated (3) That is returned to the Secretary cost of the project, unless: by the state, may not be considered to (1) The state has adopted an inter- be appropriated to that state and must state fishery management plan for the be added to such funds as are appro- fishery resource to which the project priated for the next fiscal year. Any applies; or notification or return of funds by a (2) The state has adopted fishery reg- state referred to in this section is ir- ulations that the Secretary has deter- revocable. mined are consistent with any Federal

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fishery management plan for the spe- mula in § 253.601(a) will qualify for cies to which the project applies, in funding under this section. The Federal which case the Federal share cannot share of the cost of any activity con- exceed 90 percent of the total esti- ducted under the disaster provision of mated cost of the project. the Act shall be limited to 75 percent of (d) Financial assistance award. If the the total cost. Secretary approves or disapproves a (2) In addition, pursuant to section proposal for a project, he or she will 308(d) of the Act, the Secretary is au- promptly give written notification, in- thorized to award grants to persons en- cluding, if disapproved, a detailed ex- gaged in commercial fisheries for unin- planation of the reason(s) for the dis- sured losses determined by the Sec- approval. retary to have been suffered as a direct (e) Restrictions. (1) The total cost of result of a fishery resource disaster. all items included for engineering, Funds may be distributed by the Sec- planning, inspection, and unforeseen retary only after notice and oppor- contingencies in connection with any tunity for public comment of the ap- works to be constructed as part of such propriate limitations, terms, and con- a proposed project shall not exceed 10 ditions for awarding assistance under percent of the total cost of such works, this section. Assistance provided under and shall be paid by the state as a part this section is limited to 75 percent of of its contribution to the total cost of an uninsured loss to the extent that the project. such losses have not been compensated (2) The expenditure of funds under by other Federal or State Programs. this subpart may be applied only to (b) Funds for interstate commissions. projects for which a proposal has been Funds authorized to support the efforts evaluated under paragraph (b) of this of the three chartered Interstate Ma- section and approved by the Secretary, rine Fisheries Commissions to develop except that up to $25,000 each fiscal and maintain interstate fishery man- year may be awarded to a state out of agement plans for interjurisdictional the state’s regular apportionment to fisheries will be divided equally among carry out an ‘‘enforcement agree- the Commissions. ment.’’ An enforcement agreement does not require state matching funds. § 253.54 Administrative requirements. (f) Prosecution of work. All work must Federal assistance awards made as a be performed in accordance with appli- result of this Act are subject to all cable state laws or regulations, except Federal laws, Executive Orders, Office when such laws or regulations are in of Management and Budget Circulars conflict with Federal laws or regula- as incorporated by the award; Depart- tions such that the Federal law or reg- ment of Commerce and NOAA regula- ulation prevails. tions; policies and procedures applicable to Federal financial assistance § 253.53 Other funds. awards; and terms and conditions of (a) Funds for disaster assistance. (1) the awards. The Secretary shall retain sole authority in distributing any disaster assist- PART 259—CAPITAL CONSTRUC- ance funds made available under sec- TION FUND TAX REGULATIONS tion 308(b) of the Act. The Secretary may distribute these funds after he or Sec. she has made a thorough evaluation of 259.1 Definitions. the scientific information submitted, 259.2 Applying for a Capital Construction and has determined that a commercial Fund Agreement (‘‘Agreement’’). fishery failure of a fishery resource 259.3 Acquisition, construction, or recon- arising from natural or undetermined struction. causes has occurred. Funds may only 259.4 Constructive deposits and with- be used to restore the resource affected drawals; ratification of withdrawals (as qualified) made without first having ob- by the disaster, and only by existing tained Secretary’s consent; first tax year methods and technology. Any fishery for which an Agreement is effective. resource used in computing the states’ 259.5 Maximum deposit amounts and time amount under the apportionment for- to deposit.

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259.6 Termination of inactive and zero bal- (2) A commercial fishing vessel or ance accounts. vessel which will carry fishing parties 259.7 Annual deposit and withdrawal reports for hire— required. 259.8 CCF accounts. (i) Constructed in the United States 259.9 Conditional consents to withdrawal and, if reconstructed, reconstructed in qualification. the United States; 259.10 Miscellaneous. (ii) State registered if at least 2 net AUTHORITY: 46 U.S.C. 53501, formerly 46 tons but fewer than 5 net tons or Docu- U.S.C. App. 1177 and 1177–1. mented under the laws of the United

SOURCE: 82 FR 24565, May 30, 2017, unless States if 5 net tons or greater; otherwise noted. (iii) Owned by a citizen of the United States; § 259.1 Definitions. (iv) Having its home port in the As used in this part: United States; and Act means Chapter 535 of Title 46 of (v) Operated in the commercial fish- the U.S. Code (46 U.S.C. 53501–53517), as eries of the United States. may be amended from time to time. Extension period means the first day Agreement means the contract to par- following the end of the Filing period ticipate in the program between the and ending on the last day of the par- approved CCF applicant (party) and the ty’s last filing extension. Secretary. Filing period means the first day fol- Agreement vessel means any eligible lowing the end of the Tax Year and vessel or qualified vessel which is sub- ending on the party’s last day to file ject to an Agreement. their tax return absent a filing exten- Citizen of the United States means any sion. person who is a United States citizen Limited Access System means a system and any corporation or partnership organized under the laws of any state that limits participation in a fishery to which meets the requirements for doc- those satisfying certain eligibility cri- umenting vessels in the U.S. coastwise teria or requirements contained in a trade. fishery management plan or associated Commercial fishing means fishing in regulation. which the fish harvested, either in Qualified vessel means— whole or in part, are intended to enter (1) A vessel— commerce or enter commerce through (i) Constructed in the United States sale, barter or trade. (and, if reconstructed, reconstructed in Depository means the bank or broker- the United States), constructed outside age account(s) listed in the Agreement of the United States but documented where the CCF funds will be physically under the laws of the United States on held. April 15, 1970, or constructed outside Eligible vessel means— the United States for use in the United (1) A vessel— States foreign trade pursuant to a con- (i) Constructed in the United States tract made before April 15, 1970; (and, if reconstructed, reconstructed in (ii) Documented under the laws of the the United States), constructed outside United States if 5 net tons or greater; of the United States but documented and under the laws of the United States on April 15, 1970, or constructed outside (iii) Agreed, between the Secretary the United States for use in the United and the person maintaining the capital States foreign trade pursuant to a con- construction fund established under 46 tract made before April 15, 1970; U.S.C. 53503, to be operated in the fish- (ii) Documented under the laws of the eries of the United States; and United States if 5 net tons or greater; (2) A commercial fishing vessel or and vessel which will carry fishing parties (iii) Operated in the foreign or do- for hire— mestic commerce of the United States (i) Constructed in the United States or in the fisheries of the United States; and, if reconstructed, reconstructed in and the United States;

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(ii) State registered if at least 2 net necessary for documenting vessels in tons but fewer than 5 net tons or Docu- the coastwise trade within the meaning mented under the laws of the United of section 2 of the Shipping Act, 1916, States if 5 net tons or greater; as amended); (iii) Owned by a citizen of the United (2) Own or lease one or more eligible States; vessels (as defined at 46 U.S.C. 53501) (iv) Having its home port in the operating in the foreign or domestic United States; and commerce of the United States; (v) Operated in the commercial fish- (3) Have an acceptable plan to ac- eries of the United States; and quire, construct, or reconstruct one or (3) Gear which is permanently fixed more qualified vessels (as defined at 46 to the vessel. The expenditure for gear U.S.C. 53501). The plan must be a firm and certain nets which are not fixed to representation of the applicant’s actual the vessel (pots, traps, longline, seine intentions. Qualified vessels must be nets, gill set nets and gill drift nets) is for commercial operation in the fish- excluded from the amount eligible for eries of the United States. If the vessel qualified withdrawals of CCF funds. is 5 net tons or over, it must be docu- Schedule A means the section of the mented with a fishery trade endorse- Agreement that designates the income ment. Dual documentation in both the producing vessel from which deposits fisheries and the coastwise trade of the are made to a designated account. United States is permissible. Any ves- Schedule B means the section of the sel which will carry fishing parties for Agreement that designates the quali- hire must be inspected and certified fied project for which the CCF funds (under 46 CFR part 176) by the U.S. are to be expended. Coast Guard as qualified to carry more Secretary means the Secretary of than six passengers. If the vessel Commerce with respect to eligible or weighs fewer than 5 net tons the party qualified vessels operated or to be oper- must demonstrate to the Secretary’s ated in the fisheries of the United satisfaction that the carrying of fish- States. ing parties for hire will constitute its Tax due date means the date the par- primary activity. ty’s Federal tax return must be filed, (b) Content of application. Applicants including extensions, with the Internal seeking an Agreement must submit a Revenue Service. formal application providing the fol- Tax year means the period between lowing information: January 1 and December 31 for Cal- (1) Name and Tax Identification endar year filers or the designated fis- Number (TIN) of applicant; cal year for fiscal year filers. (2) Proof of U.S. citizenship; United States means the United (3) The first taxable year for which States of America and, for citizenship the Agreement is to apply (see § 259.4 purposes, includes the Commonwealth for the latest time at which applica- of Puerto Rico, American Samoa, tions for an Agreement relating to the Guam, the U.S. Virgin Islands, the Re- previous taxable year may be received); public of the Marshall Islands, the Fed- (4) The following information regard- erated States of Micronesia, the Com- ing each eligible vessel which is to be in- monwealth of the Northern Mariana Is- corporated in Schedule A of the Agree- lands, and any other commonwealth, ment: territory, or possession of the United (i) Name of vessel, States, or any political subdivision of (ii) Official number or, in the case of any of them. vessels weighing under 5 net tons, the State registration number, where re- § 259.2 Applying for a Capital Con- quired, struction Fund Agreement (‘‘Agree- (iii) Type of vessel (i.e., catching ves- ment’’). sel, processing vessel, transporting ves- (a) General qualifications. To be eligi- sel, charter vessel, barge, passenger ble to enter into an Agreement an ap- carrying fishing vessel, etc.), plicant must: (iv) General characteristics (i.e., net (1) Be a citizen of the United States tonnage, fish-carrying capacity, age, (citizenship requirements are those length, type of fishing gear, number of

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passengers carried or in the case of ves- (vii) Fishery of operation (which in sels operating in the foreign or domes- this section means each species or tic commerce the various uses of the group of species must be specifically vessel, etc.), identified by acceptable common name (v) Whether it is owned or leased and, of fish, shellfish, or other living marine if leased, the name of the owner, and a resources), and copy of the lease, (viii) Area of operation (which in this (vi) Date and place of construction, section means the general geographic (vii) If reconstructed, date of redeliv- areas in which each vessel will operate ery and place of reconstruction, for each species or group of species of (viii) Trade (or trades) in which the fish, shellfish, or other living marine vessel is documented and date last doc- resources), umented, (c) Filing. The application must be (ix) The fishery of operation (which signed and submitted to the Financial in this section means each species or Services Division of the National Ma- group of species). Each species must be rine Fisheries Service. As a general specifically identified by the accept- rule, the Agreement must be executed able common names of fish, shellfish, and entered into by the taxpayer on or or other living marine resources which prior to the due date for the filing of each vessel catches, processes, or the Federal tax return in order to be transports or will catch, process, or effective for the tax year to which that transport for commercial purposes return relates. It is in the Applicant’s such as marketing or processing the best interest to file at least 45 days in catch), advance of such date. (x) The area of operation (which for fishing vessels means the general geo- § 259.3 Acquisition, construction, or re- graphic areas in which each vessel will construction. catch, process, or transport, or charter CCF funds cannot be used for any for each species or group of species of vessel acquisition, construction, or re- fish, shellfish, or other living marine construction that increases harvesting resources), capacity in a fishery or fisheries, other (5) The specific objectives to be than in a limited access system in achieved by the accumulation of assets which the fisheries management au- in a Capital Construction Fund (to be thority establishes harvesting limits. incorporated in Schedule B of the (a) Acquisition. CCF funds can be used Agreement) including: to acquire any used qualified vessel (i) Number of vessels, that will fish in a limited access sys- (ii) Type of vessel (i.e., catching, tem in which the fisheries management processing, transporting, or passenger authority establishes harvesting lim- carrying fishing vessels), its. If the fishery or fisheries is not a (iii) General characteristics (i.e., net limited access system, CCF funds can tonnage, fish-carrying capacity, age, only be used to replace an existing, re- length, type of fishing gear, number of cently sunken, or scrapped vessel and passengers carried), its existing harvesting capacity. The (iv) Cost of projects, replaced vessel must lose its fisheries (v) Amount of indebtedness to be paid trade endorsement and the vessel for vessels to be constructed, acquired, owner must notify the Coast Guard or reconstructed (all notes, mortgages, Documentation Center of that fact. or other evidence of indebtedness must (b) Construction. CCF funds can be be submitted as soon as available, to- used to construct a new qualified vessel gether with sufficient additional evi- that will fish in a limited access sys- dence to establish that full proceeds of tem in which the fisheries management the indebtedness to be paid from a CCF authority establishes harvesting lim- account under an Agreement, were its. If the fishery or fisheries is not a used solely for the purpose of the con- limited access system, CCF funds can struction, acquisition, or reconstruc- only be used to replace an existing, re- tion of Schedule B vessels), cently sunken, or scrapped vessel and (vi) Date of construction, acquisition, its existing harvesting capacity. The or reconstruction, replaced vessel must lose its fisheries

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trade endorsement and the vessel 53505, may be consented to by the Sec- owner must notify the Coast Guard retary as constructive deposits and Documentation Center of that fact. withdrawals. In order for the Secretary (c) Reconstruction. Reconstruction to provide his or her consent for con- may include rebuilding, replacing, re- structive deposit and withdrawal treat- conditioning, refurbishing, repairing, ment, the applicant must include a converting and/or improving any por- written request with the application tion of a vessel. A reconstruction and provide sufficient supporting data project must, however, either substan- to enable the Secretary to evaluate the tially prolong the useful life of the re- request. This written request must be constructed vessel, increase its value, submitted no later than the ‘‘Exten- materially increase its safety, reli- sion Period’’ for that party’s initial tax ability, or energy efficiency, or adapt year. it to a different commercial use in the (2) [Reserved] fishing trade or industry. No vessel (b) Constructive deposits and with- more than 25 years old at the time of drawals (after the Agreement effective withdrawal shall be a qualified vessel date). The Secretary shall not permit for the purpose of reconstruction un- constructive deposits or withdrawals less a special showing is made, to the after the effective date of an Agree- Secretary’s discretionary satisfaction, ment. Deposits made after the effective that the type and degree of reconstruc- date of an Agreement must be phys- tion intended will result in an efficient ically deposited into a dedicated CCF and productive vessel with an economi- account. cally useful life of at least 10 years be- (c) First tax year for which an Agree- yond the date reconstruction is comment is effective. In order for an Agree- pleted. ment to be effective for any applicant’s (d) Time permitted for construction or ‘‘Tax Year,’’ the written application reconstruction. Construction or recon- must be submitted to the Secretary be- struction must be completed within 18 fore the end of the ‘‘Filing Period’’ or months from the date construction or ‘‘Extension Period’’ for that tax year, reconstruction first commences, unless whichever applies. If the written appli- otherwise consented to by the Sec- cation is received by the Secretary, retary. after the end of the ‘‘Filing Period’’ or § 259.4 Constructive deposits and with- ‘‘Extension Period,’’ whichever applies, drawals; ratification of withdrawals then the Agreement will be first effec- (as qualified) made without first tive for the next succeeding ‘‘Tax having obtained Secretary’s con- Year.’’ sent; first tax year for which an (1) It is in the applicant’s best inter- Agreement is effective. est to submit his or her written appli- (a) Constructive deposits and with- cation at least 45 days in advance of drawals (before Agreement executed date). the end of his or her tax due date. If Constructive deposits and withdrawals the written application is submitted are deemed to have been deposited to too close to the tax due date, and the and withdrawn from a designated CCF Secretary is not ultimately able to account even though the funds were execute the Agreement, the applicant not physically deposited. Constructive must bear the burden of negotiating deposits and withdrawals shall be per- with the Internal Revenue Service for missible only during the ‘‘Tax Year’’ relief. The Secretary shall regard any for which a written application for an penalties related to this denied appli- Agreement is submitted to the Sec- cation as due to the applicant’s failure retary. Once the Secretary executes to apply for an Agreement in a timely the Agreement, the constructive de- manner. posit and withdrawal period ends. All (2) [Reserved] deposits must be physically deposited (d) Ratification of withdrawals, as into a designated CCF account. qualified, made without first having ob- (1) All qualified deposits and expendi- tained Secretary’s prior consent. Any tures occurring within the period speci- withdrawals made after the effective fied directly above, that are within the date of an Agreement without the Sec- eligible ceilings specified at 46 U.S.C. retary’s consent are automatically

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non-qualified withdrawals, unless the longer be made once a party has depos- Secretary subsequently consents to ited 100 percent of the anticipated cost them by ratification. of all Schedule B objectives unless the (1) The Secretary may ratify, as Agreement is then amended to estab- qualified, any withdrawal made with- lish additional Schedule B objectives. out the Secretary’s prior consent, pro- (b) Ordinarily, the Secretary shall vided the withdrawal would have re- permit deposits to accumulate prior to sulted in the Secretary’s consent had it commencement of any given Schedule been requested before withdrawal. B objective for a maximum of ten (2) The Secretary may issue his or years. However, at the Secretary’s sole her retroactive consent, if appropriate, discretion and based on good and suffi- as work priorities permit. However, if cient cause shown, the time period may the Secretary is unable to issue retro- be extended. active consent for withdrawals made without his or her consent, then those § 259.6 Termination of inactive and withdrawals, and any associated pen- zero balance accounts. alties, will be deemed due to the par- (a) If a Schedule B objective has not ty’s failure to apply in a timely man- commenced within 10 years from the ner. date the Agreement was established, (3) It is recommended that a party and has not been extended by written submit his or her request for with- approval of the Secretary, the Agree- drawal at least 45 days in advance of ment is considered inactive and subject the expected date of withdrawal. With- to termination. drawals made without the Secretary’s (b) If the account balance of all de- consent, in reliance on obtaining the positories of an Agreement is zero dol- Secretary’s consent, are made purely lars 10 years after the date it was es- at a party’s own risk. Should any with- tablished, and has not been extended drawal made without the Secretary’s through amendment, the Agreement is consent prove, for any reason, to be considered inactive and subject to ter- one which the Secretary will not or mination unless its Schedule B objec- cannot consent to ratify, then the re- tive has commenced. sult will be an unqualified withdrawal (c) A certified letter will be sent to and/or an involuntary termination of holders of Agreements identified for the Agreement. termination informing them that the (4) Should a party withdraw CCF agreement will terminate 60 days after funds for a project not previously the date of the letter unless the defi- deemed an eligible Schedule B objec- ciencies identified in the letter are ad- tive without having first obtained the dressed. Secretary’s consent, the Secretary may entertain an application to amend the § 259.7 Annual deposit and withdrawal Agreement’s Schedule B objectives as reports required. the prerequisite to consenting by rati- (a) The Secretary will require from fication to the withdrawal. each party an annual deposit and with- (5) Redeposit of any withdrawals drawal report for each CCF depository. made without the Secretary’s consent, Failure to submit such reports may be and for which such consent is not sub- cause for involuntary termination of sequently given (either by ratification the party’s Agreement. or otherwise), shall not be permitted. If (1) A final deposit and withdrawal re- the non-qualified withdrawal adversely port at the end of the tax year, which affects the Agreement’s general status shall be submitted not later than 30 the Secretary may terminate the days after expiration of the due date, Agreement. for filing the party’s Federal income tax return. The report must be made § 259.5 Maximum deposit amounts and on a form prescribed by the Secretary time to deposit. using a separate form for each CCF de- (a) Other than the maximum annual pository. ceilings established by the Act, the (2) Each report must bear a certifi- Secretary shall not establish an annual cation that the deposit and withdrawal ceiling. However, deposits can no information given includes all annual

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deposit and withdrawal activity for § 259.9 Conditional consents to with- each CCF depository. Negative reports drawal qualification. must be submitted in those cases where The Secretary may conditionally there is no deposit and/or withdrawal consent to the qualification of a with- activity. drawal. This consent is conditioned (b) The Secretary, at his or her dis- upon the timely submission, to the cretion, may, after due notice, dis- Secretary, of the items requested by qualify withdrawals and/or involun- the Secretary in the withdrawal ap- tarily terminate the Agreement for the proval letter. Failure to provide these participant’s failure to submit the re- items in a timely manner, and after quired annual deposit and withdrawal due notice, will result in nonqualifica- reports. tion of the withdrawal and/or involun- (c) Additionally, each party shall tary termination of the Agreement. submit, not later than 30 days after expiration of the party’s tax due date, a § 259.10 Miscellaneous. copy of the party’s Federal Income Tax Return filed with IRS for the preceding (a) Wherever the Secretary prescribes tax year. Failure to submit the Federal time constraints, the postmark date Income Tax Return shall, after due no- shall control if mailed. If a private de- tice, be cause for the same adverse ac- livery service is used, including Fed- tion specified in paragraph (b) of this eral Express or United Parcel Service, section. the date listed on the label shall control. Submission of CCF transactions § 259.8 CCF accounts. by email or facsimile is only allowable when an original signature is not re- (a) General. Each CCF account in a quired. scheduled depository shall have an ac- (b) All CCF information received by count number, which must be reflected on the reports required by § 259.7. All the Secretary shall be held strictly CCF accounts shall be reserved only for confidential to the extent permitted by CCF transactions. There shall be no law, except that it may be published or intermingling of CCF and non-CCF disclosed in statistical form provided transactions and there shall be no pool- such publication does not disclose, di- ing of 2 or more CCF accounts without rectly or indirectly, the identity of the the prior consent of the Secretary. Safe fund holder. deposit boxes, safes, or the like shall (c) While recognizing that precise not be eligible CCF depositories with- regulations are necessary in order to out the Secretary’s consent, which treat similarly situated parties simi- shall be granted solely at his or her larly, the Secretary also realizes that discretion. precision in regulations can sometimes (b) Assignment. The use of funds held cause inequitable effects to result from in a CCF depository for transactions in unavoidable, unintended, or minor dis- the nature of a countervailing balance, crepancies between the regulations and compensating balance, pledge, assign- the circumstances they attempt to ment, or similar security arrangement govern. The Secretary will, con- shall constitute a material breach of sequently, at his or her discretion, as a the Agreement unless prior written matter of privilege and not as a matter consent of the Secretary is obtained. of right, attempt to afford relief to par- (c) Depositories. Section 53506(a) of the ties where literal application of the Act provides that amounts in a CCF ac- purely procedural, as opposed to sub- count must be kept in a depository or stantive, aspects of these regulations depositories specified in the Agree- would otherwise work an inequitable ments and be subject to such trustee or hardship. This privilege will be spar- other fiduciary requirements as the ingly granted and no party should act Secretary may require. Unless other- in reliance on its being granted. wise specified in the Agreement, the (d) These §§ 259.1 through 259.10 are party may select the type or types of applicable to all Agreements first en- accounts in which the assets of the tered into (or amended) on or after the Fund may be deposited. date these sections are adopted.

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(e) These §§ 259.1 through 259.10 are ments existing prior to the date these specifically incorporated in all Agree- sections are adopted.

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PART 260—INSPECTION AND 260.49 Inspectors. 260.50 Suspension or revocation of license of CERTIFICATION licensed sampler or licensed inspector. 260.51 Surrender of license. Subpart A—Inspection and Certification of Establishments and Fishery Products for SAMPLING Human Consumption 260.57 How samples are drawn by inspectors or licensed samplers. Sec. 260.58 Accessibility for sampling. 260.1 Administration of regulations. 260.59 How officially drawn samples are to DEFINITIONS be identified. 260.60 How samples are to be shipped. 260.6 Terms defined. 260.61 Sampling plans and procedures for de- 260.7 Designation of official certificates, termining lot compliance. memoranda, marks, other identifica- 260.62 Issuance of certificate of sampling. tions, and devices for purposes of the Ag- 260.63 Identification of lots sampled. ricultural Marketing Act. FEES AND CHARGES INSPECTION SERVICE 260.69 Payment fees and charges. 260.12 Where inspection service is offered. 260.70 Schedule of fees. 260.13 Who may obtain inspection service. 260.14 How to make application. 260.71 [Reserved] 260.15 Information required in connection 260.72 Fees for inspection service performed with application. under cooperative agreement. 260.16 Filing of application. 260.73 Disposition of fees for inspections 260.17 Record of filing time. made under cooperative agreement. 260.18 When application may be rejected. 260.74 Fee for appeal inspection. 260.19 When application may be withdrawn. 260.76 [Reserved] 260.20 Disposition of inspected sample. 260.77 Fees for score sheets. 260.21 Basis of inspection and grade or com- 260.78 Fees for additional copies of inspec- pliance determination. tion certificates. 260.22 Order of inspection service. 260.79 Travel and other expenses. 260.23 Postponing inspection service. 260.80 Charges for inspection service on a 260.24 Financial interest of inspector. contract basis. 260.25 Forms of certificates. 260.81 Readjustment and increase in hourly 260.26 Issuance of certificates. rates of fees. 260.27 Issuance of corrected certificates. 260.28 Issuance of an inspection report in MISCELLANEOUS lieu of an inspection certificate. 260.84 Policies and procedures. 260.29 Disposition of inspection certificates. 260.86 Approved identification. 260.30 Report of inspection results prior to 260.88 Political activity. issuance of formal report. 260.90 Compliance with other laws. 260.91 Identification. APPEAL INSPECTION 260.93 Debarment and suspension. 260.36 When appeal inspection may be requested. REQUIREMENTS FOR PLANTS OPERATING 260.37 Where to file for an appeal inspection UNDER CONTINUOUS INSPECTION ON A CON- and information required. TRACT BASIS 260.38 When an application for an appeal in- 260.96 Application for fishery products inspection may be withdrawn. spection service on a contract basis at of- 260.39 When appeal inspection may be re- ficial establishments. fused. 260.97 Conditions for providing fishery prod- 260.40 Who shall perform appeal inspection. ucts inspection service at official estab- 260.41 Appeal inspection certificate. lishments. 260.98 Premises. LICENSING OF SAMPLERS AND INSPECTORS 260.99 Buildings and structures. 260.47 Who may become licensed sampler. 260.100 Facilities. 260.48 Application to become a licensed 260.101 Lavatory accommodations. sampler. 260.102 Equipment.

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260.103 Operations and operating procedures lowing terms shall have the following shall be in accordance with an effective meanings: sanitation program. Acceptance number. ‘‘Acceptance 260.104 Personnel. number’’ means the number in a sam- LABELING REQUIREMENTS pling plan that indicates the maximum number of deviants permitted in a sam- 260.200–260.201 [Reserved] ple of a lot that meets a specific re- AUTHORITY: Sec. 6, 70 Stat. 1122, 16 U.S.C. quirement. 742e; secs. 203, 205, 60 Stat. 1087, 1090 as Act. ‘‘Act’’ means the applicable pro- amended; 7 U.S.C. 1622, 1624; Reorganization Plan No. 4 of 1970 (84 Stat. 2090). visions of the Agricultural Marketing Act of 1946 (60 Stat. 1087 et seq., as SOURCE: 31 FR 16052, Dec. 15, 1966, unless amended; 7 U.S.C. 1621 et seq.). otherwise noted. Applicant. ‘‘Applicant’’ means any interested party who requests inspection Subpart A—Inspection and Certifi- service under the regulations in this cation of Establishments and part. Fishery Products for Human Case. ‘‘Case’’ means the number of Consumption containers (cased or uncased) which, by the particular industry are ordinarily § 260.1 Administration of regulations. packed in a shipping container. The Secretary of Commerce is Certificate of loading. ‘‘Certificate of charged with the administration of the loading’’ means a statement, either regulations in this part except that he written or printed, issued pursuant to may delegate any or all of such func- the regulations in this part, relative to tions to any officer or employee of the check-loading of a processed product National Marine Fisheries Service of subsequent to inspection thereof. the Department in his discretion. 1 Certificate of sampling. ‘‘Certificate of sampling’’ means a statement, either [36 FR 21037, Nov. 3, 1971] written or printed issued pursuant to DEFINITIONS the regulations in this part, identifying officially drawn samples and may in- § 260.6 Terms defined. clude a description of condition of con- Words in the regulations in this part tainers and the condition under which in the singular form shall be deemed to the processed product is stored. import the plural and vice versa, as the Class. ‘‘Class’’ means a grade or rank case may demand. For the purposes of of quality. the regulations in this part, unless the Condition. ‘‘Condition’’ means the de- context otherwise requires, the fol- gree of soundness of the product which may affect its merchantability and includes, but is not limited to those fac- 1 All functions of the Department of Agri- tors which are subject to change as a culture which pertain to fish, shellfish, and any products thereof, now performed under result of age, improper preparation and the authority of title II of the Act of August processing, improper packaging, im- 14, 1946, popularly known as the Agricultural proper storage, or improper handling. Marketing Act of 1946, as amended (7 U.S.C. Department. ‘‘Department’’ means the 1621–1627) including but not limited to the U.S. Department of Commerce. development and promulgation of grade Deviant. ‘‘Deviant’’ means a sample standards, the inspection and certification, and improvement of transportation facilities unit affected by one or more deviations and rates for fish and shellfish and any prod- or a sample unit that varies in a spe- ucts thereof, were transferred to the Depart- cifically defined manner from the re- ment of the Interior by the Director of the quirements of a standard, specifica- Budget (23 FR 2304) pursuant to section 6(a) tion, or other inspection document. of the Act of Aug. 8, 1956, popularly known as Deviation. ‘‘Deviation’’ means any the Fish and Wildlife Act of 1956 (16 U.S.C. specifically defined variation from a 742e). Reorganization Plan No. 4 of 1970 (84 Stat. 2090) transferred, among other things, particular requirement. such functions from the U.S. Department of Director. ‘‘Director’’ means the Direc- the Interior to the U.S. Department of Com- tor of the National Marine Fisheries merce. Service.

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Establishment. ‘‘Establishment’’ licensed by the Secretary to inves- means any premises, buildings, struc- tigate, sample, inspect, and certify in tures, facilities, and equipment (in- accordance with the regulations in this cluding vehicles) used in the proc- part to any interested party the class, essing, handling, transporting, and quality and condition of processed storage of fish and fishery products. products covered in this part and to Inspection certificate. ‘‘Inspection cer- perform related duties in connection tificate’’ means a statement, either with the inspection service. written or printed, issued pursuant to Interested party. ‘‘Interested party’’ the regulations in this part, setting means any person who has a financial forth in addition to appropriate de- interest in the commodity involved. scriptive information relative to a Licensed sampler. ‘‘Licensed sampler’’ processed product, and the container means any person who is authorized by thereof, the quality and condition, or the Secretary to draw samples of proc- any part thereof, of the product and essed products for inspection service, may include a description of the condi- to inspect for identification and conditions under which the product is tion of containers in a lot, and may, stored. when authorized by the Secretary, per- Inspection service. ‘‘Inspection serv- form related services under the act and ice’’ means: the regulations in this part. (1) The sampling pursuant to the reg- Lot. ‘‘Lot’’ has the following mean- ulations in this part; ings: (2) The determination pursuant to the regulations in this part of: (1) For the purpose of charging fees (i) Essential characteristics such as and issuing certificates, ‘‘Lot’’ means style, type, size, or identity of any any number of containers of the same processed product which differentiates size and type which contain a processed between major groups of the same product of the same type and style lo- kind; cated in the same or adjacent ware- (ii) The class, quality, and condition houses and which are available for in- of any processed product, including the spection at any one time: Provided, condition of the container thereof by That: the examination of appropriate sam- (i) Processed products in separate ples; piles which differ from each other as to (3) The issuance of any certificate of grade or other factors may be deemed sampling, inspection certificates, or to be separate lots; certificates of loading of a processed (ii) Containers in a pile bearing an product, or any report relative to any identification mark different from of the foregoing; or other containers of such processed (4) Performance by an inspector of product in that pile, if determined to any related services such as to observe be of lower grade or deficient in other the preparation of the product from its factors, may be deemed to be a sepa- raw state through each step in the en- rate lot; and tire process; or observe conditions (iii) If the applicant requests more under which the product is being har- than one inspection certificate cov- vested, prepared, handled, stored, proc- ering different portions of such processed, packed, preserved, transported, essed product, the quantity of the prod- or held; or observe sanitation as a pre- uct covered by each certificate shall be requisite to the inspection of the proc- deemed to be a separate lot. essed product, either on a contract (2) For the purpose of sampling and basis or periodic basis; or checkload determining the grade or compliance the inspected processed product in con- with a specification, ‘‘Lot’’ means each nection with the marketing of the pile of containers of the same size and product, or any other type of service of type containing a processed product of a consultative or advisory nature re- the same type and style which is sepa- lated herewith. rated from other piles in the same Inspector. ‘‘Inspector’’ means any em- warehouse, but containers in the same ployee of the Department authorized pile bearing an identification mark dif- by the Secretary or any other person ferent from other containers in that

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pile may be deemed to be a separate portion of the contents of a container lot. or other unit of commodity, or a com- Official establishment. ‘‘Official estab- posite mixture of a product to be used lishment’’ means any establishment for inspection. which has been approved by National Sampling. ‘‘Sampling’’ means the act Marine Fisheries Service, and utilizes of selecting samples of processed prod- inspection service on a contract basis. ucts for the purpose of inspection Officially drawn sample. under the regulations in this part. ‘‘Officiallydrawn sample’’ means any Secretary. ‘‘Secretary’’ means the sample that has been selected from a Secretary of the Department or any particular lot by an inspector, licensed other officer or employee of the De- sampler, or by any other person au- partment authorized to exercise the thorized by the Secretary pursuant to powers and to perform the duties of the the regulations in this part. Secretary in respect to the matters Person. ‘‘Person’’ means any indi- covered by the regulations in this part. vidual, partnership, association, busi- Shipping container. ‘‘Shipping con- ness trust, corporation, any organized tainer’’ means an individual container group of persons (whether incorporated designed for shipping a number of or not), the United States (including, packages or cans ordinarily packed in a but not limited to, any corporate agen- container for shipping or designed for cies thereof), any State, county, or mu- packing unpackaged processed prod- nicipal government, any common car- ucts for shipping. rier, and any authorized agent of any of the foregoing. Unofficially drawn sample. ‘‘Unoffi- Plant. ‘‘Plant’’ means the premises, cially drawn sample’’ means any sam- buildings, structures, and equipment ple that has been selected by any per- (including, but not being limited to, son other than an inspector or licensed machines, utensils, and fixtures) em- sampler, or by any other person not au- ployed or used with respect to the man- thorized by the Director pursuant to ufacture or production of processed the regulations in this part. products. Wholesome. ‘‘Wholesome’’ means the Processed product. ‘‘Processed prod- minimum basis of acceptability for uct’’ means any fishery product or human food purposes, of any fish or other food product covered under the fishery product as defined in section regulations in this part which has been 402 of the Federal Food, Drug, and Cos- preserved by any recognized commer- metic Act, as amended. cial process, including, but not limited [31 FR 16052, Dec. 15, 1966, as amended at 36 to, canning, freezing, dehydrating, dry- FR 21037, Nov. 3, 1971] ing, the addition of chemical substances, or by fermentation. § 260.7 Designation of official certifi- Quality. ‘‘Quality’’ means the inher- cates, memoranda, marks, other ent properties of any processed product identifications, and devices for pur- which determine the relative degree of poses of the Agricultural Marketing excellence of such product, and in- Act. cludes the effects of preparation and Subsection 203(h) of the Agricultural processing, and may or may not in- Marketing Act of 1946 provides crimi- clude the effects of packing media, or nal penalties for various specified of- added ingredients. fenses relating to official certificates, Rejection number. ‘‘Rejection num- memoranda, marks or other identifica- ber’’ means the number in a sampling tions and devices for making such plan that indicates the minimum num- marks or identifications, issued or au- ber of deviants in a sample that will thorized under section 203 of said act, cause a lot to fail a specific require- and certain misrepresentations con- ment. cerning the inspection or grading of ag- Sample. ‘‘Sample’’ means any number ricultural products under said section. of sample units to be used for inspec- For the purposes of said subsection and tion. the provisions in this part, the terms Sample unit. ‘‘Sample unit’’ means a listed below shall have the respective container and/or its entire contents, a meanings specified:

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Official certificate. ‘‘Official certifi- INSPECTION SERVICE cate’’ means any form of certification, either written or printed, including § 260.12 Where inspection service is of- those defined in § 260.6, used under this fered. part to certify with respect to the in- Inspection service may be furnished spection, class, grade, quality, size, wherever an inspector or licensed sam- quantity, or condition of products (in- pler is available and the facilities and cluding the compliance of products conditions are satisfactory for the con- with applicable specifications). duct of such service. Official device. ‘‘Official device’’ means a stamping appliance, branding § 260.13 Who may obtain inspection device, stencil, printed label, or any service. other mechanically or manually oper- An application for inspection service ated tool that is approved by the Direc- may be made by any interested party, tor for the purpose of applying any offi- including, but not limited to, the cial mark or other identification to United States and any instrumentality any product or the packaging material or agency thereof, any State, county, thereof. municipality, or common carrier, and Official identification. ‘‘Official identi- any authorized agent in behalf of the fication’’ means any United States foregoing. (U.S.) standard designation of class, grade, quality, size, quantity, or condi- § 260.14 How to make application. tion specified in this part or any sym- An application for inspection service bol, stamp, label, or seal indicating may be made to the officer of inspec- that the product has been graded or in- tion or to any inspector, at or nearest spected and/or indicating the class, the place where the service is desired. grade, quality, size, quantity, or condi- An up-to-date list of the Inspection tion of the product approved by the Di- Field Offices of the Department may be rector and authorized to be affixed to obtained upon request to the Director. any product, or affixed to or printed on Satisfactory proof that the applicant is the packaging material of any product. an interested party shall be furnished. Official mark. ‘‘Official mark’’ means the grade mark, inspection mark, com- § 260.15 Information required in con- bined form of inspection and grade nection with application. mark, and any other mark, or any vari- Application for inspection service ations in such marks, including those shall be made in the English language prescribed in § 260.86, approved by the and may be made orally (in person or Secretary and authorized to be affixed by telephone), in writing, or by tele- to any product, or affixed to or printed graph. If an application for inspection on the packaging material of any prod- service is made orally, such application uct, stating that the product was grad- shall be confirmed promptly in writing. ed or inspected or both, or indicating In connection with each application for the appropriate U.S. Grade or condi- inspection service, there shall be fur- tion of the product, or for the purpose nished such information as may be nec- of maintaining the identity of products essary to perform an inspection on the graded or inspected or both under this processed product for which applica- part. tion for inspection is made, including Official memorandum. ‘‘Official memo- but not limited to, the name of the randum’’ means any initial record of product, name and address of the pack- findings made by an authorized person er or plant where such product was in the process of grading, inspecting, or packed, the location of the product, its sampling pursuant to this part, any lot or car number, codes or other iden- processing or plant-operation report tification marks, the number of con- made by an authorized person in containers, the type and size of the connection with grading, inspecting, or tainers, the interest of the applicant in sampling under this part, and any re- the product, whether the lot has been port made by an authorized person of inspected previously to the application services performed pursuant to this by any Federal agency and the purpose part. for which inspection is desired.

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§ 260.16 Filing of application. U.S. standards for grades of processed products, Federal, Military, Veterans An application for inspection service shall be regarded as filed only when Administration or other government made in accordance with the regula- agency specifications, written contract tions in this part. specification, or any written specification or instruction which is approved § 260.17 Record of filing time. by the Secretary. A record showing the date and hour (b) Unless otherwise approved by the when each application for inspection or Director compliance with such grade for an appeal inspection is received standards, specifications, or instruc- shall be maintained. tions shall be determined by evaluating the product, or sample, in accordance § 260.18 When application may be re- with the requirements of such stand- jected. ards, specifications, or instructions: An application for inspection service Provided, That when inspection for may be rejected by the Secretary (a) quality is based on any U.S. grade for noncompliance by the applicant standard which contains a scoring sys- with the regulations in this part, (b) tem the grade to be assigned to a lot is for nonpayment for previous inspection the grade indicated by the average of services rendered, (c) when the product the total scores of the sample units: is not properly identifiable by code or Provided further, That: other marks, or (d) when it appears (1) Such sample complies with the ap- that to perform the inspection service plicable standards of quality promul- would not be to the best interests of gated under the Federal Food, Drug, the Government. Such applicant shall and Cosmetic Act; be promptly notified of the reason for (2) Such sample complies with the such rejection. product description; (3) Such sample meets the indicated § 260.19 When application may be grade with respect to factors of quality withdrawn. which are not rated by score points; An application for inspection service and may be withdrawn by the applicant at (4) With respect to those factors of any time before the inspection is per- quality which are rated by score formed: Provided, That, the applicant points, each of the following require- shall pay at the hourly rate prescribed ments is met: in § 260.70 for the time incurred by the (i) None of the sample units falls inspector in connection with such ap- more than one grade below the indi- plication, any travel expenses, tele- cated grade because of any quality fac- phone, telegraph or other expenses tor to which a limiting rule applies; which have been incurred by the in- (ii) None of the sample units falls spection service in connection with more than 4 score points below the such application. minimum total score for the indicated [31 FR 16052, Dec. 15, 1966, as amended at 36 grade; and FR 18738, Sept. 21, 1971] (iii) The number of sample units classed as deviants does not exceed the § 260.20 Disposition of inspected sam- applicable acceptance number indi- ple. cated in the sampling plans contained Any sample of a processed product in § 260.61. A ‘‘deviant,’’ as used in this that has been used for inspection may paragraph, means a sample unit that be returned to the applicant, at his re- falls into the next grade below the indi- quest and expense; otherwise it shall be cated grade but does not score more destroyed, or disposed of to a chari- than 4 points below the minimum total table institution. score for the indicated grade. (5) If any of the provisions contained § 260.21 Basis of inspection and grade in paragraphs (b)(3) and (4) of this sec- or compliance determination. tion are not met the grade is deter- (a) Inspection service shall be per- mined by considering such provisions formed on the basis of the appropriate in connection with succeedingly lower

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grades until the grade of the lot, if as- employee of the inspection service may signable, is established. sign such certificate of loading covering any processed product § 260.22 Order of inspection service. checkloaded by an inspector or li- Inspection service shall be per- censed sampler when given power of at- formed, insofar as practicable, in the torney by such inspector or licensed order in which applications therefor sampler and authorized by the Sec- are made except that precedence may retary to affix the inspector’s or li- be given to any such applications censed sampler’s signature to a certifi- which are made by the United States cate of loading which has been pre- (including, but not being limited to, pared in accordance with the facts set any instrumentality or agency thereof) forth in the notes made by the inspec- and to any application for an appeal inspection. tor or licensed sampler in connection with the checkloading of a specific lot § 260.23 Postponing inspection service. of processed products. If the inspector determines that it is § 260.27 Issuance of corrected certifi- not possible to accurately ascertain cates. the quality or condition of a processed product immediately after processing A corrected inspection certificate because the product has not reached may be issued by the inspector who equilibrium in color, or drained weight, issued the original certificate after dis- or for any other substantial reason, he tribution of a certificate if errors, such may postpone inspection service for as incorrect dates, code marks, grade such period as may be necessary. statements, lot or car numbers, container sizes, net or drained weights, § 260.24 Financial interest of inspec- quantities, or errors in any other perti- tor. nent information require the issuance No inspector shall inspect any proc- of a corrected certificate. Whenever a essed product in which he is directly or corrected certificate is issued, such indirectly financially interested. certificate shall supersede the inspec- § 260.25 Forms of certificates. tion certificate which was issued in error and the superseded certificate Inspection certificates, certificates of shall become null and void after the sampling or loading, and other memo- issuance of the corrected certificate. randa concerning inspection service shall be issued on forms approved by § 260.28 Issuance of an inspection re- the Secretary. port in lieu of an inspection certificate. § 260.26 Issuance of certificates. (a) An inspection certificate may be A letter report in lieu of an inspec- issued only by an inspector: Provided, tion certificate may be issued by an in- That, another employee of the inspec- spector when such action appears to be tion service may sign any such certifi- more suitable than an inspection cer- cate covering any processed product in- tificate: Provided, That, the issuance of spected by an inspector when given such report is approved by the Sec- power of attorney by such inspector retary. and authorized by the Secretary, to affix the inspector’s signature to an in- § 260.29 Disposition of inspection cer- spection certificate which has been tificates. prepared in accordance with the facts The original of any inspection cer- set forth in the notes, made by the in- tificate, issued under the regulations in spector, in connection with the inspec- this part, and not to exceed four copies tion. thereof, if requested prior to issuance, (b) A certificate of loading shall be shall be delivered or mailed promptly issued and signed by the inspector or to the applicant, or person designated licensed sampler authorized to check by the applicant. All other copies shall the loading of a specific lot of processed products: Provided, That, another

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be filed in such manner as the Sec- or by telephone), in writing, or by tele- retary may designate. Additional cop- graph. If made orally, written con- ies of any such certificates may be sup- firmation shall be made promptly. plied to any interested party as provided in § 260.78. § 260.38 When an application for an appeal inspection may be with- § 260.30 Report of inspection results drawn. prior to issuance of formal report. An application for appeal inspection Upon request of any interested party, may be withdrawn by the applicant at the results of an inspection may be any time before the appeal inspection telegraphed or telephoned to him, or to is performed: Provided, That the appli- any other person designated by him, at cant shall pay at the hourly rate pre- his expense. scribed in § 260.70, for the time incurred by the inspector in connection with APPEAL INSPECTION such application, any travel expenses, telephone, telegraph, or other expenses § 260.36 When appeal inspection may which have been incurred by the in- be requested. spection service in connection with An application for an appeal inspec- such application. tion may be made by any interested [31 FR 16052, Dec. 15, 1966, as amended at 36 party who is dissatisfied with the re- FR 18738, Sept. 21, 1971] sults of an inspection as stated in an inspection certificate, if the lot of § 260.39 When appeal inspection may processed products can be positively be refused. identified by the inspection service as An application for an appeal inspec- the lot from which officially drawn tion may be refused if: samples were previously inspected. (a) The reasons for the appeal inspec- Such application shall be made within tion are frivolous or not substantial; thirty (30) days following the day on (b) The quality or condition of the which the previous inspection was per- processed product has undergone a ma- formed, except upon approval by the terial change since the inspection cov- Secretary the time within which an ap- ering the processed product on which plication for appeal inspection may be the appeal inspection is requested; made, may be extended. (c) The lot in question is not, or cannot be made accessible for the selec- § 260.37 Where to file for an appeal in- tion of officially drawn samples; spection and information required. (d) The lot relative to which appeal (a) Application for an appeal inspec- inspection is requested cannot be position may be filed with: tively identified by the inspector as the (1) The inspector who issued the in- lot from which officially drawn sam- spection certificate on which the ap- ples were previously inspected; or peal covering the processed product is (e) There is noncompliance with the requested; or regulations in this part. Such applicant (2) The inspector in charge of the of- shall be notified promptly of the reason fice of inspection at or nearest the for such refusal. place where the processed product is located. § 260.40 Who shall perform appeal in- (b) The application for appeal inspec- spection. tion shall state the location of the lot An appeal inspection shall be per- of processed products and the reasons formed by an inspector or inspectors for the appeal; and date and serial (other than the one from whose inspec- number of the certificate covering in- tion the appeal is requested) authorized spection of the processed product on for this purpose by the Secretary and, which the appeal is requested, and such whenever practical, such appeal inspec- application may be accompanied by a tion shall be conducted jointly by two copy of the previous inspection certifi- such inspectors: Provided, That the in- cate and any other information that spector who made the inspection on may facilitate inspection. Such appli- which the appeal is requested may be cation may be made orally (in person authorized to draw the samples when

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another inspector or licensed sampler pursuant to the regulations in this part is not available in the area where the as directed by the Director. product is located. § 260.48 Application to become a li- § 260.41 Appeal inspection certificate. censed sampler. After an appeal inspection has been Application to become a licensed completed, an appeal inspection certifi- sampler shall be made to the Secretary cate shall be issued showing the results on forms furnished for that purpose. of such appeal inspection; and such cer- Each such application shall be signed tificate shall supersede the inspection by the applicant in his own hand- certificate previously issued for the writing, and the information contained processed product involved. Each ap- therein shall be certified by him to be peal inspection certificate shall clearly true, complete, and correct to the best identify the number and date of the in- of his knowledge and belief, and the ap- spection certificate which it super- plication shall contain or be accom- sedes. The superseded certificate shall panied by: become null and void upon the issuance (a) A statement showing his present of the appeal inspection certificate and and previous occupations, together shall no longer represent the quality or with names of all employers for whom condition of the processed product de- he has worked, with periods of service, scribed therein. The inspector or in- during the 10 years previous to the date spectors issuing an appeal inspection of his application; certificate shall forward notice of such (b) A statement that, in his capacity issuance to such persons as he con- as a licensed sampler, he will not draw siders necessary to prevent misuse of samples from any lot of processed prod- the superseded certificate if the origi- ucts with respect to which he or his nal and all copies of such superseded employer is an interested party; certificate have not previously been de- (c) A statement that he agrees to livered to the inspector or inspectors comply with all terms and conditions issuing the appeal inspection certifi- of the regulations in this part relating cate. The provisions in the regulations to duties of licensed samplers; and in this part concerning forms of certificates, issuance of certificates, and dis- (d) Such other information as may be position of certificates shall apply to requested. appeal inspection certificates, except § 260.49 Inspectors. that copies of such appeal inspection certificates shall be furnished all inter- Inspections will ordinarily be per- ested parties who received copies of the formed by employees under the Sec- superseded certificate. retary who are employed as Federal Government employees for that pur- LICENSING OF SAMPLERS AND pose. However, any person employed INSPECTORS under any joint Federal-State inspection service arrangement may be li- § 260.47 Who may become licensed censed, if otherwise qualified, by the sampler. Secretary to make inspections in ac- Any person deemed to have the nec- cordance with this part on such proc- essary qualifications may be licensed essed products as may be specified in as a licensed sampler to draw samples his license. Such license shall be issued for the purpose of inspection under the only in a case where the Secretary is regulations in this part. Such a license satisfied that the particular person is shall bear the printed signature of the qualified to perform adequately the in- Secretary, and shall be countersigned spection service for which such person by an authorized employee of the De- is to be licensed. Each such license partment. Licensed samplers shall have shall bear the printed signature of the no authority to inspect processed prod- Secretary and shall be countersigned ucts under the regulations in this part by an authorized employee of the De- except as to identification and condi- partment. An inspector shall perform tion of the containers in a lot. A li- his duties pursuant to the regulations censed sampler shall perform his duties in this part as directed by the Director.

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§ 260.50 Suspension or revocation of li- § 260.58 Accessibility for sampling. cense of licensed sampler or li- Each applicant shall cause the proc- censed inspector. essed products for which inspection is Pending final action by the Sec- requested to be made accessible for retary, the Director may, whenever he proper sampling. Failure to make any deems such action necessary, suspend lot accessible for proper sampling shall the license of any licensed sampler, or be sufficient cause for postponing in- licensed inspector, issued pursuant to spection service until such time as the regulations in this part, by giving such lot is made accessible for proper notice of such suspension to the respec- sampling. tive licensee, accompanied by a state- § 260.59 How officially drawn samples ment of the reasons therefor. Within 7 are to be identified. days after the receipt of the aforesaid notice and statement of reasons by Officially drawn samples shall be marked by the inspector or licensed such licensee, he may file an appeal, in sampler so such samples can be prop- writing, with the Secretary supported erly identified for inspection. by any argument or evidence that he may wish to offer as to why his license § 260.60 How samples are to be should not be suspended or revoked. shipped. After the expiration of the aforesaid 7 Unless otherwise directed by the Sec- day period and consideration of such retary, samples which are to be shipped argument and evidence, the Secretary to any office of inspection shall be for- shall take such action as he deems ap- warded to the office of inspection serv- propriate with respect to such suspen- ing the area in which the processed sion or revocation. prodcuts from which the samples were drawn is located. Such samples shall be § 260.51 Surrender of license. shipped in a manner to avoid, if pos- Upon termination of his services as a sible, any material change in the qual- licensed sampler or licensed inspector, ity or condition of the sample of the or suspension or revocation of his li- processed product. All transportation cense, such licensee shall surrender his charges in connection with such ship- license immediately to the office of in- ments of samples shall be at the ex- spection serving the area in which he is pense of the applicant and wherever located. These same provisions shall practicable, such charges shall be pre- apply in a case of an expired license. paid by him. § 260.61 Sampling plans and proce- SAMPLING dures for determining lot compliance. § 260.57 How samples are drawn by inspectors or licensed samplers. (a) Except as otherwise provided for in this section in connection with in- An inspector or a licensed sampler plant inspection and unless otherwise shall select samples, upon request, approved by the Secretary, samples from designated lots of processed prod- shall be selected from each lot in the ucts which are so placed as to permit exact number of sample units indicated thorough and proper sampling in ac- for the lot size in the applicable single cordance with the regulations in this sampling plan or, at the discretion of part. Such person shall, unless other- the inspection service, any comparable wise directed by the Secretary, select multiple sampling plan: Provided, That sample units of such products at ran- at the discretion of the inspection serv- dom, and from various locations in ice the number of sample units selected each lot in such manner and number, may be increased to the exact number not inconsistent with the regulations of sample units indicated for any one of in this part, as to secure a representa- the larger sample sizes provided for in tive sample of the lot. Samples drawn the appropriate plans. for inspection shall be furnished by the (b) Under the single sampling plans applicant at no cost to the Depart- with respect to any specified requirement. ment:

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(1) If the number of deviants (as de- ined before the lot size is known and fined in connection with the specific the number of sample units exceeds the requirements) in the sample does not prescribed sample size for such lot but exceed the acceptance number pre- does not equal any of the prescribed scribed for the sample size the lot larger sample sizes the lot may be meets the requirement; deemed to meet or fail a specific re- (2) If the number of deviants (as de- quirement in accordance with the fol- fined in connection with the specific lowing procedure: requirement) in the sample exceeds the (1) If the number of deviants (as de- acceptance number prescribed for the fined in connection with the specific sample size the lot fails the require- requirement) in the nonprescribed sam- ment. ple does not exceed the acceptance (c) Under the multiple sampling number of the next smaller sample size plans inspection commences with the the lot meets the requirements; smallest sample size indicated under (2) If the number of deviants (as de- the appropriate plan and with respect fined in connection with the specific to any specified requirement: requirement) in the nonprescribed sam- (1) If the number of deviants (as de- ple equals the acceptance number pre- fined in connection with the specific scribed for the next larger sample size requirement) in the sample being con- additional sample units shall be se- sidered does not exceed the acceptance lected to increase the sample to the number prescribed for that sample size next larger prescribed sample size; the lot meets the requirement; (3) If the number of deviants (as de- (2) If the number of deviants (as defined in connection with the specific fined in connection with the specific requirement) in the nonprescribed sam- requirement) in the sample being con- ple exceeds the acceptance number pre- sidered equals or exceeds the rejection scribed for the next larger sample size number prescribed for that sample size the lot fails the requirement. the lot fails the requirement; or (e) In the event that the lot compli- (3) If the number of deviants (as de- ance determination provisions of a fined in connection with the specific standard or specification are based on requirement) in the sample being con- the number of specified deviations in- sidered falls between the acceptance stead of deviants the procedures set and rejection numbers of the plan, ad- forth in this section may be applied by ditional sample units are added to the substituting the word ‘‘deviation’’ for sample so that the sample thus cumu- the word ‘‘deviant’’ wherever it ap- lated equals the next larger cumulative pears. sample size in the plan. It may then be (f) Sampling plans referred to in this determined that the lot meets or fails section are those contained in Tables I, the specific requirement by considering II, III, IV, V, and VI which follow or the cumulative sample and applying any other plans which are applicable. the procedures outlined in paragraphs For processed products not included in (c)(1) and (2) of this section or by con- these tables, the minimum sample size sidering successively larger samples shall be the exact number of sample cumulated in the same manner until units prescribed in the table, container the lot meets or fails the specific re- group, and lot size that, as determined quirement. by the inspector, most closely resem- (d) If in the conduct of any type of in- bles the product, type, container size plant inspection the sample is exam- and amount of product to be samples.

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HARACTER AS 0 Over 120,000 0 Over C Over 28,000 IZE AND S UCH S NITS OF U

ONTAINING EVELS C L 228,001–300,000 300,001–420,000 420,000 Over

HEREOF T 228,000 156,001– CCEPTANCE A EPARABLE S 72,001–108,000 108,001–168,000 168,001–240,000 240,000 Over RODUCTS P Lot size (number of containers) EADILY LANS AND AND R 96,001– 156,000 P , 48,001–72,000 TO BE AMPLING RODUCTS S P INGLE S ISHERY F ROCESSED P IMILARLY S 1 2 3 4 5 ANNED OR 700) ...... 2,400 or less 2,401–12,000 12,001–24,000 24,001–48,000 × 407) ...... 3,600 or less 3,601–14,400 14,401–48,000 48,001–96,000 812) ...... 1,200 or less 1,201–7,200 7,201–15,000 15,001–24,000 24,001–36,000 36,001–60,000 60,001–84,000 84,001–120,00 I—C GROUP GROUP GROUP GROUP GROUP × × less volume than that of a No. 300 size can (300 a volume equal to or exceeding that of a No. 300 size can, but not exceeding that of a No. 3 cylinder size can (404 a volume exceeding that of a No. 3 cylinder size can, but not exceeding that of a No. 12 size can (603 a volume exceeding that of a No. 12 size can, but not exceeding that of a 5-gallon container ...... 200 or less a volume exceeding that of a 5-gallon 201–800 container ...... 801–1,600 1,601–2,400 25 or less 2,401–3,600 26–80 3,601–8,000 8,001–16,000 81–200 16,001–28,000 201–400 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 ABLE Container size group T Any type of container Any type of container Any type of container Any type of container Any type of container

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,000 HARACTER AS HARACTER AS C C 0,000 Over 120,000 0,000 Over IZE AND IZE AND S 2,001–168,000 Over 168,000 2,001–168,000 Over S UCH 0 168,001–240,000 Over 240,000 0 168,001–240,000 Over UCH S S NITS OF NITS OF U U Groups 4 and 5—approximately 2 pounds of product. comparable to the various single sampling plans refer ONTAINING ONTAINING C C —Continued

EVELS L HEREOF HEREOF T T

1 EPARABLE EPARABLE S S RODUCTS CCEPTANCE RODUCTS P A P Lot size (number of containers) Lot size (number of containers) EADILY EADILY AND AND R R , , Single sampling plans LANS AND TO BE TO BE P RODUCTS RODUCTS P P AMPLING S ISHERY ISHERY F F INGLE S ROCESSED ROCESSED P P IMILARLY IMILARLY S S ...... 72 48 60 29 38 21 13 6 3 2 ROZEN OR 1 2 3 4 ANNED OR I—C II—F GROUP GROUP GROUP GROUP For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Groups 1, 2, and 3—1 its entire contents. sample units) 1 pound or less net weight ...... 2,400 or less 2,401–12,000 over 1 pound but not 12,001–24,000 24,001–48,000 over 4 pounds net weight 48,001–72,000 ...... 72,001–108,000 108,001–168,00 1,800 or less 1,801–8,400 over 4 pounds but not over 10 pounds 8,401–18,000 18,001–36,000 net weight ...... 36,001–60,000 60,001–96,000 900 or less 96,001–132,000 over 10 pounds but 13 not over 100 pounds 901–3,600 net weight ...... 3,601–10,800 10,801–18,000 18,001–36,000 200 or less 36,001–60,000 60,001–84,000 201–800 84,001–12 801–1,600 1,601–2,400 2,401–3,600 3,601–8,000 8,001–16,000 16,001–28,000 Over 28 1 2 ABLE ABLE Container size group Container size group T Acceptance number.....Sample size (number of Acceptance 0 1 2 3 4 5 6 7 Any type of container Any type of container Any type of container Any type of container T When determined by the inspector that a 2-pound sample unit is inadequate, larger may be substituted. table VI of this section.

100

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RODUCTS

P 1 TATE S ELATED R Lot size (number of containers) OMOGENEOUS Single sampling plans H OR ISHERY AND F ROCESSED P THERWISE O OR , ROZEN , F

1 ...... 72 48 60 29 38 21 13 6 3 ANNED 2 1 2 3 4 5 5 III—C GROUP GROUP GROUP GROUP GROUP GROUP For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Groups 1, 2, and 3—1 its entire contents. ABLE over 100 pounds net weight ...... 25 or less sample units) 26–80 81–200 201–400 401–800 801–1,200 12 ounces or less 1,201–2,000 ...... 5,400 or less 5,401–21,600 2,001–3,200 21,601–62,400 over 12 ounces but 62,401–112,000 112,001–174,000 not over 60 ounces 174,001–240,000 Over 3,200 .... 240,001–360,000 3,600 or less 3,601–14,400 14,401–48,000 over 60 ounces but 48,001–96,000 not over 160 ounces .. 96,001–156,000 156,001–228,000 1,800 or less 228,001–300,000 300 1,801–8,400 over 160 ounces but 8,401–18,000 not over 10 gallons or 18,001–60,000 100 pounds whichever is applicable 36,001–60,000 ...... 60,001–96,000 200 or less 96,001–132,000 over 10 gallons or 100 132,001–16 pounds whichever is 201–800 applicable ...... 801–1,600 25 or less 1,601–3,200 3,201–8,000 26–80 8,001–16,000 81–200 16,001–24,000 24,001–32,000 Ove 201–400 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 1 2 Container size group T Any type of container number.....Sample size (number of Acceptance 0 1 2 3 4 5 6 7 8 Any type of container Any type of container Any type of container Any type of container Any type of container When determined by the inspector that a 3-pound sample unit is inadequate, larger or 1 more containers and units of 3 pounds. table VI of this section.

101

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sample unit is inadequate, a larger may be comparable to the various single sampling plans refer A smaller sample unit may be substituted in group 3 at the olved. RODUCTS P AND RODUCTS , P ELATED RODUCTS R

P 2 —Continued TATE ELATED S R Lot size (number of containers) Lot size (number of containers) ISHERY AND F Single sampling plans ISHERY AND OMOGENEOUS F H EHYDRATED OR IV—D ROCESSED P ABLE T THERWISE O OR , ROZEN , F

1 ...... 72 48 60 21 29 38 13 6 3 ANNED 3 1 2 3 4 III—C GROUP GROUP GROUP GROUP Ounces pertain to either fluid ounces of volume or avoirdupois net weight whichever is applicable for the product inv For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Groups 1, 2, and 3—1 its entire contents. ABLE sample units) of 1 pound or less net weight ...... 1,800 or less 1,801–8,400 over 1 pound but not over 6 pounds 8,401–18,000 18,001–36,000 net weight ...... 36,001–60,000 900 or less 60,001–96,000 over 6 pounds but 96,001–132,000 not over 20 pounds 132,00 901–3,600 net weight ...... 3,601–10,800 10,801–18,000 200 or less 18,001–36,000 over 20 pounds but 36,001–60,000 not over 100 pounds net weight 201–800 60,001–84,000 .. 84,001–120, 801–1,600 48 or less 1,601–3,200 3,201–8,000 49–400 8,001–16,000 401–1,200 16,001–24,000 1,201–2,000 24,001–32,000 2,001–2,800 Over 32 2,801–6,000 6,001–9,600 9,601–15,000 Over 15,000 1 2 3 Container size group Container size group T Acceptance number...... 8 3 4 5 6 7 2 1 Sample size (number of 0 Acceptance Any type of container Any type of container Any type of container Any type of container table VI of this section. inspector’s discretion. Groups 4, 5, and 6—approximately 16 ounces of product. When determined by the inspector that a 16-ounce substituted.

102

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c c r n c r

NITS U LANS P c r n c r AMPLE

c AMPLING 72 S S , 4, and 5—1 container its entire contents or a small- comparable to the various single sampling plans refer EYOND c r n c r INGLE B S

c IZE S

NDICATED 1 I AMPLE c r n c r S

1 LANS

P c 32 3 6 44 6 7 56 7 8 68 8 9 72 6 10 72 6 68 8 9 56 7 8 44 6 7 32 3 6 36 5 6 10 82 9 NCREASING I AMPLING c r n c r S

OMPARABLE TO THE c SE IN Single sampling plans C 26 4 5 28 3 6 38 3 7 48 4 8 58 4 8 62 5 10 62 5 58 4 8 48 4 8 38 3 7 28 3 6 26 4 5 U ULTIPLE M LANS P c r n c r LANS FOR P

c 14 2 3 22 2 5 24 2 5 32 2 6 40 3 8 48 3 8 52 3 9 48 3 8 40 3 8 32 2 6 24 2 5 22 2 5 14 2 3 AMPLING S AMPLING c r n c r S ULTIPLE

c 6 0 2 10 0 3 14 1 4 16 0 4 20 0 5 24 1 5 28 1 6 32 1 7 28 1 6 24 1 5 42 2 8 20 0 5 38 2 7 16 0 4 32 2 6 14 1 4 26 1 6 10 0 3 20 1 5 6 0 2 18 1 4 12 1 3 8 1 2 n INGLE VI—M for V—S r, ABLE T ABLE T ...... 1 2 3 4 5 6 7 8 , and accept- c c n ...... 6 13 21 29 38 48 60 72 n ...... 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 c ....72 38 48 60 21 29 13 6 3 , 2 c ...... 84 370 384 342 356 300 314 328 272 286 230 244 258 204 216 168 180 192 144 156 108 120 132 96 5 n multiple sampling. multiple 22 0 5 18 0 5 16 0 4 14 0 4 12 0 4 10 0 3 4 0 2 8 3 and rejection numbers, GROUP Single sample size, Acceptance numbers, For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Group 1—1 and its entire contents. Groups 2, 3 These multiple sampling plans may be used in lieu of the single listed at heading each column. ance numbers, over 100 pounds net weight ...... 16 or less of sample units) 17–80 81–200 201–400 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 1 2 1 Any type of container number...Sample size (number Acceptance 0 1 2 3 4 5 6 7 8 Sample size, Indicated single sampling plan: Cumulative sample sizes, Acceptance numbers, table VI of this section. er sample unit when determined by the inspector to be adequate.

103

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§ 260.62 Issuance of certificate of sam- § 260.70 Schedule of fees. pling. (a) Unless otherwise provided in a Each inspector and each licensed written agreement between the appli- sampler shall prepare and sign a cer- cant and the Secretary, the fees to be tificate of sampling to cover the sam- charged and collected for any inspec- ples drawn by the respective person, tion service performed under the regu- except that an inspector who inspects lations in this part at the request of the samples which he has drawn need the United States, or any other agency not prepare a certificate of sampling. or instrumentality thereof, will be pub- One copy of each certificate of sam- lished as a notice in the FEDERAL REG- pling prepared shall be retained by the ISTER and will be in accordance with inspector or licensed sampler (as the § 260.81. case may be) and the original and all (b) Fees are reviewed annually to as- other copies thereof shall be disposed certain that the hourly fees charged of in accordance with the instructions are adequate to recover the costs of the of the Secretary. services rendered. (1) The TYPE I (Contract Inspection) § 260.63 Identification of lots sampled. hourly fee is determined by dividing Each lot from which officially drawn the estimated annual costs by the esti- samples are selected shall be marked in mated annual billable hours. such manner as may be prescribed by (2) The TYPE II (Lot Inspection) the Secretary, if such lots do not oth- hourly fee is determined by adding a erwise possess suitable identification. factor of 50 percent to the TYPE I fee, to cover additional costs (down-time, FEES AND CHARGES etc.) associated with conducting lot inspection services. § 260.69 Payment fees and charges. (3) The TYPE III (Miscellaneous and Fees and charges for any inspection Consulting) hourly fee is determined by service shall be paid by the interested adding a factor of 25 percent to the party making the application for such TYPE I fee, to cover the additional service, in accordance with the applica- costs (down-time, etc.) associated with ble provisions of the regulations in this conducting miscellaneous inspection part, and, if so required by the person services. in charge of the office of inspection serving the area where the services are [48 FR 24901, June 3, 1983] to be performed, an advance of funds § 260.71 [Reserved] prior to rendering inspection service in an amount suitable to the Secretary, § 260.72 Fees for inspection service or a surety bond suitable to the Sec- performed under cooperative agree- retary, may be required as a guarantee ment. of payment for the services rendered. The fees to be charged and collected All fees and charges for any inspection for any inspection or similar service service, performed pursuant to the reg- performed under cooperative agree- ulations in this part shall be paid by ment shall be those provided for by check, draft, or money order made pay- such agreement. able to the National Marine Fisheries Service. Such check, draft, or money § 260.73 Disposition of fees for inspec- order shall be remitted to the appro- tions made under cooperative priate regional or area office serving agreement. the geographical area in which the Fees for inspection under a coopera- services are performed, within ten (10) tive agreement with any State or per- days from the date of billing, unless son shall be disposed of in accordance otherwise specified in a contract be- with the terms of such agreement. tween the applicant and the Secretary, Such portion of the fees collected in which latter event the contract pro- under a cooperative agreement as may visions shall apply. be due the United States shall be re- [36 FR 21038, Nov. 3, 1971] mitted in accordance with § 260.69.

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§ 260.74 Fee for appeal inspection. § 260.80 Charges for inspection service on a contract basis. The fee to be charged for an appeal inspection shall be at the rates pre- Irrespective of fees and charges prescribed in this part for other inspection scribed in the foregoing sections, the services: Provided, That, if the result of Secretary may enter into a written any appeal inspection made for any ap- memorandum of understanding or con- plicant, other than the United States tract, whichever may be appropriate, or any agency or instrumentality with any administrative agency thereof, discloses that a material error charged with the administration of a was made in the inspection on which marketing order effective pursuant to the appeal is made, no inspection fee the Agricultural Marketing Agreement Act of 1937, as revised (16 U.S.C. 661 et shall be assessed. seq.) for the making of inspections pur- § 260.76 [Reserved] suant to said agreement or order on such basis as will reimburse the Na- § 260.77 Fees for score sheets. tional Marine Fisheries Service of the Department for the full cost of ren- If the applicant for inspection service dering such inspection service as may requests score sheets showing in detail be determined by the Secretary. Like- the inspection of each container or wise, the Secretary may enter into a sample inspected and listed thereon, written memorandum of understanding such score sheets may be furnished by or contract, whichever may be appro- the inspector in charge of the office of priate, with an administrative agency inspection serving the area where the charged with the administration of a inspection was performed; and such ap- similar program operated pursuant to plicant shall be changed at the rate of the laws of any State. $2.75 for each 12 sampled units, or frac- [36 FR 21038, Nov. 3, 1971] tion thereof, inspected and listed on such score sheets. § 260.81 Readjustment and increase in hourly rates of fees. § 260.78 Fees for additional copies of inspection certificates. (a) When Federal Pay Act increases occur, the hourly rates for inspection Additional copies of any inspection fees will automatically be increased on certificate other than those provided the effective date of the pay act by an for in § 260.29, may be supplied to any amount equal to the increase received interested party upon payment of a fee by the average GS grade level of fish- of $2.75 for each set of five (5) or fewer ery product inspectors receiving such copies. pay increases. (b) The hourly rates of fees to be § 260.79 Travel and other expenses. charged for inspection services will be Charges may be made to cover the subject to review and reevaluation for cost of travel and other expenses in- possible readjustment not less than curred in connection with the perform- every 3 years: Provided, That, the hour- ance of any inspection service, includ- ly rates of fees to be charged for ining appeal inspections: Provided, That, spection services will be immediately if charges for sampling or inspection reevaluated as to need for readjust- are based on an hourly rate, an addi- ment with each Federal Pay Act in- tional hourly charge may be made for crease. travel time including time spent wait- [35 FR 15925, Oct. 9, 1970] ing for transportation as well as time spent traveling, but not to exceed 8 MISCELLANEOUS hours of travel time for any one person for any one day: And provided further, § 260.84 Policies and procedures. That, if travel is by common carrier, The policies and procedures per- no hourly charge may be made for taining to any of the inspection serv- travel time outside the employee’s offi- ices are contained within the NMFS cial work hours. Fishery Products Inspection Manual.

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The policies and procedures are avail- Shield with plain background. able from the Secretary to any interested party by writing to Document Approval and Supply Services Branch, Inspection Services Division, P.O. Drawer 1207, 3207 Frederic St., Pascagoula, MS 39568–1207. [61 FR 9369, Mar. 8, 1996]

§ 260.86 Approved identification. (a) Grade marks: The approved grade mark or identification may be used on containers, labels, or otherwise indicated for any processed product that: FIGURE 2 (1) Has been packed under inspection as provided in this part to assure compliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing op- FIGURE 3 erations, and (2) has been certified by an inspector as meeting the requirements of such grade, quality or classification. The grade marks approved for use shall be similar in form and design to the examples of Figures 1 to 5 of this section.

Shield using red, white, and blue background or other colors appropriate for label. FIGURE 4

FIGURE 5 FIGURE 1 (b) Inspection marks: The approved inspection marks may be used on containers, labels, or otherwise indicated for any processed product that: (1) Has been packed under inspection as provided in this part to assure compliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing operations, and (2) has been certified by

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an inspector as meeting the require- (c) Combined grade and inspection ments of such quality or grade classi- marks: The grade marks set forth in fication as may be approved by the paragraph (a) of this section, and the Secretary. inspection marks, Figures 7 and 8, set The inspection marks approved for use forth in paragraph (b) of this section, shall be similar in form and design to may be combined into a consolidated the examples in Figures 6, 7, and 8 of grade and inspection mark for use on this section. processed products that have been packed under inspection as provided in Statement enclosed within a circle. this part. (d) Products not eligible for approved identification: Processed products which have not been packed under inspection as provided in this part shall not be identified by approved grade or inspection marks, but such products may be inspected on a lot inspection basis as provided in this part and identified by an authorized representative of the De- partment by stamping the shipping cases and inspection certificate(s) covering such lot(s) as appropriate, with marks similar in form and design to the examples in Figures 9 and 10 of this section.

FIGURE 6

Statement without the use of the circle.

FIGURE 7

Statement without the use of the circle.

FIGURE 9

FIGURE 8

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censes, to take an active part in political management or in political cam- paigns. Political activities in city, county, State, or national elections, whether primary or regular, or in behalf of any party or candidate, or any measure to be voted upon, are prohibited. This applies to all appointees or licensees, including, but not limited to, temporary and cooperative employees and employees on leave of absence with or without pay. Willful violation of this section will constitute grounds for dismissal in the case of appointees and revocation of licenses in the case of licensees.

§ 260.90 Compliance with other laws. None of the requirements in the regulations in this part shall excuse failure to comply with any Federal, State, FIGURE 10 county, or municipal laws applicable to (e) Removal of labels bearing inspection the operation of food processing estab- marks: At the time a lot of fishery lishments and to processed food prod- products is found to be mislabeled and ucts. the labels on the packages are not removed within ten (10) consecutive cal- § 260.91 Identification. endar days, the following procedure Each inspector and licensed sampler shall be applicable: shall have in his possession at all times (1) The processor, under the super- and present upon request, while on vision of the inspector, shall clearly duty, the means of identification fur- and conspicuously mark all master nished by the Department to such per- cases in the lot by means of a ‘‘rejected son. by USDC Inspector’’ stamp provided by the Department. § 260.93 Debarment and suspension. (2) The processor shall be held ac- (a) Debarment. Any person may be countable to the Department for all debarred from using or benefiting from mislabeled products until the products the inspection service provided under are properly labeled. the regulations of this subchapter or (3) Clearance for the release of the re- under the terms of any inspection con- labeled products shall be obtained by tract, and such debarment may apply the processor from the inspector. to one or more plants under his con- (f) Users of inspection services having trol, if such person engages in one or an inventory of labels which bear offi- more of the following acts or activi- cial approved identification marks ties: stating ‘‘U.S. Department of the Inte- (1) Misrepresenting, misstating, or rior’’ or otherwise referencing the Inte- withholding any material or relevant rior Department, will be permitted to facts or information in conjunction use such marks until December 31, 1971, with any application or request for an except that upon written request the inspection contract, inspection service, Director, National Marine Fisheries inspection appeal, lot inspection, or Service, may extend such period for the other service provided for under the use of specific labels. regulations of this subchapter. [36 FR 4609, Mar. 10, 1971] (2) Using on a processed product any label which displays any official identi- § 260.88 Political activity. fication, official device, or official All inspectors and licensed samplers mark, when the label is not currently are forbidden, during the period of approved for use by the Director or his their respective appointments or li- delegate.

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(3) Using on a processed product any provisions of the regulations of this label which displays the words ‘‘Packed subchapter. Under Federal Inspection, U.S. Depart- (10) Engaging in acts or activities ment of Commerce’’, or which displays which destroy or interfere with the any official mark, official device, or of- purposes of the inspection program or ficial identification, or which displays which have the effect of undermining a facsimile of the foregoing, when such the integrity of the inspection pro- product has not been inspected under gram. the regulations of this subchapter. (b) Temporary suspension. (1) When- (4) Making any statement or ref- ever the Director has reasonable cause erence to the U.S. Grade of any proc- to believe that any person has engaged essed product or any inspection service in any act or activity described in provided under the regulations of this paragraph (a) of this section, and in subchapter on the label or in the adver- such act or activity, in the judgment of tising of any processed product, when the Director, would cause serious and such product has not been inspected irreparable injury to the inspection under the regulations of this sub- program and services provided under chapter. the regulations of this subchapter, the (5) Making, using, issuing or at- Director may, without a hearing, tem- tempting to issue or use in conjunction porarily suspend, either before or after with the sale, shipment, transfer or ad- the institution of a debarment hearing, vertisement of a processed product any the inspection service provided under certificate of loading, certificate of the regulations of this subchapter or sampling, inspection certificate, offi- under any inspection contract for one cial device, official identification, official mark, official document, or score or more plants under the control of sheet which has not been issued, ap- such person. Notice of suspension shall proved, or authorized for use with such be served by registered or certified product by an inspector. mail, return receipt requested, and the (6) Using any of the terms ‘‘United notice shall specifically state those States’’, ‘‘Officially graded’’, ‘‘Offi- acts or activities of such person which cially inspected’’, ‘‘Government in- are the bases for the suspension. The spected’’, ‘‘Federally inspected’’, ‘‘Of- suspension shall become effective five ficially sampled’’, or words of similar (5) days after receipt of the notice. import or meanings, or using any offi- (2) Once a person has received a no- cial device, official identification, or tice of a temporary suspension, a de- official mark on the label, on the ship- barment hearing will be set for 30 days ping container, or in the advertising of after the effective date of the suspen- any processed product, when such prod- sion. Within 60 days after the comple- uct has not been inspected under the tion of the debarment hearing, the regulations of this subchapter. Hearing Examiner shall determine, (7) Using, attempting to use, altering based upon evidence of record, whether or reproducing any certificate, certifi- the temporary suspension shall be con- cate form, design, insignia, mark, tinued or terminated. A temporary sus- shield, device, or figure which simu- pension shall be terminated by the lates in whole or in part any official Hearing Examiner if he determines mark, official device, official identi- that the acts or activities, which were fication, certificate of loading, certifi- the bases for the suspension, did not cate of sampling, inspection certificate occur or will not cause serious and ir- or other official certificate issued pur- reparable injury to the inspection pro- suant to the regulations of this sub- gram and services provided under the chapter. regulations of this subchapter. This de- (8) Assaulting, harassing, interfering, termination of the Hearing Examiner obstructing or attempting to interfere on the continuation or termination of or obstruct any inspector or sampler in the temporary suspension shall be final the performance of his duties under the and there shall be no appeal of this de- regulations of this subchapter. termination. The initial decision by (9) Violating any one or more of the the Hearing Examiner on the debar- terms of any inspection contract or the ment shall be made in accordance with

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paragraph (b)(1), Decisions, of this sec- (f) Time and place of hearing. The tion. hearing shall be held at a time and (3) After a debarment hearing has place fixed by the Director: Provided, been instituted against any person by a however, The Hearing Examiner may, suspension, such suspension will re- upon a proper showing of inconven- main in effect until a final decision is ience, change the time and place of the rendered on the debarment in accord- hearing. Motions for change of time or ance with the regulations of this sec- place of the hearing must be mailed to tion or the temporary suspension is or served upon the Hearing Examiner terminated by the Hearing Examiner. no later than 10 days before the hear- (4) When a debarment hearing has ing. been instituted against any person not (g) Right to counsel. In all proceedings under suspension, the Director may, in under this section, all persons and the accordance with the regulations of this Department of Commerce shall have paragraph (b) temporarily suspend such the right to be represented by counsel, person, and the suspension will remain in effect until a final decision on the in accordance with the rules and regu- debarment is rendered in accordance lations set forth in title 43, Code of with the regulations of this section or Federal Regulations, part 1. the temporary suspension is termi- (h) Form, execution, and service of doc- nated by the Hearing Examiner. uments. (1) All papers to be filed under (c) Hearing Examiner. All hearing the regulations in this section shall be shall be held before a Hearing Exam- clear and legible; and shall be dated, iner appointed by the Secretary or the signed in ink, contain the docket de- Director. scription and title of the proceeding, if (d) Hearing. If one or more of the acts any, and the address of the signatory. or activities described in paragraph (a) Five copies of all papers are required to of this section have occurred, the Di- be filed. Documents filed shall be exe- rector may institute a hearing to de- cuted by: termine the length of time during (i) The person or persons filing same, which the person shall be debarred and (ii) by an authorized officer thereof if those plants to which the debarment it be a corporation or, shall apply. No person may be debarred (iii) by an attorney or other person unless there is a hearing, as prescribed having authority with respect thereto. in this section, and it has been deter- (2) All documents, when filed, shall mined by the Hearing Examiner, based show that service has been made upon on evidence of record, that the one or all parties to the proceeding. Such more of the activities described in service shall be made by delivering one paragraph (a) of this section have oc- copy to each party in person or by curred. Any debarment or suspension mailing by first-class mail, properly must be instituted within two (2) years addressed with postage prepaid. When a of the time when such acts or activities party has appeared by attorney or described in paragraph (a) of this sec- other representative, service on such tion have occurred. attorney or other representative will (e) Notice of hearing. The Director shall notify such person of the debar- be deemed service upon the party. The ment hearing by registered or certified date of service of document shall be mail, return receipt requested. The no- the day when the matter served is de- tice shall set forth the time and place posited in the U.S. mail, shown by the of the hearing, the specific acts or ac- postmark thereon, or is delivered in tivities which are the basis for the de- person, as the case may be. barment hearing, the time period of de- (3) A person is deemed to have ap- barment being sought, and those plants peared in a hearing by the filing with to which the debarment shall apply. the Director a written notice of his ap- Except for the debarment hearing pro- pearance or his authority in writing to vided for in paragraph (b) of this sec- appear on behalf of one of the persons tion the hearing will be set for a time to the hearing. not longer than 120 days after receipt (4) The original of every document of the notice of hearing. filed under this section and required to

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be served upon all parties to a pro- (11) Issue the initial decision and dis- ceeding shall be accompanied by a cer- pose of any other pertinent matters tificate of service signed by the party that normally and properly arise in the making service, stating that such serv- course of proceedings. ice has been made upon each party to (12) Do all other things necessary for the proceeding. Certificates of service an orderly and impartial hearing. may be in substantially the following (k) The record. (1) The Director will form: designate an official reporter for all hearings. The official transcript of tes- I hereby certify that I have this day served the foregoing document upon all parties of timony taken, together with any ex- record in this proceeding by: (1) Mailing hibits and briefs filed therewith, shall postage prepaid, (2) delivering in person, a be filed with the Director. Transcripts copy to each party. of testimony will be available in any Dated at llllllllll this lllll proceeding under the regulations of day of llllll, 19ll this section, at rates fixed by the con- Signature llllllllllllllll tract between the United States of (i) Procedures and evidence. (1) All America and the reporter. If the re- parties to a hearing shall be entitled to porter is an employee of the Depart- introduce all relevant evidence on the ment of Commerce, the rate will be issues as stated in the notice for hear- fixed by the Director. ing or as determined by the Hearing (2) The transcript of testimony and Examiner at the outset of or during the exhibits, together with all briefs, pa- hearing. pers, and all rulings by the Hearing Ex- (2) Technical rules of evidence shall aminer shall constitute the record. The not apply to hearings conducted pursu- initial decision will be predicated on ant to this section, but rules or prin- the same record, as will be final deci- ciples designed to assure production of sion. the most credible evidence available (l) Decisions. (1) The Hearing Exam- and to subject testimony to test by iner shall render the initial decision in cross-examination shall be applied all debarment proceedings before him. where reasonably necessary. The same Hearing Examiner who pre- (j) Duties of Hearing Examiner. The sides at the hearing shall render the Hearing Examiner shall have the au- initial decision except when such Ex- thority and duty to: aminer becomes unavailable to the De- (1) Take or cause depositions to be partment of Commerce. In such case, taken. another Hearing Examiner will be des- (2) Regulate the course of the hear- ignated by the Secretary or Director to ings. render the initial decision. Briefs, or (3) Prescribe the order in which evi- other documents, to be submitted after dence shall be presented. the hearing must be received not later (4) Dispose of procedural requests or than twenty (20) days after the hearing, similar matters. unless otherwise extended by the Hear- (5) Hear and initially rule upon all ing Examiner upon motion by a party. motions and petitions before him. The initial decision shall be made (6) Administer oaths and affirma- within sixty (60) days after the receipt tions. of all briefs. If no appeals from the ini- (7) Rule upon offers of proof and re- tial decision is served upon the Direc- ceive competent, relevant, material, tor within ten (10) days of the date of reliable, and probative evidence. the initial decision, it will become the (8) Control the admission of irrele- final decision on the 20th day following vant, immaterial, incompetent, unreli- the date of the initial decision. If an able, repetitious, or cumulative evi- appeal is received, the appeal will be dence. transmitted to the Secretary who will (9) Hear oral arguments if the Hear- render the final decision after consid- ing Examiner determined such require- ering the record and the appeal. ment is necessary. (2) All initial and final decisions (10) Fix the time for filing briefs, mo- shall include a statement of findings tions, and other documents to be filed and conclusions, as well as the reasons in connection with hearings. or bases therefore, upon the material

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issues presented. A copy of each deci- ance with the approved drawings and sion shall be served on the parties to the regulations in this part. the proceeding, and furnished to inter- (c) Drawings and specifications of ested persons upon request. new construction or proposed alter- (3) It shall be the duty of the Hearing ations of existing official establish- Examiner, and the Secretary where ments shall be furnished to the Direc- there is an appeal, to determine wheth- tor in advance of actual construction er the person has engaged in one or for prior approval with regard to com- more of the acts or activities described pliance with requirements for facili- in paragraph (a) of this section, and, if ties. there is a finding that the person has engaged in such acts or activities, the [36 FR 21039, Nov. 3, 1971] length of time the person shall be debarred, and the plants to which the § 260.97 Conditions for providing fish- debarment shall apply. ery products inspection service at official establishments. [31 FR 16052, Dec. 15, 1966, as amended at 36 (a) The determination as to the in- FR 18738, Sept. 21, 1971] spection effort required to adequately REQUIREMENTS FOR PLANTS OPERATING provide inspection service at any estab- UNDER CONTINUOUS INSPECTION ON A lishment will be made by NMFS. The CONTRACT BASIS 1 man-hours required may vary at different official establishments due to § 260.96 Application for fishery prod- factors such as, but not limited to, size ucts inspection service on a con- and complexity of operations, volume tract basis at official establish- and variety of products produced, and ments. adequacy of control systems and co- Any person desiring to process and operation. The inspection effort re- pack products in an establishment quirement may be reevaluated when under fishery products inspection serv- the contracting party or NMFS deems ice on a contract basis, must receive there is sufficient change in produc- approval of such buildings and facili- tion, equipment and change of quality ties as an official establishment prior control input to warrant reevaluation. to the inauguration of such service. An Inspectors will not be available to per- application for inspection service to be form any of employee or management rendered in an establishment shall be duties, however, they will be available approved according to the following for consultation purposes. NMFS re- procedure: serves the right to reassign inspectors (a) Initial survey: When application as it deems necessary. has been filed for inspection service as (b) NMFS shall not be held respon- aforesaid, NMFS inspector(s) shall ex- sible: amine the buildings, premises, and fa- (1) For damages occurring through cilities according to the requirements any act of commission or omission on of the fishery products inspection serv- the part of its inspectors when engaged ice and shall specify any additional fa- in performing services; or cilities required for the service. (2) For production errors, such as (b) Final survey and establishment processing temperatures, length of approval: Prior to the inauguration of process, or misbranding of products; or the fishery products inspection service, (3) For failure to supply enough in- a final survey of the buildings, prem- spection effort during any period of ises, and facilities shall be made to service. verify that the buildings are constructed and facilities are in accord- (c) The contracting party will: (1) Use only wholesome raw material which has been handled or stored under 1 Compliance with the above requirements sanitary conditions and is suitable for does not excuse failure to comply with all applicable sanitary rules and regulations of processings; maintain the official es- city, county, State, Federal, or other agen- tablishment(s), designated on the con- cies having jursidiction over such establish- tract in such sanitary condition and to ments and operations. employ such methods of handling raw

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materials for processing as may be nec- analyses, and output of products in- essary to conform to the sanitary re- spected, processed, and packaged at the quirements precribed or approved by designated official establish-ment(s) as NMFS; may be requested by NMFS, subject to (2) Adequately code each primary the approval of the Bureau of the Budg- container and master case of products et in accordance with the Federal Re- sold or otherwise distributed from a ports Act of 1942; manufacturing, processing, packing, or (8) Make available for use by inspec- repackaging activity to enable positive tors, adequate office space in the des- lot identification to facilitate, where ignated official establishment(s) and necessary, the segregation of specific furnish suitable desks, office equip- food lots that may have become con- ment, and files for the proper care and taminated or otherwise unfit for their storage of inspection records; intended use; (9) Make laboratory facilities and (3) Not permit any labels on which necessary equipment available for the reference is made to Federal inspec- use of inspectors to inspect samples of tion, to be used on any product which processed foods and/or components is not packed under fishery products thereof; inspection service nor permit any la- (10) Furnish and provide laundry bels on which reference is made to any service, as required by NMFS, for U.S. Grade to be used on any product coats, trousers, smocks, and towels which has not been officially certified used by inspectors during performance as meeting the requirements of such of duty in official establishment(s); grade; nor supply labels bearing ref- (11) Furnish stenographic and clerical erence to Federal inspection to another assistance as may be necessary in the establishment unless the products to typing of certificates and reports and which such labels are to be applied the handling of official correspondence, have been packed under Federal inspec- as well as furnish the labor incident to tion at an official establishment; the drawing and grading of samples and (4) Not affix any label on which ref- other work required to facilitate ade- erence is made to Federal inspection to quate inspection procedures whenever any container of processed foods, pro- necessary; duced in any designated official estab- (12) Submit to NMFS, three (3) copies lishment, with respect to which the of new product specifications in a man- grade of such product is not certified ner prescribed by NMFS, and three (3) because of adulteration due to the pres- end-product samples for evaluation ence of contaminants in excess of lim- and/or laboratory analysis on all prod- its established in accordance with the ucts for approval, for which U.S. Grade regulations or guidelines issued pursu- Standards are not available, when in- ant to the Food, Drug, and Cosmetic spection is to be applied to such prod- Act, as amended; ucts. If requested of NMFS, such new (5) Not, with respect to any product specifications and end-product samples for which U.S. Grade Standards are in shall be considered confidential; effect, affix any label on which ref- (13) Submit, as required by NMFS, erence is made to Federal inspection to for approval, proofs prior to printing any container of processed food which and thereafter four (4) copies of any is substandard: Provided, That such finished label which may or may not label may be affixed to any container bear official identification marks, of such substandard quality product if when such products are packed under such label bears a statement to indi- Federal inspection on a contract basis; cate the substandard quality; (14) Not make deceptive, fraudulent, (6) Not, with respect to any product or unauthorized use in advertising, or for which U.S. Grade Standard are not otherwise, of the fishery products in- in effect, affix any label on which ref- spection service, the inspection certifi- erence is made to the Federal inspec- cates or reports issued, or the con- tion to containers of processed foods, tainers on which official identification except with the approval of NMFS; marks are embossed or otherwise iden- (7) Furnish such reports of proc- tified, in connection with the sale of essing, packaging, grading, laboratory any processed products;

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(15) Submit to NMFS, four (4) copies possession of his supplier bearing offi- of each label which may or may not cial identification marks, or reference bear official identification marks, to fishery products inspection service when such labels are to be withdrawn have been used, or said containers, la- from inspection or when approved labels, and advertising material must be bels are disapproved for further use destroyed, or official identification under inspection; marks, and all other reference to the (16) Notify NMFS in advance of the fishery products inspection service on proposed use of any labels which re- said containers, labels, advertising ma- quire obliteration of any official iden- terial must be obliterated, or assurance tification marks, and all reference to satisfactory to NMFS must be fur- the inspection service on approved la- nished that such containers, labels, and bels which have been withdrawn or dis- advertising material will not be used in approved for use; violation of any of the provisions of the (17) Accord representatives of NMFS regulations in the part. at all reasonable times free and imme- (3) In case the fishery products in- diate access to establishment(s) and of- spection service is terminated for ficial establishment(s) under appli- cause by NMFS under the terms of cant’s control for the purpose of check- paragraph (d)(1)(iii) of this section, or ing codes, coded products, coding de- in case of automatic termination under vices, coding procedures, official iden- terms of paragraph (d)(1)(iv) of this tification marks obliteration, and use section, the contracting party must de- of withdrawn or disapproved labels. stroy all unused containers, labels, and (d) Termination of inspection serv- advertising material on hand bearing ices: official identification marks, or ref- (1) The fishery products inspection erence to fishery products inspection service, including the issuance of in- service, or must obliterate official spection reports, shall be rendered identification marks, and all reference from the date of the commencement to the fishery products inspection serv- specified in the contract and continue ice on said containers, labels and ad- until suspended or terminated: vertising material. (i) By mutual consent; After termination of the fishery prod- (ii) by either party giving the other ucts inspection service, NMFS may, at party sixty (60) days’ written notice such time or times as it may determine specifying the date of suspension or to be necessary, during regular busi- termination; ness hours, enter the establishment(s) (iii) by one (1) day’s written notice by or other facilities in order to ascertain NMFS in the event the applicant fails that the containers, labels, and adver- to honor any invoice within ten (10) tising material have been altered or days after date of receipt of such in- disposed of in the manner provided voice covering the full costs of the in- herein, to the satisfaction of NMFS. spection service provided, or in the [36 FR 21039, Nov. 3, 1971] event the applicant fails to maintain its designated plants in a sanitary con- § 260.98 Premises. dition or to use wholesome raw mate- The premises about an official estab- rials for processing as required by lishment shall be free from conditions NMFS, or in the event the applicant which may result in the contamination fails to comply with any provisions of of food including, but not limited to, the regulations contained in this part; the following: (iv) by automatic termination in case (a) Strong offensive odors; of bankruptcy, closing out of business, (b) Improperly stored equipment, lit- or change in controlling ownership. ter, waste, refuse, and uncut weeds or (2) In case the contracting party grass within the immediate vicinity of wishes to terminate the fishery prod- the buildings or structures that may ucts inspection service under the terms constitute an attractant, breeding of paragraph (d)(1)(i) or (ii) of this sec- place, or harborage for rodents, insects, tion, either the service must be contin- and other pests; ued until all unused containers, labels, (c) Excessively dusty roads, yards, or and advertising material on hand or in parking lots that may constitute a

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source of contamination in areas where quick runoff of all water from official food is exposed; establishment buildings, and surface (d) Inadequately drained areas that water around buildings and on the may contribute contamination to food premises; and all such water shall be products through seepage or foot-borne disposed of in such a manner as to pre- filth and by providing a breeding place vent a nuisance or health hazard. for insects or micro-organisms; Tanks or other equipment whose drains If the grounds of an official establish- are connected to the waste system ment are bordered by grounds not must have such screens and vacuum under the official establishment opera- breaking devices affixed so as to pre- tor’s control of the kind described in vent the entrance of waste water, ma- paragraphs (b) through (d) of this sec- terial, and the entrance of vermin to tion, care must be exercised in the offi- the processing tanks or equipment. cial establishment by inspection, ex- (d) Water supply. There shall be ample termination, or other means to effect supply of both hot and cold water; and exclusion of pests, dirt, and other filth the water shall be of safe and sanitary that may be a source of food contami- quality with adequate facilities for its nation. (1) distribution throughout buildings, and (2) protection against contamina- [36 FR 21040, Nov. 3, 1971] tion and pollution. § 260.99 Buildings and structures. Sea water of safe suitable and sanitary The buildings and structures shall be quality may be used in the processing properly constructed and maintained of various fishery products when ap- in a sanitary condition, including, but proved by NMFS prior to use. not limited to the following require- (e) Construction. Roofs shall be weath- ments: ertight. The walls, ceilings, partitions, (a) Lighting. There shall be sufficient posts, doors, and other parts of all light (1) consistent with the use to buildings and structures shall be of which the particular portion of the such materials, construction, and fin- building is devoted, and (2) to provide ish as to permit their efficient and for efficient cleaning. Belts and tables thorough cleaning. The floors shall be on which picking, sorting, or trimming constructed of tile, cement, or other operations are carried on shall be pro- equally impervious material, shall vided with sufficient nonglaring light have good surface drainage, and shall to insure adequacy of the respective be free from openings or rough surfaces operation. Light bulbs, fixtures, sky- which would interfere with maintain- lights, or other glass suspended over ing the floors in a clean condition. exposed food in any step of preparation (f) Processing rooms. Each room and shall be of the safety type or otherwise each compartment in which any proc- protected to prevent food contamina- essed products are handled, processed, tion in case of breakage. or stored (1) shall be so designed and (b) Ventilation. There shall be suffi- constructed as to insure processing and cient ventilation in each room and operating conditions of a clean and or- compartment thereof to prevent exces- derly character; (2) shall be free from sive condensation of moisture and to objectional odors and vapors; and (3) insure sanitary and suitable processing shall be maintained in a clean and san- and operating conditions. If such ven- itary condition. tilation does not prevent excessive con- (g) Prevention of animals and insects in densation, the Director may require official establishment(s). Dogs, cats, that suitable facilities be provided to birds, and other animals (including, prevent the condensate from coming in but not being limited to rodents and contact with equipment used in proc- insects) shall be excluded from the essing operations and with any ingre- rooms from which processed products dient used in the manufacture or pro- are being prepared, handled, or stored duction of a processed product. and from any rooms from which ingre- (c) Drains and gutters. All drains and dients (including, but not being limited gutters shall be properly installed with to salt, sugar, spices, flour, batter, approved traps and vents. The drainage breading, and fishery products) are and plumbing system must permit the handled and stored. Screens, or other

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devices, adequate to prevent the pas- § 260.101 Lavatory accommodations. sage of insects shall, where practical, Modern lavatory accommodations, be provided for all outside doors and and properly located facilities for openings. The use of chemical com- cleaning and sanitizing utensils and pounds such as cleaning agents, insec- hands, shall be provided. ticides, bactericides, or rodent poisons shall not be permitted except under (a) Adequate lavatory and toilet ac- such precautions and restrictions as commodations, including, but not being limited to, running hot water will prevent any possibility of their ° contamination of the processed prod- (135 F. or more) and cold water, soap, uct. The use of such compounds shall and single service towels, shall be pro- be limited to those circumstances and vided. Such accommodations shall be conditions as approved by NMFS. in or near toilet and locker rooms and (h) Inspector’s office. Furnished suit- also at such other places as may be es- able and adequate office space, includ- sential to the cleanliness of all per- ing, but not being limited to, light, sonnel handling products. heat, and janitor service shall be pro- (b) Sufficient containers with covers vided rent free in official establish- shall be provided for used towels and ments for use for official purposes by other wastes. the inspector and NMFS representa- (c) An adequate number of hand tives. The room or rooms designated washing facilities serving areas where for this purpose shall meet with the ap- edible products are prepared shall be proval of NMFS and shall be conven- operated by other than hand-operated iently located, properly ventilated, and controls, or shall be of a continuous provided with lockers or cabinets suit- flow type which provides an adequate able for the protection and storage of flow of water for washing hands. inspection equipment and supplies and (d) Durable signs shall be posted con- with facilities suitable for inspectors spicuously in each toilet room and to change clothing. locker room directing employees to (i) Adequate parking space, conven- wash hands before returning to work. iently located, for private or official (e) Toilet facilities shall be provided vehicles used in connection with pro- according to the following formula: viding inspection services shall be pro- Toilet vided. Number of persons bowls required [36 FR 21040, Nov. 3, 1971] 1 to 15, inclusive ...... 1 § 260.100 Facilities. 16 to 35, inclusive ...... 2 36 to 55, inclusive ...... 1 3 Each official establishment shall be 56 to 80, inclusive ...... 1 4 equipped with adequate sanitary facili- For each additional 30 persons in excess of 80 1 1 ties and accommodations, including, 1 Urinals may be substituted for toilet bowls but only to the but not being limited to, the following: extent of one-third of the total number of bowls required. (a) Containers approved for use as containers for processed products shall All toilet equipment shall be kept op- not be used for any other purpose. erative, in good repair, and in a sani- (b) No product or material not in- tary condition. tended for human food or which creates [36 FR 21041, Nov. 3, 1971] an objectionable condition shall be processed, handled, or stored in any § 260.102 Equipment. room, compartment, or place where All equipment used for receiving, any fishery product is manufactured, washing, segregating, picking, proc- processed, handled, or stored. essing, packaging, or storing any proc- (c) Suitable facilities for cleaning essed products or any ingredients used and sanitizing equipment (e.g., brooms, in the manufacture or production brushes, mops, clean cloths, hose, noz- thereof, shall be of such design, mate- zles, soaps, detergent, sprayers) shall rial, and construction as will: be provided at convenient locations (a) Enable the examination, segrega- throughout the plant. tion, preparation, packaging, and other [36 FR 21040, Nov. 3, 1971] processing operations applicable to

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processed products, in an efficient, prior to any further processing oper- clean, and sanitary manner, and ation. (b) Permit easy access to all parts to (c) Official establishments operating insure thorough cleaning and effective under Federal inspection should have bactericidal treatment. Insofar as is an effective quality control program as practicable, all such equipment shall appropriate for the nature of the prod- be made of smooth impermeable corro- ucts and processing operations. sion-resistant material that will not (d) All ingredients used in the manu- adversely affect the processed product facture or processing of any processed by chemical action or physical contact. product shall be wholesome and fit for Such equipment shall be kept in good human food. repair and sanitary condition. Such (e) The methods and procedures em- equipment shall be cleaned and sani- ployed in the receiving, segregating, tized at a frequency as is necessary or handling, transporting, and processing required in accordance with Good Man- of ingredients in official estab ufacturing Practice Regulations, 21 lishment(s) shall be adequate to result CFR part 128. in a satisfactory processed product. Such methods and procedures include, [36 FR 21041, Nov. 3, 1971] but are not limited to, the following requirements: § 260.103 Operations and operating (1) Containers, utensils, pans, and procedures shall be in accordance buckets used for the storage or trans- with an effective sanitation program. porting of partially processed food ingredients shall not be nested unless re- (a) All operators in the receiving washed and sanitized before each use; transporting, holdings, segregating, (2) Containers which are used for preparing, processing, packaging, and holding partially processed food ingre- storing of processed products and in- dients shall not be stacked in such gredients, used as aforesaid, shall be manner as to permit contamination of strictly in accord with clean and sani- the partially processed food ingredi- tary methods and shall be conducted as ents; rapidly as possible and at temperatures (3) Packages or containers for proc- that will inhibit and retard the growth essed products shall be clean when of bacterial and other micro-organisms being filled with such products; and all and prevent any deterioration or con- reasonable precautions shall be taken tamination of such processed products to avoid soiling or contaminating the or ingredients thereof. Mechanical ad- surface of any package or container justments or practices which may liner which is, or will be, in direct con- cause contamination of foods by oil, tact with such products. dust, paint, scale, fumes, grinding ma- (f) Retention tags: (1) Any equipment terials, decomposed food, filth, chemi- such as, but not limited to, conveyors, cals, or other foreign materials shall tillers, sorters, choppers, and con- not be conducted during any manufac- tainers which fail to meet appropriate turing or processing operation. and adequate sanitation requirements (b) All processed products, raw mate- will be identified by the inspector in an rials, ingredients, and components appropriate and conspicuous manner thereof shall be subject to inspection with the word ‘‘RETAINED.’’ Fol- during each manufacturing or proc- lowing such identification, the equip- essing operation. To assure a safe, ment shall not be used until the dis- wholesome finished product, changes in crepancy has been resolved, the equip- processing methods and procedures as ment reinspected and approved by the may be required by the Director shall inspector and the ‘‘RETAINED’’ identi- be effectuated as soon as practicable. fication removed by the inspector. All processed products which are not (2) Lot(s) of processed products that manufactured or prepared in accord- may be considered to be mislabeled ance with the requirements contained and/or unwholesome by reason of con- in §§ 260.96 to 260.104 or are unwhole- taminants or which may otherwise be some or otherwise not fit for human in such condition as to require further food shall be removed and segregated evaluation or testing to determine that

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the product properly labeled and/or persons that may incidentally enter wholesome will be identified by the in- the processing areas shall comply with spector in an appropriate and con- this requirement. spicuous manner with the word ‘‘RE- (6) Not store clothing or other per- TAINED.’’ Such lot(s) of product shall sonal belongings, eat food, drink bev- be held for reinspection or testing. erages, chew gum, or use tobacco in Final disposition of the lot(s) shall be any form in areas where food or food determined by NMFS and the removal ingredients are exposed or in areas of the ‘‘RETAINED’’ identification used for washing equipment or uten- shall be performed by the inspector. sils. [36 FR 21041, Nov. 3, 1971] (7) Take any other necessary precautions to prevent contamination of § 260.104 Personnel. foods with microorganisms or foreign The establishment management shall substances including, but not limited be responsible for taking all pre- to perspiration, hair, cosmetics, to- cautions to assure the following: bacco, chemicals, and medicants. (a) Disease control. No person affected (c) Education and training. Personnel by disease in a communicable form, or responsible for identifying sanitation while a carrier of such disease, or while failures or food contamination should affected with boils, sores, infected have a background of education or ex- wounds, or other abnormal sources of perience, or a combination thereof, to microbiological contamination, shall provide a level of competency nec- work in a food plant in any capacity in essary for production of clean whole- which there is a reasonable possibility some food. Food handlers and super- of food ingredients becoming contami- visors should receive appropriate train- nated by such person, or of disease ing in proper food-handling techniques being transmitted by such person to and food-protection principles and other individuals. should be cognizant of the danger of (b) Cleanliness. All persons, while poor personal hygiene and unsanitary working in direct contact with food practices, and other vectors of con- preparation, food ingredients, or sur- tamination. faces coming into contact therewith [36 FR 21041, Nov. 3, 1971] shall: (1) Wear clean outer garments, main- LABELING REQUIREMENTS tain a high degree of personal cleanliness, and conform to hygenic practices §§ 260.200–260.201 [Reserved] while on duty, to the extent necessary to prevent contamination of food prod- PART 261—UNITED STATES ucts. (2) Wash and sanitize their hands STANDARDS FOR GRADES thoroughly to prevent contamination by undesirable microorganisms before Sec. 261.101 Standard description. starting work, after each absence from 261.102 Publication and removal of U.S. the work station, and at any other Grade Standards. time when the hands may have become 261.103 Basis for determination of a U.S. soiled or contaminated. Standard for Grades. (3) Remove all insecure jewelry and, when food is being manipulated by AUTHORITY: 7 U.S.C. 1621–1630. hand, remove from hands any jewelry SOURCE: 61 FR 9369, Mar. 8, 1996, unless oth- that cannot be adequately sanitized. erwise noted. (4) If gloves are used in food handling, maintain them in an intact, § 261.101 Standard description. clean, and sanitary condition. Such A U.S. Standard for Grades author- gloves shall be of an impermeable ma- ized under this part is a standard for a terial except where their usage would fish or fishery product that has been be inappropriate or incompatible with developed and adopted by the vol- the work involved. untary seafood inspection program pur- (5) Wear hair nets, caps, masks, or suant to the Agricultural Marketing other effective hair restraints. Other Act of 1946 (7 U.S.C. 1621 et seq.) and

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other authorities delegated to the U.S. (3) Grade and inspection marks, which Department of Commerce. describe the grades and inspection mark criteria for each grade category § 261.102 Publication and removal of (e.g., Grade A ≤ 15 points). U.S. Grade Standards. (4) Grade determination, which de- (a) The voluntary U.S. Standards for scribes the means by which the grade is Grades adopted pursuant to this part determined (i.e., the factors rated by shall be issued as Program policies and score points and those that are not). contained within the NMFS Fishery Standards may contain defect grouping Products Inspection Manual. Compli- limiting rules that contain additional ance with voluntary standards issued provisions that must be met. as Program policies within the manual (5) Sampling, which describes the shall satisfy the requirements of this method of sampling and sample unit part. Compliance with a voluntary sizes (e.g., 10 portions, 8 ounces, etc.). standard issued as a Program policy (6) Procedures that describe the proc- does not relieve any party from the re- ess used to determine the product sponsibility to comply with the provi- grade (e.g., label declarations, sensory sions of the Federal Food, Drug, and Cosmetic Act; or other Federal laws evaluation). and regulations. (7) Definitions of defects, which outline (b) Notification of an application for the defects associated with the prod- a new grade standard shall be published ucts covered by the standard, defines in the FEDERAL REGISTER. If adopted, them, and describes the method of the grade standard shall be issued as a counting or measuring the defects. Program policy and contained in the This section may provide associated NMFS Fishery Products Inspection defect points or reference a defect table Manual. (e.g., bruises, blood spots, bones, black (c) Recision and revision of a U.S. spots, coating defects, 1–inch squares, Standard for Grades will be made a percent by weight, ratios). Program policy amendment and con- (8) Defect point assessment, which de- tained in the NMFS Fishery Products scribes how to assess points and pro- Inspection Manual. vides any special guidance that may be (d) The NMFS Fishery Products In- necessary to the particular standard spection Manual is available to inter- (e.g., defect points for certain cat- ested parties. egories are added together and divided by the weight of the sample unit; the § 261.103 Basis for determination of a number of instances are counted to de- U.S. Standard for Grades. termine if it is slight, moderate, or ex- (a) To address the inherently distinct cessive defect). and dissimilar attributes found in the (9) Tolerances for lot certification, fishery product groups, each standard which provide the sections from Title for grades should have a different scope 50 CFR that regulate lot certification. and product description, product forms, (10) Hygiene, which specifies the sec- sample sizes, definition of defects, etc. tions of applicable Federal regulations The Secretary will make the final de- regulating the safe, wholesome produc- termination regarding the content of a tion of food for human consumption. U.S. Standard for Grades. (11) Methods of analysis, which de- (b) A proposal for a new or revised U.S. grade standard may include the scribe the methods of analysis that will following: be used in the evaluation of the prod- (1) Scope and product description, ucts covered by the standard for grades which describes the products that are (e.g., net weight, deglazing, eligible for grading using the standard debreading). (e.g., fish portion, fish fillet). (12) Defect table, which is the table of (2) Product forms, which describe the defects and associated points to be as- types, styles and market forms covered sessed for each defect. by the standard (e.g., skin-off, tail-on, headless).

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PART 270—SPECIES-SPECIFIC Expenditure means monetary or ma- SEAFOOD MARKETING COUNCILS terial worth of fishery products. Ex- penditure is determined at the point a Sec. receiver obtains product from a har- 270.1 Scope. vester or an importer obtains product 270.2 Definitions. from a foreign supplier. Value may be 270.3 Submission of application. expressed in monetary units (the price 270.4 Review of application. a receiver pays to a harvester or an im- 270.5 Conduct of referendum. porter pays to a foreign supplier). 270.6 Sector participants eligible to vote. Fiscal year means any 12–month pe- 270.7 Results of referendum. riod as NMFS may determine for each 270.8 Nomination and appointment of Coun- Council. cil members. Fish means finfish, mollusks, crusta- 270.9 Terms, vacancies and removal of Council members. ceans, and all other forms of aquatic 270.10 Responsibilities of a Council. animal life used for human consump- 270.11 Responsibilities of NMFS. tion; the term does not include marine 270.12 Notice of Council meetings. mammals and seabirds. 270.13 Books, records and reports. Harvester means any person in the 270.14 Update of sector participant data. business of catching or growing fish for 270.15 Quality standards. purposes of sale in domestic or foreign 270.16 Deposit of funds. markets. 270.17 Authority to impose assessments. Importer means any person in the 270.18 Method of imposing assessments. business of importing fish or fish prod- 270.19 Notice of assessment. 270.20 Payment of assessments. ucts from another country into the 270.21 Petition of objection. United States and its territories, as de- 270.22 Refunds. fined by the Act, for commercial pur- 270.23 Dissolution of Councils. poses, or who acts as an agent, broker, or consignee for any person or nation AUTHORITY: 16 U.S.C. 4001–4017 that produces, processes or markets SOURCE: 72 FR 18111, Apr. 11, 2007, unless fish or fish products outside of the otherwise noted. United States for sale or for other commercial purposes in the United States. § 270.1 Scope. Marketer means any person in the This part 270 describes matters per- business of selling fish or fish products taining to the establishment, represen- in the wholesale, export, retail, or res- tation, organization, practices, proce- taurant trade, but whose primary busi- dures, and termination of Seafood Mar- ness function is not the processing or keting Councils. packaging of fish or fish products in preparation for sale. § 270.2 Definitions. Marketing and promotion means any The following terms and definitions activity aimed at encouraging the con- are in addition to or amplify those consumption of fish or fish products or ex- tained in the Fish and Seafood Pro- panding or maintaining commercial motion Act of 1986: markets for fish or fish products. Act means the Fish and Seafood Pro- Member means any person serving on motion Act of 1986 (Public Law 99–659) any Council. and any subsequent amendments. Participant means a member of a sec- Consumer education means actions un- tor or business identified in an applica- dertaken to inform consumers of mat- tion for a Council charter as being sub- ters related to the consumption of fish ject to the referendum or assessment and fish products. process. Council means a Seafood Marketing Person means any individual, group Council for one or more species of fish of individuals, association, proprietor- and fish products of that species estab- ship, partnership, corporation, coopera- lished under section 210 of the Act (16 tive, or any private entity of the U.S. U.S.C. 4009). fishing industry organized or existing

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under the laws of the United States or by a harvester and its market price or any state, commonwealth, territory or an importer is willing to pay for a possession of the United States who product from a foreign supplier and its meets the eligibility requirements as market price. Value may be expressed defined in a proposed charter to vote in in monetary units representing con- a referendum. sumer surplus or producer surplus. Processor means any person in the business of preparing or packaging fish § 270.3 Submission of application. or fish products (including fish of the (a) Persons who meet the minimum processor’s own harvesting) for sale in requirements for sector participants as domestic or foreign markets. described in the proposed charter may Receiver means any person who owns file an application with NMFS for a fish processing vessels and any person charter for a Seafood Marketing Coun- in the business of acquiring (taking cil for one or more species of fish and title to) fish directly from harvesters. fish products of that species. One Research means any type of research signed original and two copies of the designed to advance the image, desir- completed application package must be ability, usage, marketability, produc- submitted to the Assistant Adminis- tion, quality and safety of fish and fish trator for Fisheries, National Marine products. Fisheries Service, NOAA, 1315 East- Secretary means the Secretary of West Highway, Silver Spring, MD 20910. Commerce, or the Secretary’s designee. Applications should not be bound. Sector means (b) The application consists of four (1) The sector consisting of har- parts: vesters; (1) A document requesting NMFS to (2) The sector consisting of import- establish a Council; ers; (2) A proposed charter under which (3) The sector consisting of market- the proposed Council will operate; ers; (3) A list of eligible referendum par- (4) The sector consisting of proc- ticipants; and essors; (4) Analytical documentation ad- (5) The sector consisting of receivers; dressing requirements of applicable or law. (6) The consumer sector consisting of (c) Content of application—(1) Applica- persons professionally engaged in the tion or requesting document. The applica- dissemination of information per- tion or requesting document submitted taining to the nutritional benefits and by the applicants to NMFS requesting preparation of fish and fish products; that the Council be established, to the Sector participant means any indi- extent practicable, must include the vidual, group of individuals, associa- signatures or corporate certifications, tion, proprietorship, partnership, cor- of no less than three sector partici- poration, cooperative, or any private pants representing each sector identi- entity of the U.S. fishing industry or- fied in accordance with paragraph ganized or existing under the laws of (c)(2)(v) of this section and who, ac- the United States or any state, com- cording to the available data, collec- monwealth, territory or possession of tively accounted for, in the 12–month the United States who meets the eligi- period immediately preceding the bility requirements as defined in a pro- month in which the application was posed charter to vote in a referendum. filed, not less than 10 percent of the Species means a fundamental cat- value of the fish or fish products speci- egory of taxonomic classification, fied in the charter that were handled ranking after genus, and consisting of during such period in each sector by animals that possess common char- those who meet the eligibility require- acteristic(s) distinguishing them from ments to vote in the referendum as de- other similar groups. fined by the application. The applica- Value means monetary or material tion must also include a statement worth of fishery products. Value is the that, if established, the Council will difference between what a receiver is have sufficient resources (e.g., cash, do- willing to pay for a product provided nated office space, services, supplies,

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etc.) available for initial administra- on a fixed amount per unit of weight or tive expenditures pending collection of measure, or on a percentage of value of assessments. the product handled; (2) Proposed charter. A proposed char- (ix) The proposed rate or rates that ter must contain, at a minimum, the will be imposed by the Council on re- following information: ceivers and, if subject to assessment, (i) The name of the Council and a importers during its first year of oper- provision proclaiming its establish- ation; ment; (x) The maximum amount by which (ii) A declaration of the purposes and an assessment rate for any period may objectives of the Council; be raised above the rate applicable for (iii) A description of the species of the immediately preceding period; fish and fish products, including the (xi) The maximum rate or rates that scientific and common name(s), for can be imposed by a Council on receiv- which the Council will implement mar- ers or importers during the operation keting and promotion plans under the of the Council; Act. (The American Fisheries Society’s ‘‘List of Common and Scientific Names (xii) The maximum limit on the of Fishes from the United States and amount any one sector participant Canada’’ (latest edition) or where may be required to pay under an as- available, an appropriate volume of its sessment for any period; ‘‘List of Common and Scientific Names (xiii) The procedures for providing re- of Aquatic Invertebrates of the United funds to sector participants subject to States and Canada’’ (latest edition) assessment who request the same in ac- should be used as the authority for all cordance with the time limits specified scientific and common names.); § 270.22; (iv) A description of the geographic (xiv) A provision setting forth the area (state(s)) within the United States voting procedures by which votes may covered by the Council; be cast by proxy; (v) The identification of each sector (xv) A provision that the Council will and the number and terms of represent- have voting members representing the atives for each sector that will be vot- harvesting, receiving and, if subject to ing members on the Council. (The num- assessment, importing sectors; ber of Council members should be man- (xvi) A provision setting forth the ageable, while ensuring equitable geo- definition of a quorum for making deci- graphic representation. The term for sions on Council business and the pro- members will be 3 years. Initially, to cedures for selecting a chairperson of ensure continuity, half of the members’ the Council; terms will be 2 years and half will be 3 (xvii) A provision that members of years. Reappointments are permis- the Council will serve without com- sible.); pensation, but will be reimbursed for (vi) The identification of those sec- reasonable expenses incurred in per- tors (which must include a sector con- forming their duties as members of the sisting of harvesters, a sector con- Council; sisting of receivers, and, if subject to assessment, a sector consisting of im- (xviii) A provision containing a re- porters), eligible to vote in the ref- quirement for submission to NMFS the erendum to establish the Council; criteria and supporting data for evalu- (vii) For each sector described under ating the annual and/or multi-year per- paragraph (c)(2)(v) of this section, a formance of proposed marketing plans threshold level specifying the min- and the Council’s performance; imum requirements, as measured by in- (xix) A provision containing a re- come, volume of sales, or other rel- quirement for submission of docu- evant factors, that a person engaging mentation as requested by NMFS for in business in the sector must meet in purposes of evaluating performance of order to participate in a referendum; proposed marking plans and the Coun- (viii) A description of the rationale cil’s related performance; and procedures for determining assess- (xx) Where adequate funds are not ment rates as provided in § 270.18, based available, a provision containing the

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minimum number of participants need- § 270.4 Review of application. ed for sustained operations that cannot Within 180 days of receipt of the ap- receive assessment refunds; plication to establish a Council, NMFS (xxi) A provision acknowledging that will: NMFS will have the right to partici- (a) Determine if the application is pate in Council meetings; complete and complies with all of the (xxii) A provision that the Council requirements set out in § 270.3 and com- will conduct its activities in accord- plies with all provisions of the Act and ance with applicable NMFS require- other applicable laws. ments and that NMFS has final ap- (b) Identify, to the extent prac- proval authority over proposed mar- ticable, those sector participants who keting plans and Council actions; meet the requirements for eligibility (xxiii) A provision containing a re- to participate in the referendum to es- quirement for the Council to arrange tablish the Council. NMFS may require for a complete audit report to be con- additional information from the appli- ducted by an independent public ac- cants or proposed participants in order countant and submitted to NMFS at to verify eligibility. NMFS may add the end of each fiscal year; names to or delete names from the list (xxiv) A provision containing a re- of sector participants believed eligible quirement for the Council to conduct a by the applicants until the time of the market assessment based on economic, referendum based on additional infor- market, social and demographic, and mation received. biological information as deemed nec- (c) If NMFS finds minor deficiencies essary by NMFS; and in an application that can be corrected within the 180–day review period, (xxv) A provision containing a re- NMFS will advise the applicants in quirement for the Council to update writing of what must be submitted by a the list of referendum participants on specific date to correct the minor defi- an annual basis. ciencies. (3) List of referendum participants. The (d) If NMFS makes a final negative list of referendum participants, to the determination, on an application, extent practicable, must identify the NMFS will advise the applicant in business name and address of all sector writing of the reason for the deter- participants that the applicants believe mination. The applicant may submit meet the requirements for eligibility another application at any time there- to vote in the referendum on the adop- after. NMFS then has 180 days from re- tion of the proposed charter. ceipt of the new application to render a (i) The list should include all sectors final determination on its accept- in which a sector participant meets the ability. eligibility requirements to vote in a referendum. If a sector participant has § 270.5 Conduct of referendum. more than one place of business located (a) Upon making affirmative deter- within the geographic area of the minations under § 270.4, NMFS, within Council, all such places should be list- 90 days after the date of the last af- ed and the primary place of business firmative determination, will conduct should be designated. The agency will a referendum on the adoption of the provide appropriate information in its proposed charter. possession of a non-proprietary nature (b) NMFS will estimate the cost of to assist the applicants in developing conducting the referendum, notify the the list of sector participants. applicants, and request that applicants (ii) [Reserved] post a bond or provide other applicable (4) Analytical documentation. The ap- security, such as a cashier§ s check, to plicant must address the requirements cover costs of the referendum. of the Act, implementing regulations, (c) NMFS will initially pay all costs and other applicable law, i.e., E.O. of a referendum to establish a Council. 12866, Regulatory Flexibility Act, Na- Within two years after establishment, tional Environmental Policy Act, and the Council must reimburse NMFS for other law as NMFS determines appro- the total actual costs of the ref- priate. erendum from assessments collected by

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the Council. If a referendum fails to re- ments to vote in the referendum as de- sult in establishment of a Council, fined by the applicants. NMFS will immediately recover all ex- (b) Unfavorable vote to establish a penses incurred for conducting the ref- Council. If a referendum fails to pass in erendum from the bond or security any sector of the proposed Council, posted by applicants. In either case, NMFS will not establish the Council or such expenses will not include salaries approve the proposed charter. NMFS of government employees or other ad- will immediately recover the cost of ministrative overhead, but will be lim- conducting the referendum according ited to those additional direct costs in- to § 270.5(c). curred in connection with conducting (c) Notification of referendum results. the referendum. NMFS will notify the applicants of the (d) No less than 30 days prior to hold- results of the referendum and publish ing a referendum, NMFS will: the results of the referendum in the (1) Publish in the FEDERAL REGISTER FEDERAL REGISTER. the text of the proposed charter and the most complete list available of sec- § 270.8 Nomination and appointment tor participants eligible to vote in the of Council members. referendum; and (a) Within 30 days after a Council is (2) Provide for public comment, in- established, NMFS will solicit nomina- cluding the opportunity for a public tions for Council members from the meeting. sectors represented on the Council in § 270.6 Sector participants eligible to accordance with the approved charter. vote. If the harvesters and receivers represented on the Council are engaged in (a) Any participant who meets the business in two or more states, but minimum requirements as measured by within the geographic area of the income, volume of sales or other rel- Council, the nominations made under evant factors specified in the approved this section must, to the extent prac- charter may vote in a referendum. (b) Only one vote may be cast by ticable, result in equitable representa- each participant who is eligible to tion for those states. Nominees must vote, regardless of the number of indi- be knowledgeable and experienced with viduals that make up such ‘‘partici- regard to the activities of, or have been pant’’ and how many sectors the par- actively engaged in the business of, the ticipant is engaged in. The vote may be sector that such person will represent made by any responsible officer, owner, on the Council. Therefore, a resume or employee representing a partici- will be required for each nominee. pant. (b) In accordance with 16 U.S.C. 4009(f), NMFS will, within 60 days after § 270.7 Results of referendum. the end of the 30–day period, appoint the members of the Council from (a) Favorable vote to establish a Coun- among the nominees. cil. NMFS will, by order of publication in the FEDERAL REGISTER, establish the § 270.9 Terms, vacancies, and removal Council and approve an acceptable proof Council members. posed charter, if the referendum votes which are cast in favor of the proposed (a) A Council term is for 3 years, ex- charter constitute a majority of the cept for initial appointments to a sector participants voting in each and newly established Council where: every sector. Further, according to the (1) Half of the Council member terms best available data, the majority must will be 2 years; and collectively account for, in the 12– (2) Half of the Council member terms month period immediately preceding will be 3 years. the month in which the proposed char- (b) A vacancy on a Council will be ter was filed, at least 66 percent of the filled, within 60 days after the vacancy value of the fish and fish products de- occurs, in the same manner in which scribed in the proposed charter handled the original appointment was made. A during such period in each sector by member appointed to fill a vacancy oc- those who meet the eligibility require- curring before the expiration of the

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term for which the member’s prede- (iv) The expense of repayment of the cessor was appointed will be appointed costs of each referendum conducted in only for the remainder of such term. regard to the Council. (c) Any person appointed under the (7) Comply with NMFS requirements, Act who consistently fails or refuses to and prepare and submit to NMFS for perform his or her duties properly and/ review, evaluation, and verification of or participates in acts of dishonesty or results and analysis an annual market willful misconduct with respect to re- assessment and related analytical doc- sponsibilities under the Act will be re- umentation that is based on economic, moved from the Council by NMFS if market, social, demographic, and bio- two-thirds of the members of the Coun- logical information as deemed nec- cil recommend action. All requests essary by NMFS; from a Council to NMFS for removal of (8) Maintain books and records, pre- a Council member must be in writing pare and submit to NMFS reports in and accompanied by a statement of the accordance with respect to the receipt reasons upon which the recommenda- and disbursement of funds entrusted to tion is based. it, and submit to NMFS a completed audit report conducted by an inde- § 270.10 Responsibilities of a Council. pendent auditor at the end of each fiscal year; (a) Each Council will: (9) Reimburse NMFS for the expenses (1) Implement all terms of its ap- incurred for the conduct of the ref- proved charter; erendum to establish the Council or (2) Prepare and submit to NMFS, for any subsequent referendum to termi- review and approval under § 270.11(a)(1), nate the Council that fails; a marketing and promotion plan and (10) Prepare and submit to NMFS re- amendments to the plan which contain port or proposals as the Council deter- descriptions of the projected consumer mines appropriate to further the pur- education, research, and other mar- poses of the Act. keting and promotion activities of the (b) Funds collected by a Council Council; under § 270.17 will be used by the Coun- (3) Implement and administer an ap- cil for— proved marketing and promotion plan (1) Research, consumer education, and amendments to the plan; and other marketing and promotion ac- (4) Determine the assessment to be tivities regarding the quality and mar- made under § 270.18 and administer the keting of fish and fish projects; collection of such assessments to fi- (2) Other expenses, as described in nance Council expenses described in § 270.10(a)(1); paragraph (b) of this section; (3) Such other expenses for the administration, maintenance, and func- (5) Receive, investigate and report to tioning of the Council as may be au- NMFS accounts of violations of rules thorized by NMFS; and or orders relating to assessments col- (4) Any reserve fund established lected under § 270.20, or quality stand- under paragraph (e)(4) of this section ard requirements established under and any administrative expenses in- § 270.15; curred by NMFS specified as reimburs- (6) Prepare and submit to NMFS, for able under this part. review and approval a budget (on a fis- (c) Marketing and promotion plans cal year basis) of the anticipated ex- and amendments to such plans pre- penses and disbursements of the Coun- pared by a Council under paragraph cil, including (a)(2) of this section will be designed to (i) All administrative and contrac- increase the general demand for fish tual expenses; and fish products described in accord- (ii) The probable costs of consumer ance with § 270.3(c)(2)(iii) by encour- education, research, and other mar- aging, expanding, and improving the keting and promotion plans or marketing, promotion and utilization projects; of such fish and fish products, in do- (iii) The costs of the collection of as- mestic or foreign markets, or both, sessments; and through consumer education, research,

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and other marketing and promotion ac- (3) Issue orders and amendments to tivities. such orders that are necessary to im- (d) Consumer education and other plement quality standards under marketing and promotion activities § 270.15; carried out by a Council under a mar- (4) Promulgate regulations necessary keting and promotion plan and amend- to carry out the purposes of this chap- ments to a plan may not contain ref- ter; erences to any private brand or trade (5) Enforce the provisions of the Act; name and will avoid the use of decep- (6) Make all appointments to Coun- tive acts or practices in promoting fish cils in accordance with § 270.8 and the or fish products or with respect to the quality, value, or use of any competing approved Council charter; product or group of products. (7) Approve the criteria and time (e) Authority of a Council. A Council frames under which a Council’s per- may: formance will be evaluated; and (1) Sue and be sued; (8) Implement the provisions of 16 (2) Enter into contracts; U.S.C. 4001 et seq. in accordance with (3) Employ and determine the salary the available financial and manage- of an executive director who may, with ment resources NMFS determines can the approval of the Council employ and be utilized. determine the salary of such additional (b) NMFS may provide, on a reim- staff as may be necessary; bursable or other basis, such adminis- (4) Establish a reserve fund from trative or technical assistance as a monies collected and received under Council may request for purposes of § 270.17 to permit an effective and sus- the initial organization and subsequent tained program of research, consumer operation of the Council. However, a education, and other marketing and Council is responsible for the cost of promotion activities regarding the preparing and submitting information quality and marketing of fish and fish (e.g., reports, evaluation data, etc.) re- products in years when production and quested by NMFS. assessment income may be reduced, but the total reserve fund may not ex- § 270.12 Notice of Council meetings. ceed the amount budgeted for the current fiscal year of operation. The Council will give NMFS the same (f) Amendment of a charter. A Coun- notice of its meetings as it gives to its cil may submit to NMFS amendments members. NMFS will have the right to to the text of the Council’s charter. participate in all Council meetings. Any proposed amendments to a charter will be approved or disapproved in the § 270.13 Books, records and reports. same manner as the original charter (a) The Council must submit to was approved under § 270.4 and § 270.5 NMFS the following documents accord- with the exception of § 270.4(b). ing to the schedule approved in the Council’s charter: § 270.11 Responsibilities of NMFS. (1) A marketing assessment and pro- (a) In addition to the duties pre- motion plan; scribed under 16 U.S.C. 4009, NMFS (2) A financial report with respect to will: the receipt and disbursement of funds; (1) Participate in Council meetings (3) An audit report conducted by an and review, for consistency with the provisions of 50 CFR part 270 and other independent public accountant; and applicable law, and approve or dis- (4) Other reports or data NMFS de- approve, marketing and promotion termines necessary to evaluate the plans and budgets within 60 days after Council’s performance and verify the their submission by a Council; results of the market assessment and (2) Immediately notify a Council in promotion plan.. writing of the disapproval of a mar- (b) All Council records, reports, and keting and promotion plan or budget, data must be maintained by the Coun- together with reasons for such dis- cil for a minimum of 3 years, even if approval; the Council is terminated.

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§ 270.14 Update of sector participant (6) Copy of proposed ballot package data. to be used in the referendum; and The Council will submit to NMFS at (7) Date(s) and location of ballot the end of each fiscal year an updated counting. list of sector participants who meet the (d) An official observer appointed by minimum requirements for eligibility NMFS will be allowed to be present at to participate in a referendum as stat- the ballot counting and any other ed in the approved charter. phase of the referendum process, and may take whatever steps NMFS deems § 270.15 Quality standards. appropriate to verify the validity of the process and results of the ref- (a) Each Council may develop and erendum. submit to NMFS for approval or, upon (e) Quality standards developed under the request of a Council, NMFS will de- this section of the regulations must, at velop quality standards for the species a minimum, meet Food and Drug Ad- of fish or fish products described in the ministration (FDA) minimum require- approved charter. Any quality standard ments for fish and fish products for developed under this paragraph must human consumption. be consistent with the purposes of the (f) Quality standards must be con- Act. sistent with applicable standards of the (b) A quality standard developed U.S. Department of Commerce (Na- under paragraph (a) of this section may tional Oceanic and Atmospheric Ad- be adopted by a Council by a majority ministration) or other recognized Fed- of its members following a referendum eral standards and/or specifications for conducted by the Council among sector fish and fish products. participants of the concerned sector(s). (g) No quality standard adopted by a In order for a quality standard to be Council may be used in the advertising brought before Council members for or promotion of fish or fish products as adoption, the majority of the sector being inspected by the United States participants of the concerned sector(s) Government unless the standard re- must vote in favor of the standard. quires sector participants to be in the Further, according to the best avail- U.S. Department of Commerce vol- able data, the majority must collec- untary seafood inspection program. tively account for, in the 12–month pe- (h) The intent of quality standards riod immediately preceding the month must not be to discriminate against in which the referendum is held, not importers who are not members of the less than 66 percent of the value of the Council. fish or fish products described in the (i) Quality standards must not be de- charter that were handled during such veloped for the purpose of creating period in that sector by those who non-tariff barriers. Such standards meet the eligibility requirements to must be compatible with U.S. obliga- vote in the referendum as defined by tions under the General Agreement on the petitioners. Tariffs and Trade, or under other inter- (c) The Council must submit a plan national standards deemed acceptable to conduct the referendum on the qual- by NMFS. ity standards to NMFS for approval at (j) The procedures applicable to the least 60 days in advance of such ref- adoption and the operation of quality erendum date. The plan must consist of standards developed under this sub- the following: chapter also apply to subsequent (1) Date(s) for conducting the ref- amendments or the termination of erendum; such standards. (2) Method (by mail or in person); (k) With respect to a quality stand- (3) Copy of the proposed notification ard adopted under this section, the to sector participants informing them Council must develop and file with of the referendum; NMFS an official identifier in the form (4) List of sector participants eligible of a symbol, stamp, label or seal that to vote; will be used to indicate that a fish or (5) Name of individuals responsible fish product meets the quality stand- for conducting the referendum; ard at the time the official identifier is

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affixed to the fish or fish product, or is another depository must hold the col- affixed to or printed on the packaging lateral. material of the fish or fish product. The use of such identifier is governed § 270.17 Authority to impose assess- by § 270.15. ments. A Council will impose and administer § 270.16 Deposit of funds. the collection of the assessments that All funds collected or received by a are necessary to pay for all expenses Council under this section must be de- incurred by the Council in carrying out posited in an appropriate account in its functions under 50 CFR part 270. the name of the Council specified in its § 270.18 Method of imposing assess- charter. Funds eligible to be collected ments. or received by a Council must be limited to those authorized under the Act. Assessments will be imposed on sec- (a) Pending disbursement, under an tor participants in the receiving sector approved marketing plan and budget, or the importing sector or both as spec- funds collected through assessments ified in an approved Council charter. authorized by the Act must be depos- Assessment rates will be based on ited in any interest-bearing account or value that may be expressed in mone- certificate of deposit of a bank that is tary units or units of weight or vol- a member of the Federal Reserve Sys- ume. tem, or in obligations fully guaranteed (a) An assessment on sector partici- as to principal and interest by the pants in the receiving sector will be in United States Government. the form of a percentage of the value or a fixed amount per unit of weight or (b) The Council may, however, pend- volume of the fish described in the ing disbursement of these funds, invest charter when purchased by such receiv- in risk-free, short-term, interest-bear- ers from fish harvesters. ing instruments. (b) An assessment on sector partici- (1) All investments must be Risk-free. pants who own fish processing vessels insured or fully collateralized with and harvest the fish described in the Federal Government securities. In the charter will be in the form of a per- absence of collateral, accounts estab- centage of the value or on a fixed lished at financial institutions should, amount per unit of weight or volume of in aggregate, total less than $100,000 to the fish described in the charter that is assure both principal and interest are no less than the value if such fish had federally insured in full. been purchased by a receiver other (2) Short-term. Generally, all invest- than the owner of the harvesting ves- ments should be for a relatively short sel. time period (one year or less) to assure (c) An assessment on sector partici- that the principal is maintained and pants in the importing sector will be in readily convertible to cash. the form of a percentage of the value (3) Collateralization. Investments ex- that an importer pays to a foreign sup- ceeding the $100,000 insurance coverage plier, as determined for the purposes of level must be fully collateralized by the customs laws, or a fixed amount the financial institution. per unit of weight or volume, of the (i) Collateral must be pledged at face fish or fish products described in the value and must be pledged prior to charter when entered or withdrawn sending funds to the institution. from warehouse for consumption, in (ii) Government securities are ac- the customs territory of the United ceptable collateral. Declining balance, States by such sector participants. mortgage backed securities such as (d) A Council may not impose an as- Government National Mortgage Asso- sessment on any person that was not ciation (GNMA) and Federal National eligible to vote in the referendum es- Mortgage Association (FNMA) are not tablishing the Council by reason of acceptable collateral. failure to meet the requirements speci- (iii) If an account has been estab- fied under unless that person, after the lished, collateral may be held at the date on which the referendum is held, local Federal Reserve Bank. Otherwise, meets the requirements of section.

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(e) Any person may make voluntary ing at which time petitioner must pay payments or in-kind contributions to a the revised assessment if applicable. Council for purposes of assisting the Council in carrying out its functions. § 270.21 Petition of objection. (a) Filing a petition. Any person issued § 270.19 Notice of assessment. a notice of assessment under § 270.19 (a) The Council must serve each per- may request that NMFS modify or son subject to assessment with notice take other appropriate action regard- that the assessment is due. The notice ing the assessment or promotion plan of assessment must contain: by filing a written petition of objection (1) A specific reference to the provi- with NMFS. Petitions of objection may sions of the Act, regulations, charter be filed: and referendum that authorize the as- (1) Only if the petitioner determines sessment; one or more of the following criteria is (2) The amount of the assessment; not in accordance with the law: (3) The period of time covered by the (i) The assessment; assessment; (ii) The plan upon which the assess- (4) The date the assessment is due ment is based; or and payable, which will not be earlier than 30 days from the date of the no- (iii) Any obligation imposed on the tice; petitioner under the plan. (5) The form(s) of payment; and (2) Only during the time period to (6) To whom and where the payment which the assessment applies. must be made. (b) Contents of the petition of objection. (b) The notice must advise such per- A petition must be addressed to Assist- son of his or her right to seek review of ant Administrator for Fisheries, Na- the assessment by filing a written peti- tional Marine Fisheries Service, 1315 tion of objection with NMFS at any East-West Highway, Silver Spring, MD time during the time period to which 20910, and must contain the following: the assessment applies, including the (1) The petitioner’s correct name, ad- right to request a hearing on the peti- dress, and principal place of business. If tion. The notice must state that the the petitioner is a corporation, this petition of objection must be filed in must be stated, together with the date accordance with the procedures in and state of incorporation, and the § 270.21. names, addresses, and respective posi- (c) The notice must also advise such tions of its officers; if a partnership, persons of his or her right to a refund the date and place of formation and the of the assessment as provided in name and address of each partner; § 270.22. The notice must state that a (2) The grounds upon which the peti- refund may be requested for not less tion of objection is based, including the than 90 days from such collection, and specific terms or provisions of the as- provide that the Council will make the sessment, the marketing and pro- refund within 60 days after the request motion plan, or obligation imposed by for the refund is requested. the plan, to which the petitioner ob- § 270.20 Payment of assessments. jects; (3) A full statement of the facts upon Persons subject to an assessment which the petition is based, set forth would be required to pay the assessment on or before the date due, unless clearly and concisely, accompanied by they have demanded a refund or filed a any supporting documentation; petition of objection with NMFS under (4) The specific relief requested; and § 270.21. However, persons who have de- (5) A statement as to whether or not manded a refund under § 270.22 or filed the petitioner requests a hearing. a petition of objection under § 270.21 (c) Notice to Council. NMFS will may submit proof of these actions in promptly furnish the appropriate Coun- leu of payment. In the case of a peti- cil with a copy of the petition of objection of objection, NMFs will inform the tion. Council and the petitioner of its find-

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(d) Opportunity for informal hearing. no longer participate in a referendum (1) Any person filing a petition of ob- or other business of the Council during jection may request an informal hear- the remainder of the assessment rate ing on the petition. The hearing re- period. Future assessments will only be quest must be submitted with the peti- sent to such a sector participant at the tion of objection. request of the sector participant. If as- (2) If a request for hearing is timely sessments are paid during a future as- filed, or if NMFS determines that a sessment rate period and no refund is hearing is advisable, NMFS will so no- requested, that sector participant may tify the petitioner and the Council. again participate in a referendum or NMFS will establish the applicable other business of the Council. procedures, and designate who will be responsible for conducting a hearing. § 270.23 Dissolution of Councils. The petitioner, the Council, and any (a) Petition for termination. (1) A peti- other interested party, may appear at tion to terminate a Council may be the hearing in person or through a rep- filed with NMFS by no less than three resentative, and may submit any rel- sector participants in any one sector. evant materials, data, comments, argu- Any petition filed under this sub- ments, or exhibits. NMFS may consoli- section must be accompanied by a writ- date two or more hearing requests into ten document explaining the reasons a single proceeding. for such petition. (3) Final decision. Following the hearing, or if no hearing is held, as soon as (2) If NMFS determines that a peti- practicable, NMFS will decide the mat- tion filed under paragraph (a)(1) of this ter and serve written notice of the de- section is accompanied by the signa- cision on the petitioner and the Coun- tures, or corporate certifications, of no cil. NMFS’s decision will be based on a less than three sector participants in consideration of all relevant docu- the sector referred to in paragraph mentation and other evidence sub- (a)(1) of this section who collectively mitted, and will constitute the final accounted for, in the 12–month period administrative decision and order of immediately preceding the month in the agency. NMFS will have the discre- which the petition was filed, not less tion to waive collection of a contested than 20 percent of the value of the fish assessment or revise, modify, or alter or fish products described in the assessment amount based on a § 270.3(c)(2)(iii) that were handled by Council method of assessment. that sector during the period, NMFS within 90 days after the determination, § 270.22 Refunds. will conduct a referendum for termi- (a) Notwithstanding any other provi- nation of the Council among all sector sion of the Act, any person who pays an participants in that sector. assessment under the Act may demand (3) Not less than 30 days prior to and must promptly receive from the holding a referendum, NMFS will pub- Council a refund of such assessment. A lish an announcement in the FEDERAL demand for refund must be made in ac- REGISTER of the referendum, including cordance with procedures in the ap- an explanation of the reasons for the proved charter and within such time as petition for termination filed under will be prescribed by the Council and paragraph (a)(1) of this section and any approved by NMFS. Procedures to pro- other relevant information NMFS con- vide such a refund must be established siders appropriate. before any such assessment may be col- (4) If the referendum votes which are lected. Such procedures must allow any cast in favor of terminating the Coun- person to request a refund 90 days or cil constitute a majority of the sector more from such collection, and provide participants voting and the majority, that such refund must be made within in the period in paragraph (a)(2) of this 60 days after demand for such refund is section, collectively accounted for not made. less than 66 percent of the value of (b) Once a refund has been requested such fish and fish products that were by a sector participant and paid by the handled during such period by the sec- Council, that sector participant may tor in paragraph (a)(1) of this section,

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NMFS will by order of publication ter- conduct of the referendum from the ac- minate the Council effective as of a count established by the Council. If the date by which the affairs of the Council amount remaining in such account is may be concluded on an orderly basis. insufficient for NMFS to recover all ex- (5) NMFS initially will pay all costs penses incurred for the conduct of the of a referendum conducted in § 270.23. referendum, NMFS will recover the Prior to conducting such a referendum, balance of the expenses from the peti- NMFS will require petitioners to post a tioners that posted a bond under para- bond or other security acceptable to graph (a)(5) of this section. NMFS in an amount which NMFS de- (b) Payment of remaining funds. If a termines to be sufficient to pay any ex- Council is terminated under section penses incurred for the conduct of the referendum. § 270.23(a)(4), NMFS, after recovering (6) If a referendum conducted under all expenses incurred for the conduct of § 270.23 fails to result in the termi- the referendum under paragraph (a) of nation of the Council, NMFS will im- this section, will take such action as is mediately recover the amount of the necessary and practicable to ensure bond posted by the petitioners under that moneys remaining in the account § 270.23(a)(5). established by the Council under (7) If a referendum conducted under § 270.17 are paid on a prorated basis to this subsection results in the termi- the sector participants from whom nation of the Council, NMFS will re- those moneys were collected under cover the expenses incurred for the § 270.20.

SUBCHAPTER I–J [RESERVED]

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PART 296—FISHERMEN’S Fisheries Service, 1315 East-West High- CONTINGENCY FUND way, Silver Spring, MD 20910; telephone: (301) 713–2396. Sec. Citizen of the United States means any 296.1 Purpose. person who is a United States citizen, 296.2 Definitions. any State, or any corporation, partner- 296.3 Fishermen’s contingency fund. ship, or association organized under 296.4 Claims eligible for compensation. the laws of any state which meets the 296.5 Instructions for filing claims. requirements for documenting vessels 296.6 NMFS processing of claims. in the U.S. coastwise trade. 296.7 Burden of proof and presumption of causation. Commercial fisherman means any cit- 296.8 Amount of award. izen of the United States who owns, op- 296.9 Initial determination. erates, or is employed on a commercial 296.10 Agency review. fishing vessel. 296.11 Final determination. Commercial fishing vessel means any 296.12 Payment of costs. marine craft which is documented 296.13 Payment of award for claim. under the laws of the United States or, 296.14 Subrogation. 296.15 Judicial review. if under five net tons, registered under the laws of any State, and used for AUTHORITY: Pub. L. 97–212 (43 U.S.C. 1841 et commercial fishing or activities di- seq.). rectly related to commercial fishing. SOURCE: 47 FR 49600, Nov. 1, 1982, unless Easement means a right of use or otherwise noted. easement granted under 30 CFR 250.18. Fish means all forms of marine ani- § 296.1 Purpose. mal and plant life other than marine These regulations implement title IV mammals, birds, and highly migratory of the Outer Continental Shelf Lands species. Act Amendments of 1978, as amended Fishing gear means any commercial (title IV). Title IV establishes a Fisher- fishing vessel, and any equipment of men’s Contingency Fund to com- such vessel. pensate commercial fishermen for dam- Fund means the Fishermen’s Contin- age or loss caused by obstructions asso- gency Fund established by title IV of ciated with oil and gas activities on the Outer Continental Shelf Lands Act the Outer Continental Shelf. Amendments of 1978. Holder means the owner of record of § 296.2 Definitions. each lease, prelease exploratory drill- Area affected by Outer Continental ing permit, easement, or right-of-way Shelf activities means the area within a or any agent or assignee of an owner. 3-mile radius of any casualty site Lease means any authority under sec- which: tion 8 or section 6 of the OCS Lands (1) Includes any portion of a leased Act to develop and produce or explore block, pipeline, easement, right of way, for oil or gas. or other OCS oil and gas exploration, Negligence or fault includes, but is not development, or production activity; or limited to, failure to: (2) Is otherwise associated (as deter- (1) Remain outside of any navigation mined by the Chief, Financial Services safety zone established around oil and Division) with OCS oil and gas activi- gas rigs and platforms by any respon- ties, such as, for example, expired lease sible Federal agency; areas, relinquished rights-of-way or (2) Avoid obstructions recorded on easements, and areas used extensively nautical charts or in the Notice to by surface vessels supporting OCS oil Mariners or marked by a buoy or other and gas activities (areas landward of surface marker (casualties occurring the OCS are included when such areas within a one-quarter mile radius of ob- meet this criterion). structions so recorded or marked are Chief, FSD means Chief, Financial presumed to involve negligence or fault Services Division, National Marine of the claimant);

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(3) Abide by established rules of the ments to the Fund. All pipeline right- road; of-way and easements are to be in- (4) Use proper care; or cluded for assessment except those con- (5) Use due care and diligence to structed and operated lines within the mitigate the damage or loss. confines of a single lease or group of Outer Continental Shelf means all sub- contiguous leases under unitized oper- merged lands lying seaward and out- ation or single operator. Payments will side of the area of lands beneath navi- not be required for geological or geo- gable waters as defined in 43 U.S.C. sec- physical permits, other than prelease tion 1301, and of which the subsoil and exploratory drilling permits issued seabed appertain to the United States under section 11 of the Outer Conti- and are subject to its jurisdiction and nental Shelf Lands Act (43 U.S.C. 1340). control. Generally, but not in all cases, (1) Assessments to maintain the fund. this includes all submerged lands lying When the total amount in the Fund is seaward of the territorial sea (3 miles less than the Chief, FSD, determines is from a State’s coastline, or 9 miles needed to pay Fund claims and ex- from the coast of Texas or Florida). penses, the Chief, FSD, will notify the Person means an individual, partner- Secretary of the Interior that addi- ship, corporation, association, public tional assessments are needed. or private organization, government, (2) Billing and collections. The Sec- or other entity. retary of the Interior will calculate the Resulting Economic Loss means the amounts to be paid by each Holder and gross income, as estimated by the shall notify each Holder of the dollar Chief, FSD, that a claimant will lose amount and the time and place for all because of not being able to fish, or payments. Each assessment shall be having to reduce fishing effort, during paid to the Secretary of the Interior no the period before the damaged or lost later than 45 days after the Secretary fishing gear concerned is repaired or of the Interior sends notice of the as- replaced and available for use. This pe- sessment. riod must be reasonable. This period (3) Annual assessment limits. No Holder begins on the date of the casualty and shall be required to pay in excess of stops on the date the damage could $5,000 for any lease, permit, easement reasonably have been remedied by re- or right-of-way in any calendar year. pair or replacement. (c) Moneys recovered through subroga- Right-of-way means any right-of-way tion. Any moneys recovered by the Sec- granted under section 5(e) of the OCS retary through the subrogation of a Lands Act or under 43 CFR 3340.0–5. claimant’s rights shall be deposited Secretary means the Secretary of into the Fund. Commerce or his designee. (d) Investments of the fund. Excess [47 FR 49600, Nov. 1, 1982, as amended at 61 sums in the Fund will be invested in FR 6322, Feb. 20, 1996] obligations of, or guaranteed by, the United States. Revenue from such in- § 296.3 Fishermen’s contingency fund. vestments shall be deposited in the (a) General. There is established in Fund. the Treasury of the United States the (e) Litigation. The Fund may sue and Fishermen’s Contingency Fund. The be sued in its own name. Fund is available without fiscal year limitation as a revolving fund to carry § 296.4 Claims eligible for compensa- out the purposes of title IV of the tion. Outer Continental Shelf Lands Act (a) Claimants. Damage or loss eligible Amendments of 1978, as amended. for Fund compensation must be suf- (b) Payments into the fund. Each Hold- fered by a commercial fisherman. er of an exploration permit, lease, ease- (b) Damage or loss of fishing gear. ment, or rights-of-way for the con- Damage or loss is eligible for Fund struction of a pipeline, or a prelease compensation if it was caused by mate- exploration drilling permit issued or rials, equipment, tools, containers, or maintained under the Outer Conti- other items associated with OCS oil nental Shelf Lands Act, in effect on or and gas exploration, development, or after June 30, 1982, shall pay assess- production activities. Damage or loss

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may be eligible for compensation even made in person. The fifteen-day report though it did not occur in OCS waters must be made to the Chief, Financial if the item causing the damage or loss Services Division, National Marine was associated with oil and gas explo- Fisheries Service, 1315 East-West High- ration, development, or production ac- way, Silver Spring, MD 20910; tele- tivities in OCS waters. phone: (301) 713–2396. (c) Exceptions. Damage or loss is not (3) Contents of fifteen-day report. Each eligible for Fund compensation: fifteen-day report must include the fol- (1) If the damage or loss was caused lowing information: by the negligence or fault of the claim- (i) The claimant’s name and address; ant; (ii) The name of the commercial fish- (2) If the damage or loss occurred ing vessel involved; prior to September 18, 1978; (iii) The location of the obstruction (3) To the extent that damage or loss which caused the damage or loss; exceeds the replacement value of the (iv) A description of the nature of the fishing gear involved; damage or loss; (4) For any portion of the damage or (v) The date such damage or loss was loss which can be compensated by in- discovered; surance; (vi) If the fifteen-day report is made (5) If the claim is not filed within 90 after the vessel returns to port, the calendar days of the date the claimant date on which the vessel first returned or the claimant’s agent first became to port after discovering the damage. aware of the damage or loss (or such (b) Form of claim. Claims must be in longer period as the Secretary may writing. Claims may be submitted on allow under unusual and extenuating NOAA form 88–164. This form may be circumstances); or obtained from any NMFS regional of- (6) If the damage or loss was caused fice or from the Chief, FSD. Although by an obstruction unrelated to OCS oil claimants are not required to use this and gas exploration, development, or claim form, it will probably be to their production activities. benefit to do so. [47 FR 49600, Nov. 1, 1982, as amended at 50 (c) Who must file and when and where FR 13796, Apr. 8, 1985; 61 FR 6322, Feb. 20, to file claims. All claimants (including 1996] those who filed 15-day reports to gain the presumption of causation) must § 296.5 Instructions for filing claims. submit a claim application to the (a) Fifteen-day report required to gain Chief, Financial Services Division, presumption of causation—(1) General. within 90 calendar days of the date the Damages or losses are presumed to be claimant or the claimant’s agent first qualified for compensation if certain became aware of the damage or loss. requirements are satisfied. One re- The Chief, FSD, may allow a longer pe- quirement is that a report must be riod for filing claims if, in his discre- made to NMFS within fifteen (15) days tion, unusual and extenuating cir- after the date on which the vessel first cumstances justify a longer period. The returns to a port after discovering the term ‘‘filed’’ means delivered in person, damage or loss. Filing of a fifteen-day or mailed (as determined by the date of report must be followed up by filing a the postmark) to the Chief, Financial detailed claim. Services Division, National Marine (2) When and how to file a fifteen-day Fisheries Service, 1825 Connecticut Av- report. To qualify for the presumption enue, NW., Washington, DC 20235. The of causation, a fifteen-day report must Chief, FSD, suggests that mailed be made to NMFS within fifteen days claims be sent by registered or cer- after the date on which the vessel first tified mail, return receipt requested, so returns to a port after discovering the the claimant will have a record that damage or loss. Satisfaction of the fif- the claim was received by the Chief, teen-day requirement is determined by FSD. the postmark, if the report is mailed; (d) Aggregating claims. If more than by the date of a call, if the report is one commercial fisherman suffers loss telephoned or radiotelephoned; or, by or damage from the same incident (for the date of appearance, if the report is example, when several members of the

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crew lost income due to loss of fishing lost and proof of its purchase (sales re- time), all claims should be submitted ceipts, affidavits, or other evidence), on their behalf by the owner or oper- (iii) One estimate from a commercial ator of the commercial fishing vessel fishing gear repair or supply company involved. of the present replacement or repair (e) Contents of claim. Each claim must (whichever applies) cost of the dam- be signed by the claimant and must ac- aged or lost fishing gear. If the gear curately and completely provide the will be repaired by the claimant him- following information: self, a detailed estimate by the claim- (1) The name, mailing address, tele- ant identifying the repair cost. phone number, citizenship, and occupa- (6) The amount claimed for economic tional status (for example, vessel loss and the basis for that amount with owner, operator, or crew member) of supporting documentation, as follows: each claimant; (i) Trip tickets for the three vessel (2) The name and Coast Guard docu- trips immediately before the trip dur- mentation number or State registra- ing which the casualty was discovered tion number of the commercial fishing and for the vessel trip immediately fol- vessel involved in the damage or loss; lowing the trip during which the cas- (3) The home port, type, and size of ualty occurred. the vessel involved in the casualty; (ii) A statement of the amount of (4) A full statement of the cir- time involved on each of the vessel cumstances of the damage or loss in- trips above (or if the casualty involves cluding: fixed gear, a statement of the number (i) The date when the casualty was of gear units deployed on each of these first discovered by the claimant, trips). (ii) The water depth (if known) and (iii) A statement of the amount of visibility at the time and location time lost from fishing because of the where the casualty occurred, damage or loss and a full explanation (iii) The direction, speed, and activi- of why this time period is reasonable. ties of the claimant’s vessel imme- (iv) Documentation of the date re- diately before, during, and after the placement gear was ordered and re- casualty (including a full description of ceived or the date gear repair began both the deployment of any fishing and ended. This documentation may gear which is the subject of the claim consist of purchase orders, bills of lad- and all attempts at retrieval of the ing, or statements from sellers or re- gear), pairers. (iv) The names and addresses of all (7) The amount claimed for other witnesses to the casualty, consequential loss or costs (including (v) The location where the casualty fees for claim preparation, etc.) with occurred in Loran C coordinates or the suitable documentation of the amounts next most accurate method of position claimed (such as invoices, receipts, fixing available to the claimant, etc.). (vi) A description of the item or ob- [47 FR 49600, Nov. 1, 1982, as amended at 50 struction (if sighted or recovered) FR 13796, Apr. 8, 1985; 53 FR 24645, June 29, which caused the casualty, and wheth- 1988; 61 FR 6322, Feb. 20, 1996] er or not any surface markers were attached to or near the obstruction. Sub- § 296.6 NMFS processing of claims. mit any available photographs of the (a) Action by NMFS. Upon receipt of a item or obstruction. State reasons for claim, the Chief, FSD, will: believing the obstruction is associated (1) Send an abstract of the claim to with OCS oil and gas activities. the Secretary of the Interior; (5) The amount claimed for property (2) Send the reported location of any damage or loss and a full statement of obstruction which was not recovered the type and extent of damage or loss and retained to the National Ocean including: Survey, which will inform the Defense (i) An inventory of all components of Mapping Agency Hydrographic/Topo- fishing gear damaged or lost, graphic Center. (ii) The date, place, and cost of acqui- (b) Actions by the Interior Department. sition of all fishing gear damaged or Upon receipt of an abstract of a claim,

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the Interior Department will imme- power to administer oaths and sub- diately: poena witnesses and the production of (1) Plot the casualty site, and advise books, records, and other evidence rel- NMFS whether the site is in an area af- ative to the issues involved. fected by OCS activities; (3) Amendments to claims. A claimant (2) make reasonable efforts to notify may amend the claim at any time be- all persons known to have engaged in fore the Chief, FSD, issues an initial activities associated with OCS energy determination. activity in the vicinity where the dam- (4) Criminal penalty for fraudulent age or loss occurred. claims. Any person who files a fraudu- (c) Responses to notice of claim. (1) lent claim is subject to prosecution Each person notified by the Interior under 18 U.S.C. sections 287 and 1001, Department will, within thirty days each of which, upon conviction, im- after receipt of the notice, advise the poses a penalty of not more than a Chief, FSD, and the Interior Depart- $10,000 fine and 5 years’ imprisonment, ment whether he admits or denies re- or both. sponsibility for the damages claimed. (2) Each person notified by the Inte- [47 FR 49600, Nov. 1, 1982, as amended at 61 rior Department who fails to give time- FR 6322, Feb. 20, 1996] ly and proper advice of admission or § 296.7 Burden of proof and presump- denial of responsibility shall be pre- tion of causation. sumed to deny responsibility for the damages claimed. (a) Burden of proof. The claimant has (3) If any person admits responsi- the burden to establish, by a prepon- bility, the Chief, FSD, will initiate ac- derance of the evidence, all facts nection to recover from that party any essary to qualify his claim, including: sums paid or to be paid for the claimed (1) The identity or nature of the item damages. which caused the damage or loss; and (4) Any person referred to in this sec- (2) That the item is associated with tion, including lessees or permittees or oil and gas exploration, development, their contractors or subcontractors, or production activities on the Outer may submit evidence about any claim Continental Shelf. to the Chief, FSD. (b) Presumption of causation. Notwith- (d) Failure to meet filing requirements. standing the above, damages or losses The Chief, FSD, may reject any claim are presumed to be caused by items as- that does not meet the filing require- sociated with oil and gas exploration, ments. The Chief, FSD, will give a development, or production activities claimant whose claim is rejected writ- on the OCS if the claimant establishes ten notice of the reasons for rejection that: within 30 days after the date on which (1) The claimant’s commercial fish- the claim was filed. If the claimant ing vessel was being used for commer- does not refile an acceptable claim cial fishing and was located in an area within 30 days after the date of this affected by OCS oil and gas explo- written notice, the claimant is not eli- ration, development, or production ac- gible for Fund compensation unless tivities; there are extenuating circumstances. (2) A report on the location of the ob- (e) Proceedings—(1) Location. Any re- struction which caused such damage or quired proceeding will be conducted loss, and the nature of such damage or within such United States judicial dis- loss, was made within fifteen days after trict as may be mutually agreeable to the date on which the vessel first re- the claimant and the Assistant Admin- turned to a port after discovering such istrator, NMFS, or his designee, or if damage; no agreement can be reached, within (3) There was no record on the most the United States judicial district in recent nautical charts issued by the which the claimant’s home port is lo- National Ocean Survey, NOAA, or in cated. any weekly Notice to Mariners issued (2) Powers. For purposes of any pro- by the Defense Mapping Agency Hydro- ceeding, the Assistant Administrator, graphic/Topographic Center, in effect NMFS, or his designee, shall have the at least 15 days before the date the

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damage or loss occurred, then an ob- (f) Insurance proceeds. An award will struction existed in the immediate vi- be reduced by the amount the claimant cinity where the damage or loss oc- has, or reasonably would have, received curred. In the case of damages caused under a commercial policy of full hull by a pipeline, the presumption will be and machinery and protection and in- available regardless of whether the demnity insurance, whether or not pipeline was recorded on charts or in such insurance was in effect at the the Notice to Mariners; and time the casualty occurred. (4) There was no proper surface [47 FR 49600, Nov. 1, 1982, as amended at 50 marker or lighted buoy attached, or FR 13796, Apr. 8, 1985] closely anchored, to such obstruction. (c) Geographic exclusion from presump- § 296.9 Initial determination. tion of causation. Damage or loss occur- The Chief, FSD will make an initial ring within a one-quarter mile radius determination on a claim within 60 of obstructions recorded on charts or in days after the day on which the claim a Notice to Mariners, or properly is accepted for filing. The initial deter- marked, is presumed to involve the re- mination will state: corded or marked obstruction. (a) If the claim is disapproved, the reason for disapproval, or § 296.8 Amount of award. (b) If the claim is approved, the (a) Actual damages. The award for amount of compensation and the basis damaged fishing gear will be the lesser on which the amount was determined. of the gear’s repair cost or replacement cost. The award for lost fishing gear § 296.10 Agency review. will be the gear’s replacement cost. (a) Within 30 days after the Chief, (b) Consequential damages. An award FDS, issues an initial determination, may also include compensation for any the claimant, or any other interested damage or loss (except personal injury) person who submitted evidence relat- that is incurred as a consequence of the ing to the initial determination, may fishing gear damage or loss. ask the Assistant Administrator, (c) Resulting economic loss. An award NMFS, or his designee, for a review of may also include 50 percent of the re- the initial determination. sulting economic loss from damage to (b) The petitioner may submit writ- or loss of fishing vessels and gear. ten or oral evidence within 30 days of (d) Attorney, CPA, consultant fees. An filing the petition for review. award may also include compensation for reasonable fees paid by the claim- § 296.11 Final determination. ant to an attorney, CPA, or other con- (a) If a petition for review of an ini- sultant for the preparation or prosecu- tial determination is filed within 30 tion of a claim. days after the date the Chief, FSD, (e) Negligence of claimant. (1) An issues an initial determination, the As- award will be reduced to the extent sistant Administrator, NMFS, or his that the loss or damage was caused by designee will conduct a review of the the negligence or fault of the claimant. initial determination, and will issue a (For example, a claimant who sus- final determination no later than 60 tained $10,000 in damages and whose days after receipt of the request for re- negligence or fault was found to be review of the initial determination. sponsible for 40% of the damage would (b) If a petition for review of an ini- receive $6,000 in compensation. If the tial determination is not filed within 30 same claimant were responsible for 99% days after the day on which the Chief, of the negligence or fault that caused FSD, issues an initial determination, the damage, the claimant would re- the initial determination will become a ceive $100 in compensation). final determination. (2) Negligence of the owner or operator of the fishing vessel or gear will § 296.12 Payment of costs. reduce crewmember awards to the (a) By person denying responsibility for same extent that it reduces an award damage. Any person who is notified by to the vessel’s owner or operator. the Interior Department and fails to

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respond or denies responsibility for the the claimant as a condition of payment damages claimed will pay the costs of of the claim which: the proceedings if such person is subse- (1) Assigns to the Fund the claim- quently found to be responsible for the ant’s rights against third parties; and damage claimed. (2) Provides that the claimant will (b) By the claimant. Any claimant assist the Fund in any reasonable way who files a claim will pay the cost of to pursue those rights. the proceedings if such person is subse- (b) Collection of subrogated rights. If quently found to be responsible for the a reasonable chance of successful col- damage claimed. lection exists, NMFS will refer any (c) By person denying responsibility for subrogated rights to the Justice De- damage and the claimant. If more than partment for collection. one party is found to have responsi- (c) Any moneys recovered through bility for the damage claimed, then the subrogation shall be deposited into the cost of the proceedings will be appor- Fund. tioned between them. [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6323, Feb. 20, 1996] § 296.13 Payment of award for claim. § 296.15 Judicial review. (a) Upon an initial determination, the Chief, Financial Services Division, Any claimant or other person who is shall immediately disburse the claim aggrieved by a final determination awarded if the claimant signed as part may, no later than 30 days after the de- of his/her application a statement termination, seek judicial review of agreeing to repay all or any part of the the determination in the United States award if the award should for any rea- District Court for such judicial district son be subsequently reduced. as may be mutually agreeable to the (b) [Reserved] parties concerned or, if no agreement can be reached, in the United States [61 FR 6322, Feb. 20, 1996] District Court for the judicial district in which the claimant’s home port is § 296.14 Subrogation. located. (a) The claim application will contain a subrogation statement signed by PARTS 297–299 [RESERVED]

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Part Page 300 International fisheries regulations ...... 141 301–399 [Reserved]

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300.106 Catch Documentation Scheme 300.175 Hail-in and hail-out reports. (CDS): Documentation and other require- 300.176 Prohibitions. ments. 300.107 Vessel permits and requirements. Subpart M—International Trade Docu- 300.108 Vessel and gear identification. mentation and Tracking Programs for 300.109 Initiating a new fishery. Highly Migratory Species 300.110 Exploratory fisheries. 300.111 Scientific observers. 300.180 Purpose and scope. 300.112 Vessel monitoring system. 300.181 Definitions. 300.113 CCAMLR Ecosystem Monitoring 300.182 International fisheries trade permit. Program sites. 300.183 Permit holder reporting and record- 300.114 Prohibitions. keeping requirements. 300.115 Facilitation of enforcement and in- 300.184 Species subject to permitting, docu- spection. mentation, reporting, and recordkeeping 300.116 Penalties. requirements. 300.185 Documentation, reporting and rec- Subpart H—Vessels of the United States ordkeeping requirements for consign- Fishing in Colombian Treaty Waters ment documents and re-export certificates. 300.120 Purpose. 300.186 Completed and approved documents. 300.121 Definitions. 300.187 Validation requirements. 300.122 Relation to other laws. 300.188 Ports of entry. 300.123 Certificates and permits. 300.189 Prohibitions. 300.124 Recordkeeping and reporting. 300.125 Vessel identification. Subpart N—Identification and Certification 300.126 Prohibitions. 300.127 Facilitation of enforcement. of Nations 300.128 Penalties. 300.200 Purpose and scope. 300.129 Fishing year. 300.201 Definitions. 300.130 Vessel and gear restrictions. 300.202 Identification and certification of 300.131 Conch harvest limitations. nations engaged in illegal, unreported, or 300.132 Lobster harvest limitations. unregulated fishing activities. 300.203 Identification and certification of Subpart I—United States-Canada Fisheries nations engaged in bycatch of protected Enforcement living marine resources. 300.204 Identification and certification of 300.140 Purpose and scope. nations whose vessels are engaged in 300.141 Definitions. shark catch. 300.142 Prohibitions. 300.205 Effect of certification. 300.143 Facilitation of enforcement. 300.206 Denial of port privileges and import 300.144 Penalties and sanctions. restrictions on fish or fish products. Subpart J—U.S. Nationals Fishing in Russian 300.207 Alternative procedures for nations identified as having vessels engaged in Fisheries IUU fishing activities that are not cer- 300.150 Purpose. tified in this subpart. 300.151 Definitions. 300.208 Alternative procedures for nations 300.152 Procedures. identified as having vessels engaged in 300.153 Permit issuance. bycatch of PLMRs that are not certified 300.154 Recordkeeping and reporting. in this subpart. 300.155 Requirements. 300.209 Alternative procedures for nations 300.156 Prohibited acts. identified as having vessels engaged in 300.157 Penalties. shark catch that are not certified in this subpart. Subpart K—Transportation and Labeling of Fish or Wildlife Subpart O—Western and Central Pacific Fisheries for Highly Migratory Species 300.160 Requirement for marking of containers or packages. 300.210 Purpose and scope. 300.161 Alternatives and exceptions. 300.211 Definitions. 300.212 Vessel permit endorsements. Subpart L—Pacific Albacore Tuna Fisheries 300.213 Vessel information. 300.214 Compliance with laws of other na- 300.170 Purpose and scope. tions. 300.171 Definitions. 300.215 Observers. 300.172 Vessel list. 300.216 Transshipping, bunkering and net 300.173 Vessel identification. sharing. 300.174 Logbook reports. 300.217 Vessel identification.

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300.218 Reporting and recordkeeping re- Subpart A—General quirements. 300.219 Vessel monitoring system. 300.220 Confidentiality of information. AUTHORITY: 16 U.S.C. 2431 et seq., 31 U.S.C. 300.221 Facilitation of enforcement and in- 9701 et seq. spection. 300.222 Prohibitions. § 300.1 Purpose and scope. 300.223 Purse seine fishing restrictions. The purpose of this part is to imple- 300.224 Longline fishing restrictions. ment the fishery conservation and 300.225 Eastern High Seas Special Manage- management measures provided for in ment Area. the international treaties, conventions, 300.226 Oceanic whitetip shark and silky or agreements specified in each sub- shark. part, as well as certain provisions of 300.227 Framework for catch and fishing ef- the Lacey Act Amendments of 1981. fort limits. The regulations in this part apply, except where otherwise specified in this Subpart P—Vessels on IUU Vessel Lists part, to all persons and all places sub- 300.300 Purpose and scope. ject to the jurisdiction of the United 300.301 Definitions. States under the acts implemented 300.302 Port entry by foreign, listed IUU under each subpart. vessels. 300.303 Port access by foreign, listed IUU § 300.2 Definitions. vessels. In addition to the definitions in each 300.304 Prohibitions. act, agreement, convention, or treaty Subpart Q—International Trade specified in subparts B through K of Documentation and Tracking Programs this part, the terms used in this part have the following meanings: 300.320 Purpose and scope. Assistant Administrator means the As- 300.321 Definitions. sistant Administrator for Fisheries, 300.322 International Fisheries Trade Per- National Oceanic and Atmospheric Ad- mit. ministration, Department of Com- 300.323 Reporting and recordkeeping re- merce, or a designee. Address: Room quirements. 14555, 1315 East-West Highway, Silver 300.324 Seafood Traceability Program. Spring, MD 20910. 300.325 Prohibitions. Authorized officer means: Subpart R—High Seas Fisheries (1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard; 300.330 Purpose. or any U.S. Coast Guard personnel ac- 300.331 Definitions. companying and acting under the di- 300.332 Issuing offices. rection of a commissioned, warrant, or 300.333 Vessel permits. petty officer of the U.S. Coast Guard; 300.334 Fisheries authorized on the high (2) Any special agent or fisheries en- seas. forcement officer of NMFS; or 300.335 Bottom fishing. (3) Any person designated by the 300.336 Vessel identification. head of any Federal or state agency 300.337 Requirements for Enhanced Mobile that has entered into an agreement Transceiver Units (EMTUs). with the Secretary of Commerce or the 300.338 Observers. Commandant of the U.S. Coast Guard 300.339 Transshipment on the high seas. 300.340 Prohibitions. to enforce the provisions of any statute 300.341 Reporting. administered by the Secretary. CCAMLR inspector means a person AUTHORITY: 16 U.S.C. 951 et seq., 16 U.S.C. designated by a member of the Com- 1801 et seq., 16 U.S.C. 5501 et seq., 16 U.S.C. 2431 mission for the Conservation of Ant- et seq., 31 U.S.C. 9701 et seq. arctic Marine Living Resources as an SOURCE: 61 FR 35550, July 5, 1996, unless inspector under Article XXIV of the otherwise noted. Convention on the Conservation of EDITORIAL NOTE: Nomenclature changes to Antarctic Marine Living Resources to part 300 appear at 64 FR 44431, Aug. 16, 1999, verify compliance with measures in ef- and at 76 FR 59305, Sept. 26, 2011. fect under the Convention.

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Exclusive Economic Zone or EEZ or the certificate number issued by a means the zone established by Presi- state or the USCG for an undocu- dential Proclamation 5030, dated March mented vessel, or any equivalent num- 10, 1983, as defined in 16 U.S.C. 1802(6). ber if the vessel is registered in a for- Fishing or to fish means: eign nation. (1) The catching or taking of fish; Operator means, with respect to any (2) The attempted catching or taking vessel, the master or other individual of fish; aboard and in charge of that vessel. (3) Any other activity that can rea- Owner means, with respect to any sonably be expected to result in the vessel: catching or taking of fish; or (1) Any person who owns that vessel (4) Any operations at sea in support in whole or part (whether or not the of, or in preparation for, any activity vessel is leased or chartered); described in paragraphs (1) through (3) (2) Any charterer of the vessel, of this definition. whether bareboat, time, or voyage; Fishing vessel means any vessel, boat, (3) Any person who acts in the capac- ship, or other craft that is used for, ity of a charterer, including but not equipped to be used for, or of a type limited to parties to a management normally used for fishing. agreement, operating agreement, or IATTC means the Inter-American any similar agreement that bestows Tropical Tuna Commission, established control over the destination, function, pursuant to the Convention for the Es- or operation of the vessel; or tablishment of an Inter-American (4) Any agent designated as such by a Tropical Tuna Commission. person described in this definition. Import means to land on, bring into, Person means any individual (wheth- or introduce into, or attempt to land er or not a citizen or national of the on, bring into, or introduce into, any United States), any corporation, part- place subject to the jurisdiction of the nership, association, or other entity United States, whether or not such (whether or not organized, or existing landing, bringing, or introduction, con- under the laws of any state), and any stitutes an importation within the Federal, state, local, or foreign govern- meaning of the customs laws of the ment or any entity of any such govern- United States. ment. IRCS means International Radio Call Regional Administrator means the Ad- Sign. ministrator of one of the six NMFS Re- Magnuson-Stevens Act means the Mag- gions, described in Table 1 of § 600.502 of nuson-Stevens Fishery Conservation this title, or a designee. and Management Act, 16 U.S.C. 1801 et Science and Research Director means seq. the Director of one of the six NMFS National of the United States or U.S. Fisheries Science Centers described in national means any person subject to Table 1 of § 600.502 of this title, or a des- the jurisdiction of the United States, ignee, also known as the Science Direc- including, but not limited to, a citizen tor. or resident of the United States, or a Secretary means the Secretary of person employed on a vessel of the Commerce or a designee. United States. In the case of a corpora- USCG means the United States Coast tion, partnership or other non- natural Guard. person, this includes, but is not limited Yellowfin tuna means any fish of the to, any entity that is the owner of a species Thunnus albacares (synonomy: vessel of the United States. Neothunnus macropterus). NMFS means the National Marine Fisheries Service, NOAA, Department [61 FR 35550, July 5, 1996, as amended at 76 of Commerce. FR 59305, Sept. 26, 2011] NMFS Headquarters means NMFS, 1315 East-West Highway, Silver Spring, § 300.3 Relation to other laws. MD 20910. Attention: Office of Inter- Other laws that may apply to fishing national Affairs. activities addressed herein are set Official number means the docu- forth in § 600.705 of chapter VI of this mentation number issued by the USCG title.

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§ 300.4 General prohibitions. same, or in contravention of directions It is unlawful for any person subject from such an officer. to the jurisdiction of the United States (j) Intentionally destroy evidence to: that could be used to determine if a (a) Violate the conditions or restric- violation of this part has occurred. tions of a permit issued under this (k) Assault, resist, oppose, impede, part. intimidate, threaten, obstruct, delay, (b) Fail to submit information, fail prevent, or interfere, in any manner, to submit information in a timely with an authorized officer in the con- manner, or submit false or inaccurate duct of any boarding, inspection, information, with respect to any infor- search, seizure, investigation, or arrest mation required to be submitted, rein connection with enforcement of this ported, communicated, or recorded pur- part. suant to this part. (l) Resist a lawful arrest or detention (c) Make any false statement, oral or for any act prohibited by this part. written, to an authorized officer concerning the catching, taking, har- (m) Interfere with, delay, or prevent, vesting, possession, landing, purchase, by any means, the apprehension, ar- sale, or transfer of fish, or concerning rest, or detection of another person, any other matter subject to investiga- knowing that such person has com- tion by that officer under this part. mitted any act prohibited by this part. (d) Conceal any material fact (includ- (n) Interfere with, obstruct, delay, or ing by omission), concerning any mat- prevent, by any means, an investiga- ter subject to investigation by an au- tion, search, seizure, or disposition of thorized officer under this part. seized property in connection with en- (e) Refuse to allow an authorized offi- forcement of this part. cer to inspect any report or record re- (o) Ship, transport, offer for sale, quired to be made or kept under this sell, purchase, import, export, or have part. custody, control, or possession of, any (f) Falsify, cover, or otherwise ob- fish imported, exported or re-exported scure, the name, home port, official in violation of this part. number (if any), or any other similar marking or identification of any fish- (p) Import, export, or re-export any ing vessel subject to this part such fish regulated under this part without that the vessel cannot be readily iden- a valid International Fisheries Trade tified from an enforcement vessel or Permit as required under § 300.322 or ap- aircraft. plicable shipment documentation as re- (g) Fail to comply immediately with quired under § 300.323. any of the enforcement and boarding (q) Violate any provision of any stat- procedures specified in this part. ute implemented by this part. (h) Refuse to allow an authorized of- (r) Attempt to do any of the fore- ficer to board a fishing vessel, or enter going. any other area of custody (i.e., any vessel, building, vehicle, live car, pound, [61 FR 35550, July 5, 1996, as amended at 81 pier, or dock facility where fish might FR 51133, Aug. 3, 2016] be found) subject to such person’s con- § 300.5 Facilitation of enforcement. trol, for the purpose of conducting any inspection, search, seizure, investiga- (a) Compliance. The operator of, or tion, or arrest in connection with the any other person aboard, any fishing enforcement of this part or any other vessel subject to this part must imme- applicable law. diately comply with instructions and (i) Destroy, stave, or dispose of in signals issued by an authorized officer any manner, any fish, gear, cargo, or or CCAMLR inspector to stop the ves- other matter, upon any communication sel, and with instructions to facilitate or signal from an authorized officer of safe boarding and inspection of the ves- the United States, or upon the ap- sel, its gear, equipment, fishing record proach of such an officer, enforcement (where applicable), and catch for pur- vessel, or aircraft, before the officer poses of enforcing this part. has had the opportunity to inspect

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(1) For the purposes of this section nal to be a command to stop the vessel ‘‘freeboard’’ means the working dis- immediately. tance between the top rail of the gun- (c) Boarding. The operator of a vessel wale of a vessel and the water’s sur- directed to stop must: face. Where cut-outs are provided in (1) Monitor Channel 16, VHF-FM, if the bulwarks for the purpose of board- so equipped. ing personnel, freeboard means the dis- (2) Stop immediately and lay to or, if tance between the threshold of the bul- appropriate and/or directed to do so by wark cut-out and the water’s surface. the authorized officer or CCAMLR in- (2) For the purposes of this section, spector, maneuver in such a way as to ‘‘pilot ladder’’ means a flexible ladder allow the safe boarding of the vessel by constructed and approved to meet the the authorized officer or CCAMLR in- U.S. Coast Guard standards for pilot spector and the boarding party. ladders at 46 CFR subpart 163.003 enti- (3) Except for fishing vessels with a tled Pilot Ladder. freeboard of 4 feet (1.25 m) or less, pro- (b) Communications. (1) Upon being vide, when requested by an authorized approached by a USCG vessel or air- officer or CCAMLR inspector, a pilot craft, or other vessel or aircraft with ladder capable of being used for the an authorized officer or CCAMLR in- purpose of enabling the authorized offi- spector aboard, the operator of a fish- cer or CCAMLR inspector to embark ing vessel must be alert for commu- and disembark the vessel safely. The nications conveying enforcement in- pilot ladder must be maintained in structions. good condition and kept clean. (2) VHF-FM radiotelephone is the (4) When necessary to facilitate the preferred method of communicating be- boarding or when requested by an au- tween vessels. If the size of the vessel thorized officer or CCAMLR inspector, and the wind, sea, and visibility condi- provide a manrope or safety line, and tions allow, a loudhailer may be used illumination for the pilot ladder. instead of the radio. Hand signals, plac- (5) Take such other actions as nec- ards, high frequency radiotelephone, essary to facilitate boarding and to en- voice, flags, whistle or horn may be sure the safety of the authorized officer employed by an authorized officer or or CCAMLR inspector and the boarding CCAMLR inspector, and message party. blocks may be dropped from an air- (d) Signals. The following signals, ex- craft. tracted from the International Code of (3) If other communications are not Signals, may be sent by flashing light practicable, visual signals may be by an enforcement unit when condi- transmitted by flashing light directed tions do not allow communications by at the vessel signaled. USCG units will loudhailer or radiotelephone. Knowl- normally use the flashing light signal edge of these signals by vessel opera- ‘‘L’’ which, in the International Code tors is not required. However, knowl- of Signals, means ‘‘you should stop edge of these signals and appropriate your vessel instantly.’’ action by a vessel operator may pre- (4) Failure of a vessel’s operator clude the necessity of sending the sig- promptly to stop the vessel when di- nal ‘‘L’’ and the necessity for the ves- rected to do so by an authorized officer sel to stop instantly. or CCAMLR inspector, or by an en- (1) ‘‘AA’’ repeated (.- .-) is the call to forcement vessel or aircraft, using an unknown station. The operator of loudhailer, radiotelephone, flashing the signaled vessel should respond by light, flags, whistle, horn or other identifying the vessel by radio- means constitutes prima facie evidence telephone or by illuminating the ves- of the offense of refusal to allow an au- sel’s identification. thorized officer or CCAMLR inspector (2) ‘‘RY-CY’’ (.-. -.-- -.-. -.--) means to board. ‘‘you should proceed at slow speed, a (5) A person aboard a vessel who does boat is coming to you.’’ This signal is not understand a signal from an en- normally employed when conditions forcement unit and who is unable to allow an enforcement boarding without obtain clarification by loudhailer or the necessity of the vessel being radiotelephone must consider the sig- boarded coming to a complete stop, or,

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in some cases, without retrieval of fish- by the 1949 Convention between the ing gear that may be in the water. United States of America and the Re- (3) ‘‘SQ3’’ (... --.- ...--) means ‘‘you public of Costa Rica (Antigua Conven- should stop or heave to; I am going to tion), the terms used in this subpart board you.’’ have the following meanings. If a term is defined differently in § 300.2, in the [61 FR 35550, July 5, 1996, as amended at 73 FR 67809, Nov. 17, 2008] Act, or in the Antigua Convention, the definition in this section shall apply. Subpart B [Reserved] Active FAD means a FAD whose location is being tracked by the vessel owner or operator using tracking Subpart C—Eastern Pacific Tuna equipment, such as radio or satellite Fisheries buoys. A FAD shall be considered an Active FAD unless/until the vessel is AUTHORITY: 16 U.S.C. 951 et seq. no longer tracking its location and the vessel owner or operator notifies the § 300.20 Purpose and scope. IATTC that the FAD is no longer ac- The regulations in this subpart are tive (i.e., deactivated). issued under the authority of the Tuna Commercial with respect to commer- Conventions Act of 1950, as amended, cial fishing, means fishing in which the (Act) and apply to persons and vessels fish harvested, either in whole or in subject to the jurisdiction of the part, are intended to enter commerce United States. The regulations imple- through sale, barter or trade. ment recommendations and other deci- Commercial passenger fishing vessel sions of the Inter-American Tropical means any vessel licensed for commer- Tuna Commission (IATTC) for the con- cial passenger fishing purposes within servation and management of stocks of the State out of which it is operating tunas and tuna-like species and other and from which, while under charter or species of fish taken by vessels fishing hire, persons are legally permitted to for tunas and tuna-like species in the conduct sportfishing activities. IATTC Convention Area. The Secretary Convention Area or IATTC Convention of Commerce, in consultation with the Area means all waters of the Pacific Secretary of State and, with respect to Ocean within the area bounded by the enforcement measures, the U.S. Coast west coast of the Americas and by 50° N Guard, may promulgate such regula- latitude from the coast of North Amer- tions as may be necessary to carry out ica to its intersection with 150° W lon- the U.S. international obligations gitude, then 150° W longitude to its under the Convention for the Estab- intersection with 50° S latitude, and lishment of an Inter-American Trop- then 50° S latitude to its intersection ical Tuna Commission (Convention), with the coast of South America. the Convention for the Strengthening Data buoy means, for the purpose of of the Inter-American Tropical Tuna § 300.25, a floating device, either drift- Commission Established by the 1949 ing or anchored, which is deployed by Convention between the United States one or more governmental or recog- of America and the Republic of Costa nized scientific organizations or enti- Rica (Antigua Convention), and the ties for the purpose of electronically Act, including recommendations and collecting and measuring environ- other decisions adopted by the IATTC. mental data, and not for the purpose of [82 FR 17385, Apr. 11, 2017] fishing activities, and which has been reported to the IATTC by a Member or § 300.21 Definitions. Cooperating non-Member of the Com- In addition to the terms defined in mission. § 300.2, in the Act, the Convention for Dolphin set means a purse seine set the Establishment of an Inter-Amer- where a class size 6 U.S. purse seine ican Tropical Tuna Commission (Con- vessel (greater than 363 metric tons vention), and the Convention for the carrying capacity) deploys a net on, or Strengthening of the Inter-American encircles, dolphins to catch yellowfin Tropical Tuna Commission Established tuna.

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Fish aggregating device (FAD) means a manta rays (Manta spp.) and devil rays manmade raft or other floating object (Mobula spp.). used to attract tuna and make them Observer means an individual placed available to fishing vessels. aboard a fishing vessel under the Fishing trip means a period that a IATTC observer program or any other fishing vessel spends at sea between international observer program in port visits and during which any fish- which the United States may partici- ing occurs. pate. Fishing vessel means any vessel, boat, Overall length means registered ship, or other craft that is used for, length, or the horizontal distance be- equipped to be used for, or of a type tween the outboard side of the fore- that is normally used for fishing or for most part of the stem and the outboard assisting or supporting a vessel en- side of the aftermost part of the stern, gaged in fishing, except purse seine excluding rudders, outboard motor skiffs. Floating object means any natural ob- brackets, and other similar fittings and ject or FAD around which fishing ves- attachments for a single-hull vessel; sels may catch tuna. for a multi-hull vessel, it is the hori- Floating object set means a purse seine zontal distance between the outboard set in which purse seine gear is de- side of the foremost part of the stem of ployed to encircle a floating object. the foremost hull and the outboard side Force majeure means, for the purpose of the aftermost part of the stern of of § 300.25, a situation in which a vessel the aftermost hull, excluding fittings at sea, except while transiting between or attachments (See 46 CFR 69.203). ports on a trip during which no fishing Regional Administrator means the Re- operations occur, is disabled by me- gional Administrator for the West chanical and/or structural failure, fire Coast Region, National Marine Fish- or explosion. eries Service, or a designee. Highly Migratory Species (HMS) Regional Vessel Register (hereafter re- Branch means the Chief of the HMS ferred to as Vessel Register) means the Branch of the Sustainable Fisheries Di- regional register of vessels authorized vision, National Marine Fisheries Serv- to fish for tuna and tuna-like species in ice West Coast Region, Suite 4200, 501 the Convention Area, as established by W Ocean Blvd., Long Beach, CA 90802, the Inter-American Tropical Tuna and [email protected]. Commission in June 2000. Incidental catch or incidental species Shark line means a type of fishing means species caught while fishing gear used to target sharks and con- with the primary purpose of catching a sisting of an individual hooked line or different species. An incidental catch is hooked lines attached to the floatline expressed as a percentage of the weight or directly to the floats of longline of the total fish on board. gear and deployed in the water column or means to begin Land Landing at depths shallower than the mainline. transfer of fish from a fishing vessel. South Pacific Tuna Treaty means the Once transfer begins, all fish on board the vessel are counted as part of the Treaty on Fisheries Between the Gov- landing. ernments of Certain Pacific Island Longline gear means a type of fishing States and the Government of the gear consisting of a main line that ex- United States of America (50 CFR part ceeds 1 nautical mile in length, is sus- 300, subpart D). pended horizontally in the water col- Sustainable Fisheries Division (SFD) umn anchored, floating, or attached to means the Assistant Regional Adminis- a vessel, and from which branch or trator for the Sustainable Fisheries Di- dropper lines with hooks are attached. vision, West Coast Region, National Mesh size means the distance between Marine Fisheries Service, or a des- the inside of one knot to the inside of ignee. the opposing knot when the mesh is Tender vessel means a vessel that does stretched, regardless of twine size. not engage in purse seine fishing but Mobulid ray means any animal in the tends to FADs in support of tuna fish- family Mobulidae, which includes ing operations.

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Transship means to unload fish from bridge log maintained and submitted at a vessel that caught fish to another the request of the IATTC shall be suffi- vessel. cient to comply with this paragraph, Transshipment receiving vessel means provided the items of information spec- any vessel, boat, ship, or other craft ified by the IATTC are accurately en- that is used to receive fish from a fish- tered in the log. For purse seine vessels ing vessel. of 400 st (362.8 mt) carrying capacity or Trip limit means the total allowable less and for non-purse seine vessels, amount of a species by weight of fish maintaining and submitting any log- that may be retained on board, trans- book required by existing state or fed- shipped, or landed from a single fishing eral regulation shall be sufficient to trip by a vessel that harvests tuna or comply with this paragraph. tuna-like species. (2) Whale shark encirclement reporting. Tropical tuna means any of the fol- The owner and operator of a purse lowing species: seine fishing vessel of the United States that encircles a whale shark Common name Scientific name (Rhincodon typus) while commercially Bigeye tuna ...... Thunnus obesus. fishing in the Convention Area must Skipjack tuna ...... Katsuwonus pelamis. ensure that the incident is recorded on Yellowfin tuna ...... Thunnus albacares. the log that is required by this paragraph (a). The log must include the fol- Tuna means any fish of the genus lowing information: The number of in- Thunnus and the species Katsuwonus dividual whale sharks with which the pelamis. vessel interacted, details of how and VMS unit, sometimes known as a why the encirclement happened, where ‘‘mobile transmitting unit,’’ means a it occurred, steps taken to ensure safe transceiver or communications device, release, and an assessment of the life including all hardware and software status of the whale shark upon release that is carried and operated on a vessel (including whether the animal was re- as part of a VMS. leased alive, but subsequently died), as [61 FR 35550, July 5, 1996] may be further specified by NMFS. (3) FAD data reporting for purse seine EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 300.21, see the List of CFR vessels—(i) Reporting on FAD inter- Sections Affected, which appears in the actions. U.S. purse seine vessel opera- Finding Aids section of the printed volume tors shall provide the observer with the and at www.govinfo.gov. FAD identification code and, as appropriate, the other information in the § 300.22 Recordkeeping and reporting FAD interaction standard format pro- requirements. vided by the HMS Branch. U.S. vessel (a) Logbooks and reporting on whale owners and operators, without an ob- sharks and FADs—(1) Logbook reporting. server onboard, must ensure that any The master or other person in charge interaction or activity with a FAD is of a commercial fishing vessel or com- reported using a FAD interaction mercial passenger fishing vessel standard format provided by the HMS (CPFV) authorized to fish for tuna and Branch. The owner and operator shall tuna-like species in the Convention ensure that the form is submitted Area, or a person authorized in writing within 30 days of each landing or trans- to serve as the agent for either person, shipment of tuna or tuna-like species must keep an accurate log of oper- to the address specified by the HMS ations conducted from the fishing ves- Branch. sel. For vessels greater than 400 st (ii) Reporting on Active FADs. U.S. (362.8 mt) carrying capacity that are vessel owners and operators must authorized to purse seine for tuna in record or maintain daily information the Convention Area, the log must in- on all Active FADs that have been de- clude for each day the date, noon posi- ployed in the water in the IATTC Con- tion (stated in latitude and longitude vention Area in the format and to the or in relation to known physical fea- address provided by the HMS Branch. tures), and the tonnage of fish on This information must be submitted board, by species. The record and for each calendar month no later than

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90 days after the month covered by the purse seine vessel or vessels being re- report. placed. (b) Vessel Register. The Vessel Reg- (3) Vessel information. (i) Information ister shall include, consistent with res- on each commercial fishing vessel or olutions of the IATTC, all commercial CPFV authorized to use purse seine, fishing vessels and CPFVs authorized longline, drift gillnet, harpoon, troll, to fish for tuna and tuna-like species in rod and reel, or pole and line fishing the Convention Area. Except as pro- gear to fish for tuna and tuna-like spe- vided under paragraph (b)(1) of this sec- cies in the Convention Area for sale tion, tuna purse seine vessels must be shall be collected by the Regional Ad- listed on the Vessel Register and cat- ministrator to conform to IATTC reso- egorized as active under paragraph lutions governing the Vessel Register. (b)(4)(i) of this section in order to fish This information initially includes, but for tuna and tuna-like species in the is not limited to, the vessel name and Convention Area. registration number; the name and (1) Exception. Once per year, a vessel business address of the owner(s) and that is permitted and authorized under managing owner(s); a photograph of an alternative international tuna purse the vessel with the registration num- seine fisheries management regime in ber legible; previous vessel name(s) and the Pacific Ocean may exercise an op- previous flag (if known and if any); tion to fish with purse seine gear to port of registry; International Radio target tuna in the Convention Area Call Sign; vessel length, beam, and without the vessel’s capacity counted moulded depth; gross tonnage, fish hold towards the cumulative carrying ca- capacity in cubic meters, and carrying pacity described under paragraph capacity in metric tons and cubic me- (b)(4)(i)(A) of this section. This excep- ters; engine horsepower; date and place tion is for a single fishing trip that where built; and type of fishing method does not exceed 90 days in duration. At or methods used. The required informa- any time during the calendar year, a tion shall be collected as part of exist- vessel exercising this exception shall ing information collections as de- follow the procedures, where applica- scribed in this and other parts of the ble, described in paragraphs (b)(4) of CFR. this section. No more than 32 of such (ii) IMO numbers. For the purpose of trips are allowed each calendar year. this section, an ‘‘IMO number’’ is the After the commencement of the 32nd unique six or seven digit number issued such trip, the Regional Administrator for a vessel under the ship identifica- shall announce, in the FEDERAL REG- tion number scheme adopted by the ISTER and by other appropriate means, International Maritime Organization that no more such trips are allowed for (IMO) and managed by the entity iden- the remainder of the calendar year. tified by the IMO (currently IHS Mari- Under § 216.24(b)(6)(iii)(C) of this title, time) and is also known as a Lloyd’s vessel assessment fees must be paid for Register number. vessels exercising this option. (iii) Requirements for IMO numbers. (2) Requirements for inclusion of purse The owner of a fishing vessel of the seine vessels on the Vessel Register. The United States used for commercial tuna purse seine portion of the Vessel fishing for tuna and tuna-like species Register shall include, consistent with in the IATTC Convention Area shall resolutions of the IATTC, only vessels ensure that an IMO number has been that fished in the Convention Area issued for the vessel if the vessel’s Cer- prior to June 28, 2002. Inclusion on the tificate of Documentation issued under tuna purse seine portion of the Vessel 46 CFR part 67 indicates that the ves- Register is valid through December 31 sel’s total internal volume is 100 gross of each year. New tuna purse seine ves- register tons or greater or 100 gross sels may be added to the Vessel Reg- tonnage or greater. In addition, the ister at any time to replace those pre- owner of a fishing vessel of the United viously removed by the Regional Ad- States engaging in fishing activities ministrator, provided that the total ca- for tuna or tuna-like species in the pacity of the replacement vessel or ves- IATTC Convention Area, and for which sels does not exceed that of the tuna a high seas fishing permit under

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§ 300.333 is required, shall ensure that with the requirements of paragraph an IMO number has been issued for the (b)(3)(iii) of this section within 30 days vessel if the vessel’s total internal vol- of being notified of the rescission. If ume is less than 100 gross registered the ownership of a fishing vessel tons or less than 100 gross tons, but changes, an exemption issued to the equal to or greater than 12 meters in former fishing vessel owner becomes overall length, as indicated in the ves- void. sel’s Certificate of Documentation (4) Purse seine Vessel Register listing. issued under 46 CFR part 67 or State For a tuna purse seine vessel to be list- documentation. A vessel owner may re- ed on the Vessel Register and to be cat- quest that an IMO number be issued for egorized as either ‘‘active’’ or ‘‘inac- a vessel by following the instructions tive’’ in the following calendar year, given by the administrator of the IMO the vessel owner or managing owner ship identification number scheme; must submit to the Regional Adminis- those instructions are currently avail- trator the required permit applica- able on the website of IHS Markit, tions, written notifications, and fees as https://imonumbers.lrfairplay.com/. described under § 216.24(b) of this title (iv) Request for exemption. In the and under paragraphs (b)(4)(ii) and (iii) event that a fishing vessel owner, after of this section as well as payment of following the instructions given by the the vessel assessment fee, where appli- designated manager of the IMO ship cable, to the IATTC. identification number scheme, is un- (i) Restrictions. The following restric- able to ensure that an IMO number is tions apply: issued for the fishing vessel, the fishing (A) The cumulative carrying capacity vessel owner may request an exemption of all tuna purse seine vessels on the from the requirement from the Re- Vessel Register may not exceed 31,866 gional Administrator. The request cubic meters in a given year; and must be sent by mail to NMFS HMS (B) A purse seine vessel in excess of Branch, West Coast Region, 501 W 400 st (362.8 mt) carrying capacity may Ocean Blvd., Suite 4200, Long Beach, not be added to active status on the CA 90802, or by email to Vessel Register unless the captain of [email protected], and must include the vessel has obtained a valid operator the vessel’s name, the vessel’s official permit under § 216.24(b)(2) of this title. number, a description of the steps (ii) Active status. As early as August 1 taken to request an IMO number, and a of each year, vessel owners or man- description of any responses from the aging owners may request that a purse administrator of the IMO ship identi- seine vessel qualified to be listed on fication number scheme. the Vessel Register under paragraph (v) Exemption process. Upon receipt of (b)(2) of this section be categorized as a request for an exemption under para- active for the following calendar year. graph (b)(3)(iv) of this section, the Re- To request a purse seine vessel in ex- gional Administrator will, to the excess of 400 st (362.8 mt) carrying capac- tent he or she determines appropriate, ity be listed on the Vessel Register and assist the fishing vessel owner in re- be categorized as active, the vessel questing an IMO number. If the Re- owner or managing owner must submit gional Administrator determines that to the Regional Administrator the ves- the fishing vessel owner has followed sel permit application and payment of all appropriate procedures and yet is the permit application fee and submit unable to obtain an IMO number for to the IATTC payment of the vessel as- the fishing vessel, he or she will issue sessment fee. an exemption from the requirements of (A) To request a purse seine vessel of paragraph (b)(3)(iii) of this section for 400 st (362.8 mt) carrying capacity or the vessel and its owner and notify the less be listed on the Vessel Register owner of the exemption. The Regional and be categorized as active, the vessel Administrator may limit the duration owner or managing owner must submit of the exemption. The Regional Admin- to the HMS Branch written notifica- istrator may rescind an exemption at tion including, but not limited to, a any time. If an exemption is rescinded, vessel photograph, the vessel informa- the fishing vessel owner must comply tion as described under paragraph (b)(3)

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of this section, and the owner or man- telephone and fax numbers. Payment of aging owner’s signature, business email the vessel assessment fee is not re- address, and business telephone and fax quired for vessels of 400 st (362.8 mt) numbers. If a purse seine vessel of 400 carrying capacity or less to be cat- st (362.8 mt) carrying capacity or less is egorized as inactive. required by the Agreement on the (C) At any time during the year, a IDCP to carry an observer, the vessel vessel owner or managing owner may owner or managing owner must also request that a tuna purse seine vessel submit payment of the vessel assess- qualified to be listed on the Vessel Reg- ment fee to the IATTC. ister under paragraph (b)(2) of this sec- (B) The Regional Administrator must tion be categorized as inactive for the receive the vessel permit application or remainder of the calendar year, pro- written notification and payment of vided the cumulative carrying capacity the permit application fee and pay- described in (b)(4)(i)(A) of this section ment confirmation of the vessel assess- is not exceeded. To request a purse ment fee no later than September 15 seine vessel in excess of 400 st (362.8 mt) for vessels for which a DML was re- carrying capacity be listed on the Ves- quested for the following year and no sel Register and categorized as inactive later than November 30 for vessels for for the remainder of the calendar year, which a DML was not requested for the the vessel owner or managing owner following year. Submission of the ves- must submit to the IATTC payment of sel permit application or written noti- the associated vessel assessment fee. fication and payment of the vessel as- To request a tuna purse seine vessel of sessment fee and permit application fee 400 st (362.8 mt) carrying capacity or will be interpreted by the Regional Ad- less be listed on the Vessel Register ministrator as a request for a vessel to and categorized as inactive for the re- be categorized as active. mainder of the calendar year, the ves- (iii) Inactive status. (A) From August sel owner or managing owner must sub- 1 through November 30 of each year, mit to the HMS Branch written notifi- vessel owners or managing owners may cation as described in (b)(4)(iii)(A) of request that purse seine vessels quali- this section. Payment of the vessel as- fied to be listed on the Vessel Register under paragraph (b)(2) of this section sessment fee is not required for such be categorized as inactive for the fol- vessels. lowing calendar year. To request a (D) The vessel owner or managing purse seine vessel in excess of 400 st owner of a purse seine vessel listed as (362.8 mt) carrying capacity be listed active on the Vessel Register that has on the Vessel Register and categorized sunk may request the vessel be listed as inactive for the following calendar as sunk and categorized as inactive on year, the vessel owner or managing the Vessel Register. To request the ves- owner must submit to the IATTC pay- sel be listed as sunk and categorized as ment of the associated vessel assess- inactive on the Vessel Register, the ment fee. Payment of the vessel assess- vessel owner or managing owner must ment fee consistent with inactive sta- submit to the HMS Branch written no- tus will be interpreted by the Regional tification within 30 days of the vessel’s Administrator as a request for the ves- sinking. Written notification shall in- sel to be categorized as inactive. clude, but is not limited to, the vessel (B) To request a tuna purse seine ves- name, date of sinking, registration sel of 400 st (362.8 mt) carrying capacity number, the vessel owner or managing or less be listed on the Vessel Register owner’s name, signature, business ad- and categorized as inactive for the fol- dress, business email address, and busi- lowing calendar year, the vessel owner ness telephone and fax numbers. For or managing owner must submit to the subsequent calendar years, vessel as- HMS Branch a written notification in- sessment fee payment shall be made as cluding, but not limited to, the vessel described in paragraph (b)(4)(iii) of this name and registration number and the section. vessel owner or managing owner’s (E) A vessel listed as inactive or sunk name, signature, business address, on the Vessel Register for more than business email address, and business two consecutive calendar years after

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January 21, 2020 requesting active sta- equal to or less than a vessel removed tus will be prioritized according to the from the Vessel Register under a re- hierarchy under paragraph (b)(4)(v) of quest described in paragraph (b)(9) of this section. A vessel listed as inactive this section; or sunk on the Vessel Register for (B) Requests received for vessels that more than two consecutive calendar were categorized as active in the pre- years after January 21, 2020 will be re- vious year, unless the request was de- moved from the Vessel Register as determined to be frivolous by the Re- scribed in paragraph (b)(5)(ix) of this gional Administrator under paragraph section. (b)(4)(ii) of this section; (iv) Frivolous requests. (A) Except as (C) Requests received for vessels that described under paragraph (b)(4)(iv)(B) were categorized as inactive under of this section, requests for active sta- paragraph (b)(4)(iii) of this section in tus under paragraph (b)(4)(ii) of this the previous year, unless that vessel section will be considered frivolous if, has been listed as inactive or sunk for a vessel categorized as active on the under paragraph (b)(4)(iii) of this sec- Vessel Register in a given calendar tion for more than 2 consecutive cal- year: endar years after January 21, 2020; (1) Less than 20 percent of the ves- (D) Requests for vessels not described sel’s total landings, by weight, in that in paragraphs (b)(4)(v)(A) through (C) same year is comprised of tuna har- of this section, and requests, if applica- vested by purse seine in the Convention ble, by replacement vessels for the por- Area; or tion of the carrying capacity greater (2) The vessel did not fish for tuna at than the amount authorized to the ves- all in the Convention Area in that sel that was replaced under paragraph same year. (b)(9) of this section, will be prioritized (B) Requests described under para- on a first-come, first-served basis ac- graph (b)(4)(iv)(A) of this section will cording to the date and time of receipt, not be considered frivolous requests if: provided that the associated vessel as- (1) The vessel’s catch pattern fell sessment fee is paid by the applicable within the criteria described in para- deadline described in § 216.24(b)(6)(iii) graph (b)(4)(iv)(A) of this section as a of this title; and result of force majeure or other extraordinary circumstances as deter- (E) Requests received from owners or mined by the Regional Administrator; managing owners of vessels that were or determined by the Regional Adminis- trator to have made a frivolous request (2) The vessel’s carrying capacity is 400 st (362.8 mt) or less and there was at for active status under paragraph least one documented landing of tuna (b)(4)(iv) of this section or that have caught by the vessel in the Convention been listed as inactive or sunk as de- Area in the calendar year prior to the scribed in paragraph (b)(4)(iii) of this year in which the request is made and section for more than two consecutive through November 15 of the year of the calendar years after January 21, 2020. request, unless the vessel was not able (5) Removal from the vessel register. A to make a landing as a result of force vessel may be removed from the Vessel majeure or other extraordinary cir- Register by the Regional Adminis- cumstances as determined by the Re- trator: gional Administrator. (i) If the vessel has sunk, and the ves- (3) The vessel was listed as inactive sel owner or managing owner has not before January 21, 2020 and has not submitted written notification as de- been listed as inactive for more than scribed in paragraph (b)(4)(iii)(D) of two consecutive calendar years since this section; January 21, 2020. (ii) Upon written request by the ves- (v) Listing hierarchy. Requests for ac- sel’s owner or managing owner; tive status and inactive status will be (iii) Following a final agency action prioritized according to the following on a permit sanction for a violation; hierarchy: and (A) Requests received for replace- (iv) For failure to pay a penalty or ment vessels with a carrying capacity for default on a penalty payment

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agreement resulting from a final agen- of a purse seine vessel of more than 400 cy action for a violation. st (362.8 mt) carrying capacity must (v) If the U.S. Maritime Administra- pay the vessel assessment fee associ- tion or the U.S. Coast Guard notifies ated with inactive status. The owner or NMFS that: managing owner of a purse seine vessel (A) The owner has submitted an ap- of 400 st (362.8 mt) carrying capacity or plication for transfer of the vessel to less must submit written notification foreign registry and flag; or as described in paragraph (b)(4)(iii) of (B) The documentation for the vessel this section. will be or has been deleted for any rea- (ii) A purse seine vessel may be added son. to the Vessel Register and categorized (vi) If the vessel does not have a valid as active in order to replace a vessel or state registration or U.S. Coast Guard vessels removed from active or inactive certificate of documentation; status under paragraph (b)(5) of this (vii) For tuna purse seine vessels, section, provided the total carrying ca- upon receipt of written notification pacity described in (b)(4)(i)(A) of this from the owner or managing owner of section is not exceeded and the owner the intent to transfer the vessel to for- submits a complete request under para- eign registry and flag, as described in graph (b)(7)(iv) or (v) of this section. paragraph (b)(8) of this section; or (iii) Notification of available capac- (viii) For tuna purse seine vessels, if ity after a purse seine vessel has been the request for active status on the removed from the Vessel Register will Vessel Register has been determined to be conducted as follows: be a frivolous request; or (A) After a purse seine vessel cat- (ix) If the vessel has been listed as in- egorized as active or inactive is re- active or sunk on the Vessel Register moved from the Vessel Register, the for more than two consecutive calendar Regional Administrator will notify years after January 21, 2020. owners or managing owners of vessels (6) Process for Removal from the Vessel eligible for, but not included on, the Register. When a vessel is removed from Vessel Register that replacement ca- the Vessel Register under paragraph pacity is available on the active or in- (b)(5) of this section, the Regional Ad- active list of the Vessel Register. ministrator shall promptly notify the (B) When a purse seine vessel cat- vessel owner in writing of the removal egorized as active or inactive on the and the reasons therefor. For a re- Vessel Register has been removed from moval from the Vessel Register under the Vessel Register under the proce- § 300.22(b)(5)(iii), the Regional Adminis- dures described in (b)(9) of this section, trator will not accept a request to rein- the Regional Administrator will not state the vessel to the Vessel Register make available the capacity of the ves- for the term of the permit sanction. sel removed from the Vessel Register, For a removal from the Vessel Register and will reserve that capacity for a re- under § 300.22(b)(5)(iv), the Regional Ad- placement vessel for a period of 2 years ministrator will not accept a request from the date of notification described to reinstate the vessel to the Vessel in (b)(9)(iv) of this section. The replace- Register until such time as payment is ment vessel will be eligible to be listed made on the penalty or penalty agree- as active on the Vessel Register at the ment, or such other duration as NOAA same carrying capacity or less as that and the vessel owner may agree upon. of the vessel it is replacing. If the re- (7) Procedures for replacing purse seine placement vessel has a carrying capac- vessels removed from the Vessel Register. ity greater than the vessel being re- (i) A purse seine vessel that was pre- placed, the vessel owner or managing viously listed on the Vessel Register, owner may request additional carrying but not included for a given year or capacity allocated to the vessel in ac- years, may be added back to the Vessel cordance with paragraph (b)(4)(v)(D) of Register and categorized as inactive at this section. If additional carrying ca- any time during the year, provided the pacity is not available, the replace- cumulative carrying capacity described ment vessel must reduce its carrying in (b)(4)(i)(A) of this section is not ex- capacity to no more than the pre- ceeded. The owner or managing owner viously authorized carrying capacity

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amount for the vessel being replaced by § 216.24(b) of this title and payment of complying with the protocol for sealing the vessel assessment fee to the IATTC wells adopted by the IATTC, prior to it and payment of the permit application being listed as active on the Vessel fee to the Regional Administrator Register. Such a vessel may apply for within 10 business days after submis- additional carrying capacity as it be- sion of the vessel permit application comes available under the procedures for the replacement vessel. The re- described in (b)(4)(v)(D) of this section. placement vessel will be eligible to be (iv) Vessel owners or managing own- categorized as active on the Vessel ers may request a purse seine vessel of Register at the same carrying capacity 400 st (362.8 mt) carrying capacity or as that of the vessel or vessels it is re- less be categorized as active to replace placing. If the replacement vessel has a a vessel or vessels removed from the carrying capacity greater than the ves- Vessel Register by submitting to the sel being replaced, the vessel owner or HMS Branch written notification as de- managing owner may request addi- scribed in paragraph (b)(4)(ii) of this tional carrying capacity allocated to section and, only if the vessel is re- the vessel in accordance with para- quired by the Agreement on the IDCP graph (b)(4)(v)(D) of this section. If ad- to carry an observer, payment of the ditional carrying capacity is not avail- vessel assessment fee to the IATTC able, the replacement vessel must re- within 10 business days after submis- duce its carrying capacity to no more sion of the written notification. The re- than the previously authorized car- placement vessel will be eligible to be rying capacity for the vessel or vessels categorized as active on the Vessel being replaced by complying with the Register at the same carrying capacity protocol for sealing wells adopted by or less as that of the vessel or vessels the IATTC, prior to it being listed as it is replacing. If the replacement ves- active on the Vessel Register. Such a sel has a carrying capacity greater vessel may apply for additional car- than the vessel being replaced, the ves- rying capacity as it becomes available. sel owner or managing owner may re- The replacement vessel will also only quest additional carrying capacity al- be eligible to be categorized as active located to the vessel in accordance on the Vessel Register if the captain of with paragraph (b)(4)(v)(D) of this sec- the replacement vessel possesses an option. If additional carrying capacity is erator permit under § 216.24(b) of this not available, the replacement vessel title. Payments received will be sub- must reduce its capacity to no more ject to a 10 percent surcharge for ves- than the previously authorized car- sels that were listed as active on the rying capacity for the vessel or vessels Vessel Register in the previous cal- being replaced by complying with the endar year, but not listed as inactive protocol for sealing wells adopted by at the beginning of the calendar year the IATTC, prior to it being listed as for which active status was requested. active on the Vessel Register. Such a (vi) The Regional Administrator will vessel may apply for additional car- forward requests to replace vessels re- rying capacity as it becomes available. moved from the Vessel Register within Payments received will be subject to a 15 days of receiving each request. 10 percent surcharge for vessels that (8) Transfers to a foreign registry and were listed as active on the Vessel Reg- flag. The owner or managing owner of a ister in the previous calendar year, but purse seine vessel listed on the Vessel not listed as inactive at the beginning Register must provide written notifica- of the calendar year for which active tion to the Regional Administrator status was requested. prior to submitting an application for (v) Vessel owners or managing own- transfer of the vessel to foreign reg- ers may request a purse seine vessel in istry and flag. Written notification excess of 400 st (362.8 mt) carrying ca- must be submitted to the Regional Ad- pacity be categorized as active to re- ministrator at least 10 business days place a vessel or vessels removed from prior to submission of the application the Vessel Register by submitting to for transfer. The written notification the Regional Administrator the vessel must include the vessel name and reg- permit application as described under istration number; the expected date

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that the application for transfer will be (iii) To request a vessel be replaced submitted; and the vessel owner or under this provision, the vessel owner managing owner’s name and signature. or managing owner must submit to the Vessels that require approval by the HMS Branch written notification in- U.S. Maritime Administration prior to cluding, but not limited to, the vessel transfer of the vessel to foreign reg- name and registration number, the ves- istry and flag will not be subject to the sel owner or managing owner’s name, notification requirement described in signature, business address, business this paragraph. email address, and business telephone (9) Aging fleet provision. (i) The vessel and fax numbers, and the expected owner or managing owner of a purse month and year the replacement vessel seine vessel listed as active or inactive will be ready to fish in the Convention on the Vessel Register may request to Area. replace the current vessel with a new (iv) Within 30 days of receiving each or used vessel without losing the ves- request described in (b)(9)(iii) of this sel’s placement in the hierarchy of re- section, the Regional Administrator quests for active status as described in shall notify the vessel owner or managing owner in writing whether the re- paragraph (b)(4)(v) of this section. The quest has been accepted or denied, and replacement vessel will be eligible to the reasons therefore. be listed as active on the Vessel Reg- ister at the same carrying capacity or [61 FR 35550, July 5, 1996, as amended at 66 less as that of the vessel it is replacing. FR 49320, Sept. 27, 2001; 70 FR 19010, Apr. 12, If the replacement vessel has a car- 2005; 74 FR 1618, Jan. 13, 2009; 76 FR 287, Jan. rying capacity greater than the vessel 4, 2011; 76 FR 68337, Nov. 4, 2011; 79 FR 56018, Sept. 18, 2014; 81 FR 1879, Jan. 14, 2016; 81 FR being replaced, the vessel owner or 36184, June 6, 2016; 83 FR 15509, Apr. 11, 2018; managing owner may request addi- 84 FR 70044, Dec. 20, 2019; 85 FR 8199, Feb. 13, tional carrying capacity be allocated 2020; 85 FR 35380, June 10, 2020; 85 FR 29669, to the vessel in accordance with para- May 18, 2020; 84 FR 70047, Dec. 20, 2019] graph (b)(4)(v)(D) of this section. If additional carrying capacity is not avail- § 300.23 Persons and vessels exempted. able at the time the request to be list- This subpart does not apply to: ed as active on the Vessel Register is (a) Any person or vessel authorized received by the Regional Adminis- by the IATTC, the Assistant Adminis- trator, the replacement vessel must re- trator, or any state of the United duce its carrying capacity to no more States to engage in fishing for research than the previously authorized car- purposes. rying capacity of the vessel being re- (b) Any person or vessel engaged in placed by complying with the protocol sport fishing for personal use. for sealing wells adopted by the IATTC, [61 FR 35550, July 5, 1996, as amended at 74 prior to it being listed as active on the FR 1620, Jan. 13, 2009] Vessel Register. Such a vessel may apply for additional carrying capacity § 300.24 Prohibitions. as it becomes available under the pro- In addition to the prohibitions in cedures described in paragraph § 300.4, it is unlawful for any person or (b)(4)(v)(D) of this section. This aging vessel subject to the jurisdiction of the fleet provision may be used only once United States to: per vessel by the vessel owner or man- (a) Land any species of tuna during aging owner. the closed season for that species in ex- (ii) A request made under this provi- cess of the amount allowed by the Re- sion may include a request to remove gional Administrator. the vessel from the Vessel Register. (b) [Reserved] The Regional Administrator will en- (c) Use tender vessels in the Conven- sure the amount of carrying capacity tion Area. equal to or less of the vessel being re- (d) Transship purse seine-caught tuna placed will be available for the replace- at sea within the Convention Area. ment vessel for up to 2 years from the (e) Fail to retain any bigeye, skip- date of notification described in para- jack, or yellowfin tuna caught by a graph (b)(9)(iv) of this section. fishing vessel of the United States of

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class size 4–6 using purse seine gear in (q) Remove from the water a data the Convention Area as required under buoy and place it on board or tow a § 300.27(a). data buoy with a U.S. fishing vessel (f) When using purse seine gear to used for fishing for HMS while the ves- fish for tuna in the Convention Area, sel is in the Convention Area without fail to release any fish species (exclud- authorization by the owner of the data ing mobulid rays, tuna, tuna-like spe- buoy or the owner’s authorized rep- cies, and those being retained for con- resentative in contravention of sumption aboard the vessel) as soon as § 300.25(f)(3). practicable after being identified on (r) In the event of an entanglement of board the vessel during the brailing op- a data buoy with a U.S. fishing vessel, eration as required in § 300.27(b). or its fishing gear, equipment, or asso- (g) [Reserved] ciated watercraft, used for fishing for (h) Fail to use the sea turtle han- HMS in the Convention Area, fail to dling, release, and resuscitation proce- promptly remove the data buoy with as dures in § 300.27(c). little damage to the data buoy and its (i) Fail to report information when mooring and anchor lines as possible, requested by the Regional Adminis- in contravention of § 300.25(f)(4). trator under § 300.22. (s) Fail to take all reasonable meas- (j) Fail to provide written notifica- ures to avoid fishing gear entangle- tion as described under § 300.22(b)(8) to ment or interaction with drifting data the Regional Administrator at least 10 buoys in contravention of § 300.25(f)(5). business days prior to submission of an (t) Use a U.S. fishing vessel to fish application to transfer a purse seine for HMS in the Convention Area and vessel listed on the Vessel Register to retain on board, transship, land, store, foreign registry and flag, unless trans- sell, or offer for sale any part or whole fer of the vessel requires approval by carcass of an oceanic whitetip shark the U.S. Maritime Administration. (Carcharhinus longimanus) or fail to re- (k) Use a U.S. fishing vessel over 24 lease unharmed, to the extent prac- meters in length to retain on board, ticable, all oceanic whitetip sharks transship, or land bigeye tuna caught when brought alongside the vessel in by longline gear in the Convention contravention of § 300.27(d). Area or to fish in contravention of (u) Use a United States commercial § 300.25(a)(4)(i) or (ii). fishing vessel in the Convention Area (l) Use a U.S. fishing vessel over 24 to target, retain on board, transship, or meters in overall length to fish with land Pacific bluefin tuna in contraven- longline gear in the Pacific Ocean both tion of § 300.25(g)(4) through (8) and inside and outside the Convention Area (g)(10) through (11). on the same fishing trip in contraven- (v) Fail to maintain, submit, or en- tion of § 300.25(a)(4)(iii). sure submission of a log that includes (m) Fail to stow gear as required in all the information required in § 300.25(a)(4)(iv) or (e)(6). § 300.22(a). (n) Use a fishing vessel of class size 4– (w) Set or attempt to set a purse 6 to fish with purse seine gear in the seine on or around a whale shark Convention Area in contravention of (Rhincodon typus) in contravention of § 300.25(e)(1), (2), or (5). § 300.27(g). (o) Use a U.S. longline or purse seine (x) Fail to release a whale shark en- fishing vessel used to fish for HMS circled in a purse seine net of a fishing within one nautical mile of an an- vessel as required in § 300.27(h). chored data buoy while the fishing ves- (y) Fail to install, activate, or oper- sel is in the Convention Area in con- ate a VMS unit as required in travention of § 300.25(f)(1). § 300.26(c). (p) Use a U.S. fishing vessel used for (z) In the event of VMS unit failure fishing for HMS, or any gear, equip- or interruption; fail to repair or re- ment, or watercraft deployed by such a place a VMS unit; fail to notify the fishing vessel, to interact with a data Special-Agent-In-Charge, NOAA Office buoy in the Convention Area in con- of Law Enforcement, Pacific Islands travention of § 300.25(f)(2). Division (or designee); and follow the

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instructions provided; or otherwise fail sure period in contravention of to act as provided in § 300.26(c)(4). § 300.28(d)(1). (aa) Disable, destroy, damage or op- (pp) Fail to timely remove from the erate improperly a VMS unit installed water a number of FADs in the IATTC under § 300.26, or attempt to do any of Convention Area equal to the number the same, or fail to ensure that its op- of FADs set upon by the vessel during eration is not impeded or interfered the 15 days prior to the start of the se- with, as provided in § 300.26(e). lected closure period as required in (bb) Fail to make a VMS unit in- § 300.28(d)(2). stalled under § 300.26 or the position (qq) Deploy, or have onboard a vessel, data obtained from it available for in- a FAD in the IATTC Convention Area spection, as provided in § 300.26 (f) and that fails to comply with the FAD de- (g). sign requirements in § 300.28(e). (cc) To retain on board, transship, store, land, sell, or offer for sale any [61 FR 35550, July 5, 1996] part or whole carcass of a mobulid ray, EDITORIAL NOTE: For FEDERAL REGISTER ci- as described in § 300.27(i). tations affecting § 300.24, see the List of CFR (dd) Fail to handle or release a Sections Affected, which appears in the mobulid ray as required in § 300.27(j). Finding Aids section of the printed volume (ee) Fail to ensure characters of a and at www.govinfo.gov. unique code are marked indelibly on a FAD deployed or modified on or after § 300.25 Fisheries management. January 1, 2017, in accordance with (a) Longline tuna catch limits. (1) Fish- § 300.28(a)(2). ing seasons for all tuna species begin (ff) Fail to provide information to an on 0000 hours Coordinated Universal observer or record or report data on Time (UTC) January 1 and end either FADs as required in § 300.22(a)(3). on 2400 hours UTC December 31 or when (gg) Use a commercial purse seine or NMFS closes the fishery for a specific longline fishing vessel of the United species. States to retain on board, transship, (2) For the calendar years 2018, 2019, store, or land any part or whole carcass 2020, there is a limit of 750 metric tons of a silky shark (Carcharhinus of bigeye tuna that may be caught by falciformis) in contravention of longline gear in the Convention Area § 300.27(e). by U.S. commercial fishing vessels that (hh) Fail to follow observer safety re- are over 24 meters in overall length. quirements as specified under § 300.29. The catch limit within a calendar year (ii) Fail to handle or release a shark is subject to increase if the United as required in § 300.27(k). States receives a transfer of catch (jj) Use a shark line in contravention limit from another IATTC member or of § 300.27(l). cooperating non-member, per para- (kk) When deploying a FAD, activate graph (a)(5) of this section. the transmission equipment attached (3) NMFS will project a date the to a FAD in a location other than on a limit of bigeye tuna established under purse seine vessel at sea as required in paragraph (a)(2) of this section will be § 300.28(b). reached (i.e., a closure date) by moni- (ll) Fail to turn on the tracking toring longline landings, data sub- equipment for an Active FAD before mitted in logbooks, and other available deploying at sea as required in information. NMFS will publish a no- § 300.28(b). tice in the FEDERAL REGISTER at least (mm) Deploy a FAD in the IATTC 7 calendar days in advance of that pro- Convention Area that is not an Active jected closure date announcing that FAD. the limit has been reached. The FED- (nn) Have more Active FADs than ERAL REGISTER notice will specify that specified in § 300.28(c) in the IATTC the restrictions described in paragraph Convention Area at any one time. (a)(4) of this section will be in effect (oo) Deploy a FAD in the IATTC Con- through the end of the calendar year. vention Area during a period of 15 days (4) Once the closure date is an- prior to the start of the selected clo- nounced, pursuant to paragraph (a)(3)

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of this section the following restric- fishing. Specifically, the hooks, branch tions will apply during the period spec- or dropper lines, and floats used to ified in the announcement: buoy the mainline must be stowed and (i) A fishing vessel of the United not available for immediate use, and States over 24 meters in overall length any power-operated mainline hauler on may not be used to retain on board, deck must be covered in such a manner transship, or land bigeye tuna captured that it is not readily available for use. by longline gear in the Convention This provision does not apply to trips Area, except as follows: in which vessels have made a declara- (A) Any bigeye tuna already on board tion to NMFS, pursuant to § 665.803(a) a U.S. fishing vessel upon the effective of this title, that the trip type is shal- closure date may be retained on board, low-setting. transshipped, and/or landed, to the ex- (5) If the United States engages in a tent authorized by applicable laws and transfer of a bigeye tuna catch limit regulations, provided that the bigeye with another IATTC member or cooper- tuna is landed within 14 days after the ating non-member, NMFS will publish effective closure date. a notice in the FEDERAL REGISTER an- (B) The 14-day limit is waived in the nouncing the new catch limit that is case of a U.S. fishing vessel that has al- available to U.S. commercial fishing ready declared to NMFS, pursuant to vessels that are over 24 meters in over- § 665.803(a) of this title, that the cur- all length. All restrictions described in rent trip type is shallow-setting. How- paragraphs (a)(1) and (3) through (4) of ever, the number of bigeye tuna re- this section will continue to apply. tained on board, transshipped, or land- (b) Use of tender vessels. No person ed must not exceed the number on subject to these regulations may use a board the vessel upon the effective clo- tender vessel in the Convention Area. sure date, as recorded by the NMFS ob- (c) Transshipments at sea. No person server on board the vessel. subject to these regulations may trans- (ii) Bigeye tuna caught by a vessel of ship purse seine-caught tuna from one the United States over 24 meters in vessel to another vessel at sea within overall length and using longline gear the Convention Area. in the Convention Area may not be (d) [Reserved] transshipped to a fishing vessel unless (e) Purse seine closures—(1) 72-day clo- that fishing vessel is operated in com- sure. A commercial purse seine fishing pliance with a valid permit issued vessel of the United States that is of under § 660.707 or § 665.801 of this title. class size 4–6 (more than 182 metric (iii) A fishing vessel of the United tons carrying capacity) may not be States over 24 meters in overall length used to fish with purse seine gear in may not be used to fish in the Pacific the Convention Area for 72 days in each Ocean using longline gear both inside of the years 2018, 2019, and 2020 during and outside the Convention Area dur- one of the following two periods: ing the same fishing trip. The only ex- (i) From 0000 hours Coordinated Uni- ceptions are: a fishing trip during versal Time (UTC) July 29, to 2400 which the closure date was announced hours UTC October 8, or under paragraph (a)(3) of this section, (ii) From 0000 hours UTC November 9 and a trip for which a declaration has to 2400 hours UTC January 19 of the fol- been made to NMFS, pursuant to lowing year. § 665.803(a) of this title, that the cur- (2) Choice of closure period. A vessel rent trip is shallow-setting. owner, manager, or association rep- (iv) If a fishing vessel of the United resentative of a vessel that is subject States over 24 meters in overall length to the requirements of paragraph (e)(1) is used to fish in the Pacific Ocean of this section must provide written using longline gear outside the Conven- notification to the Regional Adminis- tion Area and the vessel enters the trator declaring to which one of the Convention Area at any time during an two closure periods identified in para- effective closure period on the same graph (e)(1) of this section his or her fishing trip, the longline gear on the vessel will adhere in that year. This fishing vessel must be stowed in a man- written notification must be submitted ner so as not to be readily available for by fax at (562) 980–4047 or email at

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RegionalAdministrator two closure periods described in para- [email protected] and must be re- graph (e)(1) of this section. ceived no later than July 1 prior to the (iii) If the request for an exemption first closure period within a calendar due to force majeure is accepted by the year. The written notification must in- IATTC and the vessel has already ob- clude the vessel name and registration served a closure period described in number, the closure dates that will be paragraph (e)(1) of this section in the adhered to by that vessel, and the ves- same year during which the force sel owner or managing owner’s name, majeure event occurred, the vessel signature, business address, and busi- must observe a closure period of 40 con- ness telephone number. secutive days the following year the (3) Default closure period. If written force majeure event occurred, in one of notification is not submitted per para- the two closure periods described in graph (e)(2) of this section for a vessel paragraph (e)(1) of this section. subject to the requirements under (iv) Any purse seine vessel, for which paragraph (e)(1) of this section, that a force majeure request is accepted by vessel must adhere to the second clo- the IATTC, must carry an observer sure period under paragraph (e)(1)(ii) of aboard authorized pursuant to the this section. International Agreement on the Inter- (4) Request for exemption due to force national Dolphin Conservation Pro- majeure. A request for exemption due to gram. force majeure must be made to the (5) 31-day area closure. A fishing ves- Sustainable Fisheries Division within sel of the United States of class size 4– 20 calendar days after the vessel has 6 (more than 182 metric tons carrying been unable to proceed to sea for 72 capacity) may not be used from 0000 days by fax at (562) 980–4047 or emailed hours on October 9 to 2400 hours on No- to RegionalAdministrator. vember 8 in 2018, 2019, and 2020 to fish [email protected]. The request must with purse seine gear within the area include the name and official number bounded at the east and west by 96° and of the vessel, vessel owner or man- 110° W longitude and bounded at the ager’s name and signature, and evi- north and south by 4° N and 3° S lati- dence to support the request, which tude. may include but is not limited to pho- (6) Requirement to stow gear. At all tographs, repair bills, certificates of times while a vessel is in a time/area departure from port, and in the case of closed period established under para- a marine casualty, a completed copy of graphs (e)(1) or (5) of this section, un- the U.S. Coast Guard Form CG–2692A less fishing under the exception under (See 46 CFR 4.05–10). paragraph (e)(4) of this section, the (i) If accepted by the Sustainable fishing gear of the vessel must be Fisheries Division, the request for ex- stowed in a manner as not to be readily emption due to force majeure will be available for fishing. In particular, the forwarded to the IATTC Director. If de- boom must be lowered as far as pos- clined by the Sustainable Fisheries Di- sible so that the vessel cannot be used vision, within 10 days of the date of for fishing, but so that the skiff is ac- that rejection, the applicant may give cessible for use in emergency situa- additional information or documenta- tions; the helicopter, if any, must be tion to the Regional Administrator tied down; and launches must be se- with a request that the initial decision cured. be reconsidered by fax at (562) 980–4047 (f) Restrictions on fishing in proximity or email to RegionalAdministrator. to data buoys. (1) A longline or purse [email protected]; the Regional Ad- seine fishing vessel of the United ministrator shall respond within 14 States may not be used to fish for HMS business days. within one nautical mile of an an- (ii) If the request for an exemption chored data buoy in the Convention due to force majeure is accepted by the Area. The one-nautical-mile distance IATTC, the vessel must observe a clo- shall be measured from the data buoy sure period of 40 consecutive days in to the nearest portion of the fishing the same year during which the force vessel or items associated with the majeure event occurred, in one of the fishing vessel, such as gear or

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watercraft deployed by the fishing ves- (5) A vessel operator, crew member, sel, to the data buoy. This prohibition or other persons on board a fishing ves- shall not apply if and when the fishing sel of the United States that is used to vessel is operated as part of a scientific fish for HMS must take all reasonable research program that has received measures to avoid fishing gear entan- specific authorization by the IATTC or glement or interaction with drifting is conducting work on behalf of the data buoys. IATTC. (g) Pacific bluefin tuna (Thunnus (2) A fishing vessel of the United orientalis) commercial catch limits in the States used to fish for HMS, or any eastern Pacific Ocean for 2019–2020. The fishing gear, equipment, or watercraft following is applicable to the U.S. com- deployed by such a fishing vessel, may mercial fishery for Pacific bluefin tuna not be used to interact with a data in the Convention Area in the years buoy while the fishing vessel is in the 2019 and 2020. Convention Area. Interact with a data (1) The 2019–2020 biennial limit is 630 buoy means to engage in conduct that metric tons. could impair the functioning of a data (2) For the calendar year 2019, all buoy through actions that include but commercial fishing vessels of the that are not limited to the following: United States combined may capture, encircling the buoy with fishing gear; retain, transship, or land no more than tying up to or attaching the vessel, or 425 metric tons. any fishing gear, part or portion of the (3) In 2020, NMFS will publish a notice in the FEDERAL REGISTER announc- fishing vessel, including equipment ing the 2020 catch limit. For the cal- such as watercraft, to a data buoy or endar year 2020, all commercial fishing its mooring; or cutting a data buoy an- vessels of the United States combined chor line. may capture, retain on board, trans- (3) A vessel operator, crew member, ship, or land no more than the 2020 an- or other persons on board a fishing ves- nual catch limit. The 2020 catch limit sel of the United States that is used to is the lesser of: The 2019–2020 biennial fish for HMS may not remove a data limit reduced by the amount caught by buoy or any parts thereof from the U.S. commercial vessels in 2019; or 425 water and place it on board the fishing metric tons. vessel or tow a data buoy when in the (4) In 2019 and 2020, a 15-metric ton Convention Area unless authorized to trip limit will be in effect until NMFS do so by the owner of the data buoy or anticipates that catch will be within 50 an authorized representative or agent metric tons of the catch limit, after of the owner. When practicable, ad- which a 2-metric ton trip limit will be vance written authorization must be in effect upon the effective date pro- available onboard a U.S. fishing vessel vided in actual notice, in accordance that has taken on board or tows a data with paragraph (g)(8) of this section. In buoy. In all other cases, a written doc- 2020, if the catch limit is 125 mt or less, ument (e.g., fax, email) verifying the a 2-metric ton trip limit will be in ef- authorization must be obtained by the fect for the entire calendar year. vessel owner or operator within 15 days (5) After NMFS determines that the of landing. catch limits under paragraphs (g)(2) (4) In the event that a fishing vessel and (3) of this section are expected to of the United States that is used to fish be reached, NMFS will close the fishery for HMS or any of its fishing gear, effective upon the date and time pro- equipment, or associated watercraft, vided in the actual notice, in accord- becomes entangled with a data buoy ance with paragraph (g)(9) of this sec- while the fishing vessel is in the Con- tion. Upon the effective date in the ac- vention Area, the owner and operator tual notice, targeting, retaining on of the fishing vessel must promptly re- board, transshipping, or landing Pacific move the entangled fishing vessel, fish- bluefin tuna in the Convention Area ing gear, equipment, or associated shall be prohibited, as described in watercraft with as little damage to the paragraph (g)(6) of this section. data buoy and its mooring and anchor (6) After NMFS determines that the lines as possible. catch limits under paragraph (g)(4) of

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this section are expected to be reached, inseason action is published in the a 2 mt trip limit will be in effect upon FEDERAL REGISTER at an earlier time. the date and time provided in the ac- (10) For a purse seine vessel to retain tual notice, in accordance with para- or land greater than 2 metric tons of graph (g)(9) of this section. Pacific Pacific bluefin tuna while the 15-met- bluefin tuna in excess of 2 mt already ric ton trip limit is in effect, the vessel on board a vessel on the effective date owner or operator must provide a pre- and time of the actual notice may be trip notification to NMFS 24 hours in landed within 48 hours of the effective advance of departing on the fishing date and time provided in the actual trip. The notification shall be made to notice, provided a pre-trip notification NMFS at [email protected], has been submitted to NMFS. and must include the owner or opera- (7) Beginning on the date provided in tor’s name, contact information, vessel the actual notice of the fishing closure name, port of departure, and intended announced under paragraph (g)(5) of date and time of departure. this section, a commercial fishing ves- (11) As of July 1, 2019, if landing Pa- sel of the United States may not be cific bluefin tuna into the State of used to target, retain on board, trans- California, fish landing receipts (i.e., E- ship, or land Pacific bluefin tuna cap- tickets) must be submitted within 24 tured in the Convention Area through hours to the California Department of the end of the calendar year, with the Fish and Wildlife in accordance with exception that any Pacific bluefin tuna the requirements of applicable State already on board a fishing vessel on the regulations. effective date of the notice may be re- [64 FR 44431, Aug. 16, 1999] tained on board, transshipped, and/or landed within 14 days after the effec- EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 300.25, see the List of CFR tive date published in the fishing clo- Sections Affected, which appears in the sure notice, to the extent authorized Finding Aids section of the printed volume by applicable laws and regulations. and at www.govinfo.gov. (8) If an inseason action taken under paragraphs (g)(4), (5), (6), or (7) of this § 300.26 Vessel monitoring system section is based on overestimate of ac- (VMS). tual catch, NMFS will reverse that ac- (a) Assistant Director (AD), NOAA Of- tion in the timeliest possible manner, fice of Law Enforcement, Pacific Islands provided NMFS finds that reversing Division (or designee) and VMS Helpdesk that action is consistent with the man- contact information and business hours. agement objectives for the affected (1) The contact information for the AD species. The fishery will reopen effec- for the purpose of this section: 1845 tive on the date provided in the actual Wasp Blvd., Building 176, Honolulu, HI notice in accordance with paragraph 96818; telephone: (808) 725–6100; fac- (g)(9) of this section. simile: 808–725–6199; email: (9) Inseason actions taken under [email protected]; business hours: Mon- paragraphs (g)(4), (5), (6), (7), and (8) of day through Friday, except Federal this section will be by actual notice holidays, 8 a.m. to 4:30 p.m., Hawaii from posting on the National Marine Standard Time. Fisheries Service website (https:// (2) The contact information for the www.fisheries.noaa.gov /west-coast/ NOAA Office of Law Enforcement’s commercial- fishing/pacific-bluefin- tuna- VMS Helpdesk is telephone: (888) 219– commercial-harvest- status) and a United 9228, ext. 2; email: States Coast Guard Notice to Mariners. [email protected]. The business The Notice to Mariners will be broad- hours of the VMS Helpdesk are Monday cast three times daily for four days. through Friday, except Federal holi- This action will also be published in days, 7 a.m. to 11 p.m., Eastern Time. the FEDERAL REGISTER as soon as prac- (b) Applicability. This section applies ticable. Inseason actions will be effec- to any U.S. commercial fishing vessel tive from the time specified in the ac- that is 24 meters or more in overall tual notice of the action (i.e., website length and engaging in fishing activi- posting and United States Coast Guard ties for tuna or tuna-like species in the Notice to Mariners), unless the Convention Area, and for which either

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of the following permits is required: in the Convention Area for which ei- Pacific highly migratory species per- ther a Pacific highly migratory species mit under § 660.707, or high seas fishing permit or a high seas fishing permit is permit under § 300.13 of this part. required, provided that the owner or (c) Provisions for Installation, Activa- operator: tion and Operation—(1) VMS Unit Instal- (i) Prior to shutting down the VMS lation. The vessel owner or operator unit, reports to the AD or the NOAA must obtain and have installed on the Office of Law Enforcement’s VMS fishing vessel, in accordance with in- Helpdesk via facsimile, email, or web- structions provided by the AD and the form the following information: The VMS unit manufacturer, a VMS unit intent to shut down the VMS unit; the that is type-approved by NOAA for vessel’s name; the vessel’s official fisheries in the IATTC Convention number; an estimate for when the ves- Area. The vessel owner or operator sel’s VMS may be turned back on; and shall arrange for a NOAA-approved mo- telephone, facsimile or email contact bile communications service provider information for the vessel owner or op- to receive and relay transmissions erator. In addition, the vessel owner or from the VMS unit to NOAA at a de- operator shall receive verbal or written fault reporting interval of at least once confirmation from the AD before shut- per hour. NOAA, the USCG, and other ting down the VMS unit after the end authorized entities are authorized to of the fishing season; and receive and relay transmissions from (ii) When turning the VMS unit back the VMS unit. The NOAA OLE VMS on, report to the AD or the NOAA Of- Helpdesk is available to provide in- fice of Law Enforcement’s VMS structions for VMS installation and a Helpdesk, via mail, facsimile or email, list of the current type-approved VMS the following information: That the units and mobile communication serv- VMS unit has been turned on; the ves- ice providers. sel’s name; the vessel’s official number; (2) VMS Unit Activation. If the VMS and telephone, facsimile or email con- unit has not yet been activated as de- tact information for the vessel owner scribed in this paragraph, or if the or operator; and VMS unit has been newly installed or reinstalled, or if the mobile commu- (iii) Prior to leaving port, receive nications service provider has changed verbal or written confirmation from since the previous activation, or if di- the AD that proper transmissions are rected by the AD, the vessel owner or being received from the VMS unit. operator must, prior to leaving port: (4) Failure of VMS unit. If the VMS (i) Turn on the VMS unit to make it unit has become inoperable or trans- operational; mission of automatic position reports (ii) Submit a written activation re- from the VMS unit has been inter- port to the AD, via mail, facsimile or rupted, or if notified by NOAA or the email, that includes the vessel’s name; USCG that automatic position reports the vessel’s official number; the VMS are not being received from the VMS unit manufacturer and identification unit or that an inspection of the VMS number; and telephone, facsimile or unit has revealed a problem with the email contact information for the ves- performance of the VMS unit, the vessel owner or operator; and sel owner or operator shall comply (iii) Receive verbal or written con- with the following requirements: firmation from the AD that the proper (i) If the vessel is at port: The vessel VMS unit transmissions are being re- owner or operator shall repair or received from the VMS unit. place the VMS unit and ensure it is op- (3) VMS Unit Operation. The vessel erable before the vessel leaves port. owner and operator shall continuously (ii) If the vessel is at sea: The vessel operate the VMS unit at all times, ex- owner, operator, or designee shall con- cept that the VMS unit may be shut tact the AD by telephone, facsimile, or down while the vessel is in port or oth- email at the earliest opportunity dur- erwise not at sea, or if, after the end of ing the AD’s business hours and iden- the fishing season, the vessel will no tify the caller and vessel. The vessel longer be engaging in fishing activities operator shall follow the instructions

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provided by the AD which could in- (e) Tampering. The vessel owner and clude, but are not limited to, ceasing operator must ensure that the VMS fishing, stowing fishing gear, returning unit is not tampered with, disabled, de- to port, and/or submitting periodic po- stroyed, damaged or maintained im- sition reports at specified intervals by properly, and that its operation is not other means; and repair or replace the impeded or interfered with. VMS unit and ensure it is operable be- (f) Inspection. The vessel owner and fore starting the next trip. operator must make the VMS unit, in- (5) Related VMS Requirements. Install- cluding its antenna, connectors and an- ing, carrying and operating a VMS unit tenna cable, available for inspection by in compliance with the requirements in authorized officers. (g) Access to data. The vessel owner part 300 of this title, part 660 of this and operator must make the vessel’s title, or part 665 of this title relating to position data obtained from the VMS the installation, carrying, and oper- unit or other means immediately and ation of VMS units shall be deemed to always available for inspection by satisfy the requirements of this para- NOAA personnel, USCG personnel, and graph (c), provided that the VMS unit authorized officers. is operated continuously and at all times while the vessel is at sea, unless [80 FR 60538, Oct. 7, 2015] the AD authorizes a VMS unit to be § 300.27 Incidental catch and tuna re- shut down as described in paragraph tention requirements. (c)(3) of this section, the VMS unit and mobile communications service pro- (a) Tuna retention requirements for viders are type-approved by NOAA for purse seine vessels. Bigeye, skipjack, fisheries in IATTC Convention Area, and yellowfin tuna caught in the Con- vention Area by a fishing vessel of the and the specific requirements of para- United States of class size 4–6 (more graph (c)(4) of this section are followed. than 182 metric tons carrying capacity) If the VMS unit is owned by NOAA, the using purse seine gear must be retained requirement under paragraph (c)(4) of on board and landed, except for fish this section to repair or replace the deemed unfit for human consumption VMS unit will be the responsibility of for reasons other than size. This re- NOAA, but the vessel owner and oper- quirement shall not apply to the last ator shall be responsible for ensuring set of a trip if the available well capac- that the VMS unit is operable before ity is insufficient to accommodate the leaving port or starting the next trip. entire catch. (d) Costs. The vessel owner and oper- (b) Release requirements for fish species ator shall be responsible for all costs on purse seine vessels. All purse seine associated with the purchase, installa- vessels must release, as soon as prac- tion and maintenance of the VMS unit ticable after being identified on board and for all charges levied by the mobile the vessel during the brailing oper- communications service provider as ation, all billfish, rays (not including necessary to ensure the transmission of mobulid rays, which are subject to automatic position reports to NOAA as paragraph (i) of this section), dorado required in paragraph (c) of this sec- (Coryphaena hippurus), and other fish tion. However, if NOAA is paying for species. This requirement does not the VMS-associated costs because the apply to tuna or tuna-like species, or VMS unit is carried and operated under to other fish retained for consumption a requirement of part 300 of this title, aboard the vessel. Sharks caught in the part 660 of this title, or part 665 of this IATTC Convention Area and that are title, the vessel owner and operator not retained for consumption aboard shall not be responsible for costs that the vessel must be released according those regulations specify are the re- to the requirements in paragraph (k) of sponsibility of NOAA. In addition, this section. Tuna caught in the IATTC NOAA is responsible for the cost of any Convention Area are subject to the re- temporary increase in the default retention requirements in paragraph (a) porting interval to support active en- of this section. forcement investigations of specific (c) Sea turtle handling and release. All vessels. purse seine vessels must apply special

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sea turtle handling and release require- sponsible government authority ments, as follows: present at the point of landing. In U.S. (1) Whenever a sea turtle is sighted in ports the responsible governmental au- the net, a speedboat shall be stationed thority is the NOAA Office of Law En- close to the point where the net is lift- forcement divisional office nearest to ed out of the water to assist in release the port, or other authorized personnel. of the sea turtle; If no governmental authorities are (2) If a sea turtle is entangled in the available, the whole silky shark sur- net, net roll shall stop as soon as the rendered must not be sold or bartered sea turtle comes out of the water and but must be donated for purposes of do- shall not resume until the sea turtle mestic human consumption consistent has been disentangled and released; with relevant laws and policies. The (3) If, in spite of the measures taken vessel owner or operator shall report under paragraphs (c)(1) and (c)(2) of these incidences to the IATTC Secre- this section, a sea turtle is acciden- tariat by recording them in the IATTC tally brought on board the vessel alive Regional Purse Seine Logbook, or an- and active, the vessel’s engine shall be other form identified by NMFS. disengaged and the sea turtle shall be (g) Whale shark restrictions for purse released as quickly as practicable; seine vessels. Owners, operators, and (4) If a sea turtle brought on board crew of fishing vessels of the United under paragraph (c)(3) of this section is States commercially fishing for tuna alive but comatose or inactive, the rein the Convention Area may not set or suscitation procedures described in attempt to set a purse seine on or § 223.206(d)(1)(i)(B) of this title shall be around a whale shark (Rhincodon typus) used before release of the turtle. if the animal is sighted prior to the (d) Oceanic whitetip shark restrictions. commencement of the set or the at- The crew, operator, or owner of a fish- tempted set. ing vessel of the United States used to (h) Whale shark release. The crew, op- fish for HMS in the Convention Area erator, and owner of a fishing vessel of shall be prohibited from retaining on the United States commercially fishing board, transshipping, landing, storing, for tuna in the Convention Area must selling, or offering for sale any part or release as soon as possible, any whale whole carcass of an oceanic whitetip shark that is encircled in a purse seine shark (Carcharhinus longimanus) and net, and must ensure that all reason- must release unharmed, to the extent able steps are taken to ensure its safe practicable, all oceanic whitetip sharks release. No whale shark may be towed when brought alongside the vessel. out of a purse seine net (e.g., using tow- (e) Silky shark restrictions for purse ing ropes). seine vessels. The crew, operator, and (i) Mobulid ray restrictions. The crew, owner of a commercial purse seine or operator, and owner of a U.S. commer- longline fishing vessel of the United cial fishing vessel is prohibited from States used to fish for tuna or tuna- retaining on board, transshipping, stor- like species is prohibited from retaining, landing, selling, or offering for ing on board, transshipping, storing, or sale any part or whole carcass of a landing any part or whole carcass of a mobulid ray that is caught in the silky shark (Carcharhinus falciformis) IATTC Convention Area, except as pro- that is caught in the IATTC Conven- vided in the following sentence. In the tion Area, except as provided in para- case of any mobulid ray caught in the graph (f) of this section. IATTC Convention Area on an observed (f) Exception for silky shark caught and purse seine vessel that is not seen dur- frozen on purse seine vessels. In the case ing fishing operations and is delivered of a purse seine vessel operating in the into the vessel hold, the mobulid ray IATTC Convention Area that catches a may be stored on board and landed, but silky shark that is not seen during the vessel owner or operator must show fishing operations and is delivered into the whole mobulid ray to the on-board the vessel hold, the silky shark may be observer at the point of landing for re- stored on board and landed, but the cording purposes, and then dispose of vessel owner or operator must sur- the mobulid ray at the direction of the render the whole silky shark to the re- responsible government authority. In

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U.S. ports the responsible govern- a shark is live when caught, the crew, mental authority is the NOAA Office of operator, or owner must follow release Law Enforcement divisional office procedures in the following two para- nearest to the port, or other authorized graphs. personnel. Mobulid rays that are (1) Sharks must be released out of caught and landed in this manner may the purse seine net by directly releas- not be sold or bartered, but may be doing the shark from the brailer into the nated for purposes of domestic human ocean. Sharks that cannot be released consumption consistent with relevant without compromising the safety of laws and policies. persons or the sharks before being (j) Mobulid ray handling and release. landed on deck must be returned to the The crew, operator, and owner of a U.S. water as soon as possible, either uti- commercial fishing vessel must lizing a ramp from the deck connecting promptly release unharmed, to the ex- to an opening on the side of the boat, tent practicable, any mobulid ray or through escape hatches. If ramps or (whether live or dead) caught in the escape hatches are not available, the IATTC Convention Area as soon as it is sharks must be lowered with a sling or seen in the net, on the hook, or on the cargo net, using a crane or similar deck, without compromising the safety equipment, if available. of any persons. If a mobulid ray is live (2) No shark may be gaffed or hooked, when caught, the crew, operator, and lifted by the head, tail, gill slits or owner of a U.S. commercial fishing ves- spiracles, or lifted by using bind wire sel must use the release procedures de- against or inserted through the body, scribed in the following two para- and no holes may be punched through graphs. the bodies of sharks (e.g., to pass a (1) No mobulid ray may be gaffed, no cable through for lifting the shark). mobulid ray may be lifted by the gill (l) Shark line prohibition for longline slits or spiracles or by using bind wire vessels. Any U.S. longline vessel used to against or inserted through the body, fish for tuna or swordfish is prohibited and no holes may be punched through from using any shark line in the the bodies of mobulid ray (e.g., to pass IATTC Convention Area. a cable through for lifting the mobulid [81 FR 50403, Aug. 1, 2016, as amended at 81 ray). FR 86970, Dec. 2, 2016; 82 FR 56178, Nov. 28, (2) Applicable to purse seine oper- 2017; 84 FR 70048, Dec. 20, 2019; 85 FR 29669, ations, large mobulid rays must be May 18, 2020] brailed out of the net by directly releasing the mobulid ray from the § 300.28 FAD restrictions. brailer into the ocean. Large mobulid (a) FAD identification requirements for rays that cannot be released without purse seine vessels. (1) For each FAD de- compromising the safety of persons or ployed or modified on or after January the mobulid ray before being landed on 1, 2017, in the IATTC Convention Area, deck, must be returned to the water as the vessel owner or operator must ei- soon as possible, either utilizing a ther: obtain a unique code from HMS ramp from the deck connecting to an Branch; or use an existing unique iden- opening on the side of the boat, or low- tifier associated with the FAD (e.g., the ered with a sling or net, using a crane manufacturer identification code for if available. The minimum size for the the attached buoy). sling or net must be at least 25 feet in (2) U.S. purse seine vessel owners and diameter. operators shall ensure the characters (k) Shark handling and release require- of the unique code or unique identifier ments for purse seine vessels. The crew, be marked indelibly at least five centi- operator, and owner of a U.S. commer- meters in height on the upper portion cial purse seine fishing vessel must of the attached radio or satellite buoy promptly release unharmed, to the ex- in a location that does not cover the tent practicable, any shark (whether solar cells used to power the equip- live or dead) caught in the IATTC Con- ment. For FADs without attached vention Area, as soon as it is seen in radio or satellite buoys, the characters the net or on the deck, without com- shall be on the uppermost or emergent promising the safety of any persons. If top portion of the FAD. The vessel

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owner or operator shall ensure the ly wrapped such that no netting hangs marking is visible at all times during below the FAD when deployed; and, daylight. In circumstances where the (2) Subsurface: Any netting used in on-board observer is unable to view the the subsurface structure of the FAD code, the captain or crew shall assist must be tightly tied into bundles the observer (e.g., by providing the (‘‘sausages’’), or have stretched mesh FAD identification code to the ob- size less than 7 centimeters in a panel server). that is weighted on the lower end with (b) Activating FADs for purse seine ves- at least enough weight to keep the net- sels. When deploying a FAD, a vessel ting taut in the water column. owner, operator, or crew shall turn on [83 FR 15510, Apr. 11, 2018, as amended at 83 the tracking equipment while the FAD FR 62734, Dec. 6, 2018] is onboard the purse seine vessel and before it is deployed in the water. § 300.29 Observers. (c) Restrictions on Active FADs for The following requirements apply to purse seine vessels. U.S. vessel owners all on-board fisheries observers re- and operators of purse-seine vessels quired under this subpart, which in- with the following well volume (m3) cludes observers on purse seine, must not have more than the following longline vessels, and transshipment number of Active FADs per vessel in carrier vessels, and while on a fishing the IATTC Convention Area at any one trip in the IATTC Convention Area. time: (a) Contact information. A full list of Well volume Active FAD U.S. longline and IATTC purse seine (m3) limit observer providers and U.S. Govern- ment contacts for situations described 1,200 or more 450 426–1,199 300 in paragraphs (b) through (d) of this 213–425 120 section is available at the following 0–212 70 website: https://www.fisheries.noaa.gov /west-coast/partners/emergency- contacts- (d) Restrictions on FAD deployments vessel-owners- operators-and-observers- and removals. (1) U.S. vessel owners, op- longline-and-purse. erators, and crew of purse seine vessels (b) Loss of life. In the event that an of class size 4–6 (more than 182 metric observer dies, is missing, or presumed tons carrying capacity) must not de- fallen overboard, the owner or operator ploy a FAD during a period of 15 days of the fishing vessel must immediately prior to the start of the selected clo- notify a U.S. Government contact and sure period described in § 300.25(e)(1). the observer provider. (2) During the 15 days prior to the (c) Serious illness or injury. The owner start of the closure period selected by or operator of a fishing vessel of the the vessel per § 300.25(e)(1), U.S. vessel United States shall immediately report owners, operators, and crew of purse serious illness or injury that threatens seine vessels of class size 6 (greater the life and/or long-term health or than 363 metric tons carrying capacity) safety of an observer to the observer must remove from the water a number provider and a U.S. Government con- of FADs equal to the number of FADs tact. In addition, the owner or operator set upon by the vessel during that of the fishing vessel must: same 15 day period. (1) Immediately cease fishing oper- (e) FAD design requirements to reduce ations; entanglements. All FADs onboard or de- (2) Take all reasonable actions to ployed by U.S. vessel owners, opera- care for the observer and provide any tors, or crew, must comply with the medical treatment available and pos- following design requirements: sible on board the vessel, and where ap- (1) Raft: If the FAD design includes a propriate seek external medical advice; raft (e.g., flat raft or rolls of material) (3) Where directed by the observer and if mesh netting is used as part of provider, if not already directed by the the structure, the mesh netting shall appropriate U.S. Government contact, have a mesh size less than 7 centi- facilitate the disembarkation and meters and the mesh net must be tight- transport of the observer to a medical

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facility equipped to provide the re- Subpart D—South Pacific Tuna quired care, as soon as practicable; and Fisheries (4) Cooperate fully in any official investigations into the cause of the ill- AUTHORITY: 16 U.S.C. 973–973r. ness or injury. (d) Assault, intimidation, threat, or har- § 300.30 Purpose and scope. assment. For reporting violations in the This subpart implements the South event that an observer on a fishing ves- Pacific Tuna Act of 1988 (Act) and the sel of the United States has been as- Treaty on Fisheries Between the Gov- saulted, intimidated, threatened, or ernments of Certain Pacific Island harassed, the owner or operator of the States and the Government of the fishing vessel shall immediately notify United States of America (Treaty) and the observer provider and the NOAA applies to persons and vessels subject Office of Law Enforcement West Coast to the jurisdiction of the United Division Duty Officer line at (206) 526– States. 4851 of the situation and the status and location of the observer. In addition, § 300.31 Definitions. the owner or operator of the fishing In addition to the terms defined in vessel must: § 300.2, in the Act, and in the Treaty, (1) Immediately take action to pre- and unless the context requires other- serve the safety of the observer and wise, the terms used in this subpart mitigate and resolve the situation on have the following meanings. If a term board; is defined differently in § 300.2, the Act, (2) If the observer or the observer or the Treaty, the definition in this provider indicate that they wish for section shall apply. the observer to be removed from the Administrator means the individual or vessel, facilitate the safe disembarka- organization designated by the Pacific tion of the observer in a manner and Island Parties to act on their behalf place, as agreed by the observer pro- under the Treaty and notified to the vider and a U.S. Government contact, United States. that facilitates access to any needed Applicable national law means any of medical treatment; and the laws of Pacific Island Parties in the following table and any regulations or (3) Cooperate fully in any official in- other instruments having the force of vestigations into the incident. law implemented pursuant to these [85 FR 29669, May 18, 2020] laws:

Pacific Island Party Laws

AUSTRALIA Antarctic Marine Living Resources Conservation Act, 1981. Fisheries Management Act, 1991. Fisheries Administration Act, 1991. Statutory Fishing Rights Charge Act, 1991. Fisheries Legislation (Consequential Provisions) Act, 1991. Foreign Fishing Licences Levy Act, 1991. Fishing Levy Act, 1991. Fisheries Agreements (Payments) Act, 1991. Torres Strait Fisheries Act, 1984. Whale Protection Act, 1980. COOK ISLANDS Exclusive Economic Zone (Foreign Fishing Craft) Regulations, 1979. Territorial Sea and Exclusive Economic Zone Act, 1977. Marine Resources Act, 1989. FEDERATED STATES OF MICRO- Titles 18 and 24 of the Code of the Federated States of Micronesia, as amended by NESIA Public Law Nos. 2–28, 2–31, 3–9, 3–10, 3–34, and 3–80. FIJI Fisheries Act (Cap. 158). Fisheries Regulations (Cap. 158). Marine Spaces Act (Cap. 158A). Marine Spaces (Foreign Fishing Vessels) Regulations, 1979. KIRIBATI Fisheries Ordinance, 1979. Fisheries (Amendment) Act, 1984. Marine Zones (Declaration) Act, 1983. Fisheries (Pacific Island States’ Treaty with the United States) Act 1988. MARSHALL ISLANDS Title 33, Marine Resources Act, as amended by P.L. 1989–56, P.L. 1991–43, and P.L. 1992–25 of the Marshall Islands Revised Code.

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Pacific Island Party Laws

NAURU Interpretation Act, 1971. Interpretation Act (Amendment) Act No. 1 1975. Interpretation Act (Amendment) Act No. 2 1975. Marine Resources Act, 1978. NEW ZEALAND Antarctic Marine Living Resources Act, 1981. Continental Shelf Act, 1964. Conservation Act, 1987. Driftnet Prohibition Act, 1991. Exclusive Economic Zone (Foreign Fishing Craft) Regulations, 1978. Fishing Industry Board Act, 1963. Fisheries Act, 1983. Marine Mammals Protection Act, 1978. Marine Reserves Act, 1971. Marine Pollution Act, 1974. Meat Act, 1964. Territorial Sea and Exclusive Economic Zone Act, 1977. Tokelau (Territorial Sea and Exclusive Economic Zone) Act, 1977. Submarine Cables and Pipelines Protection Act, 1966. Sugar Loaf Islands Marine Protected Area Act, 1991. Wildlife Act, 1953. NIUE Niue Fish Protection Ordinance 1965. Sunday Fishing Prohibition Act 1980. Territorial Sea and Exclusive Economic Zone Act 1978. PALAU Palau National Code, Title 27. PAPUA NEW GUINEA Fisheries Act (Cap 214). Fisheries Regulations (Cap 214). Fisheries (Torres Strait Protected Zone) Act, 1984. National Seas Act (Cap 361). Tuna Resources Management Act (Cap 224). Whaling Act (Cap 225). SOLOMON ISLANDS Delimitation of Marine Waters Act, 1978. Fisheries Act, 1972. Fisheries Limits Act, 1977. Fisheries Regulations, 1972. Fisheries (Foreign Fishing Vessels) Regulations, 1981. Fisheries (United States of America) (Treaty) Act 1988. TONGA Fisheries Act, 1989. TUVALU Fisheries Act (Cap 45). Fisheries (Foreign Fishing Vessel) Regulations, 1982. Marine Zones (Declaration) Act, 1983. Foreign Fishing Vessels Licensing (US Treaty) Order 1987. VANUATU Fisheries Act 1982 (Cap 158). Fisheries Regulations, 1983. Maritime Zones Act 1981 (Cap 138). SAMOA Exclusive Economic Zone Act, 1977. Territorial Sea Act, 1971. Fisheries Act, 1988.

Authorized inspector means any indi- agreement with the Secretary under vidual authorized by a Pacific Island section 10(a) of the Act. Party or the Secretary to conduct in- Authorized party officer means any of- spections, to remove samples of fish ficer authorized by a Pacific Island and to gather any other information Party to enforce the provisions of the relating to fisheries in the Licensing Treaty. Area. Closed area means any of the areas in Authorized officer means any officer the following table, as depicted on who is authorized by the Secretary, or charts provided by the Regional Ad- the Secretary of Transportation, or the ministrator and as further described in head of any Federal or state agency additional information that may be that has entered into an enforcement provided by the Regional Adminis- trator:

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Pacific Island Party Area

AUSTRALIA All waters within the seaward boundary of the Australian Fishing Zone (AFZ) west of a line connecting the point of intersection of the outer limit of the AFZ by the parallel of latitude 25° 30′ South with the point of intersection of the meridian of longitude 151° East by the outer limit of the AFZ and all waters south of the parallel of latitude 25° 30′ South. COOK ISLANDS Territorial Sea. FEDERATED STATES OF MICRO- Three nautical mile territorial sea and nine nautical mile exclusive fishery zone and on all NESIA named banks and reefs as depicted on the following charts: DMAHTC NO 81019 (2nd. ed., Mar. 1945; revised 7/17/72; corrected through NM 3/78 of 21 June 1978). DMAHTC NO 81023 (3rd. ed., 7 Aug. 1976). DMAHTC NO 81002 (4th. ed., 26 Jan. 1980; corrected through NM 4/80). FIJI Internal waters, archipelagic waters and territorial seas of Fiji and Rotuma and its De- pendencies. KIRIBATI Within archipelagic waters as established in accordance with Marine Zones (Declaration) Act 1983; within 12 nautical miles drawn from the baselines from which the territorial seas is measured; and within 2 nautical miles of any anchored fish aggregating device within the Kiribati exclusive economic zone for which notification of its location shall be given by geographical coordinates. MARSHALL ISLANDS 12 nautical mile territorial sea and area within two nautical miles of any anchored fish aggregating device within the Marshall Islands exclusive economic zone for which notification of its location shall be given by geographical coordinates. NAURU The territorial waters as defined by Nauru Interpretation Act, 1971, Section 2. NEW ZEALAND Territorial waters; waters within 6 nautical miles of outer boundary of territorial waters; all waters to west of New Zealand main islands and south of 39° South latitude; all waters to east of New Zealand main islands south of 40° South latitude; and in respect of To- kelau: areas within 12 nautical miles of all island and reef baselines; twelve and one half nautical miles either side of a line joining Atafu and Nukunonu and Faka’ofo; and coordinates as follows: Atafu: 8°35′10″ S, 172°29′30″ W Nukunonu: 9°06′25″ S, 171°52′10″ W 9°11′30″ S, 171°47′00″ W Faka’ofo: 9°22′30″ S, 171°16′30″ W NIUE Territorial sea and within 3 nautical miles of Beveridge Reef, Antiope Reef and Haran Reef as depicted by appropriate symbols on NZ 225F (chart showing the territorial sea and exclusive economic zone of Niue pursuant to the Niue Territorial Sea and Exclu- sive Economic Zone Act of 1978). PALAU Within 12 nautical miles of all island baselines in the Palau Islands; and the area: commencing at the north-easternmost intersection of the outer limit of the 12 nautical mile territorial sea of Palau by the arc of a circle having a radius of 50 nautical miles and its center at Latitude 07°16′34″ North, longitude 134°28′25″ East, being at about the center of the reef entrance to Malakal Pass; running thence generally south-easterly, southerly, south-westerly, westerly, north-westerly, northerly and north-easterly along that arc to its intersection by the outer limit of the 12 nautical mile territorial sea; and thence generally northerly, north-easterly, easterly, south-easterly and southerly along that outer limit to the point of commencement. Where for the purpose of these specifications it is necessary to determine the position on the surface of the Earth of a point, line or area, it shall be determined by reference to the World Geodetic System 1984; that is to say, by reference to a spheroid having its center at the center of the Earth and a major (equatorial) radius of 6,378,137 meters and a flattening of 1/298.2572. PAPUA NEW GUINEA All territorial seas, archipelagic and internal waters. SOLOMON ISLANDS All internal waters, territorial seas and archipelagic waters; and such additional waters around the main group archipelago, as defined under the Delimitation of Marine Wa- ters Act 1978, not exceeding sixty nautical miles. TONGA All waters with depths of not more than 1,000 meters, within the area bounded by the fif- teenth and twenty third and one half degrees of south latitudes and the one hundred and seventy third and the one hundred and seventy seventh degrees of west lon- gitudes; also within a radius of twelve nautical miles from the islands of Teleki Tonga and Teleki Tokelau. TUVALU Territorial sea and waters within two nautical miles of all named banks, that is Macaw, Kosciusko, Rose, Bayonnaise and Hera, in Tuvalu exclusive economic zone, as depicted on the chart entitled ‘‘Tuvalu Fishery Limits’’ prepared by the United Kingdom Hydrographic Department, Taunton, January 11, 1981. VANUATU Archipelagic waters and the territorial sea, and internal waters. SAMOA Territorial sea; reefs, banks and sea-mounts and within 2 nautical miles of any anchored fish aggregating device within the Samoa exclusive economic zone for which notification of its location shall be given by geographical coordinates.

FFA Vessel Register means the reg- the FFA, comprising those vessels istry of fishing vessels maintained by

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which are in good standing and li- 176, Honolulu, HI 96818, facsimile: 808– censed to fish in the waters of FFA 725–5215, or a designee. member countries, including those ves- Transship means to unload any or all sels licensed under § 300.32. of the fish on board a licensed vessel ei- Fishing means searching for, catch- ther ashore or onto another vessel. ing, taking, or harvesting fish; at- Treaty Area means all waters north of tempting to search for, catch, take, or 60° S. lat. and east of 90° E. long., sub- harvest fish; engaging in any other ac- ject to the fisheries jurisdiction of Pa- tivity that can reasonably be expected cific Island Parties, and all other wa- to result in the locating, catching, tak- ters within rhumb lines connecting the ing, or harvesting of fish; placing, following points, except for waters sub- searching for, or recovering fish aggre- ject to the jurisdiction in accordance gating devices or associated electronic with international law of a State which equipment such as radio beacons; any is not a party to the Treaty: operations at sea directly in support of, or in preparation for, any activity de- Point Latitude Longitude scribed in this paragraph; or aircraft A 2°35′39″ S 141°00′00″ E use, relating to the activities described B 1°01′35″ N 140°48′35″ E C 1°01′35″ N 129°30′00″ E in this definition, except for flights in D 10°00′00″ N 129°30′00″ E emergencies involving the health or E 14°00′00″ N 140°00′00″ E safety of crew members or the safety of F 14°00′00″ N 142°00′00″ E G 12°30′00″ N 142°00′00″ E a vessel. H 12°30′00″ N 158°00′00″ E Fishing arrangement means an ar- I 15°00′00″ N 158°00′00″ E rangement between a Pacific Island J 15°00′00″ N 165°00′00″ E K 18°00′00″ N 165°00′00″ E Party and the owner of a U.S. fishing L 18°00′00″ N 174°00′00″ E vessel that complies with section 6(b) M 12°00′00″ N 174°00′00″ E of the Act. N 12°00′00″ N 176°00′00″ E O 5°00′00″ N 176°00′00″ E Fishing vessel or vessel means any P 1°00′00″ N 180°00′00″ boat, ship, or other craft that is used Q 1°00′00″ N 164°00′00″ W for, equipped to be used for, or of a R 8°00′00″ N 164°00′00″ W ° ′ ″ ° ′ ″ type normally used for commercial S 8 00 00 N 158 00 00 W T 0°00′00″ 150°00′00″ W fishing, and that is documented under U 6°00′00″ S 150°00′00″ W the laws of the United States. V 6°00′00″ S 146°00′00″ W ° ′ ″ ° ′ ″ Licensing Area means all waters in W 12 00 00 S 146 00 00 W X 26°00′00″ S 157°00′00″ W the Treaty Area except for: Y 26°00′00″ S 174°00′00″ W (1) Those waters subject to the juris- Z 40°00′00″ S 174°00′00″ W diction of the United States in accord- AA 40°00′00″ S 171°00′00″ W AB 46°00′00″ S 171°00′00″ W ance with international law. AC 55°00′00″ S 180°00′00″ (2) Those waters within closed areas. AD 59°00′00″ S 160°00′00″ E AE 59°00′00″ S 152°00′00″ E and north (3) Those waters within limited areas along the 152 degrees closed to fishing. of East longitude until Licensing period means the period of intersecting the Aus- validity of licenses issued in accord- tralian 200-nautical- mile limit. ance with the Treaty. Operator means any person who is in UTC means Universal Coordinated charge of, directs or controls a vessel, Time. including the owner, charterer and Vessel Monitoring System Unit or VMS master. unit, sometimes known as a ‘‘mobile Pacific Island Party means a Pacific transmitting unit,’’ means Adminis- island nation that is a party to the trator-approved and NMFS-approved Treaty. VMS unit hardware and software that Pacific Islands Forum Fisheries Agency is installed on a vessel pursuant to or FFA means the organization estab- § 300.45. The VMS units are a compo- lished by the 1979 South Pacific Forum nent of the regional vessel monitoring Fisheries Agency Convention. system administered by the FFA, as Regional Administrator means the Re- well as of the vessel monitoring system gional Administrator, Pacific Islands administered by NMFS, and as such are Region, NMFS, 1845 Wasp Blvd., Bldg. used to transmit information between

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the vessel and the Administrator and istrator. The Regional Administrator’s NMFS and/or other reporting points approval is indicated by the signature designated by NMFS. of the Regional Administrator on the [61 FR 35550, July 5, 1996, as amended at 72 part of the application form labeled FR 6149, Feb. 9, 2007; 75 FR 74643, Dec. 1, 2010; ‘‘Schedule 1.’’ Upon approval by the 79 FR 64110, Oct. 28, 2014] Regional Administrator of a license application, the complete application will § 300.32 Vessel licenses. be forwarded to the Administrator for (a) Each vessel fishing in the Licens- consideration. Except as provided in ing Area must have a license issued by paragraph (n) of this section, prior to the Administrator for the licensing pe- approving license applications for a riod being fished, unless exempted by given licensing period, the Regional § 300.39. Each licensing period begins on Administrator will issue pre-approvals June 15 and ends on June 14 of the fol- of license applications that serve the lowing year. purpose of temporarily reserving ap- (b) Upon receipt, the license or a provals up until the time complete ap- copy or facsimile thereof must be car- plications are due to be received by the ried on board the vessel when in the Li- Regional Administrator. censing Area or Closed Areas, and must be produced at the request of author- (e) The Regional Administrator, in ized officers, authorized party officers, his or her sole discretion, may approve or authorized inspectors. A vessel may fewer license applications than there be used to fish in the Licensing Area if are licenses available for any given li- the license has been issued but not yet censing period or at any given time. received, provided that the license (f) A pre-approval or approval issued number is available on board. by the Regional Administrator pursu- (c) The total number of licenses that ant to this section: may be issued and valid at any point in (1) Shall not confer any right of com- time is 45, five of which shall be re- pensation to the recipient of such preserved for fishing vessels of the United approval or approval; States engaged in joint venture ar- (2) Shall not create, or be construed rangements. to create, any right, title, or interest (1) For the purpose of this section, in or to a license or any fish; and the licenses reserved for vessels en- (3) Shall be considered a grant of per- gaged in joint venture arrangements mission to the recipient of the pre-ap- are referred to as ‘‘joint venture li- proval or approval to proceed with the censes,’’ and the remaining licenses are process of seeking a license from the referred to as ‘‘general licenses.’’ Administrator. (2) A joint venture arrangement is (g) A pre-approval or approval issued one in which the subject vessel and its operators are engaged in fishing-re- by the Regional Administrator pursu- lated activities designed to maximize ant to this section is subject to being the benefits generated for the Pacific rescinded at any time if the Regional Island Parties from the operations of Administrator determines that an ad- fishing vessels licensed pursuant to the ministrative error has been made in its Treaty, as determined by the Adminis- granting, false information has been trator. Such activities can include the provided by the applicant, cir- use of canning, transshipment, vessel cumstances have changed such that the slipping and repair facilities located in information provided by the applicant the Pacific Island Parties; the purchase is no longer accurate, true or valid, or of equipment and supplies, including if the applicant or vessel no longer fuel supplies, from suppliers located in meets the requirements for licensing the Pacific Island Parties; and the em- under this subpart or under the Act or ployment of nationals of the Pacific Is- other applicable law. NMFS will notify land Parties on board such vessels. the applicant of its rescission of a pre- (d) Licenses are issued by the Admin- approval or approval within 14 days of istrator. The Administrator will issue the rescission. In the event that the licenses only for applications that have Regional Administrator rescinds an ap- been approved by the Regional Admin- proval after the license has been

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issued, NMFS will notify the Adminis- (A) The licensing period for which trator of such, and request that the Ad- the license is being sought. ministrator immediately revoke the li- (B) The current name, IRCS, and an- cense. nual USCG Certificate of Documenta- (h) Application process for general li- tion number of the vessel. censes. (1) A vessel operator who satis- (ii) For all other expressions of inter- fies the requirements for licensing est that do not meet the criteria in under the Act and under this subpart paragraph (h)(5)(i) of this section, the may apply for a general license. expression of interest shall include: (2) In order for a general license to be (A) The licensing period for which issued for a vessel, an applicant must the license is being sought. submit a complete application to, and (B) The full name and address of each obtain an application approval from, person who is, or who is anticipated to the Regional Administrator. be, an operator of the vessel for which (3) Except for the 2011–2012 licensing a license is sought, and for each such period, prior to submitting a complete person, a statement of whether the per- application, an applicant may request son is, or is anticipated to be, owner, pre-approval of an application by the charterer, and/or master of the vessel. Regional Administrator by submitting an expression of interest. A pre-ap- (C) A statement of whether or not proval of an application establishes the vessel to be licensed is known, and that the applicant is eligible to be con- if it is known, the current name, IRCS, sidered for one of the available licenses and annual USCG Certificate of Docu- following timely submission of a com- mentation number, if any, of the ves- plete application. Although submission sel. of an expression of interest is entirely (D) A copy of the vessel’s current voluntary, applications that have not USCG Certificate of Documentation. If been pre-approved might not be eligible the vessel has not been issued such a for approval if the number of applica- document, then a statement of whether tions exceeds the number of available application has been or will be made licenses for a given licensing period. A for a USCG Certificate of Documenta- pre-approval will be deemed to be void tion, including identification of all en- if the applicant fails to submit a com- dorsements sought in such application. plete application by the date estab- (E) If the vessel is known, a list of lished in paragraph (h)(6) of this sec- the licensing periods, if any, during tion. which a license for the vessel was (4) Except as provided in paragraph issued under this section. (n) of this section, in order to obtain a (F) If the vessel is known, a state- pre-approval for a given licensing pe- ment of the total amount, in metric riod, either an expression of interest or tons, of any tuna species landed or a complete application must be sub- transshipped from the vessel at United mitted to and received by the Regional States ports, including ports located in Administrator no later than June 1st of any of the States, for each of the cal- the year preceding the year in which endar years 1988 through the current the licensing period begins. year. (5) An expression of interest must in- (6) A complete application for a given clude the information listed below, licensing period may be submitted to which may be submitted by electronic the Regional Administrator at any or hard-copy correspondence following time up to May 15th within the licens- instructions provided by the Regional ing period, but in order to be consid- Administrator. ered for approval in the event that (i) If the expression of interest is for more applications are received by the a vessel for which, as of the June 1st Regional Administrator than there are due date for submitting such expres- licenses available, a complete applica- sion of interest, NMFS has issued an tion must be received by the Regional application approval for the licensing Administrator as follows: period that starts that year (i.e., a re- (i) No later than February 5th of the newal of the license is being sought), year in which the licensing period be- the expression of interest shall include: gins; or

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(ii) If a pre-approval of the applica- (viii) A copy of the VMS unit instal- tion was issued in accordance with lation certificate, issued by the Admin- paragraphs (k)(8) or (k)(9) of this sec- istrator-authorized person who in- tion, not later than the date specified stalled the VMS unit, for the VMS unit by NMFS in the notification of such installed on the vessel in accordance pre-approval (which will be calculated with § 300.45. by NMFS to be no later than 194 days (ix) An FFA Vessel Register applica- from the date of mailing of the notifi- tion form that includes all the applica- cation of the pre-approval). ble information specified in the form. (7) License application forms, which (x) In the case of an application for a include the ‘‘Schedule 1’’ form and the vessel that does not meet the criteria FFA Vessel Register application form, in paragraph (h)(5)(i) of this section, are available from the Regional Ad- any information under paragraph ministrator. The complete application (h)(5)(ii) of this section that has not al- must be received by the Regional Ad- ready been provided or that has ministrator as specified in paragraph changed since it was previously sub- (h)(6) of this section. An application mitted. shall not be complete, and shall not be (i) Application process for joint venture subject to processing, unless it con- licenses. (1) A vessel operator who satis- tains all of the information specified fies the requirements for licensing on the ‘‘Schedule 1’’ form and all the under the Act and under this subpart items listed in paragraphs (h)(7)(i) may apply for a joint venture license. through (h)(7)(x) of this section, as follows: (2) The applicant, in coordination (i) The licensing period for which the with one or more Pacific Island Par- license is requested. ties, shall contact the Administrator (ii) The name of an agent, located in to determine the specific information Port Moresby, Papua New Guinea, who, and documents that are required by the on behalf of the license holder, will re- Administrator in order to obtain an ceive and respond to any legal process initial approval from the Adminis- issued in accordance with the Treaty. trator for a joint venture license. The (iii) Documentation from an insur- applicant shall submit such required ance company showing that the vessel information and documents directly to will be fully insured for the licensing the Administrator. Once an initial ap- period against all risks and liabilities proval is obtained from the Adminis- normally covered by maritime liability trator, the applicant shall submit a insurance. complete application package, as de- (iv) If the owner or charterer is the scribed in paragraph (h)(7) of this sec- subject of proceedings under the bank- tion, to the Regional Administrator, ruptcy laws of the United States, a along with dated documentation of the statement that the owner or charterer Administrator’s initial approval, and a will be financially able to fulfill any letter or other documentation from the and all responsibilities under the Trea- relevant national authority or authority, Act, and regulations, including the ties of the Pacific Island Party or Par- payment of any penalties or fines. ties identifying the joint venture part- (v) A copy of the vessel’s current an- ner or partners and indicating the Par- nual USCG Certificate of Documenta- ty’s or Parties’ approval of the joint tion. venture arrangement and its or their (vi) Electronic versions of full color concurrence that a joint venture li- photographs of the vessel in its current cense may be issued for the vessel. form and appearance, including a bow- (j) Appeals—(1) Eligibility. Any appli- to-stern side-view photograph of the cant who is denied a pre-approval or an vessel that clearly and legibly shows approval under this section may appeal the vessel markings, and a photograph the denial. The appeal must be made in of every area of the vessel that is writing and must clearly state the marked with the IRCS assigned to the basis for the appeal and the nature of vessel. the relief that is requested. The appeal (vii) A schematic stowage/well plan must be received by the Regional Ad- for the vessel. ministrator not later than 14 days after

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the date that the notice of denial is (2) NMFS will approve no more appli- postmarked. cations for a given licensing period (2) Appeal review. Upon receipt of an than there are licenses available for appeal, the Regional Administrator that licensing period. will appoint a designee who will review (3) NMFS will not approve a license the basis of the appeal and issue an ini- application if it determines that: tial written decision. The written deci- (i) The application is not in accord sion will be mailed to the applicant with the Treaty, Act, or regulations; within 30 days of receipt of the appeal. (ii) The owner or charterer is the sub- If the appellant does not request a reject of proceedings under the bank- view within 10 days of mailing of the ruptcy laws of the United States, and initial decision, the initial decision is reasonable financial assurances have the final administrative action of the not been provided to the Secretary Department of Commerce. If, within 10 that the owner or charterer will be fi- days of mailing of the initial decision, nancially able to fulfill any and all re- the Regional Administrator receives sponsibilities under the Treaty, Act, from the appellant a written request and regulations, including the payment for review of the initial decision, the of any penalties or fines; Assistant Administrator or a designee (iii) The owner or charterer has not will review the basis of the appeal and established to the satisfaction of the issue a final written decision. The final Secretary that the vessel will be fully decision will be made within 30 days of insured for the licensing period against receipt of the request for review of the all risks and liabilities normally cov- initial decision. The decision of the As- ered by maritime liability insurance; sistant Administrator or designee con- or stitutes the final administrative action (iv) The owner or charterer has not of the Department of Commerce. paid any final penalty assessed by the (k) Procedures used by the Secretary to Secretary in accordance with the Act. review and process applications for gen- (4) Except as provided in paragraph eral licenses. The procedures in this (n) of this section, no later than July paragraph apply to the process used by 16th of each year, NMFS will pre-ap- NMFS, on behalf of the Secretary and prove applications from among the ex- in consultation with the Secretary of pressions of interest and complete ap- State, to review expressions of interest plications that were received by June and complete applications, and to ap- 1st of the current year for the licensing prove applications. For the purpose of period that starts the following year as this section, NMFS’ approval of an ap- provided in this paragraph. If the num- plication means the signing by the Re- ber of expressions of interest and com- gional Administrator of the ‘‘Schedule plete applications does not exceed the 1’’ part of the application form, indi- number of licenses available, all appli- cating that the application is complete cations that meet the requirements of and that it meets the requirements of paragraphs (h)(4) and (h)(5) of this sec- the Act and of this subpart for for- tion and that satisfy the relevant re- warding to the Administrator. For the quirements for licensing under the Act purpose of this section, NMFS’ pre-ap- and this subpart will be pre-approved. proval of an application means that the If the number of expressions of interest Regional Administrator has initially and complete applications exceeds the determined that the applicant is eligi- number of licenses available, those ble for a general license, but that the that meet the requirements of para- application has not yet been approved graphs (h)(4) and (h)(5) of this section for forwarding to the Administrator. and that satisfy the relevant require- (1) NMFS will pre-approve no more ments for licensing under the Act and applications for a given licensing pe- this subpart will be prioritized for pre- riod than there are licenses available approval as follows: for that licensing period. A pre-ap- (i) First priority will be given to ex- proval will be deemed to be void if the pressions of interest and complete ap- applicant fails to submit a complete plications for vessels for which, as of application by the date established in June 1st of that year, application ap- paragraph (h)(6) of this section. provals have been issued by NMFS for

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the licensing period that starts that (5) Except as provided in paragraph year (i.e., anticipated license renewal (n) of this section, no later than July applications), provided that such ves- 26th of each year, NMFS will send noti- sels continue to satisfy the require- fications by mail to all applicants that ments for licensing under the Act and submitted expressions of interest or this subpart, and provided such vessels complete applications by June 1st of have no unsatisfied civil penalties or that year, indicating whether their ap- fines assessed by the Secretary under plications (for the licensing period that the Act that have become final. starts the following year) have been (ii) Second priority will be given to pre-approved. expressions of interest and complete (6) No later than March 7th of each applications scored using the following year, NMFS will approve applications system, in descending order of the sum (for the licensing period that starts of the points assigned: that year) that satisfy all of the fol- (A) 15 points will be assigned for a lowing conditions: vessel that has been issued, or will be (i) The application was pre-approved; issued by the date complete applica- (ii) The information associated with tions are due to be received by the Re- the application has not changed since gional Administrator under paragraph the point of pre-approval in a way such (h)(6) of this section, a valid USCG Cer- that pre-approval would not have been tificate of Documentation with a fish- made using the updated information; ery endorsement. (iii) The complete application was re- (B) 1 point will be assigned for each ceived by February 5th of the same licensing period, starting with the 1988– year; and 1989 licensing period, in which a license (iv) The applicant satisfies the re- had been issued for the vessel pursuant quirements for licensing under the Act to the Act, for a total of no more than and this subpart. 10 points. (7) No later than March 17th of each (C) 1 point will be assigned for each year, NMFS will notify all applicants calendar year in which at least 3,000 (for the licensing period that starts metric tons of fish were landed or that year) who submitted complete ap- transshipped from the vessel in United plications by February 5th of that States ports, including ports located in year, whether their applications have any of the States, as determined by the been approved under paragraph (k)(6) of Regional Administrator. The applica- this section, and in cases where they ble period shall run from 1988 through have not, whether their applications the last calendar year prior to the year are being considered for approval under in which the applied-for licensing pe- paragraph (k)(8) of this section. riod starts, and the total number of (8) In the event that additional li- points assigned shall be no more than censes for a given licensing period are 5. available after issuing the approvals (D) In the event that two or more under paragraph (k)(6) of this section, vessels receive the same sum number of NMFS will, after final administrative points under paragraphs (k)(4)(ii)(A) action by the Department of Commerce through (k)(4)(ii)(C) of this section, pri- on any appeals made under paragraph ority will be given to the vessel from (j) of this section, do the following: which the greatest amount of fish, by (i) If the number of outstanding ex- weight, was landed or transshipped in pressions of interest (i.e., expressions of United States ports, including ports lo- interest that have not been pre-ap- cated in any of the States, starting in proved) received by June 1st of the calendar year 1988 and ending in the year preceding the year in which the li- year prior to the year in which the ap- censing period begins, plus the number plied-for licensing period starts, as de- of outstanding complete applications termined by the Regional Adminis- (i.e., complete applications that have trator. In the event that that does not not been approved) received by Feb- resolve the tie, priority will be given ruary 5th of the year in which the li- by lottery, which will be conducted by censing period begins, exceeds the the Regional Administrator. number of licenses available, NMFS

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will review all such outstanding ex- ments for licensing under the Act and pressions of interest and complete ap- this subpart until no more approvals plications and apply the process de- are available. In the event that two or scribed in paragraphs (k)(9)(i)(A) more complete applications are re- through (k)(9)(i)(C) of this section to ceived on the same day, priority for ap- pre-approve and approve applications proval will be given by lottery, which from among that pool of applicants; will be conducted by the Regional Ad- (ii) If the number of outstanding ex- ministrator. pressions of interest received by June (iii) Within 10 days of approving an 1st of the year preceding the year in application, NMFS will notify the ap- which the licensing period begins, plus plicant. the number of outstanding complete (9) If a license or application ap- applications received by February 5th proval that has been issued for a given of the year in which the licensing pe- licensing period becomes available be- riod begins, does not exceed the num- fore or during that licensing period, ber of licenses available: NMFS will do the following: (A) No later than June 15th of the (i) If there are any outstanding ex- year in which the licensing period be- pressions of interest received by June gins, NMFS will pre-approve all such 1st of the year preceding the year in outstanding expressions of interest and which the licensing period begins or complete applications that satisfy the outstanding complete applications re- relevant requirements for licensing ceived by February 5th of the year in under the Act and this subpart; which the licensing period begins, (B) No later than June 25th of the NMFS will review all such outstanding year in which the licensing period be- expressions of interest and complete gins, NMFS will notify all such out- applications and pre-approve and ap- standing applicants of the pre-approv- prove applications for that license als, and for those applicants that sub- from among that pool as follows: mitted expressions of interest but not (A) Within 45 days of NMFS becom- complete applications, also notify ing aware of the availability of the li- them of the date by which a complete cense, NMFS will pre-approve an appli- application must be received in order cation using the prioritization criteria to be issued an application approval and point-assigning system described (which will be calculated by NMFS to in paragraphs (k)(4)(i) and (k)(4)(ii) of be no later than 194 days from the date this section; of mailing of the notification of the (B) Within 55 days of NMFS becoming pre-approval); aware of the availability of the license (C) NMFS will review all complete NMFS will notify all active applicants applications received by the required as to whether their applications have date from applicants pre-approved been pre-approved, and for those appli- under paragraph (8)(ii)(A) of this sec- cations that have been pre-approved, tion, and within 30 days of such re- notify each applicant of the date by ceipt, approve the application, if and as which a complete application, if not al- appropriate and if the applicant satis- ready received, must be received fies the requirements for licensing (which will be calculated by NMFS to under the Act and this subpart; and be no later than 194 days from the date (D) If and as long as the number of of mailing of the notification of the approvals plus outstanding (not voided) pre-approval); and pre-approvals does not exceed the total (C) Within 30 days of receiving a com- number of licenses available under plete application that had been pre-ap- paragraph (c) of this section, NMFS proved, NMFS will approve the applica- will review all complete applications tion, if and as appropriate and if the received after February 5th of the year applicant satisfies the requirements of in which the licensing period begins this subpart. and before May 16th within the licens- (ii) If there are no outstanding ex- ing period and, as they are received and pressions of interest received by June in the order they are received (based on 1st of the year preceding the year in the day of receipt), will approve those which the licensing period begins and applications that satisfy the require- no outstanding complete applications

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received by February 5th of the year in paid to the Administrator. The vessel which the licensing period begins, if operator may seek to transfer the li- and as long as the number of approvals cense by submitting a written request plus outstanding (not voided) pre-ap- to the Regional Administrator along provals does not exceed the number of with a complete application for the licenses available, NMFS will review other vessel as described in paragraph all complete applications received after (h)(7) of this section. Any such transfer February 5th of the year in which the may be subject to additional fees for licensing period begins and before May the registration of the vessel on the 16th within the licensing period and, in FFA Vessel Register, as specified in the order they are received (based on paragraph (b) of § 300.45. the day of receipt), will approve those (2) Upon receipt of a request and applications that satisfy the require- complete application under paragraph ments for licensing under the Act and (m)(1) of this section, the Regional Ad- this subpart until no more approvals ministrator, after determining that all are available. In the event that two or the fees required for the vessel by the more complete applications are re- Administrator for the current licensing ceived on the same day, priority for ap- period have been paid, that the owner- proval will be given by lottery, which ship of the licensed vessel and the own- will be conducted by the Regional Ad- ership of the vessel to which the appli- ministrator. cation approval would be transferred (iii) Within 10 days of approving an are identical, and that the transferee application, NMFS will notify the ap- vessel meets the requirements for li- plicant. censing under this subpart and the Act, (l) Procedures used by the Secretary to will approve the application and notify review and process applications for joint the applicant of such within 10 days of venture licenses. NMFS, on behalf of the the determination. Secretary and in consultation with the (3) If a licensed vessel is lost or de- Secretary of State, will review and ap- stroyed, and the operators of the vessel prove applications for joint venture li- apply for a license for another vessel censes as described in paragraph (k) of for the licensing period during which this section for general licenses, except the vessel was lost, or for either of the that NMFS will not consider expres- two subsequent licensing periods, sions of interest for joint venture li- NMFS will consider the replacement censes or pre-approve applications for vessel to have the license application joint venture licenses. In the event approval status and history of the lost that NMFS receives for a given licens- or destroyed vessel for the purpose of ing period more applications for joint applying the prioritization criteria of venture licenses than there are licenses paragraph (k)(4) of this section, pro- available, it will approve the applica- vided that the ownership of the lost or tions in the chronological order that destroyed vessel and the ownership of the Administrator has provided its ini- the replacement vessel, as determined tial approval. by the Regional Administrator, are (m) Transferability of application ap- identical, and the replacement vessel provals. Application approvals from meets the requirements for licensing NMFS are not transferable among ves- under this subpart and the Act. sel owners or operators or license ap- (n) Procedures for 2011–2012 licensing plicants. Application approvals are period. For the licensing period that transferable among vessels, subject to starts June 15, 2011, and for that licens- the following requirements: ing period only, pre-approvals may not (1) A vessel operator may seek to be sought and will not be issued by transfer a general or joint venture li- NMFS. NMFS will rank order those ap- cense to another vessel that meets the plications received by February 5, 2011, requirements for licensing under this for the 2011–2012 licensing period by ap- subpart and the Act, only if the license plying the criteria in paragraphs has been valid for the vessel for at (k)(4)(i) and (k)(4)(ii) of this section, least 365 consecutive days and all the except that in lieu of using the criteria fees required by the Administrator for in (k)(4)(i), first priority will be given the current licensing period have been to applications for vessels that as of

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February 5, 2011, have valid licenses for (2) Unloading and transshipment the 2010–2011 licensing period. logsheet forms. At the completion of any unloading or transshipment of fish [75 FR 74644, Dec. 1, 2010] from the vessel, all the information § 300.33 Compliance with applicable specified on unloading and trans- national laws. shipment logsheet forms provided by the Regional Administrator must, for The operator of the vessel shall com- that unloading or transshipment, be re- ply with each of the applicable national laws, and the operator of the corded on such forms. A separate form vessel shall be responsible for the com- must be completed for each fish proc- pliance by the vessel and its crew with essing destination to which the un- each of the applicable national laws, loaded or transshipped fish are bound. and the vessel shall be operated in ac- The completed unloading and trans- cordance with those laws. shipment logsheet form or forms must be mailed by registered airmail to the § 300.34 Reporting requirements. Administrator within 14 days of the completion of the unloading or trans- (a) Holders of licenses issued under shipment. The submitted form must be § 300.32 shall comply with the reporting requirements of this section with re- accompanied by a report or reports of spect to the licensed vessels. the size breakdown of the catch as determined by the receiver or receivers of (b) Any information required to be the fish, and such report must be recorded, or to be notified, communicated or reported pursuant to a re- signed by the receiver or receivers. A quirement of these regulations, the copy of the completed unloading and Act, or the Treaty shall be true, com- transshipment logsheet, including a plete and correct. Any change in cir- copy of the accompanying report or re- cumstances that has the effect of ren- ports of the size breakdown of the dering any of the information provided catch as determined by the receiver or false, incomplete or misleading shall be receivers of the fish, must also be sub- communicated immediately to the Re- mitted to, and received by, the Re- gional Administrator. gional Administrator within 2 days of (c) The operator of any vessel li- the completion of the unloading or censed under § 300.32 must prepare and transshipment. submit accurate, complete, and timely (3) Port departure reports. Before the notifications, requests, and reports vessel’s departure from port for the with respect to the licensed vessel, as purpose of beginning a fishing trip in described in paragraphs (c)(1) through the Licensing Area, a report must be (10) of this section. submitted to the Administrator by (1) Catch report forms. A record of telex, transmission via VMS unit, fac- catch, effort and other information simile, or e-mail that includes the fol- must be maintained on board the ves- lowing information: Report type sel, on catch report forms (also known (‘‘LBEG’’); Regional Register number; as ‘‘Regional Purse Seine Logsheets’’, trip begin date; date and time (in UTC) or RPLs) provided by the Regional Ad- of report; IRCS; port name; weight of ministrator. At the end of each day catch on board (in metric tons) for that the vessel is in the Licensing each of skipjack tuna, yellowfin tuna, Area, all information specified on the and all other species combined; inform must, for that day, be recorded on tended action; and estimated date of the form. The completed catch report departure. This information must be form must be mailed by registered air- reported in the format provided by the mail to the Administrator within 14 Regional Administrator. days of the vessel’s next entry into (4) Entry into port for unloading report for the purpose of unloading its ports. At least 24 hours before the ves- fish catch. A copy of the completed sel’s entry into port for the purpose of catch report form must also be sub- unloading fish from any trip involving mitted to, and received by, the Re- fishing within the Licensing Area, a regional Administrator within 2 days of port must be submitted to the Admin- the vessel reaching port. istrator by telex, transmission via

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VMS unit, facsimile, or e-mail that in- bined; and intended action. This infor- cludes the following information: Re- mation must be reported in the format port type (‘‘LFIN’’); FFA Regional provided by the Regional Adminis- Register number; trip begin date; date trator and sent via the means and to and time (in UTC) of report; IRCS; port the address provided by the Regional name; weight of catch on board (in Administrator. metric tons) for each of skipjack tuna, (7) Weekly reports. Each Wednesday yellowfin tuna, and all other species while the vessel is within the waters combined; intended action; and esti- under the jurisdiction of a Pacific Is- mated date and time (in UTC) of entry land Party, a report must be submitted into port. This information must be re- to that Pacific Island Party that in- ported in the format provided by the cludes the following information: Re- Regional Administrator. port type (‘‘WEEK’’); FFA Regional (5) Intent to transship notification and Register number; trip begin date; date request. At least 48 hours before trans- and time (in UTC) of report; IRCS; ves- shipping any or all of the fish on board sel position (latitude and longitude to the vessel, a notification must be sub- nearest minute of arc); weight of catch mitted to the Administrator and a re- on board (in metric tons) for each of quest must be submitted to the Pacific skipjack tuna, yellowfin tuna, and all Island Party in whose jurisdiction the other species combined; intended ac- transshipment is requested to occur. tion; and whether or not there is a ves- The notification to the Administrator sel observer on board (‘‘Y’’ or ‘‘N’’). and the request to the Pacific Island This information must be reported in Party may be identical. The notifica- the format provided by the Regional tion and request must include the fol- Administrator and sent via the means lowing information: Name of vessel; and to the address provided by the Re- IRCS; vessel position (latitude and lon- gional Administrator. gitude to nearest minute of arc); (8) Port entry reports. At least 24 hours weight of catch on board the vessel (in before the vessel’s entry into port of metric tons) for each of skipjack tuna, any Pacific Island Party, a report must yellowfin tuna, and all other species be submitted to that Pacific Island combined; and the date, time (in UTC), Party that includes the following infor- and location where such transshipment mation: Report type (‘‘PENT’’); FFA is requested to occur. The notification Regional Register number; trip begin to the Administrator must be reported date; date and time (in UTC) of report; in the format provided by the Regional IRCS; vessel position (latitude and lon- Administrator and submitted by telex, gitude to nearest minute of arc); transmission by VMS unit, facsimile, weight of catch on board (in metric or e-mail. The request to the Pacific Is- tons) for each of skipjack tuna, yel- land Party must be reported in the for- lowfin tuna, and all other species com- mat provided by the Regional Adminis- bined; estimated time (in UTC) of entry trator and sent via the means and to into port; port name; and intended ac- the address provided by the Regional tion. This information must be re- Administrator. ported in the format provided by the (6) Zone entry and exit reports. Each Regional Administrator and sent via time the vessel enters or exits the wa- the means and to the address provided ters under the jurisdiction of a Pacific by the Regional Administrator. Island Party, a report must be sub- (9) Transshipment reports. Upon committed to that Pacific Island Party pletion of transshipment of any or all that includes the following informa- of the fish on board the vessel, a report tion: Report type (‘‘ZENT’’ for entry or must be submitted to the Adminis- ‘‘ZEXT’’ for exit); FFA Regional Reg- trator and to the Pacific Island Party ister number; trip begin date; date and in whose jurisdiction the trans- time (in UTC) of the entry or exit; shipment occurred. The report must in- IRCS; vessel position (latitude and lon- clude the following information: Re- gitude to nearest minute of arc); port type (‘‘TRANS’’); FFA Regional weight of catch on board (in metric Register number; trip begin date; date tons) for each of skipjack tuna, yel- and time (in UTC) of the trans- lowfin tuna, and all other species com- shipment; IRCS; vessel position at time

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of transshipment (latitude and lon- must be submitted that includes the gitude to nearest minute of arc); following information: vessel name; amount of fish transshipped (in metric IRCS; vessel position at the time of the tons) for each of skipjack tuna, yel- report (latitude and longitude to near- lowfin tuna, and all other species com- est minute of arc); the reason for enter- bined; name of vessel to which the fish ing the Closed Area; and the estimated were transshipped; and the destination time (in UTC) of entry into the Closed of the transshipped fish. The report to Area (latitude and longitude to nearest the Administrator must be reported in minute of arc). the format provided by the Regional (B) Immediately upon entry into or Administrator and submitted by telex, exit from a Closed Area under the ju- transmission by VMS unit, facsimile, risdiction of Kiribati, a report must be or e-mail. The report to the Pacific Is- submitted that includes the following land Party must be reported in the for- information: report type (‘‘CAENT’’ for mat provided by the Regional Adminis- entry or ‘‘CAEXT’’ for exit); the num- trator and sent via the means and to ber of the vessel’s license issued under the address provided by the Regional § 300.32; IRCS; date and time (in UTC) Administrator. of the report; vessel position (latitude (10) Other reports and notifications to and longitude to nearest minute of Pacific Island Parties. Reports and noti- arc); amount of the catch on board the fications must be submitted to the rel- vessel, by species; and status of the evant Pacific Island Parties in each of boom (‘‘up’’ or ‘‘down’’), net (‘‘de- the circumstances and in the manner ployed’’ or ‘‘stowed’’), and skiff (‘‘de- described in the subparagraphs of this ployed’’ or ‘‘stowed’’). paragraph. Unless otherwise indicated (C) At least 24 hours prior to fueling in this paragraph, the reports must be the vessel from a tanker in the area of prepared in the format provided by the jurisdiction of Kiribati, a report must Regional Administrator and sent via be submitted that includes the fol- the means and to the address provided lowing information: report type by the Regional Administrator. (‘‘SBUNK’’); the number of the vessel’s (i) Australia. (A) Each day while the license issued under § 300.32; IRCS; trip vessel is within the Australian Fishing start date; name of port from which Zone, a report must be submitted that trip started; amount of the catch on includes the following information: board the vessel, by species; estimated Vessel position (latitude and longitude time of bunkering; estimated position to nearest minute of arc); and the of bunkering (latitude and longitude to amount of catch made during the pre- nearest minute of arc); and name of vious day, by species. tanker. (B) At least 24 hours before entering (D) After fueling the vessel from a the Australian Fishing Zone, a notifi- tanker in the area of jurisdiction of cation must be submitted that indi- Kiribati, but no later than 12 noon cates an intent to enter the Australian local time on the following day, a re- Fishing Zone. port must be submitted that includes (ii) Fiji. (A) Each day while the vessel the following information: report type is in Fiji fisheries waters, a report (‘‘FBUNK’’); the number of the vessel’s must be submitted that includes the license issued under § 300.32; IRCS; following information: vessel name; start time of bunkering; end time of IRCS; country of registration of the bunkering; amount of fuel received, in vessel; and vessel position at the time kiloliters; and name of tanker. of the report (latitude and longitude to (iv) New Zealand. (A) At least 24 nearest minute of arc). hours before entering the exclusive (B) Each week while the vessel is in economic zone of New Zealand, a noti- Fiji fisheries waters, a report must be fication must be submitted that in- submitted that includes the amount of cludes the following information: name the catch made during the preceding of vessel; IRCS; position of point of week, by species. entry into the exclusive economic zone (iii) Kiribati. (A) At least 24 hours be- of New Zealand (latitude and longitude fore entering a Closed Area under the to nearest minute of arc); amount of jurisdiction of Kiribati, a notification catch on board the vessel, by species;

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and condition of the catch on board the (vi) Tonga. (A) Each day while the vessel (‘‘fresh’’ or ‘‘frozen’’). vessel is in the exclusive economic (B) For each day that the vessel is in zone of Tonga, a report must be sub- the exclusive economic zone of New mitted that includes the vessel’s posi- Zealand, a notification must be sub- tion (latitude and longitude to nearest mitted no later than noon of the fol- minute of arc). lowing day of the vessel’s position (B) [Reserved] (latitude and longitude to nearest (vii) Tuvalu. (A) At least 24 hours minute of arc) at noon. prior to entering Tuvalu fishery limits, (C) For each week or portion thereof a report must be submitted that in- that the vessel is in the exclusive eco- cludes the following information: ves- nomic zone of New Zealand, a report sel name; IRCS; country of registration that covers the period from 12:01 a.m. of the vessel; the number of the vessel’s license issued under § 300.32; intended on Monday to 12 midnight on the fol- vessel position (latitude and longitude lowing Sunday must be submitted and to nearest minute of arc) at entry; and received by noon of the following amount of catch on board the vessel, Wednesday (local time). The report by species. must include the amount of the catch (B) Every seventh day that the vessel taken in the exclusive economic zone is in Tuvalu fishery limits, a report of New Zealand during the reporting must be submitted that includes vessel period. position (latitude and longitude to (D) At least 10 days prior to an in- nearest minute of arc) and the total tended transshipment in an area under amount of catch on board the vessel. the jurisdiction of New Zealand, a noti- (C) Immediately upon exit from fication must be submitted that in- Tuvalu fishery limits, a notification cludes the intended port, date, and must be submitted that includes vessel time of transshipment. position (latitude and longitude to (E) At least 24 hours prior to exiting nearest minute of arc) and the total the exclusive economic zone of New amount of catch on board the vessel. Zealand, a notification must be sub- [72 FR 6151, Feb. 9, 2007] mitted that includes the following information: position of the intended § 300.35 Vessel and gear identification. point of exit (latitude and longitude to While a vessel is in the Licensing nearest minute of arc); the amount of Area, a Limited Area closed to fishing, catch on board the vessel, by species; or a Closed Area, a recent and up-to- and condition of the catch on board the date copy of the International Code of vessel (‘‘fresh’’ or ‘‘frozen’’). Signals (INTERCO) shall be on board (v) Solomon Islands. (A) At least 24 and accessible at all times. The oper- hours prior to entry into Solomon Is- ator shall comply with the 1989 Food lands Fisheries Limits, a report must and Agricultural Organization stand- be submitted that includes the fol- ard specifications for the marking and lowing information: expected vessel po- identification of fishing vessels. The sition (latitude and longitude to near- international radio call sign of the ves- est minute of arc) and expected date sel shall be painted in white on a black and time of entry. background, or in black on a white (B) For each week or portion thereof background, and be clear, distinct, and that the vessel is in the exclusive eco- uncovered, in the following manner: nomic zone of Solomon Islands, a re- (a) On both sides of the vessel’s hull port that covers the period from 12:01 or superstructure, with each letter and a.m. on Monday to 12 midnight on the number being at least 1 m high and following Sunday must be submitted having a stroke width of 16.7 cm, with and received by noon of the following the background extending to provide a Tuesday (local time). The report must border around the mark of not less include the amount of the catch taken than 16.7 cm. and the number of fishing days spent in (b) On the vessel’s deck, on the body the exclusive economic zone of Sol- of any helicopter and on the hull of any omon Islands during the reporting pe- skiff, with each letter and number riod. being at least 30 cm high, and having a

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stroke width of 5 cm with the back- (6) To refuse to comply with the in- ground extending to provide a border structions of an authorized officer or around the mark of not less than 5 cm. authorized party officer relating to (c) On any other equipment being fishing activities under the Treaty. carried by and intended to be separated (7) To refuse to permit an authorized from the vessel during normal fishing inspector full access to any place where operations, with each letter and num- fish taken in the Licensing Area is un- ber being at least 10 cm high and hav- loaded. ing a stroke width of 1.7 cm, with the (8) To refuse to allow an authorized background extending to provide a bor- inspector to remove samples of fish der around the mark of not less than from a vessel that fished in the Licens- 1.7 cm. ing Area. § 300.36 Closed area stowage require- (9) To forcibly assault, resist, oppose, ments. impede, intimidate, or interfere with: At all times while a vessel is in a (i) Any authorized officer, authorized Closed Area, the fishing gear of the party officer or authorized inspector in vessel shall be stowed in a manner as the conduct of a search or inspection in not to be readily available for fishing. connection with the enforcement of In particular, the boom shall be low- these regulations, the Act or the Trea- ered as far as possible so that the ves- ty; or sel cannot be used for fishing, but so (ii) An observer in the conduct of ob- that the skiff is accessible for use in server duties under the Treaty. emergency situations; the helicopter, if (10) To transship fish on board a ves- any shall be tied down; and launches sel that fished in the Licensing Area, shall be secured. except in accordance with the requirements of § 300.46. § 300.37 Radio monitoring. (11) To fail to have installed, allow to The international distress frequency, be programmed, carry, or have oper- 2.182 mHz, and 156.8 mHz (Channel 16, ational a VMS unit while in the Treaty VHF) shall be monitored continuously Area as specified in § 300.45(a). from the vessel for the purpose of fa- (12) To fail to activate a VMS unit, to cilitating communication with the interrupt, interfere with, or impede the fisheries management, surveillance and operation of a VMS unit, to tamper enforcement authorities of the Parties. with, alter, damage, or disable a VMS unit, or to move or remove a VMS unit § 300.38 Prohibitions. without prior notification as specified (a) Except as provided for in § 300.39, in § 300.45(e). in addition to the prohibitions in (13) In the event of a VMS unit fail- § 300.4, it is unlawful for any person ure or breakdown or interruption of subject to the jurisdiction of the automatic position reporting in the United States to do any of the fol- Treaty Area, to fail to submit manual lowing: position reports as specified in (1) To violate the Act or any provi- § 300.45(f). sion of any regulation or order issued pursuant to Act. (14) In the event of a VMS unit fail- (2) To use a vessel for fishing in vio- ure or breakdown or interruption of lation of an applicable national law. automatic position reporting in the (3) To violate the terms and condi- Treaty Area and if directed by the Ad- tions of any fishing arrangement to ministrator or an authorized officer, to which that person is a party. fail to stow fishing gear or take the (4) To use a vessel for fishing in any vessel to a designated port as specified Closed Area. in § 300.45(f). (5) To refuse to permit any author- (15) To fail to repair or replace a ized officer or authorized party officer VMS unit as specified in § 300.45(h). to board a fishing vessel for purpose of (b) Except as provided for in § 300.39, conducting a search or inspection in it is unlawful for any person subject to connection with the enforcement of the the jurisdiction of the United States Act or the Treaty. when in the Licensing Area:

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(1) To use a vessel to fish unless val- § 300.41 Investigation notification. idly licensed as required by the Admin- Upon commencement of an investiga- istrator. tion under section 10(b)(1) of the Act, (2) To use a vessel for directed fishing the operator of any vessel concerned for southern bluefin tuna or for fishing shall have 30 days after receipt of noti- for any kinds of fish other than tunas, fication of the investigation and the except that fish may be caught as an operator’s rights under section 10(b)(1) incidental bycatch. to submit comments, information, or (3) To use a vessel for fishing by any evidence bearing on the investigation, method, except the purse-seine method. and to request in writing that the Sec- (4) To use any vessel to engage in retary provide the operator an oppor- fishing after the revocation of its li- tunity to present the comments, infor- cense, or during the period of suspen- mation, or evidence orally to the Sec- sion of an applicable license. retary or the Secretary’s representative. (5) To operate a vessel in such a way as to disrupt or in any other way ad- § 300.42 Findings leading to removal versely affect the activities of tradi- from fishing area. tional and locally based fishermen and (a) Following an investigation con- fishing vessels. ducted under section 10(b) of the Act, (6) To use a vessel to fish in a manner the Secretary, with the concurrence of inconsistent with an order issued by the Secretary of State, and upon the the Secretary under § 300.42 (section 11 request of the Pacific Island Party con- of the Act). cerned, may order a fishing vessel that (7) Except for circumstances involv- has not submitted to the jurisdiction of ing force majeure and other emer- that Pacific Island Party to leave im- gencies involving the health or safety mediately the Licensing Area, all Lim- of crew members or the safety of the ited Areas, and all Closed Areas upon vessel, to use aircraft in association making a finding that: with fishing activities of a vessel, un- (1) The fishing vessel— (i) While fishing in the Licensing less it is identified on the license appli- Area did not have a license issued cation for the vessel, or any amend- under § 300.32 to fish in the Licensing ment thereto. Area, and that under the terms of the [61 FR 35550, July 5, 1996, as amended at 72 Treaty the fishing is not authorized to FR 6153, Feb. 9, 2007] be conducted in the Licensing Area without such a license. § 300.39 Exceptions. (ii) Was involved in any incident in (a) The prohibitions of § 300.38 and the which an authorized officer, authorized licensing requirements of § 300.32 do not party officer, or observer was allegedly apply to fishing for albacore tuna by assaulted with resultant bodily harm, physically threatened, forcibly re- vessels using the trolling method or to sisted, refused boarding or subjected to fishing by vessels using the longline physical intimidation or physical in- method in the high seas areas of the terference in the performance of duties Treaty Area. as authorized by the Act or the Treaty; (b) The prohibitions of § 300.38(a)(4), (iii) Has not made full payment with- (a)(5), and (b)(3) do not apply to fishing in 60 days of any amount due as a re- under the terms and conditions of a sult of a final judgement or other final fishing arrangement. determination deriving from a viola- [61 FR 35550, July 5, 1996, as amended at 72 tion in waters within the Treaty Area FR 6153, Feb. 9, 2007] of a Pacific Island Party; or (iv) Was not represented by an agent § 300.40 Civil penalties. for service of process in accordance with the Treaty; or The procedures of 15 CFR part 904 (2) There is probable cause to believe apply to the assessment of civil pen- that the fishing vessel— alties, except as modified by the re- (i) Was used in violation of section quirements of section 8 of the Act. 5(a)(4), (a)(5), (b)(2), or (b)(3) of the Act;

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(ii) Used an aircraft in violation of (3) To disembark at the point and section 5(b)(7) of the Act; or time notified by the Pacific Island Par- (iii) Was involved in an incident in ties to the Secretary. which section 5(a)(7) of the Act was (4) To carry out observer duties safe- violated. ly. (b) Upon being advised by the Sec- (b) The operator shall provide the ob- retary of State that proper notification server, while on board the vessel, at no to Parties has been made by a Pacific expense to the Pacific Island Parties, Island Party that such Pacific Island with food, accommodation and medical Party is investigating an alleged in- facilities of reasonable standard as fringement of the Treaty by a vessel in may be acceptable to the Pacific Island waters under the jurisdiction of that Party whose representative is serving Pacific Island Party, the Secretary as the observer. shall order the vessel to leave those waters until the Secretary of State no- § 300.44 Other inspections. tifies the Secretary that the order is no The operator and each member of the longer necessary. crew of any vessel from which any fish (c) The Secretary shall rescind any taken in the Licensing Area is un- order issued on the basis of a finding loaded or transshipped shall allow, or under paragraphs (a)(1) (iii) or (iv) of arrange for, and assist any authorized this section (subsections 11(a)(1) (C) or inspector, authorized party officer, or (D) of the Act) as soon as the Secretary authorized officer to have full access to determines that the facts underlying any place where the fish is unloaded or the finding do not apply. transshipped, to remove samples, to (d) An order issued in accordance have full access to the vessel’s records, with this section is not subject to judi- including its log and documentation cial review. for the purpose of inspection and photocopying, and to gather any other [61 FR 35550, July 5, 1996, as amended at 72 information relating to fisheries in the FR 6154, Feb. 9, 2007] Licensing Area without interfering unduly with the lawful operation of the § 300.43 Observers. vessel. (a) The operator and each member of the crew of a vessel shall allow and as- § 300.45 Vessel Monitoring System. sist any person identified as an ob- (a) Applicability. Holders of vessel li- server under the Treaty by the Pacific censes issued under § 300.32 are re- Island Parties: quired, in order to have the licensed (1) To board the vessel for scientific, vessel in the Treaty Area, to: compliance, monitoring and other (1) Have installed a VMS unit on functions at the point and time noti- board the licensed vessel; fied by the Pacific Island Parties to the (2) Allow the Administrator, its Secretary. agent, or a person authorized by the (2) Without interfering unduly with Administrator to program the VMS the lawful operation of the vessel, to unit to transmit position and related have full access to and use of facilities information to the Administrator; and equipment on board the vessel that (3) If directed by the Regional Ad- the observer may determine are nec- ministrator, allow NMFS, its agent, or essary to carry out observer duties; a person authorized by NMFS to pro- have full access to the bridge, fish on gram the VMS unit to transmit posi- board, and areas that may be used to tion and related information to NMFS; hold, process, weigh and store fish; re- and move samples; have full access to ves- (4) Carry and have operational the sel’s records, including its log and doc- VMS unit at all times while in the umentation for the purpose of inspec- Treaty Area, except as provided in tion and copying; have reasonable ac- paragraphs (f) and (g) of this section. cess to navigation equipment, charts, (b) FFA Vessel Register. Purse seine and radios, and gather any other infor- vessels must be in good standing on the mation relating to fisheries in the Li- FFA Vessel Register maintained by the censing Area. Administrator in order to be licensed

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under the Treaty. FFA Vessel Register simile, or e-mail of such movement or application forms may be obtained removal. from the Regional Administrator or (f) Interruption of VMS unit signal. the Administrator or from the FFA When a vessel owner or operator is no- Web site: http://www.ffa.int. Purse seine tified by the Administrator or an au- vessel owners or operators must submit thorized officer that automatic posi- completed FFA Vessel Register appli- tion reports are not being received, or cations to the Regional Administrator the vessel owner or operator is other- for transmittal to the Administrator wise alerted or aware that trans- and pay fees for registration of their mission of automatic position reports vessel(s) on the FFA Vessel Register has been interrupted, the vessel owner annually. The vessel owner or operator and operator must comply with the fol- may submit a completed FFA Vessel lowing: Register application form at any time, (1) The vessel owner or operator must but the application must be received by submit manual position reports that the Regional Administrator at least include vessel name, call sign, current seven days before the first day of the position (latitude and longitude to the next licensing period to avoid the po- nearest minute), date, and time to the tential lapse of the registration and li- Administrator by telephone, facsimile, cense between licensing periods. or e-mail at intervals of no greater (c) VMS unit installation. A VMS unit than eight hours or a shorter interval required under this section must be in- if and as specified by the Adminis- stalled by a person authorized by the trator or an authorized officer. The re- Administrator. A list of Administrator- ports must continue to be submitted authorized VMS unit installers may be until the Administrator has confirmed obtained from the Regional Adminis- to the vessel owner or operator that trator or the Administrator. the VMS unit is properly transmitting position reports. If the manual position (d) Hardware and software specifica- reports cannot be made, the vessel options. The VMS unit installed and car- erator or owner must notify the Ad- ried on board a vessel to comply with ministrator of such as soon as possible, the requirements of this section must by any means possible. consist of hardware and software that (2) If directed by the Administrator is approved by the Administrator and or an authorized officer, the vessel op- approved by NMFS. A current list of erator must immediately stow the fish- hardware and software approved by the ing gear in the manner described in Administrator may be obtained from § 300.36, take the vessel directly to a the Administrator. A current list of port designated by the Administrator hardware and software approved by or authorized officer, and notify the NMFS may be obtained from NMFS. Administrator by telephone, facsimile, (e) Service activation. Other than when or e-mail as soon as possible that the in port or in a shipyard and having vessel is being taken to port with fish- given proper notification to the Admin- ing gear stowed. istrator as specified in paragraph (g) of (g) Shutdown of VMS unit while in port this section, the owner or operator of a or in shipyard. When a vessel is in port vessel licensed under § 300.32 must, and not moving, the VMS unit may be when the vessel is in the Treaty Area: shut down, provided that the Adminis- (1) Activate the VMS unit on board trator has been notified by telephone, the licensed vessel to transmit auto- facsimile, or e-mail that the vessel is matic position reports; in port and of the intended shutdown, (2) Ensure that no person interrupts, and only as long as manual position re- interferes with, or impedes the oper- ports as described in paragraph (f)(1) of ation of the VMS unit or tampers with, this section are submitted to the Ad- alters, damages, or disables the VMS ministrator at intervals of no greater unit, or attempts any of the same; and than 24 hours or a shorter interval if (3) Ensure that no person moves or and as specified by the Administrator removes the VMS unit from the in- or an authorized officer. If the VMS stalled position without first notifying unit is shut down while the vessel is in the Administrator by telephone, fac- port, the vessel owner or operator must

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notify the Administrator by telephone, (1) Allow and assist any person iden- facsimile, or e-mail as soon as possible tified as an officer of the Pacific Island after the vessel’s departure from port. Party to: When the vessel is in a shipyard, the (i) Have full access to the vessel and VMS unit may be shut down and the any place where such fish is being submission of manual position reports transshipped and the use of facilities is not required, provided that the Ad- and equipment that the officer may de- ministrator has been notified by tele- termine is necessary to carry out his or phone, facsimile, or e-mail that the her duties; vessel is in the shipyard and of the in- (ii) Have full access to the bridge, tended VMS unit shutdown. If the VMS fish on board and areas which may be unit is shut down while the vessel is in used to hold, process, weigh and store a shipyard, the vessel owner or oper- fish; ator must notify the Administrator by (iii) Remove samples; telephone, facsimile, or e-mail as soon (iv) Have full access to the vessel’s as possible after the vessel’s departure records, including its log and docu- from the shipyard. mentation, for the purpose of inspec- (h) VMS unit repair and replacement. tion and copying; and After a fishing trip during which inter- (v) Gather any other information re- ruption of automatic position reports quired to fully monitor the activity has occurred, the vessel’s owner or op- without interfering unduly with the erator must have the VMS unit re- lawful operation of the vessel; and paired or replaced prior to the vessel’s (2) Not assault, obstruct, resist, next trip. If the VMS unit is replaced, delay, refuse boarding to, intimidate, the new VMS unit must be installed by or interfere with any person identified an Administrator-authorized VMS unit as an officer of the Pacific Island Party installer, as specified in paragraph (c) in the performance of his or her duties. of this section. In making such repairs (d) Transshipping at sea may only be or replacements, conformity with the done: current requirements must be met be- (1) In a designated area in accordance fore the vessel may lawfully operate with such terms and conditions as may under the Treaty. be agreed between the operator of the (i) Access to data. As a condition to vessel and the Pacific Island Party in obtaining a license, holders of vessel li- whose jurisdiction the transshipment censes issued under § 300.32 must allow is to take place; the Regional Administrator, an author- (2) In accordance with the require- ized officer, the Administrator or an ments of § 300.34; and authorized party officer or designees (3) If the catch is transshipped to a access to the vessel’s position data ob- carrier vessel duly authorized in ac- tained from the VMS unit at the time cordance with national laws. of, or after, its transmission to the [72 FR 6155, Feb. 9, 2007] vendor or receiver. [72 FR 6154, Feb. 9, 2007, as amended at 75 FR Subpart E—Pacific Halibut 74648, Dec. 1, 2010] Fisheries

§ 300.46 Transshipping requirements. AUTHORITY: 16 U.S.C. 773–773k. (a) Applicability. This section applies to vessels licensed under § 300.32. § 300.60 Purpose and scope. (b) Transshipping may only be done This subpart implements the North at the time and place authorized for Pacific Halibut Act of 1982 (Act) and is transshipment by the Pacific Island intended to supplement, not conflict Parties, following the notification and with, the annual fishery management request requirements of § 300.34(c)(5). measures adopted by the International (c) The operator and each member of Pacific Halibut Commission (Commis- the crew of a vessel from which any sion) under the Convention between fish taken in the Licensing Area is the United States and Canada for the transshipped must: Preservation of the Halibut Fishery of

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the Northern Pacific Ocean and Bering tude, 154°47′18″ W. longitude), then Sea (Convention). along the Kodiak Island coastline to Cape Trinity (56°44′50″ N. latitude, § 300.61 Definitions. 154°08′44″ W. longitude), then 140° true. In addition to the terms defined in Charter halibut permit means a permit § 300.2 and those in the Act and the issued by the National Marine Fish- Convention, the terms used in this sub- eries Service pursuant to § 300.67. part have the following meanings. If a Charter vessel, for purposes of §§ 300.65, term is defined differently in § 300.2, the 300.66, and 300.67, means a vessel used Act, or the Convention, the definition while providing or receiving sport fish- in this section shall apply. ing guide services for halibut. Alaska Native tribe means, for pur- Charter vessel angler, for purposes of poses of the subsistence fishery for Pa- §§ 300.65, 300.66, and 300.67, means a per- cific halibut in waters in and off Alas- son, paying or non-paying, receiving ka, a Federally recognized Alaska Na- sport fishing guide services for halibut. tive tribe that has customary and tra- Charter vessel fishing trip, for purposes ditional use of halibut and that is list- of §§ 300.65, 300.66, and 300.67, means the ed in § 300.65(g)(2) of this part. time period between the first deploy- Annual combined catch limit, for pur- ment of fishing gear into the water poses of commercial and sport fishing from a charter vessel by a charter ves- in Commission regulatory areas 2C and sel angler and the offloading of one or 3A, means the annual total allowable more charter vessel anglers or any hal- halibut removals (halibut harvest plus ibut from that vessel. wastage) by persons fishing IFQ and by Charter vessel guide, for purposes of charter vessel anglers. §§ 300.65, 300.66 and 300.67, means a per- Annual commercial catch limit, for pur- son who holds an annual sport fishing poses of commercial fishing in: guide license or registration issued by (1) Commission regulatory areas 2C the Alaska Department of Fish and and 3A, means the annual commercial Game, or a person who provides sport allocation minus an area-specific esti- fishing guide services. mate of commercial halibut wastage. Charter vessel operator, for purposes of (2) Commission regulatory areas 3B § 300.65, means the person in control of and 4A, means the annual total allow- the charter vessel during a charter ves- able halibut removals by persons fish- sel fishing trip. ing IFQ. Chiniak Bay means all waters bound- (3) Commission regulatory areas 4B, ed by the shoreline and straight lines 4C, 4D, and 4E, means the annual total connecting the coordinates in the order allowable halibut removals by persons listed: fishing IFQ and CDQ. (1) North from Cape Chiniak (57°37.22′ Annual guided sport catch limit, for N. lat., 152°9.36′ W. long.); purposes of sport fishing in Commis- (2) To Buoy #1 at Williams Reef sion regulatory areas 2C and 3A, means (57°50.36′ N. lat., 152°8.82′ W. long.); the annual guided sport allocation (3) To East Cape on Spruce Island minus an area-specific estimate of (57°54.89′ N. lat., 152°19.45′ W. long.); guided sport halibut wastage. (4) To Termination Point on Kodiak Area 2A includes all waters off the Island (57°51.31′ N. lat., 152°24.01′ W. States of California, Oregon, and Wash- long.); and ington. (5) Connecting to a line running Area 2C includes all waters off Alaska counterclockwise along the shoreline that are east of a line running 340° true of Kodiak Island to Cape Chiniak from Cape Spencer Light (58° 11′ 54″ N. (57°37.22′ N. lat., 152°9.36′ W. long.). lat., 136° 38′ 24″ W. long.) and south and Commercial fishing means fishing, the east of a line running 205° true from resulting catch of which either is, or is said light. intended to be, sold or bartered but Area 3A means all waters between does not include subsistence fishing. Area 2C and a line extending from the Commission means the International most northerly point on Cape Aklek Pacific Halibut Commission. (57°41′15″ N. latitude, 155°35′00″ W. lon- Commission regulatory area means an gitude) to Cape Ikolik (57°17′17″ N. lati- area defined by the Commission for

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purposes of the Convention identified ing Sea Aleutian Islands west of 170°00′ in 50 CFR 300.60 and prescribed in the W long. annual management measures pub- Fishing week, for purposes of lished pursuant to 50 CFR 300.62. § 300.65(d), means a time period that be- Community charter halibut permit gins at 0001 hours, A.l.t., Monday morn- means a permit issued by NMFS to a ing and ends at 2400 hours, A.l.t., the Community Quota Entity pursuant to following Sunday night. § 300.67. Guided Angler Fish (GAF) means hal- Compensation, for purposes of sport ibut transferred within a year from a fishing for Pacific halibut in Commis- Commission regulatory area 2C or 3A sion regulatory areas 2C and 3A, means IFQ permit holder to a GAF permit direct or indirect payment, remunera- that is issued to a person holding a tion, or other benefits received in re- charter halibut permit, community turn for services, regardless of the charter halibut permit, or military source; for this definition, ‘‘benefits’’ charter halibut permit for the cor- includes wages or other employment responding area. benefits given directly or indirectly to Guided Angler Fish (GAF) permit an individual or organization, and any means an annual permit issued by the dues, payments, fees, or other remu- National Marine Fisheries Service pur- neration given directly or indirectly to suant to § 300.65(c)(5)(iii). a fishing club, business, organization, Guided Angler Fish (GAF) permit holder or individual who provides sport fish- means the person identified on a GAF ing guide services; and does not include permit. reimbursement for the actual daily ex- Halibut harvest means the catching penses for fuel, food, or bait. and retaining of any halibut. Crew member, for purposes of §§ 300.65 Head-on length means a straight line and 300.67, means an assistant, deck- measurement passing over the pectoral hand, or similar person who works di- fin from the tip of the lower jaw with rectly under the supervision of, and on the mouth closed to the extreme end of the same vessel as, a charter vessel the middle of the tail. guide or operator of a vessel with one or more charter vessel anglers on Individual Fishing Quota (IFQ), for board. purposes of this subpart, means the annual catch limit of halibut that may be Customary trade means, for purposes of the subsistence fishery for Pacific harvested by a person who is lawfully halibut in waters in and off Alaska, the allocated a harvest privilege for a spe- non-commercial exchange of subsist- cific portion of the annual commercial ence halibut for anything other than catch limit of halibut. items of significant value. IFQ fishing trip, for purposes of the Fishing means the taking, harvesting, subpart, means the period beginning or catching of fish, or any activity that when a vessel operator commences har- can reasonably be expected to result in vesting IFQ halibut and ending when the taking, harvesting, or catching of the vessel operator lands any species. fish, including: IFQ halibut means any halibut that is (1) The deployment of any amount or harvested with setline gear as defined component part of setline gear any- in this section or fixed gear as defined where in the maritime area; in § 679.2 of this title while commercial (2) The deployment of longline pot fishing in any IFQ regulatory area de- gear as defined in § 679.2 of this title, or fined in § 679.2 of this title. component part of that gear in Com- Military charter halibut permit means a mission regulatory areas 2C, 3A, 3B, permit issued by NMFS to a United and that portion of Area 4A in the Gulf States Military Morale, Welfare and of Alaska west of Area 3B and east of Recreation Program pursuant to 170°00′ W. long; or § 300.67. (3) The deployment of pot gear as de- Overall length of a vessel means the fined in § 679.2 of this title in Commis- horizontal distance, rounded to the sion regulatory areas 4B, 4C, 4D, and 4E nearest ft/meter, between the foremost and the portion of Area 4A in the Ber- part of the stem and the aftermost part

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of the stern (excluding bowsprits, rud- (2) In waters in and off Alaska, all ders, outboard motor brackets, and fishing other than commercial fishing similar fittings or attachments). and subsistence fishing. Person includes an individual, cor- Sport fishing guide services, for pur- poration, firm, or association. poses of §§ 300.65(d) and 300.67, means Power hauling means using elec- assistance, for compensation or with trically, hydraulically, or mechani- the intent to receive compensation, to cally powered devices or attachments a person who is sport fishing, to take or other assisting devises or attach- or attempt to take halibut by accom- ments to deploy and retrieve fishing panying or physically directing the gear. Power hauling does not include sport fisherman in sport fishing activi- the use of hand power, a hand powered ties during any part of a charter vessel crank, a fishing rod, a downrigger, or a hand troll gurdy. fishing trip. Sport fishing guide serv- Rural means, for purposes of the sub- ices do not include services provided by sistence fishery for Pacific halibut in a crew member, as defined at § 300.61. waters in and off Alaska, a community Subarea 2A–1 includes the usual and of Alaska listed at § 300.65(g)(1) or an accustomed fishing areas for Pacific area of Alaska described at § 300.65(g)(3) Coast treaty tribes off the coast of in which the non-commercial, cus- Washington and all inland marine wa- tomary, and traditional use of fish and ters of Washington north of Point Che- game for personal or family consump- halis (46°53.30′ N lat.), including Puget tion is a principal characteristic of the Sound. Boundaries of a tribe’s fishing economy or area and in which there is area may be revised as ordered by a a long-term, customary, and tradi- Federal court. tional use of halibut. Subsistence means, with respect to Rural resident means, for purposes of waters in and off Alaska, the non-com- the subsistence fishery for Pacific hal- mercial, long-term, customary and tra- ibut in waters in and off Alaska: ditional use of halibut. (1) An individual domiciled in a rural Subsistence halibut means halibut community listed in the table at caught by a rural resident or a member § 300.65(g)(1) and who has maintained a of an Alaska Native tribe for direct domicile in rural communities listed in personal or family consumption as the table at § 300.65(g)(1), or in rural areas described at § 300.65(g)(3), for the food, sharing for personal or family 12 consecutive months immediately consumption as food, or customary preceding the time when the assertion trade. of residence is made, and who is not Subsistence halibut registration certifi- claiming residency in another state, cate (SHARC) means documentation, territory, or country; or issued by NMFS, of the registration re- (2) An individual domiciled in a rural quired at § 300.65(i). area described at § 300.65(g)(3) and who Treaty Indian tribes means the Hoh, has maintained a domicile in rural Jamestown S’Klallam, Lower Elwha areas described at § 300.65(g)(3), or in S’Klallam, Lummi, Makah, Port Gam- rural communities listed in the table ble S’Klallam, Quileute, Quinault, at § 300.65(g)(1), for the 12 consecutive Skokomish, Suquamish, Swinomish, months immediately preceding the Tulalip, and Nooksack tribes. time when the assertion of residence is Valid, with respect to a charter hal- made, and who is not claiming resi- ibut permit for purposes of §§ 300.66 and dency in another state, territory, or 300.67, means the charter halibut per- country. mit that is currently in effect. Setline gear means one or more stationary, buoyed, and anchored lines [61 FR 35550, July 5, 1996] with hooks attached. EDITORIAL NOTE: For FEDERAL REGISTER ci- Sport fishing means: tations affecting § 300.61, see the List of CFR (1) In regulatory area 2A, all fishing Sections Affected, which appears in the other than commercial fishing and Finding Aids section of the printed volume treaty Indian ceremonial and subsist- and at www.govinfo.gov. ence fishing; and

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§ 300.62 Annual management meas- cific Fishery Management Council at ures. its spring meetings, and will be pub- Annual management measures may lished in the FEDERAL REGISTER along be added and modified through adop- with the annual salmon management tion by the Commission and publica- measures. tion in the FEDERAL REGISTER by the (3) A portion of the Area 2A Wash- Assistant Administrator, with imme- ington recreational TAC is allocated as diate regulatory effect. Such measures incidental catch in the sablefish pri- may include, inter alia, provisions gov- mary fishery north of 46°53.30′ N lat. erning: Licensing of vessels, inseason (Pt. Chehalis, Washington), which is actions, regulatory areas, fishing peri- regulated under 50 CFR 660.231. This ods, closed periods, closed areas, catch fishing opportunity is only available in limits (quotas), fishing period limits, years in which the Washington rec- size limits, careful release of halibut, reational TAC is 214, 110 lb (97.1 mt) or vessel clearances, logs, receipt and pos- greater, provided that a minimum of session of halibut, fishing gear, reten- 10,000 lb (4.5 mt) is available to the sa- tion of tagged halibut, supervision of blefish fishery. Each year that this unloading and weighing, and sport fish- harvest is available, the landing re- ing for halibut. The Assistant Adminis- strictions necessary to keep this fish- trator will publish the Commission’s ery within its allocation will be rec- regulations setting forth annual man- ommended by the Pacific Fishery Man- agement measures in the FEDERAL agement Council at its spring meet- REGISTER by March 15 each year. An- ings, and will be published in the FED- nual management measures may be ad- ERAL REGISTER. These restrictions will justed inseason by the Commission. be designed to ensure the halibut harvest is incidental to the sablefish har- § 300.63 Catch sharing plan and do- vest and will be based on the amounts mestic management measures in Area 2A. of halibut and sablefish available to this fishery, and other pertinent fac- (a) A catch sharing plan (CSP) may tors. The restrictions may include be developed by the Pacific Fishery catch or landing ratios, landing limits, Management Council and approved by or other means to control the rate of NMFS for portions of the fishery. Any halibut landings. approved CSP may be obtained from (i) In years when this incidental har- the Administrator, West Coast Region, vest of halibut in the sablefish primary NMFS. fishery north of 46°53.30′ N. lat. is al- (b)(1) Each year, before January 1, lowed, it is allowed only for vessels NMFS will publish a proposal to govern using longline gear that are registered the recreational fishery under the CSP to groundfish limited entry permits for the following year and will seek public comment. The comment period with sablefish endorsements and that will extend until after the Commis- possess the appropriate incidental hal- sion’s annual meeting, so the public ibut harvest license issued by the Com- will have the opportunity to consider mission. the final area 2A total allowable catch (ii) It is unlawful for any person to (TAC) before submitting comments. possess, land or purchase halibut south After the Commission’s annual meet- of 46°53.30′ N. lat. that were taken and ing and review of public comments, retained as incidental catch authorized NMFS will publish in the FEDERAL by this section in the sablefish primary REGISTER the final rule governing sport fishery. fishing in area 2A. Annual management (4) The commercial longline fishery measures may be adjusted inseason by in area 2A is governed by the annual NMFS. management measures published pur- (2) A portion of the commercial TAC suant to §§ 300.62 and 300.63. is allocated as incidental catch in the (5) The treaty Indian fishery is gov- salmon troll fishery in Area 2A. Each erned by § 300.64 and tribal regulations. year the landing restrictions necessary The annual quota for the fishery will to keep the fishery within its alloca- be announced with the Commission tion will be recommended by the Pa- regulations under § 300.62

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(c) Flexible Inseason Management Pro- using YRCA expansions as defined in visions for Sport Halibut Fisheries in Area groundfish regulations at 50 CFR 2A. (1) The Regional Administrator, 660.70(g) or (h). NMFS West Coast Region, after con- (3) Notice procedures. (i) Actions taken sultation with the Chairman of the Pa- under this section will be published in cific Fishery Management Council, the the FEDERAL REGISTER. Commission Executive Director, and (ii) Actual notice of inseason man- the Fisheries Director(s) of the affected agement actions will be provided by a state(s), or their designees, is author- telephone hotline administered by the ized to modify regulations during the West Coast Region, NMFS, at 206–526– season after making the following de- 6667 or 800–662–9825. Since provisions of terminations: these regulations may be altered by (i) The action is necessary to allow inseason actions, sport fishers should allocation objectives to be met. monitor the telephone hotline for cur- (ii) The action will not result in ex- rent information for the area in which ceeding the catch limit for the area. they are fishing. (iii) If any of the sport fishery sub- (4) Effective dates. (i) Any action areas north of Cape Falcon, Oregon are issued under this section is effective on not projected to utilize their respective the date specified in the publication or quotas by September 30, NMFS may at the time that the action is filed for take inseason action to transfer any public inspection with the Office of the projected unused quota to another Federal Register, whichever is later. Washington sport subarea. (ii) If time allows, NMFS will invite (iv) If any of the sport fishery sub- public comment prior to the effective areas south of Leadbetter Point, Wash- date of any inseason action filed with ington, are not projected to utilize the FEDERAL REGISTER. If the Regional their respective quotas by their season Administrator determines, for good ending dates, NMFS may take inseason cause, that an inseason action must be action to transfer any projected unused filed without affording a prior oppor- quota to another Oregon sport subarea. tunity for public comment, public com- (v) Notwithstanding regulations at ments will be received for a period of 15 (c)(1)(i) of this section, if the total esti- days after publication of the action in mated yelloweye rockfish bycatch mor- the FEDERAL REGISTER. tality from recreational halibut trips (iii) Any inseason action issued under in all Oregon subareas is projected to this section will remain in effect until exceed 22 percent of the annual Oregon the stated expiration date or until re- recreational yelloweye rockfish har- scinded, modified, or superseded. How- vest guideline, NMFS may take ever, no inseason action has any effect inseason action to reduce yelloweye beyond the end of the calendar year in rockfish bycatch mortality in the hal- which it is issued. ibut fishery while allowing allocation (5) Availability of data. The Regional objectives to be met to the extent pos- Administrator will compile, in aggre- sible. gate form, all data and other informa- (2) Flexible inseason management tion relevant to the action being taken provisions include, but are not limited and will make them available for pub- to, the following: lic review during normal office hours (i) Modification of sport fishing peri- at the West Coast Regional Office, ods; NMFS, Sustainable Fisheries Division, (ii) Modification of sport fishing bag 7600 Sand Point Way NE., Seattle, limits; Washington. (iii) Modification of sport fishing size (d) Fishery Election in Area 2A. (1) A limits; vessel that fishes in Area 2A may par- (iv) Modification of sport fishing ticipate in only one of the following days per calendar week; three fisheries in Area 2A: (v) Modification of subarea quotas; (i) The sport fishery established in and the annual domestic management (vi) Modification of the Stonewall measures and International Pacific Bank Yelloweye Rockfish Conservation Halibut Commission (IPHC) regula- Area (YRCA) restrictions off Oregon tions and defined at § 300.61;

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(ii) The commercial directed fishery fishery during the fishing periods es- for halibut during the fishing period(s) tablished in the annual domestic man- established in the annual domestic agement measures and IPHC regula- management measures and IPHC regu- tions, and/or retained halibut inciden- lations and/or the incidental retention tally taken in the sablefish primary of halibut during the sablefish primary fishery for Area 2A or that is licensed fishery described at 50 CFR 660.231; or to participate in these commercial (iii) The incidental catch fishery dur- fisheries during the fishing periods es- ing the salmon troll fishery as author- tablished in the annual domestic man- ized in the annual domestic manage- agement measures and IPHC regula- ment measures and IPHC regulations. tions in Area 2A. (2) No person shall fish for halibut in (e) Area 2A Non-Treaty Commercial the sport fishery in Area 2A under the Fishery Closed Areas. (1) Non-treaty annual domestic management meas- commercial vessels operating in the di- ures and IPHC regulations, from a ves- rected commercial fishery for halibut sel that has been used during the same in Area 2A are required to fish outside calendar year for commercial halibut of a closed area, known as the Rockfish fishing in Area 2A, or that has been Conservation Area (RCA), that extends issued a permit for the same calendar along the coast from the U.S./Canada year for the commercial halibut fish- border south to 40°10′ N. lat. Between ery in Area 2A. the U.S./Canada border and 46°16′ N. (3) No person shall fish for halibut in lat., the eastern boundary of the RCA, the directed commercial halibut fish- is the shoreline. Between 46°16′ N. lat. ery during the fishing periods estab- and 40°10′ N. lat., the RCA is defined lished in the annual domestic manage- along an eastern boundary by a line ap- ment measures and IPHC regulations, and/or retain halibut incidentally proximating the 30-fm (55-m) depth taken in the sablefish primary fishery contour. Coordinates for the 30-fm (55- in Area 2A from a vessel that has been m) boundary are listed at 50 CFR used during the same calendar year for 660.71(e). Between the U.S./Canada bor- ° ′ the incidental catch fishery during the der and 40 10 N. lat., the RCA is de- salmon troll fishery, as authorized in fined along a western boundary ap- the annual domestic management proximating the 100-fm (183-m) depth measures and IPHC regulations. contour. Coordinates for the 100-fm (4) No person shall fish for halibut in (183-m) boundary are listed at 50 CFR the directed commercial halibut fish- 660.73(a). ery and/or retain halibut incidentally (2) Non-treaty commercial vessels op- taken in the sablefish primary fishery erating in the incidental catch fishery in Area 2A from a vessel that, during during the sablefish primary fishery the same calendar year, has been used north of Pt. Chehalis, Washington, in in the sport halibut fishery in Area 2A Area 2A are required to fish outside of or that is licensed for the sport charter a closed area. Under Pacific Coast halibut fishery in Area 2A. groundfish regulations at 50 CFR (5) No person shall retain halibut in 660.230, fishing with limited entry fixed the salmon troll fishery in Area 2A as gear is prohibited within the North authorized under the annual domestic Coast Commercial YRCA. It is unlaw- management measures and IPHC regu- ful to take and retain, possess, or land lations, taken on a vessel that, during halibut taken with limited entry fixed the same calendar year, has been used gear within the North Coast Commer- in the sport halibut fishery in Area 2A, cial YRCA. The North Coast Commer- or that is licensed for the sport charter cial YRCA is an area off the northern halibut fishery in Area 2A. Washington coast, overlapping the (6) No person shall retain halibut in northern part of the North Coast Rec- the salmon troll fishery in Area 2A as reational YRCA, and is defined by authorized under the annual domestic straight lines connecting latitude and management measures and IPHC regu- longitude coordinates. Coordinates for lations, taken on a vessel that, during the North Coast Commercial YRCA are the same calendar year, has been used specified in groundfish regulations at in the directed commercial halibut 50 CFR 660.70(b).

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(3) Non-treaty commercial vessels op- (d) Commercial fishing for halibut by erating in the incidental catch fishery treaty Indians shall comply with the during the salmon troll fishery in Area Commission’s management measures 2A are required to fish outside of a governing size limits, careful release of closed area. Under the Pacific Coast halibut, logs, receipt and possession, groundfish regulations at 50 CFR and fishing gear (published pursuant to 660.330(10), fishing with salmon troll § 300.62), except that the 72-hour fishing gear is prohibited within the Salmon restriction preceding the opening of a Troll YRCA. It is unlawful for commer- halibut fishing period shall not apply cial salmon troll vessels to take and re- to treaty Indian fishing. tain, possess or land fish within the (e) Ceremonial and subsistence fish- Salmon Troll YRCA. The Salmon Troll ing for halibut by treaty Indians in YRCA is an area off the northern Wash- subarea 2A–1 is permitted with hook- ington coast and is defined by straight and-line gear from January 1 to De- lines connecting latitude and longitude cember 31. coordinates. Coordinates for the Salm- (f) No size or bag limits shall apply to on Troll YRCA are specified in ground- the ceremonial and subsistence fishery, fish regulations at 50 CFR 660.70(c), and except that when commercial halibut in salmon regulations at 50 CFR 660.405. fishing is prohibited pursuant to paragraph (b) of this section, treaty Indians [61 FR 35550, July 5, 1996] may take and retain not more than EDITORIAL NOTE: For FEDERAL REGISTER ci- two halibut per person per day. tations affecting § 300.63, see the List of CFR (g) Halibut taken for ceremonial and Sections Affected, which appears in the subsistence purposes shall not be of- Finding Aids section of the printed volume fered for sale or sold. and at www.govinfo.gov. (h) Any member of a U.S. treaty In- dian tribe who is engaged in commer- § 300.64 Fishing by U.S. treaty Indian cial or ceremonial and subsistence fish- tribes. ing under this section must have on his (a) Halibut fishing in subarea 2A–1 by or her person a valid treaty Indian members of U.S. treaty Indian tribes identification card issued pursuant to located in the State of Washington is 25 CFR part 249, subpart A, and must governed by this section. comply with the treaty Indian vessel (b) Commercial fishing for halibut by and gear identification requirements of treaty Indians is permitted only in sub- Final Decision No. 1 and subsequent or- area 2A–1 with hook-and-line gear in ders in United States v. Washington 384 conformance with the season and quota F. Supp. 312 (W.D. Wash., 1974). established annually by the Commis- (i) Table 1 to this paragraph (i) sets sion. forth the fishing areas of each of the 13 (c) Commercial fishing periods and treaty Indian tribes fishing pursuant to management measures to implement this section. Within subarea 2A–1, paragraph (b) of this section will be es- boundaries of a tribe’s fishing area may tablished by treaty Indian tribal regu- be revised as ordered by a Federal lations. court.

TABLE 1 TO PARAGRAPH (i)

Tribe Boundaries

HOH ...... The area between 47°54.30′ N lat. (Quillayute River) and 47°21.00′ N lat. (Quinault River) and east of 125°44.00′ W long. JAMESTOWN S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1486, to be places at which the Jamestown S’Klallam Tribe may fish under rights secured by treaties with the United States. LOWER ELWHA S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049 and 1066 and 626 F. Supp. 1443, to be places at which the Lower Elwha S’Klallam Tribe may fish under rights secured by treaties with the United States.

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TABLE 1 TO PARAGRAPH (i)—Continued

Tribe Boundaries

LUMMI ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 360, as modified in Subproceeding No. 89–08 (W.D. Wash., February 13, 1990) (decision and order re: cross-motions for summary judgement), to be places at which the Lummi Tribe may fish under rights secured by treaties with the United States. MAKAH ...... The area north of 48°02.25′ N lat. (Norwegian Memorial) and east of 125°44.00′ W long. NOOKSACK ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), and particularly at 459 F. Supp. 1049, to be places at which the Nooksack Tribe may fish under rights secured by treaties with the United States. PORT GAMBLE S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1442, to be places at which the Port Gamble S’Klallam Tribe may fish under rights secured by treaties with the United States. QUILEUTE ...... The area commencing at Cape Alava, located at 48°10′00″ N lat, 124°43′56.9″ W long.; then proceeding west approximately 40 nautical miles at that latitude to a northwestern point located at 48°10′00″ N lat, 125°44′00″ W long.; then proceeding in a southeasterly direction mirroring the coastline at a distance no farther than 40 nautical miles from the mainland Pacific coast shoreline at any line of latitude, to a southwestern point at 47°31′42″ N lat., 125°20′26″ W long.; then proceeding east along that line of latitude to the Pacific coast shoreline at 47°31′42″ N lat., 124°21′9.0″ W long. QUINAULT ...... The area commencing at the Pacific coast shoreline near Destruction Island, located at 47°40′06″ N lat., 124°23′51.362″ W long.; then proceeding west approximately 30 nautical miles at that latitude to a northwestern point located at 47°40′06″ N lat., 125°08′30″ W long.; then proceeding in a southeasterly direction mirroring the coastline no farther than 30 nautical miles from the mainland Pacific coast shoreline at any line of latitude, to a southwestern point at 46°53′18″ N lat., 124°53′53″ W long.; then proceeding east along that line of latitude to the Pacific coast shoreline at 46°53′18″ N lat., 124°7′36.6″ W long. SKOKOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 377, to be places at which the Skokomish Tribe may fish under rights secured by treaties with the United States. SUQUAMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Suquamish Tribe may fish under rights secured by treaties with the United States. SWINOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Swinomish Tribe may fish under rights secured by treaties with the United States. TULALIP ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1531–1532, to be places at which the Tulalip Tribe may fish under rights secured by treaties with the United States.

[61 FR 35550, July 5, 1996, as amended at 74 FR 11697, Mar. 19, 2009; 76 FR 14319, Mar. 16, 2011; 81 FR 18795, Apr. 1, 2016; 85 FR 25324, May 1, 2020]

§ 300.65 Catch sharing plan and do- (b) The catch sharing plan for Com- mestic management measures in mission regulatory area 4 allocates the waters in and off Alaska. annual commercial catch limit among (a) A catch sharing plan (CSP) may Areas 4C, 4D, and 4E and will be adopt- be developed by the North Pacific Fish- ed by the Commission as annual man- ery Management Council and approved agement measures and published in the by NMFS for portions of the fishery. FEDERAL REGISTER as required in Any approved CSP may be obtained § 300.62. from the Administrator, Alaska Re- (c) Catch sharing plan (CSP) for Com- gion, NMFS. mission Regulatory Areas 2C and 3A—(1)

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General. The catch sharing plan for published in the FEDERAL REGISTER as Commission regulatory areas 2C and required in § 300.62. 3A: (ii) Sport fishing by charter vessel (i) Allocates the annual combined anglers in Commission regulatory catch limit for Commission regulatory areas 2C and 3A is governed by the areas 2C and 3A in order to establish Commission’s annual management the annual commercial catch limit and measures and by regulations at 50 CFR the annual guided sport catch limit for part 300, subparts A and E. the halibut commercial fishing and (iii) The amount of QS held by the sport fishing seasons, pursuant to para- RQE for Commission regulatory area graphs (c)(3) and (4) of this section; and 2C and 3A as of October 1 each year will (ii) Authorizes the use of Commission be the basis for determining the regulatory areas 2C and 3A halibut IFQ amount of RFQ pounds that will be as guided angler fish (GAF) for harvest added to the annual guided sport catch by charter vessel anglers in the cor- limit for the corresponding area in the responding area, pursuant to paragraph upcoming year. (c)(5) of this section. (5) Guided Angler Fish (GAF). This (iii) Authorizes the use of Commis- paragraph (§ 300.65(c)(5)) governs the sion regulatory areas 2C and 3A RFQ transfer of Commission regulatory resulting from halibut QS held by the areas 2C and 3A halibut between indi- RQE as authorized in part 679 to this vidual fishing quota (IFQ) and guided title to supplement the annual guided angler fish (GAF), the issuance of GAF sport catch limit in the corresponding permits, and GAF use. area, pursuant to paragraph (c)(4) of (i) General. (A) GAF is derived from this section. halibut IFQ that is transferred from a (2) Implementation. The Commission Commission regulatory area 2C or 3A regulatory areas 2C and 3A CSP annual IFQ permit holder’s account held by a combined catch limits, annual com- person who also holds quota share (QS), mercial catch limits, and annual guid- as defined in § 679.2 of this title, to a ed sport catch limits are adopted by GAF permit holder’s account for the the Commission as annual manage- same regulatory area. ment measures and published by NMFS (B) A GAF permit authorizes a char- in the FEDERAL REGISTER as required in ter vessel angler to retain GAF that § 300.62. are caught in the Commission regu- (3) Annual commercial catch limits. (i) latory area specified on a GAF permit: The Commission regulatory areas 2C (1) During the sport halibut fishing and 3A annual commercial catch limits season adopted by the Commission as are determined by subtracting wastage annual management measures and pub- from the allocations in Tables 1 and 2 lished in the FEDERAL REGISTER as re- of this subpart E, adopted by the Com- quired in § 300.62, and mission as annual management meas- (2) Subject to the GAF use restric- ures, and published in the FEDERAL tions at paragraphs (c)(5)(iv)(A) REGISTER as required in § 300.62. through (K) of this section. (ii) Commercial fishing in Commis- (C) NMFS will return unharvested sion regulatory areas 2C and 3A is gov- GAF to the IFQ permit holder’s ac- erned by the Commission’s annual count from which the GAF were de- management measures and by regula- rived on or after fifteen calendar days tions at 50 CFR part 679, subparts A, B, prior to the closing of the commercial D, and E. halibut fishing season each year, sub- (4) Annual guided sport catch limits. (i) ject to paragraph (c)(5)(ii) of this sec- The Commission regulatory areas 2C tion and underage provisions at and 3A annual guided sport catch lim- § 679.40(e) of this title. its are determined by subtracting wast- (ii) Transfer Between IFQ and GAF— age from, and adding any pounds of (A) General. A transfer between IFQ RFQ held by an RQE for that area to, and GAF means any transaction in the allocations in Tables 3 and 4 of this which halibut IFQ passes between an subpart, adopted by the Commission as IFQ permit holder and a GAF permit annual management measures, and holder as:

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(1) A transfer of IFQ to GAF, in (3) Transfer due to court order, oper- which halibut IFQ equivalent pounds, ation of law, or as part of a security as defined in § 679.2 of this title, are agreement. NMFS may approve an Ap- transferred from a Commission regu- plication for Transfer Between IFQ and latory area 2C or 3A IFQ permit ac- GAF to return GAF to the IFQ permit count, converted to number(s) of GAF holder’s account from which it derived as specified in paragraph (c)(5)(ii)(E) of pursuant to a court order, operation of this section, and assigned to a GAF law, or a security agreement. permit holder’s account in the same (4) Notification of decision on applica- management area; tion. (i) Persons who submit an Appli- (2) A transfer of GAF to IFQ, in cation for Transfer Between IFQ and which GAF in number(s) of fish are GAF to the Regional Administrator transferred from a GAF permit holder’s will receive notification of the Re- account in Commission regulatory area gional Administrator’s decision to ap- 2C or 3A, converted to IFQ equivalent prove or disapprove the application for pounds as specified in paragraph transfer. (c)(5)(ii)(E) of this section, and as- (ii) If an Application for Transfer Be- signed to the same IFQ permit holder’s tween IFQ and GAF is disapproved, account from which the GAF were de- NMFS will provide the reason(s) in rived; or writing by mail, posted on the date of (3) The return of unharvested GAF by that decision. NMFS to the IFQ permit holder’s ac- (iii) Disapproval of an Application for count from which it was derived, on or Transfer Between IFQ and GAF may be after 15 calendar days prior to the clos- appealed pursuant to § 679.43 of this ing of the commercial halibut fishing title. season. (iv) The Regional Administrator will (B) Transfer procedure—(1) Application not approve a transfer between IFQ and for Transfer Between IFQ and GAF. A GAF on an interim basis if an appli- transfer between IFQ and GAF requires cant appeals a disapproval of an Appli- Regional Administrator review and ap- cation for Transfer Between IFQ and proval of a complete Application for GAF pursuant to § 679.43 of this title. Transfer Between IFQ and GAF. Both (5) IFQ and GAF accounts. (i) Ac- the transferor and the transferee are counts affected by either a Regional required to complete and sign the ap- Administrator-approved Application plication. Transfers will be conducted for Transfer Between IFQ and GAF or via methods approved by NMFS. The the return of unharvested GAF to IFQ Regional Administrator shall provide on or after 15 calendar days prior to an Application for Transfer Between the closing of the commercial halibut IFQ and GAF on the NMFS Alaska Re- fishing season for that year will be ad- gion Web site at http:// justed on the date of approval or re- alaskafisheries.noaa.gov /ram/default.htm. turn. Applications for Transfer Be- An Application for Transfer Between tween IFQ and GAF that are transfers IFQ and GAF is not required for the re- of GAF to IFQ that have been approved turn of unharvested GAF by NMFS to by the Regional Administrator will be the IFQ permit holder’s account from completed not earlier than September which it was derived, 15 calendar days 1. Any necessary permits will be sent prior to the closing of the commercial with the notification of the Regional halibut fishing season for that year. Administrator’s decision on the Appli- (2) Application timing. The Regional cation for Transfer Between IFQ and Administrator will not approve any GAF. Application for Transfer Between IFQ (ii) Upon approval of an Application and GAF before annual IFQ is issued for Transfer Between IFQ and GAF for for each year or after one month prior an initial transfer from IFQ to GAF, to the closing of the commercial fish- NMFS will establish a new GAF ac- ing season for that year. Applications count for the GAF applicant’s account to transfer GAF to IFQ will be accept- and issue the resulting new GAF and ed from August 1 through August 31 IFQ permits. If a GAF account already only. exists from a previous transfer from

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the same IFQ account in the cor- pounds, as defined in § 679.2 of this responding management area in that title, from the transfer of IFQ to GAF year, NMFS will modify the GAF re- and the pounds of RFQ issued to the cipient’s GAF account and the IFQ RQE during a calendar year does not transferor’s permit account and issue exceed an amount that is greater than modified GAF and IFQ permits upon the amount derived from: 5,947,740 approval of an Application for Transfer units of Area 2C QS, or 22,187,161 units Between IFQ and GAF. of Area 3A QS. (iii) On or after 15 calendar days prior (2) The person applying to receive or to the closing of the commercial hal- transfer GAF possesses a valid charter ibut fishing season, NMFS will convert halibut permit, community charter unharvested GAF from a GAF permit halibut permit, or military charter hal- holder’s account back into IFQ equiva- ibut permit in the Commission regu- lent pounds as specified in paragraph latory area (Area 2C or Area 3A) that (c)(5)(ii)(E)(2) of this section, and re- corresponds to the IFQ permit area turn the resulting IFQ equivalent from or to which the IFQ will be trans- pounds to the IFQ permit holder’s ac- ferred. count from which the GAF were de- (3) For a transfer of IFQ to GAF: rived, unless prevented by regulations (i) The transfer between IFQ and at 15 CFR part 904. GAF must not cause the GAF permit (C) Complete application. Applicants issued to exceed the GAF use limits in must submit a completed Application paragraphs (c)(5)(iv)(H)(1) and (2) of for Transfer Between IFQ and GAF to this section; the Regional Administrator as in- (ii) The transfer must not cause the structed on the application. NMFS will person applying to transfer IFQ to ex- notify applicants with incomplete ap- ceed the GAF use limit in paragraph plications of the specific information (c)(5)(iv)(H)(3) of this section; and necessary to complete the application. (iii) There must be no fines, civil pen- (D) Application for Transfer Between alties, sanctions, or other payments IFQ and GAF approval criteria. An Ap- due and owing, or outstanding permit plication for Transfer Between IFQ and sanctions, resulting from Federal fish- GAF will not be approved until the Re- ery violations involving either person gional Administrator has determined or permit. that: (4) If a Community Quota Entity (1) The person applying to transfer (CQE), as defined in § 679.2 of this title, IFQ to GAF or receive IFQ from a submits a ‘‘Community Quota Entity transfer of GAF to IFQ: Application for Transfer Between Indi- (i) Possesses at least one unit of hal- vidual Fishing Quota (IFQ) and Guided ibut quota share (QS), as defined in Angler Fish (GAF),’’ the application § 679.2 of this title, in the applicable will not be approved until the Regional Commission regulatory area, either Administrator has determined that: Area 2C or Area 3A, for which the (i) The CQE applying to transfer IFQ transfer of IFQ to GAF is requested; to GAF is eligible to hold IFQ on behalf (ii) Has been issued an annual IFQ of the eligible community in Commis- Permit, as defined in § 679.4(d)(1) of this sion regulatory area 2C or 3A des- title, for the Commission regulatory ignated in Table 21 to 50 CFR part 679; area corresponding to the person’s QS (ii) The CQE applying to transfer IFQ holding, either Area 2C or Area 3A, re- to GAF has received notification of ap- sulting from that halibut QS; and proval of eligibility to receive IFQ for (iii) Has an IFQ permit holder’s ac- that community as described in count with an IFQ amount equal to or § 679.41(d)(1) of this title; greater than amount of IFQ to be (iii) The CQE applying to receive GAF transferred in the Commission regu- from a Commission regulatory area 2C latory area, either Area 2C or Area 3A, or 3A IFQ permit holder holds one or for which the transfer of IFQ to GAF is more charter halibut permits or com- requested. munity charter halibut permits for the (iv) In the applicable Commission corresponding area; and regulatory area, either Area 2C or Area (iv) The CQE applying to transfer be- 3A, the sum of IFQ halibut equivalent tween IFQ and GAF has submitted a

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complete annual report(s) as required mission regulatory area, subject to the by § 679.5(t) of this title. limits in paragraphs (c)(5)(iv)(A) (E) Conversion between IFQ and GAF— through (K) of this section, during a (1) General. An annual conversion fac- charter vessel fishing trip authorized tor will be calculated to convert be- by the charter halibut permit, commu- tween net pounds (whole number, no nity charter halibut permit, or mili- decimal points) of halibut IFQ and tary charter halibut permit that is des- number(s) of GAF (whole number, no ignated on the GAF permit. decimal points) for Area 2C and Area (2) A GAF permit authorizes a char- 3A. This conversion factor will be post- ter vessel angler to catch and retain ed on the NMFS Alaska Region Web GAF in the specified Commission regu- site before the beginning of each com- latory area from the time of permit mercial halibut fishing season. issuance until any of the following oc- (2) Conversion calculation. The net curs: pounds of IFQ transferred to or from an (i) The amount of GAF in the GAF IFQ permit holder in Commission regu- permit holder’s account is zero; latory area 2C or 3A will be equal to (ii) The permit expires at 11:59 p.m. the number(s) of GAF transferred to or (Alaska local time) on the day prior to from the GAF account of a GAF permit 15 days prior to the end of the commer- holder in the corresponding area, mul- cial halibut fishing season for that tiplied by the estimated average net year; weight determined as follows. For the (iii) NMFS replaces the GAF permit first calendar year after the effective with a modified GAF permit following date of this rule, the average net NMFS approval of an Application for weight will be estimated for all halibut Transfer Between IFQ and GAF; or harvested by charter vessel anglers (iv) The GAF permit is revoked or during the most recent year without a suspended under 15 CFR part 904. size limit in effect. After the first cal- (3) A GAF permit is issued for use in endar year after the effective date of a Commission regulatory area (2C or this rule, the average net weight will 3A) to the person who holds a valid be estimated from the average length charter halibut permit, community of GAF retained in that area during charter halibut permit, or military the previous year as reported to RAM charter halibut permit in the cor- via the GAF electronic reporting sys- responding Commission regulatory tem. If no GAF were harvested in a area. Regulations governing issuance, year, the conversion factor will be cal- transfer, and use of charter halibut culated using the same method as for permits are located in § 300.67. the first calendar year after the effec- (4) A GAF permit is assigned to only tive date of this rule. NMFS will round one charter halibut permit, community up to the nearest whole number (no charter halibut permit, or military decimals) when transferring IFQ to charter halibut permit held by the GAF and when transferring GAF to GAF permit holder in the cor- IFQ. Expressed algebraically, the con- responding Commission regulatory version formula is: area (2C or 3A). IFQ net pounds = (number of GAF × (5) If a charter vessel angler harvests average net weight). GAF from a charter vessel with a char- (3) The total number of net pounds ter vessel guide on board, a legible converted from unharvested GAF and copy of a valid GAF permit and the as- transferred to the IFQ permit holder’s signed charter halibut permit, commu- account from which it derived cannot nity charter halibut permit, or mili- exceed the total number of net pounds tary charter halibut permit appro- NMFS transferred from the IFQ permit priate for the Commission regulatory holder’s account to the GAF permit area (2C or 3A) must be carried by the holder’s account for that area in the charter vessel operator on board the current year. charter vessel used to harvest GAF at (iii) Guided Angler Fish (GAF) permit— all times that such fish are retained on (A) General. (1) A GAF permit author- board and must be presented for inspec- izes a charter vessel angler to catch tion on request of any authorized offi- and retain GAF in the specified Com- cer. If a charter vessel angler harvests

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GAF from a charter vessel without a permit holder’s GAF account at the charter vessel guide on board, the char- time of harvest. ter vessel guide must retain the legible (C) The total number of halibut re- copy of the GAF permit and the as- tained by a charter vessel angler har- signed charter halibut permit, commu- vesting GAF cannot exceed the sport nity charter halibut permit, or mili- fishing daily bag limit in effect for tary charter halibut permit must be on unguided sport anglers at the time of the charter vessel with the charter ves- harvest adopted by the Commission as sel angler. annual management measures and pub- (6) No person may alter, erase, muti- lished in the FEDERAL REGISTER as relate, or forge a GAF permit or docu- quired in § 300.62. ment issued under this section (§ 300.65(c)(5)(iii)). Any such permit or (D) Retained GAF are not subject to document that has been intentionally any length limit implemented by the altered, erased, mutilated, or forged is Commission’s annual management invalid. measures and published in the FEDERAL (7) GAF permit holders must retain REGISTER as required in § 300.62, if ap- GAF permit(s) and associated GAF per- plicable. mit logs for two years after the end of (E) Each charter vessel angler retain- the fishing year for which the GAF per- ing GAF must comply with the halibut mit(s) was issued and make the GAF possession requirements adopted by the permit available for inspection upon Commission as annual management the request of an authorized officer (as measures and published in the FEDERAL defined in Commission regulations). REGISTER as required in § 300.62. (B) Issuance. The Regional Adminis- (F) The charter vessel guide must en- trator will issue a GAF permit upon sure that each charter vessel angler approval of an Application to Transfer complies with paragraphs (c)(5)(iv)(A) Between IFQ and GAF. through (E) of this section. (C) Transfer. GAF authorized by a (G) The charter vessel guide must be GAF permit under this paragraph physically present when the GAF hal- (§ 300.65(c)(5)(iii)) are not transferable ibut is harvested and must imme- to another GAF permit, except as pro- diately remove the tips of the upper vided under paragraph (c)(5)(ii) of this section. and lower lobes of the caudal (tail) fin (iv) GAF use restrictions. (A) If a char- to mark all halibut caught and re- ter vessel angler harvests GAF from a tained as GAF. If the GAF halibut is charter vessel with a charter vessel filleted, the entire carcass, with head guide on board, the charter vessel and tail connected as a single piece, guide must have on board a legible must be retained on board the charter copy of a valid GAF permit and the vessel on which the halibut was caught valid charter halibut permit, commu- until all fillets are offloaded. nity charter halibut permit, or mili- (H) Except as provided in paragraph tary charter halibut permit assigned to (c)(5)(iv)(I) of this section, during the the GAF permit for the area of harvest. halibut sport fishing season adopted by If a charter vessel angler harvests GAF the Commission as annual manage- from a charter vessel without a charter ment measures and published in the vessel guide on board, the legible copy FEDERAL REGISTER as required in of the valid GAF permit must be on § 300.62, the following GAF use and IFQ board the same vessel as the charter transfer limits shall apply. GAF use vessel guide, and the original charter limits do not apply to military charter halibut permit, community charter halibut permits. halibut permit, or military charter hal- (1) No more than 400 GAF may be as- ibut permit assigned to the GAF per- signed to a GAF permit that is as- mit for the area of harvest must be on the charter vessel with the charter ves- signed to a charter halibut permit or sel angler. community charter halibut permit en- (B) The total number of GAF on dorsed for six (6) or fewer charter ves- board a vessel cannot exceed the num- sel anglers in a year, ber of unharvested GAF in the GAF

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(2) No more than 600 GAF may be as- quirements—(i) Logbook submission. For signed to a GAF permit that is as- a charter vessel fishing trip during signed to a charter halibut permit en- which halibut were caught and re- dorsed for more than six (6) charter tained on or after the first Monday in vessel anglers in a year; and April and on or before December 31, (3) In Commission regulatory area 2C, Alaska Department of Fish and Game a maximum of 1,500 pounds or ten (10) (ADF&G) Saltwater Sport Fishing percent, whichever is greater, of the Charter Trip Logbook data sheets must start year fishable IFQ pounds for an be submitted to the ADF&G and post- IFQ permit, may be transferred from marked or received no later than 14 IFQ to GAF. In Commission regulatory calendar days after the Monday of the area 3A, a maximum of 1,500 pounds or fishing week (as defined in 50 CFR fifteen (15) percent, whichever is great- 300.61) in which the halibut were er, of the start year fishable IFQ caught and retained. Logbook sheets pounds for an IFQ permit, may be for a charter vessel fishing trip during transferred from IFQ to GAF. Start which halibut were caught and re- year fishable pounds is the sum of IFQ tained on January 1 through the first equivalent pounds, as defined in § 679.2 Sunday in April, must be submitted to of this title, for an area, derived from the ADF&G and postmarked or re- QS held, plus or minus adjustments ceived no later than the second Mon- made to that amount pursuant to day in April. § 679.40(d) and (e) of this title. (ii) The charter vessel guide is re- (I) The halibut QS equivalent of net sponsible for complying with the re- pounds of halibut IFQ that is transporting requirements of this paragraph ferred to GAF is included in the com- (d). The person whose business was as- putation of halibut QS use caps in signed an Alaska Department of Fish § 679.42(f)(1)(i) and (ii) of this title. and Game Saltwater Sport Fishing (J) A CHP holder receiving GAF from Charter Trip Logbook is responsible for a CQE is subject to § 679.42(f)(6) of this ensuring that the charter vessel guide title. For a CHP holder who receives complies with the reporting require- GAF from a CQE, the net poundage ments of this paragraph (d). equivalent of all halibut IFQ received (2) Retention and inspection of logbook. as GAF is included in the computation A person who is required to provide in- of that person’s IFQ halibut holdings in formation pursuant to paragraph (d)(4) § 679.42(f)(6) of this title. of this section, or whose business was (K) Applicability of GAF use restric- assigned an Alaska Department of Fish tions to CQEs. The GAF use restric- and Game Saltwater Sport Fishing tions in paragraph (c)(5)(iv)(H) of this Charter Trip Logbook and whose char- section do not apply if: ter vessel anglers retain halibut is re- (1) A CQE transfers IFQ as GAF to a quired to: GAF permit that is assigned to one or (i) Retain all logbook data pages more charter halibut permits held by showing halibut harvest for 2 years that CQE or community charter hal- after the end of the fishing year for ibut permits held by that CQE; which the logbook was issued, and (2) A CQE transfers IFQ as GAF to (ii) Make the logbook available for another CQE holding one or more char- inspection upon the request of an au- ter halibut permits or community thorized officer (as defined in Commis- charter halibut permits; or sion regulations). (3) A CQE transfers IFQ as GAF to a (3) Charter vessel guide and crew re- GAF permit that is assigned to a char- striction in Commission regulatory areas ter halibut permit held by an eligible 2C and 3A. A charter vessel guide, char- community resident (as defined at ter vessel operator, or crew member § 679.2) of that CQE community, as de- may not catch and retain halibut dur- fined for purposes of the Catch Sharing ing a charter vessel fishing trip in Plan for Commission regulatory areas Commission regulatory area 2C or 3A, 2C and 3A in § 679.2 of this title, holding except that charter vessel operators one or more charter halibut permits. who are charter vessel anglers may (d) Charter vessels in Commission regu- catch and retain halibut during a char- latory area 2C and 3A—(1) General re- ter vessel fishing trip if the charter

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vessel guide is on a separate charter (4) Guided Angler Fish (GAF) permit vessel. number. The NMFS GAF permit num- (4) Recordkeeping and reporting re- ber(s) authorizing charter vessel an- quirements in Commission regulatory area glers on that charter vessel fishing trip 2C and 3A—(i) General requirements. to harvest GAF. Each charter vessel angler and charter (5) Statistical area. The primary Alas- vessel guide in Commission regulatory ka Department of Fish and Game sta- area 2C or 3A must comply with the tistical area code in which halibut were following recordkeeping and reporting caught and retained. requirements, except as specified in (6) Angler sport fishing license number paragraph (d)(4)(iii)(C) of this section, and printed name. Before a charter ves- by the end of the calendar day or by sel fishing trip begins, record the first the end of the charter vessel fishing and last name of each paying or non- trip, whichever comes first, unless oth- paying charter vessel angler on board erwise specified. that will fish for halibut. For each an- (ii) Logbook reporting requirements— gler required to be licensed, record the (A) Charter vessel angler signature re- Alaska Sport Fishing License number quirement. Each charter vessel angler for the current year, resident perma- who retains halibut caught in Commis- nent license number, or disabled vet- sion regulatory area 2C or 3A must ac- eran license number. For youth anglers knowledge that his or her name, li- not required to be licensed, record the cense number (if required), and number word ‘‘youth’’ in place of the license of halibut retained (kept) are recorded number. correctly by signing the Alaska De- (7) Number of halibut retained. For partment of Fish and Game Saltwater each charter vessel angler, record the Charter Logbook data sheet on the line total number of non-GAF halibut that corresponds to the angler’s infor- caught and kept. mation. (8) Number of GAF retained. For each (B) Charter vessel guide requirements. If charter vessel angler, record the total halibut were caught and retained in number of GAF kept. Commission regulatory area 2C or 3A, (9) Guide signature. The charter vessel the charter vessel guide must record guide acknowledges that the recorded the following information (see para- information is correct by signing the graphs (d)(4)(ii)(B)(1) through (10) of logbook data sheet. this section) in the Alaska Department (10) Angler signature. The charter ves- of Fish and Game Saltwater Charter sel guide is responsible for ensuring Logbook: that charter vessel anglers that retain (1) Guide license number. The Alaska halibut comply with the signature re- Department of Fish and Game sport quirements at paragraph (d)(4)(ii)(A) of fishing guide license or registration this section. number held by the charter vessel (iii) GAF reporting requirements—(A) guide who certified the logbook data General. (1) Upon retention of a GAF sheet. halibut, the charter vessel guide must (2) Date. Month and day for each immediately record on the GAF permit charter vessel fishing trip taken. A sep- log (on the back of the GAF permit) arate logbook data sheet is required for the date that the fish was caught and each charter vessel fishing trip if two retained and the total length of that or more trips are taken on the same fish as described in paragraphs day. A separate logbook data sheet is (d)(4)(iii)(D)(5) and (7) of this section. If required for each calendar day that GAF halibut are retained on a charter halibut are caught and retained during vessel without a charter vessel guide a multi-day trip. A separate logbook on board, the charter vessel guide must sheet is required if more than one char- also comply with the reporting require- ter halibut permit is used on a trip. ments in paragraph (d)(4)(iii)(A)(5) of (3) Charter halibut permit (CHP) num- this section. ber. The NMFS CHP number(s) author- (2) In addition to the recordkeeping izing charter vessel anglers on that and reporting requirements in para- charter vessel fishing trip to catch and graphs (d)(4)(i) and (ii) of this section, retain halibut. a GAF permit holder must use the

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NMFS-approved electronic reporting proved electronic reporting system (see system on the Alaska Region Web site paragraphs (d)(4)(iii)(D)(1) through (9) at http://alaskafisheries.noaa.gov/ to sub- of this section) by 11:59 p.m. (Alaska mit a GAF landings report. local time) on the last day of a charter (3) A GAF permit holder must submit fishing trip in which a charter vessel a GAF landings report by 11:59 p.m. angler retained GAF: (Alaska local time) on the last cal- (1) Logbook number from the Alaska endar day of a fishing trip for each day Department of Fish and Game Salt- on which a charter vessel angler re- water Sport Fishing Charter Trip Log- tained GAF authorized by the GAF per- book. mit held by that permit holder. (2) Vessel identification number for (4) If a GAF permit holder is unable vessel on which GAF were caught and to submit a GAF landings report due to retained: hardware, software, or Internet failure (i) State of Alaska issued boat reg- for a period longer than the required istration (AK number), or reporting time, or a correction must be (ii) U.S. Coast Guard documentation made to information already sub- number. mitted, the GAF permit holder must (3) GAF permit number under which contact NOAA Office of Law Enforce- GAF were caught and retained. ment, Juneau, AK, at 800–304–4846 (Se- (4) Alaska Department of Fish and lect Option 1). Game sport fishing guide license or (5) If a GAF is retained on a charter registration number held by the char- vessel without a charter vessel guide ter vessel guide who certified the log- on board, the charter vessel guide must book data sheet. immediately record in the ADF&G (5) Date that GAF was caught and re- Saltwater Charter Logbook the GAF tained. permit number under which GAF were (6) Number of GAF caught and re- caught and retained, and the number of tained. GAF kept under the corresponding (7) Length of each GAF caught and charter vessel angler’s name. retained. Halibut lengths are measured (B) Electronic Reporting of GAF. A in inches in a straight line from the an- GAF permit holder must obtain, at his terior-most tip of the lower jaw with or her own expense, the technology to the mouth closed to the extreme end of submit GAF landing reports to the the middle of the tail. NMFS-approved reporting system for (8) Community charter halibut per- GAF landings. mit only: Community or Port where (C) NMFS-Approved Electronic Report- the charter vessel fishing trip began ing System. The GAF permit holder (i.e., where charter vessel anglers agrees to the following terms (see para- boarded the vessel). graphs (d)(4)(iii)(C)(1) through (3) of (9) Community charter halibut per- this section): mit only: Community or Port where (1) To use any NMFS online service the charter vessel fishing trip ended or reporting system only for authorized (i.e., where charter vessel anglers or purposes; fish were offloaded from the vessel). (2) To safeguard the NMFS Person (E) Properly reported landing. (1) The Identification Number and password to GAF permit holder is responsible for prevent their use by unauthorized per- ensuring that all GAF harvested on sons; and board a vessel are debited from the (3) To accept the responsibility of GAF permit holder’s account under and acknowledge compliance with which the GAF were retained. § 300.4(a) and (b), § 300.65(d), and (2) A GAF landing confirmation num- § 300.66(p) and (q). ber issued by the NMFS-approved elec- (D) Information entered for each GAF tronic reporting system and recorded caught and retained. The GAF permit by the GAF permit holder on the GAF holder must enter the following infor- permit log used to record the dates and mation for each charter vessel fishing lengths of retained GAF, as required in trip in which GAF were retained under paragraph (d)(4)(iii)(A)(1) of this sec- the authorization of the permit hold- tion, constitutes confirmation that the er’s GAF permit into the NMFS-ap- GAF permit holder’s GAF landing is

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properly reported and the GAF permit Chichagof Island at 57°22′03″ N. lat., holder’s account is properly debited. 135°43′00″ W. long., and (3) Instructions for correcting a sub- (B) A line from Chichagof Island at mitted GAF landing electronic report 57°22′35″ N. lat., 135°41′18″ W. long. to are at (d)(4)(iii)(A)(4) of this section. Baranof Island at 57°22′17″ N. lat., (5) Carcass retention requirement for 135°40′57″ W. lat.; and size-restricted halibut. If a size-restricted (C) That is enclosed on the south and halibut is filleted on board the charter west by a line from Sitka Point at vessel, the entire carcass, with head 56°59′23″ N. lat., 135°49′34″ W. long., to and tail connected as a single piece, Hanus Point at 56°51′55″ N. lat., must be retained on board the charter 135°30′30″ W. long., vessel on which it was caught until all (D) To the green day marker in Doro- fillets are offloaded. thy Narrows at 56°49′17″ N. lat., (6) If a charter vessel angler catches 135°22′45″ W. long. to Baranof Island at and retains halibut, and that halibut is 56°49′17″ N. lat., 135°22′36″ W. long. on board a fishing vessel with halibut (2) A person using a vessel greater caught and retained by persons who are than 35 ft (10.7 m) in overall length, as not charter vessel anglers, then the defined at 50 CFR 300.61, is prohibited daily bag limit, possession limit, size from fishing for IFQ halibut with limit, and carcass retention regula- setline gear, as defined at 50 CFR tions applicable to charter vessel an- 300.61, within Sitka Sound as defined in glers shall apply to all halibut on board paragraph (e)(1)(i) of this section. the fishing vessel. (3) A person using a vessel less than (e) The Local Area Management Plan or equal to 35 ft (10.7 m) in overall (LAMP) for Sitka Sound provides length, as defined at 50 CFR 300.61: guidelines for participation in the hal- (i) Is prohibited from fishing for IFQ ibut fishery in Sitka Sound. halibut with setline gear within Sitka (1) For purposes of this section, Sitka Sound, as defined in paragraph (e)(1)(ii) Sound means (See Figure 1 to subpart of this section, from June 1 through E): August 31; and (i) With respect to paragraph (e)(2) of (ii) Is prohibited, during the remain- this section, that part of the Commis- der of the designated IFQ season, from sion regulatory area 2C that is enclosed retaining more than 2,000 lb (0.91 mt) of on the north and east: IFQ halibut within Sitka Sound, as de- (A) By a line from Kruzof Island at fined in paragraph (e)(1)(ii) of this sec- 57°20′30″ N. lat., 135°45′10″ W. long. to tion, per IFQ fishing trip, as defined in Chichagof Island at 57°22′03″ N. lat., 50 CFR 300.61. 135°43′00″ W. long., and (4) No charter vessel shall engage in (B) By a line from Chichagof Island sport fishing, as defined at § 300.61, for at 57°22′35″ N. lat., 135°41′18″ W. long. to halibut within Sitka Sound, as defined Baranof Island at 57°22′17″ N. lat., in paragraph (e)(1)(ii) of this section, 135°40′57″ W. long.; and from June 1 through August 31. (C) That is enclosed on the south and (i) No charter vessel shall retain hal- west by a line from Cape Edgecumbe at ibut caught while engaged in sport 56°59′54″ N. lat., 135°51′27″ W. long. to fishing, as defined at § 300.61, for other Vasilief Rock at 56°48′56″ N. lat., species, within Sitka Sound, as defined 135°32′30″ W. long., and in paragraph (e)(1)(ii) of this section, (D) To the green day marker in Doro- from June 1 through August 31. thy Narrows at 56°49′17″ N. lat., (ii) Notwithstanding paragraphs (e)(4) 135°22′45″ W. long. to Baranof Island at and (e)(4)(i) of this section, halibut har- 56°49′17″ N. lat., 135°22′36″ W. long. vested outside Sitka Sound, as defined (ii) With respect to paragraphs (e)(3), in paragraph (e)(1)(ii) of this section, (e)(4), and (e)(5) of this section, that may be retained onboard a charter ves- part of the Commission Regulatory sel engaged in sport fishing, as defined Area 2C that is enclosed on the north in § 300.61, for other species within and east: Sitka Sound, as defined in paragraph (A) By a line from Kruzof Island at (e)(1)(ii) of this section, from June 1 57°20′30″ N. lat., 135°45′10″ W. long. to through August 31.

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(5) Setline gear may not be used in a HALIBUT REGULATORY AREA 2C—Continued 4 nm radius extending south from Low Island at 57°00.70′ N. lat., 135°36.57′ W. Rural Community Organized Entity long. within Sitka Sound, as defined in Skagway ...... Municipality paragraph (e)(1)(ii) of this section, from Tenakee Springs ...... Municipality June 1 through August 31. Thorne Bay ...... Municipality Whale Pass ...... Census Designated Place (f) Sitka Pinnacles Marine Reserve. Wrangell ...... Municipality (1) For purposes of this paragraph (f), the Sitka Pinnacles Marine Reserve HALIBUT REGULATORY AREA 3A means an area totaling 2.5 square nm off Cape Edgecumbe, defined by Rural Community Organized Entity straight lines connecting the following Akhiok ...... Municipality points in a counterclockwise manner: Chenega Bay ...... Census Designated Place ° ′ ° ′ Cordova ...... Municipality 56 55.5 N lat., 135 54.0 W long; Karluk ...... Census Designated Place 56°57.0′ N lat., 135°54.0′ W long; Kodiak City ...... Municipality 56°57.0′ N lat., 135°57.0′ W long; Larsen Bay ...... Municipality 56°55.5′ N lat., 135°57.0′ W long. Nanwalek ...... Census Designated Place Old Harbor ...... Municipality (2) No person shall engage in com- Ouzinkie ...... Municipality mercial, sport or subsistence fishing, as Port Graham ...... Census Designated Place Port Lions ...... Municipality defined at § 300.61, for halibut within Seldovia ...... Municipality the Sitka Pinnacles Marine Reserve. Tatitlek ...... Census Designated Place (3) No person shall anchor a vessel Yakutat ...... Municipality within the Sitka Pinnacles Marine Re- serve if halibut is on board. HALIBUT REGULATORY AREA 3B (g) Subsistence fishing in and off Alas- ka. No person shall engage in subsist- Rural Community Organized Entity ence fishing for halibut unless that per- Chignik Bay ...... Municipality son meets the requirements in para- Chignik Lagoon ...... Census Designated Place graphs (g)(1), (g)(2), or (g)(3) of this sec- Chignik Lake ...... Census Designated Place Cold Bay ...... Municipality tion. False Pass ...... Municipality (1) A person is eligible to harvest sub- Ivanof Bay ...... Census Designated Place sistence halibut if he or she is a rural King Cove ...... Municipality Nelson Lagoon ...... Census Designated Place resident of a community with cus- Perryville ...... Census Designated Place tomary and traditional uses of halibut Sand Point ...... Municipality listed in the following table: HALIBUT REGULATORY AREA 4A HALIBUT REGULATORY AREA 2C Rural Community Organized Entity Rural Community Organized Entity Akutan ...... Municipality Angoon ...... Municipality Nikolski ...... Census Designated Place Coffman Cove ...... Municipality Unalaska ...... Municipality Craig ...... Municipality Edna Bay ...... Census Designated Place Elfin Cove ...... Census Designated Place HALIBUT REGULATORY AREA 4B Gustavus ...... Census Designated Place Haines ...... Municipality Rural Community Organized Entity Hollis ...... Census Designated Place Hoonah ...... Municipality Adak ...... Census Designated Place Hydaburg ...... Municipality Atka ...... Municipality Hyder ...... Census Designated Place Kake ...... Municipality Kasaan ...... Municipality HALIBUT REGULATORY AREA 4C Klawock ...... Municipality Klukwan ...... Census Designated Place Rural Community Organized Entity Metlakatla ...... Census Designated Place Meyers Chuck ...... Census Designated Place St. George ...... Municipality Naukati ...... Municipality St. Paul ...... Municipality Pelican ...... Municipality Petersburg ...... Municipality Point Baker ...... Census Designated Place HALIBUT REGULATORY AREA 4D Port Alexander ...... Municipality Port Protection ...... Census Designated Place Rural Community Organized Entity Saxman ...... Municipality Sitka ...... Municipality Gambell ...... Municipality

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HALIBUT REGULATORY AREA 4D—Continued HALIBUT REGULATORY AREA 2C

Rural Community Organized Entity Place with Tribal Head- quarters Organized Tribal Entity Savoonga ...... Municipality Diomede (Inalik) ...... Municipality Angoon ...... Angoon Community Association Craig ...... Craig Community Association Haines ...... Chilkoot Indian Association HALIBUT REGULATORY AREA 4E Hoonah ...... Hoonah Indian Association Hydaburg ...... Hydaburg Cooperative Associa- Rural Community Organized Entity tion Juneau ...... Aukquan Traditional Council Alakanuk ...... Municipality Central Council Tlingit and Aleknegik ...... Municipality Haida Indian Tribes Bethel ...... Municipality Douglas Indian Association Brevig Mission ...... Municipality Kake ...... Organized Village of Kake Kasaan ...... Organized Village of Kasaan Chefornak ...... Municipality Ketchikan ...... Ketchikan Indian Corporation Chevak ...... Municipality Klawock ...... Klawock Cooperative Associa- Clark’s Point ...... Municipality tion Council ...... Census Designated Place Klukwan ...... Chilkat Indian Village Dillingham ...... Municipality Metlakatla ...... Metlakatla Indian Community, Eek ...... Municipality Annette Island Reserve Egegik ...... Municipality Petersburg ...... Petersburg Indian Association Elim ...... Municipality Saxman ...... Organized Village of Saxman Emmonak ...... Municipality Sitka ...... Sitka Tribe of Alaska Golovin ...... Municipality Skagway ...... Skagway Village Goodnews Bay ...... Municipality Wrangell ...... Wrangell Cooperative Associa- Hooper Bay ...... Municipality tion King Salmon ...... Census Designated Place Kipnuk ...... Census Designated Place Kongiganak ...... Census Designated Place HALIBUT REGULATORY AREA 3A Kotlik ...... Municipality Koyuk ...... Municipality Place with Tribal Head- Organized Tribal Entity Kwigillingok ...... Census Designated Place quarters Levelock ...... Census Designated Place Akhiok ...... Native Village of Akhiok Manokotak ...... Municipality Chenega Bay ...... Native Village of Chanega Mekoryak ...... Municipality Cordova ...... Native Village of Eyak Naknek ...... Census Designated Place Karluk ...... Native Village of Karluk Napakiak ...... Municipality Kenai-Soldotna ...... Kenaitze Indian Tribe Napaskiak ...... Municipality Village of Salamatoff Newtok ...... Census Designated Place Kodiak City ...... Lesnoi Village (Woody Island) Nightmute ...... Municipality Native Village of Afognak Nome ...... Municipality Shoonaq’ Tribe of Kodiak Oscarville ...... Census Designated Place Larsen Bay ...... Native Village of Larsen Bay Pilot Point ...... Municipality Nanwalek ...... Native Village of Nanwalek Platinum ...... Municipality Ninilchik ...... Ninilchik Village Port Heiden ...... Municipality Old Harbor ...... Village of Old Harbor Quinhagak ...... Municipality Ouzinkie ...... Native Village of Ouzinkie Scammon Bay ...... Municipality Port Graham ...... Native Village of Port Graham Shaktoolik ...... Municipality Port Lions ...... Native Village of Port Lions Sheldon Point (Nunam Municipality Seldovia ...... Seldovia Village Tribe Iqua). Tatitlek ...... Native Village of Tatitlek Shishmaref ...... Municipality Wasilla ...... Village of Kanatak Solomon ...... Census Designated Place Yakutat ...... Yakutat Tlingit Tribe South Naknek ...... Census Designated Place St. Michael ...... Municipality ALIBUT EGULATORY REA Stebbins ...... Municipality H R A 3B Teller ...... Municipality Place with Tribal Head- Togiak ...... Municipality quarters Organized Tribal Entity Toksook Bay ...... Municipality Tuntutuliak ...... Census Designated Place Chignik Bay ...... Native Village of Chignik Tununak ...... Census Designated Place Chignik Lagoon ...... Native Village of Chignik La- Twin Hills ...... Census Designated Place goon Ugashik ...... Census Designated Place Chignik Lake ...... Chignik Lake Village Unalakleet ...... Municipality False Pass ...... Native Village of False Pass Wales ...... Municipality Ivanof Bay ...... Ivanoff Bay Village White Mountain ...... Municipality King Cove ...... Agdaagux Tribe of King Cove Native Village of Belkofski (2) A person is eligible to harvest sub- Nelson Lagoon ...... Native Village of Nelson Lagoon Perryville ...... Native Village of Perryville sistence halibut if he or she is a mem- Sand Point ...... Pauloff Harbor Village ber of an Alaska Native tribe with cus- Native Village of Unga tomary and traditional uses of halibut Qagan Tayagungin Tribe of listed in the following table: Sand Point Village

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HALIBUT REGULATORY AREA 4A HALIBUT REGULATORY AREA 4E—Continued

Place with Tribal Head- Place with Tribal Head- quarters Organized Tribal Entity quarters Organized Tribal Entity

Akutan ...... Native Village of Akutan Napakiak ...... Native Village of Napakiak Nikolski ...... Native Village of Nikolski Napaskiak ...... Native Village of Napaskiak Unalaska ...... Qawalingin Tribe of Unalaska Newtok ...... Newtok Village Nightmute ...... Native Village of Nightmute Umkumiute Native Village HALIBUT REGULATORY AREA 4B Nome ...... King Island Native Community Nome Eskimo Community Place with Tribal Head- Organized Tribal Entity Oscarville ...... Oscarville Traditional Village quarters Pilot Point ...... Native Village of Pilot Point Platinum ...... Platinum Traditional Village Atka ...... Native Village of Atka Port Heiden ...... Native Village of Port Heiden Quinhagak ...... Native Village of Kwinhagak Scammon Bay ...... Native Village of Scammon Bay HALIBUT REGULATORY AREA 4C Shaktoolik ...... Native Village of Shaktoolik Sheldon Point (Nunam Native Village of Sheldon’s Place with Tribal Head- Iqua). Point quarters Organized Tribal Entity Shishmaref ...... Native Village of Shishmaref Solomon ...... Village of Solomon . South Naknek ...... South Naknek Village St. George ...... Pribilof Islands Aleut Commu- St. Michael ...... Native Village of Saint Michael St. Paul ...... nities of St. Paul Island and Stebbins ...... Stebbins Community Associa- St. George Island tion Teller ...... Native Village of Mary’s Igloo HALIBUT REGULATORY AREA 4D Native Village of Teller Togiak ...... Traditional Village of Togiak Toksook Bay ...... Native Village of Toksook Bay Place with Tribal Head- quarters Organized Tribal Entity Tuntutuliak ...... Native Village of Tuntutuliak Tununak ...... Native Village of Tununak Gambell ...... Native Village of Gambell Twin Hills ...... Twin Hills Village Savoonga ...... Native Village of Savoonga Ugashik ...... Ugashik Village Diomede (Inalik)...... Native Village of Diomede Unalakleet ...... Native Village of Unalakleet (Inalik) Wales ...... Native Village of Wales White Mountain ...... Native Village of White Moun- tain HALIBUT REGULATORY AREA 4E (3) A person is eligible to harvest sub- Place with Tribal Head- quarters Organized Tribal Entity sistence halibut if he or she is a rural resident in one of the rural areas of Alakanuk ...... Village of Alakanuk Alaska described as follows: Aleknagik ...... Native Village of Aleknagik ° Bethel ...... Orutsararmuit Native Village (i) Southeast Alaska east of 141 W. Brevig Mission ...... Native Village of Brevig Mission long., except for the land areas of the Chefornak ...... Village of Chefornak Ketchikan Gateway Borough as de- Chevak ...... Chevak Native Village scribed at paragraph (g)(4)(i) of this Clark’s Point ...... Village of Clark’s Point Council ...... Native Village of Council section, the land areas of the City and Dillingham ...... Native Village of Dillingham Borough of Juneau, and the Ketchikan Native Village of Ekuk and Juneau non-subsistence marine Native Village of Kanakanak Eek ...... Native Village of Eek waters areas as defined in paragraphs Egegik ...... Egegik Village (h)(3)(i) and (h)(3)(ii) of this section Elim ...... Native Village of Elim (see figures 2 and 3 to this subpart E). Emmonak ...... Chuloonawick Native Village (ii) The Alaska Peninsula, Aleutian Emmonak Village Golovin ...... Chinik Eskimo Community Islands, Kodiak Island Archipelago, Goodnews Bay ...... Native Village of Goodnews Bay and the area south of the northern Hooper Bay ...... Native Village of Hooper Bay boundary of the Bristol Bay Borough Native Village of Paimiut ° ′ King Salmon ...... King Salmon Tribal Council and south of 58 39.2 N. lat. (see figures Kipnuk ...... Native Village of Kipnuk 5, 6, and 7 to this subpart E). Kongiganak ...... Native Village of Kongiganak (iii) Nelson, Nunivak, and Saint Law- Kotlik ...... Native Village of Hamilton rence Islands (see figure 6 to this sub- Village of Bill Moore’s Slough Village of Kotlik part E). Koyuk ...... Native Village of Koyuk (iv) All other areas of Alaska within Kwigillingok ...... Native Village of Kwigillingok ten statute miles of mean high water Levelock ...... Levelock Village Manokotak ...... Manokotak Village on the Bering Sea and Pacific Ocean Mekoryak ...... Native Village of Mekoryak coasts, south of Cape Espenberg, in- Naknek ...... Naknek Native Village cluding along the Kuskokwim River to

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Bethel, and that are not specified as consistent with the following limita- non-rural land or water areas as de- tions. fined in paragraph (g)(4) of this section (1) Subsistence fishing is limited to (see figures 4, 5, 6, and 7 to this subpart setline gear and hand-held gear, includ- E). ing longline, handline, rod and reel, (4) Non-rural areas consist of the spear, jig and hand-troll gear. non-subsistence marine waters areas (i) Subsistence fishing gear set or re- defined in paragraph (h)(3) of this sec- trieved from a vessel while engaged in tion and the land areas of the following subsistence fishing for halibut must cities and boroughs for purposes of the not have more than the allowable num- subsistence fishery for Pacific halibut ber of hooks per vessel, or per person in waters in and off Alaska: registered in accordance with para- (i) The Ketchikan Gateway Borough graph (i) of this section and aboard the on May 18, 2008. This area encompasses vessel, whichever is less, according to all those islands bounded on the east, the regulatory area and permit type in- north, and west by Behm Canal, Behm dicated in the following table: Narrows, and Clarence Strait to its junction with Nichols Passage, and on Regulatory Area Permit Type Gear Restrictions the south by Nichols and Revillagigedo 2C—Except Sitka SHARC 30 hooks per ves- Channel to its junction with Behm Sound, and sel Canal. The designated boundaries ex- Ketchikan and Ju- tend to the center line of Behm Canal, neau non-subsistence marine wa- Behm Narrows, Clarence Strait, Nich- ters areas ols Passage, and Revillagigedo Chan- nel, and include all the area of Ceremonial Per- 30 hooks per ves- Revillagigedo, Gravina, Pennock, mit sel Betton, Grant and other Clover Pas- Educational Per- 30 hooks per ves- sage and Naha Bay Islands, Hassler, mit sel Gedney, Black, Smeaton, Manzanita, Community Har- 30 hooks per per- Rudyerd, and Bold Islands, and all vest Permit son onboard up to other offshore and adjacent islands and 90 hooks per ves- inlets thereto (see figure 2 to this sub- sel part E). 2C—Sitka Sound SHARC September 1 (ii) The City and Borough of Juneau through May 31: (see figure 3 to this subpart E). 30 hooks per ves- (iii) The Greater Anchorage Area sel Borough (see figures 4 and 5 to this June 1 through subpart E). August 31: 15 (iv) The Matanuska-Susitna Borough hooks per vessel; (see figure 5 to this subpart E). no power hauling (v) The Kenai Peninsula Borough ex- Ceremonial Per- September 1 cluding the area of the Seldovia Census mit through May 31: Designated Place, the area south and 30 hooks per vessel west of that place, and the area south and west of a line that runs from June 1 through 59°27.5′ N. lat., 151°31.7′ W. long. to August 31: fishing ° ′ ° ′ under Ceremonial 59 12.5 N. lat., 151 18.5 W. long (see fig- Permit not al- ure 5 to this subpart E). lowed (vi) The City of Valdez (see figures 4 and 5 to this subpart E). Educational Per- 30 hooks per ves- mit sel (h) Limitations on subsistence fishing. Subsistence fishing for halibut may be Community Har- fishing under conducted only by persons who qualify vest Permit Community Har- vest Permit not al- for such fishing pursuant to paragraph lowed (g) of this section and who hold a valid subsistence halibut registration certifi- 2C—Ketchikan SHARC general subsist- cate in that person’s name issued by and Juneau non- ence halibut fish- subsistence ma- ing not allowed NMFS pursuant to paragraph (i) of this rine waters areas section, provided that such fishing is

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Regulatory Area Permit Type Gear Restrictions Regulatory Area Permit Type Gear Restrictions

Ceremonial Per- 30 hooks per ves- Community Har- fishing under mit sel vest Permit Community Har- vest Permit not al- Educational Per- 30 hooks per ves- lowed mit sel 3B SHARC 30 hooks per per- Community Har- fishing under son onboard up to vest Permit Community Har- 90 hooks per ves- vest Permit not al- sel lowed 4A and 4B SHARC 30 hooks per per- 3A—Except SHARC 30 hooks per person onboard up to Chiniak Bay, and son onboard up to 90 hooks per ves- Anchorage-Matsu- 90 hooks per vessel Kenai and Valdez sel non-subsistence 4C, 4D, and 4E SHARC no hook limit marine waters areas (ii) All setline gear marker buoys Ceremonial Per- 30 hooks per per- carried on board or used by any vessel mit son onboard up to regulated under this section shall be 90 hooks per ves- marked with the following: first ini- sel tial, last name, and address (street, Educational Per- 30 hooks per per- city, and state), followed by the letter mit son onboard up to ‘‘S’’ to indicate that it is used to har- 90 hooks per vessel vest subsistence halibut. (iii) Markings on setline marker Community Har- 30 hooks per per- vest Permit son onboard up to buoys shall be in characters at least 4 90 hooks per ves- inches (10.16 cm) in height and 0.5 inch sel (1.27 cm) in width in a contrasting

3A—Chiniak Bay SHARC 30 hooks per per- color visible above the water line and son onboard up to shall be maintained so the markings 60 hooks per ves- are clearly visible. sel (2) The retention of subsistence hal- Ceremonial Per- 30 hooks per per- ibut is limited per person eligible to mit son onboard up to conduct subsistence fishing for halibut 90 hooks per vessel and onboard the vessel according to the following table: Educational Per- 30 hooks per permit son onboard up to Regulatory Area Permit Type Retention Limits 90 hooks per vessel 2C—Except Sitka SHARC 20 halibut per Sound, and day per vessel Community Har- 30 hooks per per- Ketchikan and Ju- and in posses- vest Permit son onboard up to neau non-subsist- sion 90 hooks per ves- ence marine wa- sel ters areas

3A—Anchorage- SHARC general subsist- Ceremonial Permit 25 halibut per Matsu-Kenai and ence halibut fish- permit Valdez non-sub- ing not allowed sistence marine Educational Per- 25 halibut per waters areas mit permit

Ceremonial Per- 30 hooks per per- Community Har- no daily or pos- mit son onboard up to vest Permit session limit 90 hooks per vessel 2C—Sitka Sound SHARC September 1 through May 31: Educational Per- 30 hooks per per- 10 halibut per mit son onboard up to day per vessel 90 hooks per ves- and in posses- sel sion

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Regulatory Area Permit Type Retention Limits Regulatory Area Permit Type Retention Limits

June 1 through 3B SHARC 20 halibut per August 31: 5 hal- person per day ibut per day per and in posses- vessel and in sion possession 4A and 4B SHARC 20 halibut per Ceremonial Permit September 1 person per day; through May 31: no possession 25 halibut per limit permit 4C, 4D, and 4E SHARC no daily or pos- June 1 through session limit August 31: fishing under Ceremonial Permit not al- (3) Subsistence fishing may be con- lowed ducted in any waters in and off Alaska

Educational Per- 25 halibut per except in the four non-subsistence ma- mit permit rine waters areas defined as follows: (i) Ketchikan non-subsistence marine Community Har- fishing under vest Permit Community Har- waters area in Commission regulatory vest Permit not area 2C (see Figure 2 to subpart E) is allowed defined as those waters between a line 2C—Ketchikan SHARC general subsist- from Caamano Point at 55°29.90′ N. lat., and Juneau non- ence halibut fish- 131°58.25′ W. long. to Point Higgins at subsistence ma- ing not allowed 55°27.42′ N. lat., 131°50.00′ W. long. and a rine waters areas point at 55°11.78′ N. lat., 131°05.13′ W. Ceremonial Permit 25 halibut per long., located on Point Sykes to a permit point at 55°12.22′ N. lat., 131°05.70′ W. Educational Per- 25 halibut per long., located one-half mile northwest mit permit of Point Sykes to Point Alava at ° ′ ° ′ Community Har- fishing under 55 11.54 N. lat., 131 11.00 W. long. and vest Permit Community Har- within one mile of the mainland and vest Permit not the Gravina and Revillagigedo Island allowed shorelines, including within one mile 3A—Including SHARC 20 halibut per of the Cleveland Peninsula shoreline Chiniak Bay, but person per day and east of the longitude of Niblack excluding Anchor- and in posses- Point at 132°07.23′ W. long., and north age-Matsu-Kenai sion and Valdez non- of the latitude of the southernmost tip subsistence ma- of Mary Island at 55°02.66′ N. lat.; rine waters areas (ii) Juneau non-subsistence marine wa- Ceremonial Permit 25 halibut per ters area in Commission regulatory area permit 2C (see Figure 3 to subpart E) is defined

Educational Per- 25 halibut per as those waters of Stephens Passage mit permit and contiguous waters north of the latitude of Midway Island Light Community Har- no daily or pos- ° ′ vest Permit session limit (57 50.21 N. lat.), including the waters of Taku Inlet, Port Snettisham, Sagi- 3A—Anchorage- SHARC general subsist- naw Channel, and Favorite Channel, Matsu-Kenai and ence halibut fish- Valdez non-sub- ing not allowed and those waters of Lynn Canal and sistence marine contiguous waters south of the latitude waters areas of the northernmost entrance of Berners Bay (58°43.07′ N. lat.), including Ceremonial Permit 25 halibut per permit the waters of Berners Bay and Echo Cove, and those waters of Chatham Educational Per- 25 halibut per Strait and contiguous waters north of mit permit the latitude of Point Marsden (58°03.42′ Community Har- fishing under N. lat.), and east of a line from Point vest Permit Community Har- Couverden at 58°11.38′ N. lat., 135°03.40′ vest Permit not allowed W. long., to Point Augusta at 58°02.38′ N. lat., 134°57.11′ W. long.;

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(iii) The Anchorage-Matsu-Kenai non- sistence fishing for halibut only in his subsistence marine waters area in Com- or her area of tribal membership. mission Regulatory Area 3A (see figures (iii) For purposes of this paragraph 4, 5, 6, and 7 to this subpart E) is de- (h)(4), ‘‘area of tribal membership’’ fined as: means rural areas of the Commission (A) All waters of Cook Inlet north of regulatory area under which the Orga- a line extending from the westernmost nized Tribal Entity is listed in the ta- point of Hesketh Island at 59°30.40′ N. bles set out in paragraph (g)(2) of this lat., except those waters within mean section, or the Bering Sea closed area lower low tide from a point one mile adjacent to the rural area in which the south of the southern edge of the Alaska Native tribal headquarters is Chuitna River (61°05.00′ N. lat., 151°01.00′ located. W. long.) south to the easternmost tip (i) Subsistence registration. A person of Granite Point (61°01.00′ N. lat., must register as a subsistence halibut 151°23.00′ W. long.) (Tyonek subdis- fisher and possess a valid subsistence trict); and halibut registration certificate in his (B) All waters of Alaska south of or her name issued by NMFS before he 59°30.40′ N. lat. on the western shore of or she begins subsistence fishing for Cook Inlet to Cape Douglas (58°51.10′ N. halibut in waters in and off Alaska. lat.) and in the east to Cape Fairfield (1) A subsistence halibut registration (148°50.25′ W. long.), except those waters certificate will be issued to any person of Alaska west of a line from the east- who registers according to paragraph ernmost point of Jakolof Bay (151°31.90′ (i)(2) of this section and who is quali- W. long.), and following the shore to a fied to conduct subsistence fishing for line extending south from the eastern- halibut according to paragraph (g) of most point of Rocky Bay (151°18.41′ W. this section. The Alaska Region, long.); and NMFS, may enter into cooperative (iv) Valdez non-subsistence marine wa- agreements with Alaska Native tribal ters area in Commission regulatory area governments or their representative 3A (see figures 4 and 5 to this subpart organizations for purposes of identi- E) is defined as the waters of Port fying persons qualified to conduct sub- Valdez and Valdez Arm located north sistence fishing for halibut according of 61°01.38′ N. lat., and east of 146°43.80′ to paragraph (g) of this section. W. long. (2) Registration. To register as a sub- (4) Waters in and off Alaska that are sistence halibut fisherman, a person not specifically identified as non-sub- may request a cooperating Alaska Na- sistence marine waters areas in para- tive tribal government or other entity graph (h)(3) of this section are rural for designated by NMFS to submit an ap- purposes of subsistence fishing for hal- plication on his or her behalf to the ibut. Subsistence fishing may be con- Alaska Region, NMFS. Alternatively, a ducted in any rural area by any person person may apply by submitting a com- with a valid subsistence halibut reg- pleted application to the Alaska Re- istration certificate in his or her name gion, NMFS. Application forms are issued by NMFS under paragraph (i) of available on the NMFS Alaska Region this section, except that: Web site at http:// (i) A person who is not a rural resi- alaskafisheries.noaa.gov, or by con- dent but who is a member of an Alaska tacting NMFS at 800–304–4846, Option 2. Native tribe that is located in a rural NMFS will process a SHARC Applica- area and that is listed in the table in tion for an Alaska Native Tribal Mem- paragraph (g)(2) of this section is lim- ber or a SHARC Application for a ited to conducting subsistence fishing Rural Resident provided that an appli- for halibut only in his or her area of cation is completed, with all applicable tribal membership. fields accurately filled-in, and all re- (ii) A person who is a resident outside quired additional documentation is the State of Alaska but who is a mem- submitted. Initial applications for a ber of an Alaska Native tribe that is lo- SHARC must be signed and mailed or cated in a rural area and that is listed faxed to NMFS (see instructions on in the table in paragraph (g)(2) of this form). Renewals may be submitted section is limited to conducting sub- electronically, mailed, or faxed.

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(i) Non-electronic submittal. The appli- (A) The applying community is listed cant must sign and date the applica- as eligible in Area 2C or Area 3A action certifying that all information is cording to paragraph (g)(1) of this sec- true, correct, and complete. The appli- tion; and cant must submit the paper application (B) No Alaska Native tribe listed in as indicated on the application. paragraph (g)(2) of this section exists (ii) Electronic submittal. An individual in that community. can submit a SHARC renewal on-line (iii) NMFS will issue a CHP to an using an application available at the Alaska Native tribe in Area 2C or Area Alaska Region website. By using the 3A only if the applying tribe is listed as SHARC number and date of birth, and eligible in Area 2C or Area 3A accord- by submitting the application form, ing to paragraph (g)(2) of this section. the applicant certifies that all infor- (iv) Eligible communities or Alaska mation is true, correct, and complete. Native tribes may appoint only one (3) Expiration of registration. Each CHP Coordinator per community or subsistence halibut registration certifi- tribe. cate will be valid only for the period of (2) Application. A community or Alas- time specified on the certificate. A per- ka Native tribe may apply for a CHP son eligible to harvest subsistence hal- by submitting an application to the ibut under paragraph (g) of this section Alaska Region, NMFS. Applications may renew his or her registration cer- must be mailed to: Restricted Access tificate that is expired or will expire Management Program, NMFS, Alaska within 3 months by following the pro- Region, P.O. Box 21668, Juneau, AK cedures described in paragraph (i)(2) of 99802–1668. A complete application must this section. A subsistence halibut reg- include: istration certificate will expire: (i) The name of the community or Alaska Native tribe requesting the (i) 2 years from the date of its CHP; issuance to a person eligible to harvest (ii) The full name of the person who subsistence halibut under paragraph is designated as the CHP Coordinator (g)(1) of this section, and for each community or Alaska Native (ii) 4 years from the date of its tribe, the designated CHP Coordina- issuance to a person eligible to harvest tor’s mailing address (number and subsistence halibut under paragraph street, city, state, and zip code), com- (g)(2) of this section. munity of residence (the rural commu- (j) Community Harvest Permit (CHP). nity or residence from paragraph (g)(1) An Area 2C or Area 3A community or of this section) or the Alaska Native Alaska Native tribe listed in para- tribe if applicable (as indicated in paragraphs (g)(1) or (g)(2) of this section graph (g)(2) of this section), and the may apply for a CHP, which allows a daytime telephone number; and community or Alaska Native tribe to (iii) Any previously issued CHP har- appoint one or more individuals from vest logs. its respective community or Alaska (3) Restrictions. Subsistence fishing Native tribe to harvest subsistence hal- for halibut under a CHP shall be valid ibut from a single vessel under reduced only: gear and harvest restrictions. The CHP (i) In Area 2C or Area 3A, except that consists of a harvest log and up to five a CHP may not be used: laminated permit cards. A CHP is a (A) Within Sitka Sound as defined in permit subject to regulation under paragraph (e)(1)(ii) of this section (see § 679.4(a) of this title. Figure 1 to this subpart E); or (1) Qualifications. (i) NMFS may issue (B) Within the Ketchikan, Juneau, a CHP to any community or Alaska Anchorage-Matsu-Kenai, and Valdez Native tribe that applies according to non-subsistence marine waters areas as paragraph (j)(2) of this section and that defined in paragraph (h)(3) of this sec- is qualified to conduct subsistence fish- tion (see figures 2, 3, 4, 5, 6, and 7 to ing for halibut according to paragraph this subpart E). (g) of this section. (ii) To persons in possession of a (ii) NMFS will issue a CHP to a com- valid subsistence halibut registration munity in Area 2C or Area 3A only if: certificate issued in accordance with

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paragraph (i) of this section for the the period specified on the permit, and same community or Alaska Native if so, the date harvest occurred, the tribe listed on the CHP; number and weight (in pounds) of hal- (iii) On a single vessel on which a ibut harvested, the type of gear and CHP card is present; and number of hooks used, the Commission (iv) If subsistence fishing gear set or regulatory area and local water body retrieved from a vessel on which the from which the halibut were harvested, CHP card is present does not exceed and the number of lingcod and rockfish the restrictions of paragraph (h) of this caught while subsistence fishing for section. halibut. (4) Expiration of permit. Each CHP will (k) Ceremonial Permit or Educational be valid only for the period of time Permit. An Area 2C or Area 3A Alaska specified on the permit. A CHP will ex- Native tribe that is listed in paragraph pire one year from the date of issuance (g)(2) of this section may apply for a to a community or Alaska Native tribe Ceremonial or Educational Permit, al- eligible to harvest halibut under para- lowing the tribe to harvest up to 25 graph (g) of this section. A community halibut per permit issued. The Ceremo- or Alaska Native tribe eligible to har- nial and Educational Permits each con- vest subsistence halibut under para- sist of a harvest log and a single lami- graph (g) of this section may renew its nated permit card. Ceremonial and CHP that is expired or will expire with- Educational Permits are permits sub- in three months by following the proce- ject to regulation under § 679.4(a) of dures described in paragraph (j)(2) of this title. this section. (1) Qualifications. (i) NMFS may issue (5) Duties of the CHP coordinator. Each a Ceremonial or Educational Permit to CHP Coordinator must ensure: any Alaska Native tribe that completes (i) The designated harvesters who an application according to paragraph may fish under the CHP are identified (k)(2) of this section and that is quali- on the Community Harvest Permit har- fied to conduct subsistence fishing for vest log when the CHP is issued to the halibut according to paragraph (g)(2) of designated harvesters; this section. (ii) The CHP remains in the possession of the CHP Coordinator or other (ii) Eligible Alaska Native tribes may tribal or government authority when appoint only one Ceremonial Permit not in use and is issued to the des- Coordinator per tribe. ignated harvesters when necessary; and (iii) Eligible educational programs (iii) All required recordkeeping and may appoint only one authorized In- data reporting of subsistence harvests structor per Educational Permit. under the CHP are performed. (2) Application. An Alaska Native (6) Harvest log submission. Each Com- tribe may apply for a Ceremonial or munity Harvest Permit harvest log Educational Permit by submitting an must be submitted to NMFS on or be- application to the Alaska Region, fore the date of expiration by facsimile NMFS. Applications must be mailed to: or mail. Harvest logs must be mailed to Restricted Access Management Pro- RAM at the address given in paragraph gram, NMFS, Alaska Region, P.O. Box (j)(2) of this section or faxed to 907–586– 21668, Juneau, AK 99802–1668. 7354. The log must provide information (i) A complete application must in- on: clude: (i) The subsistence fisher’s identity (A) The name of the Alaska Native including his or her full name, subsist- tribe requesting the Ceremonial or ence halibut registration certificate Educational Permit; number, date of birth, mailing address (B) The name of the person des- (number and street, city, state, and zip ignated as the Ceremonial Permit Co- code), community of residence, day- ordinator for each Alaska Native tribe time phone number, and tribal identity or the name of the person designated as (if appropriate); and the Instructor for an Educational Per- (ii) The subsistence halibut harvest mit, the Ceremonial Permit Coordi- including whether the participant nator or Instructor’s mailing address fished for subsistence halibut during (number and street, city, state, and zip

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code), and the daytime telephone num- to this subpart E), only the following ber; tribes may use a Ceremonial or Edu- (C) Any previously issued Ceremonial cational permit: Permit harvest logs from any expired (1) Central Council of Tlingit/Haida Ceremonial Permit if applying for a Indians; Ceremonial Permit; and (2) Ketchikan Indian Corporation; (D) Any previously issued Edu- and cational Permit harvest logs from any (3) Organized Village of Saxman; expired Educational Permit if applying (B) In the Juneau non-subsistence for an Educational Permit. marine waters area defined in para- (ii) NMFS will issue a Ceremonial graph (h)(3) of this section (see figure 3 Permit for the harvest of halibut asso- to this subpart E), only the following ciated with traditional cultural events tribes may use a Ceremonial or Edu- only if the application: cational permit: (A) Indicates the occasion of cultural (1) Central Council of Tlingit/Haida or ceremonial significance; and Indians; (B) Identifies the person designated (2) Douglas Indian Association; and by the eligible Alaska Native tribe as (3) Aukquan Traditional Council. the Ceremonial Permit Coordinator. (iii) NMFS will issue an Educational (C) A Ceremonial Permit may not be Permit only if the application: used within Sitka Sound from June 1 (A) Includes the name and address of through August 31; the educational institution or organi- (iii) On a single vessel on which the zation; Ceremonial or Educational Permit card (B) Includes the instructor’s name; is present; (C) Demonstrates the enrollment of (iv) On the vessel on which the in- qualified students; structor is present for Educational Per- (D) Describes minimum attendance mits; requirements of the educational pro- (v) To persons in possession of a valid gram; and subsistence halibut registration certifi- (E) Describes standards for the suc- cate issued in accordance with para- cessful completion of the educational graph (i) of this section for the same program. Alaska Native tribe listed on the Cere- (3) Restrictions. Subsistence fishing monial or Educational Permit, except for halibut under Ceremonial or Edu- that students enrolled in an educational Permits shall be valid only: cational program may fish under an (i) In Area 3A, except: Educational Permit without a subsist- (A) In the Anchorage-Matsu-Kenai ence halibut registration certificate; non-subsistence marine waters area de- and fined in paragraph (h)(3) of this section (vi) If subsistence fishing gear set or (see figures 4, 5, 6, and 7 to this subpart retrieved from a vessel on which the E), only the following tribes may use a Ceremonial or Educational Permit card Ceremonial or Educational permit: is present does not exceed the restric- (1) Kenaitze Indian Tribe; tions of paragraph (h) of this section. (2) Seldovia Village Tribe; (4) Expiration of permits. Each Cere- (3) Ninilchik Village; monial or Educational Permit will be (4) Native Village of Port Graham; valid only for the period of time speci- (5) Native Village of Nanwalek; and fied on the permit. Ceremonial and (6) Village of Salamatoff. Educational Permits will expire 30 days (B) In the Valdez non-subsistence ma- from the date of issuance to an Alaska rine waters area defined in paragraph Native tribe eligible to harvest halibut (h)(3) of this section (see figures 4 and under paragraph (g)(2) of this section. 5 to this subpart E), only the Native A tribe eligible to harvest subsistence Village of Tatitlek may use a Ceremo- halibut under paragraph (g)(2) of this nial or Educational permit. section may apply for additional Cere- (ii) In Area 2C, except: monial or Educational Permits at any (A) In the Ketchikan non-subsistence time. marine waters area defined in para- (5) Duties of Ceremonial Permit Coordi- graph (h)(3) of this section (see figure 2 nators and Instructors. Each Ceremonial

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Permit Coordinator or Instructor must who receives an IAD may appeal RAM’s ensure: findings pursuant to § 679.43 of this (i) The designated harvesters or stu- title. dents who may fish under the Ceremo- [68 FR 18156, Apr. 15, 2003] nial or Educational Permit are identified on the Ceremonial/Educational EDITORIAL NOTE: For FEDERAL REGISTER ci- Permit harvest log when the permit is tations affecting § 300.65, see the List of CFR used; Sections Affected, which appears in the (ii) The Ceremonial Permit remains Finding Aids section of the printed volume and at www.govinfo.gov. in the possession of the Ceremonial Permit Coordinator or other tribal au- § 300.66 Prohibitions. thority when not in use and is issued to designated harvesters when necessary; In addition to the general prohibi- and tions specified in 50 CFR 300.4, it is un- (iii) All required recordkeeping and lawful for any person to do any of the data reporting of subsistence harvests following: under the Ceremonial or Educational (a) Fish for halibut except in accord- Permit are performed. ance with the annual management (6) Harvest log submission. Submission measures published pursuant to 50 CFR of a Ceremonial or Educational Permit 300.62. log shall be required upon the expira- (b) Fish for halibut except in accord- tion of each permit and must be re- ance with the catch sharing plans and ceived by Restricted Access Manage- domestic management measures implement within 15 days of the expiration mented under §§ 300.63, 300.65, and by facsimile or mail. Harvest logs must 300.67. be mailed to RAM at the address given (c) Fish for halibut in Sitka Sound in in paragraph (k)(2) of this section or violation of the Sitka Sound LAMP faxed to 907–586–7354. The log must pro- implemented under 50 CFR 300.65(e). vide information on: (d) Fish for halibut or anchor a vessel (i) The subsistence fisher’s identity with halibut on board within the Sitka including his or her full name, subsist- Pinnacles Marine Reserve defined at 50 ence halibut registration certificate CFR 300.65(f). number if applicable (students do not (e) Fish for subsistence halibut in need a SHARC), date of birth, mailing and off Alaska unless the person is address (number and street, city, state, qualified to do so under § 300.65(g), pos- and zip code), community of residence, sesses a valid subsistence halibut reg- daytime phone number, and tribal istration certificate pursuant to identity; § 300.65(i), and makes this certificate (ii) The subsistence halibut harvest available for inspection by an author- including whether the participant ized officer on request, except that stu- fished for subsistence halibut during dents enrolled in a valid educational the period indicated on the permit, and program and fishing under an Edu- if so, the date when harvest occurred, cational Permit issued pursuant to the number and weight (in pounds) of § 300.65(k) do not need a subsistence halibut harvested, the type of gear and halibut registration certificate. number of hooks used, the Commission (f) Fish for subsistence halibut in and regulatory area and local water body off Alaska with gear other than that from which the halibut were harvested, described at 50 CFR 300.65(h)(1) and re- and the number of lingcod and rockfish tain more halibut than specified at 50 caught while subsistence fishing for CFR 300.65(h)(2). halibut. (g) Fish for subsistence halibut in (l) Appeals. If Restricted Access Man- and off Alaska in a non-subsistence agement (RAM) determines that an ap- marine waters area specified at plication is deficient, it will prepare § 300.65(h)(3). and send an Initial Administrative De- (h) Conduct subsistence fishing for termination (IAD) to the applicant. halibut while commercial fishing or The IAD will indicate the deficiencies sport fishing for halibut, as defined in in the application or any additional § 300.61, from the same vessel on the provided information. An applicant same calendar day, or possess on board

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a vessel halibut harvested while sub- expense of fishing for subsistence hal- sistence fishing with halibut harvested ibut under the following conditions: while commercial fishing or sport fish- (1) Persons who qualify as rural resi- ing, except that persons authorized to dents under § 300.65(g)(1) or (g)(3) and conduct subsistence fishing under hold a SHARC in the person’s name § 300.65(g), and who land their total an- under § 300.65(i) may be reimbursed for nual harvest of halibut: actual expenses for ice, bait, food, and (1) In Commission regulatory Areas fuel directly related to subsistence 4D or 4E may retain, with harvests of fishing for halibut, by residents of the Community Development Quota (CDQ) same rural community or by rural resi- halibut, subsistence halibut harvested dents residing within ten statute miles in Commission regulatory areas 4D or of the rural location listed on the per- 4E that are smaller than the size limit son’s SHARC application; or specified in the annual management (2) Persons who qualify as Alaska Na- measures published pursuant to § 300.62; tive tribal members under § 300.65(g)(2) or and hold a SHARC in the person’s (2) In Commission regulatory Areas name under § 300.65(i) may be reim- 4C, 4D or 4E may retain, with harvests bursed for actual expenses for ice, bait, of CDQ halibut, subsistence halibut food, and fuel directly related to sub- harvested in Commission regulatory sistence fishing for halibut, by any areas 4C, 4D or 4E that are equal to or Alaska Native tribe, or its members, or greater than the size limit specified in residents of the same rural community the annual management measures pub- or by rural residents residing within lished pursuant to § 300.62. ten statute miles of the rural location (i) Conduct commercial and sport listed on the person’s SHARC applica- fishing for halibut, as defined in tion. § 300.61, from the same vessel on the (l) Retain subsistence halibut har- same calendar day. vested under a CHP, Ceremonial Per- (j) Fish for subsistence halibut from mit, or Educational Permit together in a charter vessel or retain subsistence any combination or with halibut har- halibut onboard a charter vessel if any- vested under any other license or per- one other than the owner of record, as mit. indicated on the State of Alaska vessel (m) Fillet, mutilate, or otherwise dis- registration, or the owner’s immediate figure subsistence halibut in any man- family is aboard the charter vessel and ner that prevents the determination of unless each person engaging in subsist- the number of fish caught, possessed, ence fishing onboard the charter vessel or landed. holds a subsistence halibut registration (n) Exceed any of the harvest or gear certificate in the person’s name pursu- limitations specified at § 300.65(c)(5) or ant to § 300.65(i) and complies with the adopted by the Commission as annual gear and harvest restrictions found at management measures and published § 300.65(h). For purposes of this para- in the FEDERAL REGISTER as required in graph (i), the term ‘‘charter vessel’’ § 300.62. means a vessel that is registered, or (o) Transfer subsistence halibut to that should be registered, as a sport charter vessel anglers. fishing guide vessel with the Alaska (p) Fail to comply with the require- Department of Fish and Game. ments of §§ 300.65 and 300.67. (k) Retain or possess subsistence hal- (q) Fail to submit or submit inac- ibut for commercial purposes; cause curate information on any report, li- subsistence halibut to be sold, cense, catch card, application, or state- bartered, or otherwise entered into ment required or submitted under commerce; or solicit exchange of sub- §§ 300.65 and 300.67, or submit inac- sistence halibut for commercial pur- curate information to an authorized of- poses, except that a person who quali- ficer. fied to conduct subsistence fishing for (r) Refuse to present valid identifica- halibut under § 300.65(g), and who holds tion, U.S. Coast Guard operator’s li- a subsistence halibut registration cer- cense, permit, license, or Alaska De- tificate in the person’s name under partment of Fish and Game Saltwater § 300.65(i), may be reimbursed for the Sport Fishing Charter Trip logbook

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upon the request of an authorized offi- § 300.67 Charter halibut limited access cer. program. (s) Be a charter vessel guide with This section establishes limitations charter vessel anglers on board, or a on using a vessel on which charter ves- charter vessel operator if the charter sel anglers catch and retain Pacific vessel guide is not on board, in Com- halibut in International Pacific Hal- mission regulatory area 2C or 3A with- ibut Commission (IPHC) regulatory out an original valid charter halibut areas 2C and 3A. permit for the regulatory area in which (a) General permit requirements. (1) In the charter vessel is operating during a addition to other applicable permit, li- charter vessel fishing trip. censing, or registration requirements, (t) Be a charter vessel guide in Com- any charter vessel guide of a charter mission regulatory area 2C or 3A with vessel during a charter vessel fishing more charter vessel anglers catching trip with one or more charter vessel and retaining halibut during a charter anglers catching and retaining Pacific vessel fishing trip than the total angler halibut on board must have on board endorsement number specified on the the vessel an original valid charter hal- charter halibut permit(s) or commu- ibut permit or permits endorsed for the nity charter halibut permit(s) in use regulatory area in which the charter for that trip. vessel is operating and endorsed for at (u) Be a charter vessel guide of a least the number of charter vessel an- charter vessel on which one or more glers who are catching and retaining Pacific halibut. Each charter halibut charter vessel anglers are catching and permit holder must ensure that the retaining halibut in both Commission charter vessel operator and charter regulatory areas 2C and 3A during one vessel guide of the charter vessel com- charter vessel fishing trip. ply with all requirements of §§ 300.65, (v) Be a charter vessel guide or a 300.66, and 300.67. charter vessel operator during a char- (2) Area endorsement. A charter hal- ter vessel fishing trip in Commission ibut permit is valid only in the Inter- regulatory area 2C or 3A with one or national Pacific Halibut Commission more charter vessel anglers that are regulatory area for which it is en- catching and retaining halibut without dorsed. Regulatory areas are defined in having on board the vessel with the the annual management measures pub- charter vessel anglers a State of Alas- lished pursuant to § 300.62. ka Department of Fish and Game Salt- (3) Charter vessel angler endorsement. A water Charter Logbook in which the charter halibut permit is valid for up charter vessel guide has specified the to the maximum number of charter following: vessel anglers on a single charter ves- (1) The person named on the charter sel for which the charter halibut per- halibut permit or permits being used mit is endorsed. during that charter vessel fishing trip; (4) Annual registration. A charter hal- (2) The charter halibut permit or per- ibut permit holder must register a mits number(s) being used during that charter halibut permit with NMFS dur- charter vessel fishing trip; and ing the calendar year when it will be (3) The name and State-issued vessel used to be valid. registration (AK number) or U.S. Coast (i) Application and submittal. An appli- Guard documentation number of the cation for a charter halibut permit an- charter vessel. nual registration will be made available by NMFS. A completed registra- [68 FR 18156, Apr. 15, 2003, as amended at 70 tion application may be submitted FR 16754, Apr. 1, 2005; 72 FR 30728, June 4, using the NMFS-approved electronic 2007; 72 FR 67669, Nov. 30, 2007; 73 FR 30524, reporting system on the Alaska Region May 28, 2008; 73 FR 52797, Sept. 11, 2008; 73 FR website at https://www.fisheries.noaa.gov 54942, Sept. 24, 2008; 74 FR 21228, May 6, 2009; /region/alaska. Completed applications 74 FR 57110, Nov. 4, 2009; 75 FR 600, Jan. 5, may also be submitted by mail, hand 2010; 78 FR 75890, Dec. 12, 2013; 80 FR 35206, delivery, or facsimile at any time to June 19, 2015] the address(s) listed on the application.

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(ii) Complete annual registration. To be (A) Reported five (5) bottomfish log- complete, a charter halibut permit reg- book fishing trips or more during one istration application must have all re- year of the qualifying period; and quired fields accurately completed and (B) Reported five (5) halibut logbook be signed and dated by the applicant. fishing trips or more during the recent (iii) Denied registration applications. If participation period. NMFS does not approve an annual (iii) If the person is applying as a suc- charter halibut permit registration ap- cessor-in-interest to the person to plication, NMFS will inform the appli- which ADF&G issued the Business cant of the basis for its disapproval and Owner Licenses that authorized log- provide the applicant with a 30-day evi- book fishing trips that meet the par- dentiary period in which to correct any ticipation requirements described in application deficiencies. paragraphs (b)(1)(ii) of this section for (A) Initial Administration Determina- one or more charter halibut permits, tion (IAD). NMFS will send an IAD to the applicant following the expiration NMFS will require the following writ- of the 30-day evidentiary period if ten documentation: NMFS determines there is sufficient (A) If the applicant is applying on be- reason to deny the application. The half of a deceased individual, the appli- IAD will indicate the deficiencies in cant must document that the indi- the application and the deficiencies vidual is deceased, that the applicant is with the information submitted by the the personal representative of the applicant in support of its claim. deceased’s estate appointed by a court, (B) Appeal. An applicant that re- and that the applicant specifies who, ceives an IAD may appeal to the Office pursuant to the applicant’s personal of Administrative Appeals (OAA) pur- representative duties, should receive suant to 15 CFR part 906. the permit(s) for which application is (b) Qualifications for a charter halibut made; or permit. A charter halibut permit for (B) If the applicant is applying as a IPHC regulatory area 2C must be based successor-in-interest to an entity that on meeting participation requirements is not an individual, the applicant in area 2C. A charter halibut permit for must document that the entity has IPHC regulatory area 3A must be based been dissolved and that the applicant is on meeting participation requirements the successor-in-interest to the dis- in area 3A. Qualifications for a charter solved entity. halibut permit in each area must be de- (iv) If more than one applicant termined separately and must not be claims that they are the successor-in- combined. interest to a dissolved entity, NMFS (1) NMFS will issue a charter halibut will award the permit or permits for permit to a person who meets the fol- which the dissolved entity qualified in lowing requirements: the name(s) of the applicants that sub- (i) The person applies for a charter mitted a timely application and proved halibut permit within the application that they are a successor-in-interest to period specified in the FEDERAL REG- the dissolved entity. ISTER and completes the application (2) Notwithstanding any other provi- process pursuant to paragraph (h) of sion in this subpart, and except as pro- this section. vided in paragraph (b)(1)(iv) of this sec- (ii) The person is the individual or non-individual entity to which the tion, State of Alaska Department of Fish (i) One logbook fishing trip shall not and Game (ADF&G) issued the ADF&G be credited to more than one applicant; Business Owner Licenses that author- (ii) One logbook fishing trip made ized logbook fishing trips that meet pursuant to one ADF&G Business the minimum participation require- Owner License shall not be credited to ments described in paragraphs more than one applicant; and (b)(1)(ii)(A) and (b)(1)(ii)(B) of this sec- (iii) Participation by one charter hal- tion for one or more charter halibut ibut fishing business shall not be al- permits, unless the person is applying lowed to support issuance of permits to as a successor-in-interest. more than one applicant.

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(3) For purposes of this section, the (2) The angler endorsement number term ‘‘ADF&G Business Owner(s) Li- for each subsequent transferable per- cense(s)’’ includes a ‘‘business registra- mit issued to the same applicant for tion,’’ ‘‘sport fish business owner li- the same area will be the greatest cense,’’ ‘‘sport fish business license,’’ number of charter vessel anglers re- and ‘‘ADF&G business license’’. ported by the applicant on any logbook (c) Number of charter halibut permits. trip in the qualifying period for a ves- An applicant that meets the participa- sel not already used in that area to de- tion requirements in paragraph (b) of termine an angler endorsement, until this section will be issued the number all transferable permits issued to the of charter halibut permits equal to the applicant are assigned an angler en- lesser of the number of permits deter- dorsement. mined by paragraphs (c)(1) or (c)(2) of (3) The angler endorsement number this section as follows: for the first non-transferable permit (1) The total number of bottomfish for an area issued to an applicant will logbook fishing trips made pursuant to the applicant’s ADF&G Business Li- be the greatest number of charter ves- cense in the applicant-selected year di- sel anglers reported on any logbook vided by five, and rounded down to a trip in the qualifying period for a ves- whole number; or sel not already used to determine an (2) The number of vessels that made angler endorsement in that area. the bottomfish logbook fishing trips in (4) The angler endorsement number the applicant-selected year. for each subsequent non-transferable (d) Designation of transferability. Each permit issued to the same applicant for permit issued to an applicant under the same area will be the greatest paragraph (c) of this section will be number of charter vessel anglers redesignated as transferable or non- ported by the applicant on any logbook transferable. trip in the qualifying period for a ves- (1) Minimum participation criteria sel not already used in that area to de- for a transferable permit are described termine an angler endorsement, until in paragraphs (d)(1)(i) and (d)(1)(ii) of all non-transferable permits issued to this section as follows: the applicant are assigned an angler (i) Reported fifteen (15) bottomfish endorsement. logbook fishing trips or more from the (5) The angler endorsement number same vessel during one year of the will be four (4) if the greatest number qualifying period; and of charter vessel anglers reported on (ii) Reported fifteen (15) halibut log- any logbook fishing trip for an area in book fishing trips or more from the the qualifying period is less than four same vessel during the recent partici- (4), or no charter vessel anglers were pation period. reported on any of the applicant’s log- (iii) The vessel used during the recent book fishing trips in the applicant-se- participation period is not required to lected year. be the same vessel used during the (6) The angler endorsement number qualifying period. will be six (6) on a charter halibut per- (2) The number of transferable char- mit issued pursuant to military service ter halibut permits issued to an appli- under paragraph (g)(3) of this section. cant will be equal to the lesser of the number of vessels that met the min- (f) For purposes of this section, the imum transferable permit qualifica- following terms are defined as follows: tions described in paragraphs (d)(1)(i) (1) Applicant-selected year means the or (d)(1)(ii) of this section. year in the qualifying period, 2004 or (e) Angler endorsement. A charter hal- 2005, selected by the applicant for ibut permit will be endorsed as follows: NMFS to use in determining the appli- (1) The angler endorsement number cant’s number of transferable and non- for the first transferable permit for an transferable permits. area issued to an applicant will be the (2) Bottomfish logbook fishing trip greatest number of charter vessel an- means a logbook fishing trip in the glers reported on any logbook trip in qualifying period that was reported to the qualifying period in that area. the State of Alaska in a Saltwater

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Charter Logbook with one of the fol- cumstance provision cannot be used to lowing pieces of information: The sta- upgrade the number of permits issued tistical area(s) where bottomfish fish- or to change a non-transferable permit ing occurred, the boat hours that the to a transferable permit, and is limited vessel engaged in bottomfish fishing, or to the following circumstances. the number of rods used from the ves- (1) Recent participation period. An ap- sel in bottomfish fishing. plicant for a charter halibut permit (3) Halibut logbook fishing trip means a that meets the participation require- logbook fishing trip in the recent par- ment for the qualifying period, but ticipation period that was reported to does not meet the participation re- the State of Alaska in a Saltwater quirement for the recent participation Charter Logbook within the time limit period, may receive one or more char- for reporting the trip in effect at the ter halibut permits if the applicant time of the trip with one of the fol- proves paragraphs (g)(1)(i) through (iv) lowing pieces of information: The num- of this section as follows: ber of halibut that was kept, the num- (i) The applicant had a specific intent ber of halibut that was released, the to operate a charter halibut fishing statistical area(s) where bottomfish business in the recent participation pe- fishing occurred, or the boat hours that riod; the vessel engaged in bottomfish fish- (ii) The applicant’s specific intent ing. was thwarted by a circumstance that (4) Logbook fishing trip means a was: bottomfish logbook fishing trip or a (A) Unavoidable; halibut logbook fishing trip that was (B) Unique to the owner of the char- reported as a trip to the State of Alas- ter halibut fishing business; and ka in a Saltwater Charter Logbook (C) Unforeseen and reasonably un- within the time limits for reporting foreseeable by the owner of the charter the trip in effect at the time of the halibut fishing business; trip, except that for multi-day trips, (iii) The circumstance that prevented the number of trips will be equal to the the applicant from operating a charter number of days of the multi-day trip, halibut fishing business actually oc- e.g., a two day trip will be counted as curred; and two trips. (iv) The applicant took all reasonable (5) Official charter halibut record steps to overcome the circumstance means the information prepared by that prevented the applicant from op- NMFS on participation in charter hal- erating a charter halibut fishing busi- ibut fishing in Area 2C and Area 3A ness in the recent participation period. that NMFS will use to implement the (v) If the applicant proves the fore- Charter Halibut Limited Access Pro- going (see paragraphs (g)(1)(i) through gram and evaluate applications for (iv) of this section), the applicant will charter halibut permits. receive the number of transferable and (6) Qualifying period means the sport non-transferable permits and the an- fishing season established by the Inter- gler endorsements on these permits national Pacific Halibut Commission that result from the application of cri- (February 1 through December 31) in teria in paragraphs (b), (c), (d), (e), and 2004 and 2005. (f) of this section. (7) Recent participation period means (2) Qualifying period. An applicant for the sport fishing season established by a charter halibut permit that meets the International Pacific Halibut Com- the participation requirement for the mission (February 1 through December recent participation period but does 31) in 2008. not meet the participation requirement (g) Unavoidable circumstance. Un- for the qualifying period, may receive avoidable circumstance claims must be one or more permits if the applicant made pursuant to paragraph (h)(6) of proves paragraphs (g)(2)(i) through (iv) this section, and will be limited to per- of this section as follows: sons who would be excluded from the (i) The applicant had a specific intent charter halibut fishery entirely unless to operate a charter halibut fishing their unavoidable circumstance is rec- business in at least one year of the ognized. This unavoidable cir- qualifying period;

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(ii) The applicant’s specific intent will be based on the criteria in para- was thwarted by a circumstance that graph (g)(2)(v)(B) of this section. An- was: gler endorsements on all such charter (A) Unavoidable; halibut permits will be pursuant to (B) Unique to the owner of the char- paragraph (e)(2) of this section. ter halibut fishing business; and (h) Application for a charter halibut (C) Unforeseen and reasonably un- permit. (1) An application period of no foreseeable by the owner of the charter less than 60 days will be specified by halibut fishing business; notice in the FEDERAL REGISTER during (iii) The circumstance that prevented which any person may apply for a char- the applicant from operating a charter ter halibut permit. Any application halibut fishing business actually oc- that is submitted by mail and post- curred; and marked, or submitted by hand delivery (iv) The applicant took all reasonable or facsimile, after the last day of the steps to overcome the circumstance application period will be denied. Elec- that prevented the applicant from op- tronic submission other than by fac- erating a charter halibut fishing busi- simile will be denied. Applications ness in at least one year of the quali- must be submitted to the address given fying period. in the FEDERAL REGISTER notice of the (v) If the applicant proves the fore- application period. going (see paragraphs (g)(2)(i) through (2) Charter halibut permit. To be com- (iv) of this section), the applicant will plete, a charter halibut permit applica- receive either: tion must be signed and dated by the (A) One non-transferable permit with applicant, and the applicant must at- an angler endorsement of four (4); or test that, to the best of the applicant’s (B) The number of transferable and non-transferable permits, and the an- knowledge, all statements in the appli- gler endorsement on those permits, cation are true and the applicant com- that result from the logbook fishing plied with all legal requirements for trips that the applicant proves likely logbook fishing trips in the qualifying would have taken by the applicant but period and recent participation period for the circumstance that thwarted the that were reported under the appli- applicant’s specific intent to operate a cant’s ADF&G Business Owner Li- charter halibut fishing business in one censes. An application for a charter year of the qualifying period and the halibut permit will be made available applicant did not participate during by NMFS. Completed applications may the other year of the qualifying period. be submitted by mail, hand delivery, or (3) Military service. An applicant for a facsimile at any time during the appli- charter halibut permit that meets the cation period announced in the FED- participation requirement in the re- ERAL REGISTER notice of the applica- cent participation period, but does not tion period described at paragraph meet the participation requirement for (h)(1) of this section. the qualifying period, may receive one (3) Application procedure. NMFS will or more permits if the applicant proves create the official charter halibut the following: record and will accept all application (i) The applicant was ordered to re- claims that are consistent with the of- port for active duty military service as ficial charter halibut record. If an ap- a member of a branch of the U.S. mili- plicant’s claim is not consistent with tary, National Guard, or military re- the official charter halibut record, serve during the qualifying period; and NMFS will issue non-transferable in- (ii) The applicant had a specific interim permit(s) for all undisputed per- tent to operate a charter halibut fish- mit claims, and will respond to the ap- ing business that was thwarted by the plicant by letter specifying a 30-day applicant’s order to report for military evidentiary period during which the ap- service. plicant may provide additional infor- (iii) The number of transferable and mation or argument to support the ap- non-transferable charter halibut per- plicant’s claim for disputed permit(s). mit(s) that an applicant may receive Limits on the 30-day evidentiary period under paragraph (g)(3) of this section are as follows:

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(i) An applicant shall be limited to which are not in dispute, according to one 30-day evidentiary period; and the information in the official charter (ii) Additional information received halibut record. after the 30-day evidentiary period has (iii) If the applicant applies for a per- expired will not be considered for pur- mit within the specified application pe- poses of the initial administrative de- riod and OAA accepts the applicant’s termination. appeal, but according to the informa- (4) After NMFS evaluates the addition in the official charter halibut tional information submitted by the record, the applicant would not be applicant during the 30-day evidentiary issued any permits, the applicant will period, it will take one of the following receive one interim permit with an an- two actions. gler endorsement of four (4). (i) If NMFS determines that the ap- (iv) All interim permits will be non- plicant has met its burden of proving transferable and will expire when that the official charter halibut record NMFS takes final agency action on the is incorrect, NMFS will amend the offi- application. cial charter halibut record and use the (i) Transfer of a charter halibut per- official charter halibut record, as mit—(1) General. A transfer of a charter amended, to determine whether the ap- halibut permit is valid only if it is applicant is eligible to receive one or proved by NMFS. NMFS will approve a more charter halibut permits, the na- transfer of a charter halibut permit if ture of those permits and the angler the permit to be transferred is a trans- and area endorsements on those per- ferable permit issued under paragraph mits; or (d)(2) of this section, if a complete (ii) If NMFS determines that the ap- transfer application is submitted, and plicant has not met its burden of prov- if the transfer application meets the ing that the official charter halibut standards for approval in paragraph record is incorrect, NMFS will notify (i)(2) of this section. the applicant by an initial administra- (2) Standards for approval of transfers. tion determination, pursuant to para- NMFS will transfer a transferable graph (h)(5) of this section. charter halibut permit to a person des- (5) Initial Administration Determination ignated by the charter halibut permit (IAD). NMFS will send an IAD to the holder if, at the time of the transfer applicant following the expiration of the following standards are met: the 30-day evidentiary period if NMFS (i) The person designated to receive determines that the applicant has not the transferred permit is a U.S. citizen met its burden of proving that the offi- or a U.S. business with a minimum of cial charter halibut record is incorrect 75 percent U.S. ownership; or that other reasons exist to initially deny the application. The IAD will in- (ii) The parties to the transfer do not dicate the deficiencies in the applica- owe NMFS any fines, civil penalties or tion and the deficiencies with the in- any other payments; formation submitted by the applicant (iii) The transfer is not inconsistent in support of its claim. with any sanctions resulting from Fed- (6) Appeal. An applicant that receives eral fishing violations; an IAD may appeal to the Office of Ad- (iv) The transfer will not cause the ministrative Appeals (OAA) pursuant designated recipient of the permit to to 15 CFR part 906. exceed the permit limit at paragraph (i) If the applicant does not apply for (j) of this section, unless an exception a charter halibut permit within the ap- to that limit applies; plication period specified in the FED- (v) The GAF permit is not assigned ERAL REGISTER, the applicant will not to a charter halibut permit for which receive any interim permits pending the GAF account contains unharvested final agency action on the application. GAF, pursuant to § 300.65 (c)(5)(iii)(A)(3) (ii) If the applicant applies for a per- and (4); mit within the specified application pe- (vi) A transfer application is com- riod and OAA accepts the applicant’s pleted and approved by NMFS; and appeal, the applicant will receive the (vii) The transfer does not violate number and kind of interim permits any other provision in this part.

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(3) For purposes of paragraph (i)(2) of ‘‘affiliation for the purpose of defining this section, a U.S. business with a AFA entities’’ at § 679.2 of this title. minimum of 75 percent U.S. ownership (3) A permit will cease to be a valid means a corporation, partnership, asso- permit if the permit holder is: ciation, trust, joint venture, limited li- (i) An individual and the individual ability company, limited liability part- dies; or nership, or any other entity where at (ii) A non-individual (e.g., corpora- least 75 percent of the interest in such tion or partnership) and dissolves or entity, at each tier of ownership of changes as defined at paragraph (j)(5) such entity and in the aggregate, is of this section. owned and controlled by citizens of the (iii) A transferable permit may be United States. made valid by transfer to an eligible (4) Application to transfer a charter recipient. halibut permit. To be complete, a charter halibut permit transfer application (4) Exception for initial recipients of must have notarized and dated signa- permits. Notwithstanding the limita- tures of the applicants, and the appli- tion at paragraph (j)(1) of this section, cants must attest that, to the best of NMFS may issue more than five (5) the applicants’ knowledge, all state- charter halibut permits to an initial ments in the application are true. An recipient that meets the requirements application to transfer a charter hal- described in paragraphs (b), (d), and (e) ibut permit will be made available by of this section for more than five (5) NMFS. Completed transfer applica- charter halibut permits, subject to the tions may be submitted by mail or following limitations: hand delivery at any time to the ad- (i) This exception applies only to an dresses listed on the application. Elec- initial recipient as the recipient exists tronic or facsimile deliveries will not at the time that it is initially issued be accepted. the permits; (5) Denied transfer applications. If (ii) If an initial recipient of transfer- NMFS does not approve a charter hal- able permit(s) who is an individual ibut permit transfer application, NMFS dies, the individual’s successor-in-in- will inform the applicant of the basis terest may not hold more than five (5) for its disapproval. charter halibut permits; (6) Transfer due to court order, oper- (iii) If an initial recipient permit ation of law or as part of a security agree- holder that is a non-individual, such as ment. NMFS will transfer a charter hal- a corporation or a partnership, dis- ibut permit based on a court order, op- solves or changes, NMFS will consider eration of law or a security agreement, the new entity a new permit holder and if NMFS determines that a transfer ap- the new permit holder may not hold plication is complete and the transfer more than five (5) charter halibut per- will not violate an eligibility criterion mits. for transfers. (5) For purposes of this paragraph (j), (j) Charter halibut permit limitations— a ‘‘change’’ means: (1) General. A person may not own, hold, or control more than five (5) (i) For an individual, the individual charter halibut permits except as pro- has died, in which case NMFS must be vided by paragraph (j)(4) of this sec- notified within 30 days of the individ- tion. NMFS will not approve a transfer ual’s death; and application that would result in the ap- (ii) For a non-individual entity, the plicant that would receive the trans- same as defined at § 679.42(j)(4)(i) of this ferred permit holding more than five title, in which case the permit holder (5) charter halibut permits except as must notify NMFS within 15 days of provided by paragraph (j)(6) of this sec- the effective date of the change as re- tion. quired at § 679.42(j)(5) of this title. (2) Ten percent ownership criterion. In (6) Exception for transfer of permits. determining whether two or more per- Notwithstanding the limitation at sons are the same person for purposes paragraph (j)(1) of this section, NMFS of paragraph (j)(1) of this section, may approve a permit transfer applica- NMFS will apply the definition of an tion that would result in the person

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that would receive the transferred per- (i) A CQE representing an eligible mit(s) holding more than five (5) trans- community or communities in regu- ferable charter halibut permits if the latory area 2C may receive a maximum parties to the transfer meet the fol- of four (4) community charter halibut lowing conditions: permits per eligible community des- (i) The designated person that would ignated for Area 2C. receive the transferred permits does (ii) A CQE representing an eligible not hold any charter halibut permits; community or communities in regu- (ii) All permits that would be trans- latory area 3A may receive a maximum ferred are transferable permits; of seven (7) community charter halibut (iii) The permits that would be trans- permits per eligible community des- ferred are all of the transferable per- ignated for Area 3A. mits that were awarded to an initial (4) NMFS will not approve a transfer recipient who exceeded the permit lim- that will cause a CQE representing a itation of five (5) permits; and community or communities to hold more than the total number of permits (iv) The person transferring its per- described in paragraphs (k)(4)(i) and mits also is transferring its entire (k)(4)(ii) of this section, per commu- charter vessel fishing business, includ- nity, including community charter hal- ing all the assets of that business, to ibut permits granted to the CQE under the designated person that would re- this paragraph (k) and any charter hal- ceive the transferred permits. ibut permits acquired by the CQE by (k) Community charter halibut permit— transfer under paragraph (i) of this sec- (1) General. A Community Quota Entity tion. (CQE), as defined in § 679.2 of this title, (i) The maximum number of charter representing an eligible community halibut and community charter halibut listed in paragraph (k)(2) of this sec- permits that may be held by a CQE per tion, may receive one or more commu- community represented by the CQE in nity charter halibut permits. A com- regulatory area 2C is eight (8). munity charter halibut permit issued (ii) The maximum number of charter to a CQE will be designated for area 2C halibut and community charter halibut or area 3A, will be non-transferable, permits that may be held by a CQE per and will have an angler endorsement of community represented by the CQE in six (6). regulatory area 3A is fourteen (14). (2) Eligible communities. Each commu- (5) Limitation on use of permits. The nity charter halibut permit issued to a following limitations apply to commu- CQE under paragraph (k)(1) of this sec- nity charter halibut permits issued to tion will specify the name of an eligi- a CQE under paragraph (k)(1) of this ble community on the permit. Only the section. following communities are eligible to (i) Every charter vessel fishing trip receive community charter halibut authorized by such a permit and on permits: which halibut are caught and retained (i) For Area 2C: Angoon, Coffman must begin or end at a location(s) spec- Cove, Edna Bay, Game Creek, Hollis, ified on the application for a commu- Hoonah, Hydaburg, Kake, Kasaan, nity charter halibut permit and that is Klawock, Metlakatla, Meyers Chuck, within the boundaries of the eligible Naukati Bay, Pelican, Point Baker, community designated on the permit. Port Alexander, Port Protection, The geographic boundaries of the eligi- Tenakee, Thorne Bay, Whale Pass. ble community will be those defined by (ii) For Area 3A: Akhiok, Chenega the United States Census Bureau. Bay, Halibut Cove, Karluk, Larsen (ii) Community charter halibut per- Bay, Nanwalek, Old Harbor, Ouzinkie, mits may be used only within the regu- Port Graham, Port Lyons, Seldovia, latory area for which they are des- Tatitlek, Tyonek, Yakutat. ignated to catch and retain halibut. (3) Limitations. The maximum number (6) Application procedure. To be com- of community charter halibut permits plete, a community charter halibut that may be issued to a CQE for each permit application must be signed and eligible community the CQE represents dated by the applicant, and the appli- is as follows: cant must attest that, to the best of

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the applicants’ knowledge, all state- area (2C or 3A) designated on the per- ments in the application are true and mit. complete. An application for a commu- (2) Application procedure. An appli- nity charter halibut permit will be cant may apply for a military charter made available by NMFS and may be halibut permit at any time. To be com- submitted by mail, hand delivery, or plete, a military charter halibut per- facsimile at any time to the address(s) mit application must be signed and listed on the application. Electronic dated by the applicant, and the appli- deliveries other than facsimile will not cant must attest that, to the best of be accepted. the applicants’ knowledge, all state- (7) An annual report on the use of ments in the application are true and charter halibut permits must be sub- complete. An application for a military mitted by the CQE as required at charter halibut permit will be made § 679.5(t) of this title. available by NMFS and may be sub- (l) Military charter halibut permit. NMFS will issue a military charter mitted by mail, hand delivery, or fac- halibut permit without an angler en- simile at any time to the address(s) dorsement to an applicant provided listed on the application. Electronic that the applicant is a Morale, Welfare deliveries other than facsimile will not and Recreation Program of the United be accepted. States Armed Services. [75 FR 600, Jan. 5, 2010, as amended at 75 FR (1) Limitations. A military charter 56909, Sept. 17, 2010; 78 FR 33650, June 4, 2013; halibut permit is non-transferable and 78 FR 75890, Dec. 12, 2013; 80 FR 35207, June may be used only in the regulatory 19, 2015; 84 FR 64026, Nov. 20, 2019]

FIGURE 1 TO SUBPART E OF PART 300—SITKA LOCAL AREA MANAGEMENT PLAN

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FIGURE 2 TO SUBPART E OF PART 300—SOUTHERN SOUTHEAST ALASKA RURAL AND NON-RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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FIGURE 3 TO SUBPART E OF PART 300—NORTHERN SOUTHEAST ALASKA RURAL AND NON-RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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FIGURE 4 TO SUBPART E OF PART 300—PRINCE WILLIAM SOUND RURAL AND NON- RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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FIGURE 5 TO SUBPART E OF PART 300—ANCHORAGE, MATANUSKA-SUSITNA, AND KENAI RURAL AND NON-RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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FIGURE 6 TO SUBPART E OF PART 300—ALASKA PENINSULA AND ALEUTIAN ISLANDS RURAL AND NON-RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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FIGURE 7 TO SUBPART E OF PART 300—WESTERN AND CENTRAL ALASKA RURAL AND NON-RURAL AREAS

[74 FR 57110, Nov. 4, 2009]

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TABLE 1 TO SUBPART E OF PART 300— DETERMINATION OF COMMISSION REGULATORY AREA 2C ANNUAL COMMERCIAL ALLOCATION FROM THE ANNUAL COMBINED CATCH LIMIT FOR HALIBUT

If the area 2C annual combined catch limit (CCL) in net pounds is: then the area 2C annual commercial allocation is:

<5,000,000 lb ...... 81.7% of the Area 2C CCL. ≥5,000,000 and ≤5,755,000 lb ...... the Area 2C CCL minus a fixed 915,000-lb allocation to the charter halibut fishery. >5,755,000 lb ...... 84.1% of the Area 2C CCL.

[78 FR 75890, Dec. 12, 2013]

TABLE 2 TO SUBPART E OF PART 300—DETERMINATION OF COMMISSION REGULATORY AREA 3A ANNUAL COMMERCIAL ALLOCATION FROM THE ANNUAL COMBINED CATCH LIMIT FOR HALIBUT

If the area 3A annual combined catch limit (CCL) in net pounds is: then the area 3A annual commercial allocation is:

<10,000,000 lb ...... 81.1% of the Area 3A CCL. ≥10,000,000 and ≤10,800,000 lb ...... the Area 3A CCL minus a fixed 1,890,000-lb allocation to the charter halibut fishery. >10,800,000 and ≤20,000,000 lb ...... 82.5% of the Area 3A CCL. >20,000,000 and ≤25,000,000 lb ...... the Area 3A CCL minus a fixed 3,500,000-lb allocation to the charter halibut fishery. >25,000,000 lb ...... 86.0% of the Area 3A CCL.

[78 FR 75890, Dec. 12, 2013]

TABLE 3 TO SUBPART E OF PART 300—DETERMINATION OF COMMISSION REGULATORY AREA 2C ANNUAL CHARTER HALIBUT ALLOCATION FROM THE ANNUAL COMBINED CATCH LIMIT

If the area 2C annual combined catch limit for halibut in net pounds is: then the area 2C annual charter allocation is:

<5,000,000 lb ...... 18.3% of the Area 2C CCL. ≥5,000,000 and ≤5,755,000 lb ...... 915,000 lb. >5,755,000 lb ...... 15.9% of the Area 2C CCL.

[78 FR 75890, Dec. 12, 2013]

TABLE 4 TO SUBPART E OF PART 300—DETERMINATION OF COMMISSION REGULATORY AREA 3A ANNUAL CHARTER HALIBUT ALLOCATION FROM THE ANNUAL COMBINED CATCH LIMIT

If the area 3A annual combined catch limit (CCL) for halibut in net pounds is: then the area 3A annual charter allocation is:

<10,000,000 lb ...... 18.9% of the Area 3A annual combined catch limit. ≥10,000,000 and ≤10,800,000 lb ...... 1,890,000 lb. >10,800,000 and ≤20,000,000 lb ...... 17.5% of the Area 3A annual combined catch limit. >20,000,000 and ≤25,000,000 lb ...... 3,500,000 lb. >25,000,000 lb ...... 14.0% of the Area 3A annual combined catch limit.

[78 FR 75890, Dec. 12, 2013]

Subpart F—Fraser River Sockeye § 300.90 Purpose and scope. and Pink Salmon Fisheries This subpart implements the Pacific Salmon Treaty Act of 1985 (16 U.S.C. AUTHORITY: Pacific Salmon Treaty Act, 16 3631–3644) (Act) and is intended to sup- U.S.C. 3636(b). plement, not conflict with, the fishery

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regimes and Fraser River Panel regula- tween two anchored boats fashioned in tions adopted under the Treaty be- such a manner that to impound salmon tween the Government of the United passing over the net, the net must be States of America and the Government raised to the surface. of Canada Concerning Pacific Salmon, (4) Troll fishing gear means one or signed at Ottawa, January 28, 1985 more lines that drag hooks with bait or (Treaty). lures behind a moving fishing vessel. (5) Treaty Indian fishing gear means § 300.91 Definitions. fishing gear defined authorized, and In addition to the terms defined in identified under treaty Indian tribal § 300.2 and those in the Act and the laws and regulations in accordance Treaty, the terms used in this subpart with the requirements of Final Deci- have the following meanings. If a term sion No. 1 and subsequent orders in is defined differently in § 300.2, the Act, United States v. Washington, 384 F. or the Treaty, the definition in this Supp. 312 (W.D. Wash., 1974). section shall apply. Fraser River Panel means the Fraser All-citizen means any person who is River Panel established by the Pacific not a treaty Indian fishing in that Salmon Treaty. treaty Indian’s tribal treaty fishing Fraser River Panel Area (U.S.) means places pursuant to treaty Indian tribal the United States’ portion of the Fra- fishing regulations (whether in compli- ser River Panel Area specified in Annex ance with such regulations or not). II of the Treaty as follows: Authorized officer means, in addition (1) The territorial water and the high to those individuals identified under seas westward from the western coast authorized officer at § 300.2, any state, of Canada and the United States of Federal, or other officer as may be au- America and from a direct line drawn thorized by the Secretary in writing, from Bonilla Point, Vancouver Island, including any treaty Indian tribal en- to the lighthouse of Tatoosh Island, forcement officer authorized to enforce Washington—which line marks the en- tribal fishing regulations. trance of Juan de Fuca Strait—and em- Commission means the Pacific Salmon braced between 48° and 49° N. lat., ex- Commission established by the Pacific cepting therefrom, however, all the wa- Salmon Treaty. ters of Barkley Sound, eastward of a Consistent regulation or consistent straight line drawn from Amphitrite order means any Federal, state, or trea- Point to Cape Beale and all the waters ty Indian tribal regulation or order of Nitinat Lake and the entrance that is in addition to and not in con- thereto. flict with (at least as restrictive as) (2) The waters included within the any regime of the Commission, Fraser following boundaries: Beginning at River Panel regulation, inseason order Bonilla Point, Vancouver Island, of the Secretary, or these regulations. thence along the aforesaid direct line Fishing gear— drawn from Bonilla Point to Tatoosh (1) Gill net means a fishing net of sin- Lighthouse, Washington, described in gle web construction, not anchored, paragraph (1) of this definition, thence tied, staked, placed, or weighted in to the nearest point of Cape Flattery, such a manner that it cannot drift. thence following the southerly shore of (2) Purse seine means all types of fish- Juan de Fuca Strait to Point Wilson, ing gear consisting of a lead line, cork on Whidbey Island, thence following line, auxiliary lines, purse line and the western shore of the said Whidbey purse rings and of mesh net webbing Island, to the entrance to Deception fashioned in such a manner that it is Pass, thence across said entrance to used to encircle fish, and in addition the southern side of Reservation Bay, prevent their escape under the bottom on Fidalgo Island, thence following the or lead line of the net by drawing in western and northern shore line of the the bottom of the net by means of the said Fidalgo Island to Swinomish purse line so that it forms a closed bag. Slough, crossing the said Swinomish (3) Reef net means a non-self-fishing Slough, in line with the track of the open bunt square or rectangular sec- Great Northern Railway (Burlington tion of mesh netting suspended be- Northern Railroad), thence northerly

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following the shoreline of the mainland Decision No. 1 and subsequent orders in to Atkinson Point at the northerly en- United States v. Washington, 384 F. trance to Burrard Inlet, British Colum- Supp. 312 (W.D. Wash. 1974), to be bia, thence in a straight line to the places at which that treaty Indian southern end of Bowen Island, then tribe may take fish under rights se- westerly following the southern shore cured by treaty with the United States. of Bowen Island to Cape Roger Curtis, Treaty Indian means any member of a thence in a straight line to Gower treaty Indian tribe whose treaty fish- Point, thence westerly following the ing place is in the Fraser River Panel shoreline to Welcome Point on Sechelt Area (U.S.) or any assistant to a treaty Peninsula, thence in a straight line to Indian authorized to assist in accord- Point Young on Lasqueti Island, ance with § 300.95(d). thence in a straight line to Dorcas Treaty Indian tribe means any of the Point on Vancouver Island, thence fol- federally recognized Indian tribes of lowing the eastern and southern shores the State of Washington having fishing of the said Vancouver Island, to the rights secured by treaty with the starting point at Bonilla Point, as United States to fish for salmon stocks shown on the British Admiralty Chart subject to the Pacific Salmon Treaty Number 579, and on the U.S. Coast and in treaty fishing places within the Fra- Geodetic Survey Chart Number 6300, as ser River Panel Area (U.S.). Currently corrected to March 14, 1930, copies of these tribes are the Makah, Tribe, which are annexed to the 1930 Conven- Lower Elwha Klallam Tribe, Port Gam- tion between Canada and the United ble Klallam Tribe, Jamestown Klallam States of America for Protection, Pres- Tribe, Suquamish Tribe, Lummi Tribe, ervation, and Extension of the Sockeye Nooksack Tribe, the Swinomish Indian Salmon Fishery in the Fraser River Tribal Community, and the Tulalip System as amended, signed May 26, Tribe. 1930. [Note: U.S. Coast and Geodetic Survey Chart Number 6300 has been re- § 300.92 Relation to other laws. placed and updated by NOAA Chart Number 18400.] (a) Insofar as they are consistent (3) The Fraser River and the streams with this part, any other applicable and lakes tributary thereto. Federal law or regulation, or any appli- (4) The Fraser River Panel Area cable law and regulations of the State (U.S.) includes Puget Sound Manage- of Washington or of a treaty Indian ment and Catch Reporting Areas 4B, 5, tribe with treaty fishing rights in the 6, 6A, 6B, 6C, 6D, 7, 7A, 7B, 7C, 7D, and Fraser River Panel Area (U.S.) will 7E as defined in the Washington State continue to have force and effect in the Administrative Code at Chapter 220–22 Fraser River Panel Area (U.S.) with re- as of June 27, 1986. spect to fishing activities addressed Fraser River Panel regulations means herein. regulations applicable to the Fraser (b) Any person fishing subject to this River Panel Area that are rec- subpart is bound by the international ommended by the Commission (on the boundaries now recognized by the basis of proposals made by the Fraser United States within the Fraser River River Panel) and approved by the Sec- Panel Area (U.S.) described in § 300.91, retary of State. notwithstanding any dispute or nego- Mesh size means the distance between tiation between the United States and the inside of one knot to the outside of Canada regarding their respective ju- the opposite (vertical) knot in one risdictions, until such time as different mesh of a net. boundaries are published by the United Pink salmon means Oncorhynchus States. gorbuscha. (c) Any person fishing in the Fraser Sockeye salmon means the anad- River Panel Area (U.S.) who also fishes romous form of Oncorhynchus nerka. for groundfish in the EEZ should con- Treaty fishing places (of an Indian sult Federal regulations at part 663 of tribe) means locations within the Fra- this title for applicable requirements, ser River Panel Area (U.S.) as deter- including the requirement that vessels mined in or in accordance with Final engaged in commercial fishing for

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groundfish (except commercial pas- States, the State of Washington, or senger vessels) have vessel identifica- any treaty Indian tribe, which are also tion in accordance with § 663.6. Federal consistent with domestic legal obliga- regulations governing salmon fishing tions. in the EEZ, which includes a portion of (2) It is unlawful for any person or the Fraser River Panel Area (U.S.), are fishing vessel subject to the jurisdic- at part 661 of this title. Annual regu- tion of the United States to fish for, or latory modifications are published in take and retain, any sockeye or pink the FEDERAL REGISTER. salmon: (d) Except as otherwise provided in (i) Except during times or in areas this subpart, general provisions gov- that are opened by Fraser River Panel erning off-reservation fishing by treaty regulations or by inseason order, ex- Indians are found at 25 CFR part 249, cept that this provision will not pro- subpart A. Additional general and spe- hibit the direct transport of legally cific provisions governing treaty In- caught sockeye or pink salmon to off- dian fisheries are found in regulations loading areas. and laws promulgated by each treaty (ii) By means of gear or methods not Indian tribe for fishermen fishing pur- authorized by Fraser River Panel regu- suant to tribal authorization. lations, inseason orders, or other appli- (e) Nothing in this subpart relieves a cable Federal, state, or treaty Indian person from any other applicable re- tribal law. quirements lawfully imposed by the (iii) In violation of any applicable United States, the State of Wash- area, season, species, zone, gear, or ington, or a treaty Indian tribe. mesh size restriction. (b) It is unlawful for any person or § 300.93 Reporting requirements. fishing vessel subject to the jurisdic- Any person fishing for sockeye or tion of the United States to— pink salmon within the Fraser River (1) Remove the head of any sockeye Panel Area (U.S.) and any person re- or pink salmon caught in the Fraser ceiving or purchasing fish caught by River Panel Area (U.S.), or possess a such persons are subject to State of salmon with the head removed, if that Washington reporting requirements at salmon has been marked by removal of Washington Administrative Code, the adipose fin to indicate that a coded Chapter 220–69. Treaty Indian fisher- wire tag has been implanted in the men are subject also to tribal reporting head of the fish. requirements. No separate Federal re- (2) Fail to permit an authorized offi- ports are required. cer to inspect a record or report required by the State of Washington or § 300.94 Prohibitions and restrictions. treaty Indian tribal authority. In addition to the prohibitions in (c) Notwithstanding paragraph (a) of § 300.4, the following prohibitions and this section, nothing in this subpart restrictions apply. will be construed to prohibit the reten- (a) In addition to the prohibited acts tion of sockeye or pink salmon caught set forth in the Act at 16 U.S.C. 3637(a), by any person while lawfully engaged the following restrictions apply to in a fishery for subsistence or ceremo- sockeye and pink salmon fishing in the nial purposes pursuant to treaty Indian Fraser River Panel Area (U.S.): tribal regulations, for recreational pur- (1) The Fraser River Panel Area poses pursuant to recreational fishing (U.S.) is closed to sockeye and pink regulations promulgated by the State salmon fishing, unless opened by Fra- of Washington, or as otherwise author- ser River Panel regulations or by ized by treaty Indian tribal or State of inseason orders of the Secretary issued Washington law or regulation, provided under § 300.97 that give effect to orders that such treaty Indian tribal or State of the Fraser River Panel, unless such regulation is consistent with U.S.-ap- orders are determined not to be con- proved Commission fishery regimes, sistent with domestic legal obligations. Fraser River Panel regulations, or Such regulations and inseason orders inseason orders of the Secretary appli- may be further implemented by regula- cable to fishing in the Fraser River tions promulgated by the United Panel Area (U.S.).

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(d) The following types of fishing her possession at all such times a valid gear are authorized, subject to the re- identification card issued by the Bu- strictions set forth in this subpart and reau of Indian Affairs or by a treaty In- according to the times and areas estab- dian tribe, identifying the holder as a lished by Fraser River Panel regula- person qualified to assist a treaty In- tions or inseason orders of the Sec- dian. The identification card must in- retary: clude the name of the issuing tribe, the (1) All citizens: Gill net, purse seine, name, address, date of birth, and pho- reef net, and troll fishing gear. Specific tograph of the assistant, and the name restrictions on all citizens gear are and identification number of the treaty contained in the Washington State Ad- Indian whom the assistant is author- ministrative Code of Chapter 220–47. ized to assist. (2) Treaty Indians: Treaty Indian (3) Identification described in para- fishing gear. graph (c) (1) or (2) of this section must (e) Geographic descriptions of Puget be shown on demand to an authorized Sound Salmon Management and Catch officer by the treaty Indian or author- Reporting Areas, which are referenced ized assistant. in the Commission’s regimes, Fraser (4) Any treaty Indian fishing under River Panel regulations, and in this subpart must comply with the inseason orders of the Secretary, are treaty Indian vessel and gear identi- found in the Washington State Admin- fication requirements of Final Decision istrative Code at Chapter 220–22. No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 § 300.95 Treaty Indian fisheries. (W.D. Wash., 1974). (a) Any treaty Indian must comply (d) Fishing assistance. (1) Any member with this section when fishing for sock- of a treaty Indian tribe fishing under eye and pink salmon at the treaty In- this subpart may, if authorized by the dian tribe’s treaty fishing places in the treaty Indian’s tribe, receive fishing Fraser River Panel Area (U.S.) during assistance from, and only from, the the time the Commission or the Sec- treaty Indian tribal member’s spouse, retary exercises jurisdiction over these forebears, children, grandchildren, and fisheries. Fishing by a treaty Indian siblings, as authorized by the U.S. Dis- outside the applicable Indian tribe’s trict Court for the Western District of treaty fishing places will be subject to Washington in United States v. Wash- the Fraser River Panel regulations and ington, 384 F. Supp. 312 (W.D. Wash., inseason orders applicable to all citi- 1974). For purposes of this section, the zens, as well as to the restrictions set treaty Indian tribal member whom the forth in this section. assistant is authorized to assist must (b) Nothing in this section will re- be present aboard the fishing vessel at lieve a treaty Indian from any applica- all times while engaged in the exercise ble law or regulation imposed by a of treaty Indian fishing rights subject treaty Indian tribe, or from require- to this subpart. ments lawfully imposed by the United (2) No treaty Indian may, while fish- States or the State of Washington in ing at a treaty fishing place in accord- accordance with the requirements of ance with treaty-secured fishing rights, Final Decision No. 1 and subsequent or- permit any person 16 years of age or ders in United States v. Washington, 384 older other than the authorized holder F. Supp. 312 (W.D. Wash., 1974). of a currently valid identification card (c) Identification. (1) Any treaty In- issued in accordance with the require- dian fishing under the authority of this ments of paragraphs (c) (1) and (2) of subpart must have in his or her posses- this section to fish for said treaty In- sion at all times while fishing or en- dian, assist said treaty Indian in fish- gaged in any activity related to fishing ing, or use any gear or fishing location the treaty Indian identification re- identified as said treaty Indian’s gear quired by 25 CFR 249.3 or by applicable or location. tribal law. (3) Treaty Indians are prohibited (2) Any person assisting a treaty In- from participating in a treaty Indian dian under the authority of paragraph fishery under this section at any time (d) of this section must have in his or persons who are not treaty Indians are

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aboard the fishing vessel or in contact radio and television stations and news- with fishing gear operated from the papers in the Fraser River Panel Area fishing vessel, unless such persons are (U.S.). authorized employees or officers of a (4) Inseason orders of the Secretary treaty Indian tribe or tribal fisheries will also be published in the FEDERAL management organization, the North- REGISTER as soon as practicable after west Indian Fisheries Commission, the they are issued. Commission, or a fisheries management agency of the United States or [61 FR 35550, July 5, 1996, as amended at 74 the State of Washington. FR 44771, Aug. 31, 2009] § 300.96 Penalties. Subpart G—Antarctic Marine Any treaty Indian who commits any Living Resources act that is unlawful under this subpart normally will be referred to the appli- AUTHORITY: 16 U.S.C. 2431 et seq., 31 U.S.C. cable tribe for prosecution and punish- 9701 et seq. ment. If such tribe fails to prosecute such persons in a diligent manner for SOURCE: 82 FR 6223, Jan. 19, 2017, unless the offense(s) referred to the tribe, or if otherwise noted. other good cause exists, such treaty In- § 300.100 Purpose and scope. dian may be subject to the penalties and procedures described in the Magnu- (a) This subpart implements the Ant- son-Stevens Act. arctic Marine Living Resources Con- vention Act of 1984 (AMLRCA or Act), § 300.97 Inseason orders. 16 U.S.C. 2431 et seq. (a) During the fishing season, the (b) This subpart regulates— Secretary may issue orders that estab- (1) The harvesting of Antarctic ma- lish fishing times and areas consistent rine living resources and other associ- with the annual Commission regime ated activities by any person subject to and inseason orders of the Fraser River the jurisdiction of the United States or Panel. Inseason orders will be con- by any vessel of the United States. sistent with domestic legal obligations. (2) The import, export, and re-export Violation of such inseason orders is into the United States of any Antarctic violation of this subpart. marine living resource. (b) Notice of inseason orders. (1) Offi- cial notice of such inseason orders is § 300.101 Definitions. available from NMFS (for orders appli- In addition to the terms defined in cable to all-citizen fisheries) and from § 300.2, in the Act, and in the Conven- the Northwest Indian Fisheries Com- tion on the Conservation of Antarctic mission (for orders applicable to treaty Marine Living Resources, done at Can- Indian fisheries) through Area Code 206 berra, Australia, May 7, 1980 (Conven- toll-free telephone hotlines. All-citizen tion) the terms used in this subpart fisheries: the hotline telephone number have the following meanings for pur- is published in the inseason notice proposes of this subpart. If a term is de- cedures section of the annual manage- fined differently in § 300.2, than in the ment measures for West Coast Salmon Act, or Convention, the definition in Fisheries, published in the FEDERAL this section shall apply. REGISTER; Treaty Indian fisheries hotline: 1–800–562–6142. ACA means the Antarctic Conserva- (2) Notice of inseason orders of the tion Act of 1978 (16 U.S.C. 2401, et seq.). Secretary and other applicable tribal Annual or biennial measure means a regulations may be published and re- conservation measure that: leased according to tribal procedures in (1) Applies to the operation of the accordance with Final Decision No. 1 Convention’s commercial or explor- and subsequent orders in United States atory fisheries such as gear, catch, and v. Washington, 384 F. Supp. 312 (W.D. effort restrictions and time and area Wash., 1974). closures; (3) Inseason orders may also be com- (2) Generally expires after one or two municated through news releases to fishing season(s); and

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(3) Does not require the development information relating to the export of of policy options or a regulatory frame- Dissostichus spp. work. Dissostichus re-export document Antarctic convergence means a line (DRED) is a document generated joining the following points along the through CCAMLR’s electronic CDS, parallels of latitude and meridians of containing information relating to the longitude: re-export of Dissostichus spp. Dissostichus species or Dissostichus spp. Lat. Long. means Patagonian toothfish and Ant- 50° S ...... 0. arctic toothfish, and any parts or prod- 50° S ...... 30° E. ucts therefrom. 45° S ...... 30° E. Enhanced mobile transceiver unit or 45° S ...... 80° E. EMTU means a transceiver or commu- ° ° 55 S ...... 80 E. nication device, including all hardware 55° S ...... 150° E. 60° S ...... 150° E. and software, carried and operated on a 60° S ...... 50° W. vessel as part of a vessel monitoring 50° S ...... 50° W. system. 50° S ...... 0. Export means any movement of fish or fish product from a territory under Antarctic marine living resources or the control of the State or free trade AMLR(s) means: zone of landing, or, where that State or (1) The populations of finfish, mol- free trade zone forms part of a customs lusks, crustaceans, and all other spe- union, any other Member State of that cies of living organisms, including customs union. birds, found south of the Antarctic First receiver means the person who Convergence; first receives AMLRs landed from a (2) All parts or products of those pop- vessel licensed under 50 CFR 300.107 at ulations and species set forth in para- a U.S. port. graph (1) of this definition. Fish means finfish, mollusks, and Centralized Vessel Monitoring System crustaceans. (C–VMS) means the system operated by Fishery means: the Secretariat of CCAMLR that re- (1) One or more stocks of fish that ceives reports of positional and other are treated as a unit for purposes of information from satellite-linked mo- conservation and management and bile transceiver units located on ves- that are identified on the basis of geo- sels that are submitted to the graphical, scientific, technical, rec- CCAMLR Secretariat, either directly reational, and economic characteris- from the vessel or through the relevant tics. flag State. (2) Any fishing for such stocks. Commission or CCAMLR means the Harvesting vessel means any vessel of Commission for the Conservation of the United States (including any boat, Antarctic Marine Living Resources es- ship, or other craft), that is used for, tablished under Article VII of the Con- equipped to be used for, or of a type vention. that is normally used for harvesting. Convention Area means all waters Import means the physical entering south of the Antarctic Convergence. or bringing of a fish or fish product Dealer means a person who imports into any part of the geographical terri- AMLRs into, or exports or re-exports tory under the control of a State, ex- AMLRs from, the United States. cept where the catch is landed or trans- Dissostichus catch document (DCD) is a shipped within the definitions of land- document generated through ing or transshipment. CCAMLR’s electronic catch docu- Individual permit means a National mentation scheme (CDS), containing Science Foundation (NSF) permit information relating to the harvest, issued under 45 CFR part 670; or an landing, and transshipment of NSF award letter (demonstrating that Dissostichus species. the individual has received an award Dissostichus export document (DED) is from NSF to do research in the Ant- a document generated through the arctic); or a marine mammal permit CCAMLR’s electronic CDS, containing issued under § 216.31 of this chapter; or

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an endangered species permit issued trade zone, or any Member State of under § 222.21 of this chapter. that customs union is the first place of Inspection vessel means a vessel car- landing, in which case the movement is rying a CCAMLR inspector and dis- an export within the definition of ex- playing the pennant approved by port. CCAMLR to identify such vessel. Seal excluder device means a barrier International observer means a sci- within the body of a trawl comprised of entific observer operating in accord- a metal frame, nylon mesh, or any ma- ance with the CCAMLR Scheme of terial that results in an obstruction to International Scientific Observation seals between the mouth opening and and the terms of a bilateral arrange- the cod end of the trawl. The body of ment concluded between the United the trawl net forward of the barrier States and another member of must include an escape opening CCAMLR for the placement of a U.S. through which seals entering the trawl national onboard a vessel flagged by can escape. another member of CCAMLR or for the Specially Validated Dissostichus Catch placement of the national of another Document (SVDCD) means a member of CCAMLR onboard a vessel Dissostichus catch document that has of the United States. been specially issued by a State to ac- Land or Landing means to begin off- company seized or confiscated loading any fish, to arrive in port with Dissostichus spp. offered for sale or oth- the intention of offloading any fish, or erwise disposed of by the State. to cause any fish to be offloaded. How- Transship or transshipment means the ever, for purposes of catch documenta- transfer of fish or fish products, other tion as provided for in § 300.106, land or AMLRs, or any other goods or mate- landing means the initial unloading or rials directly from one vessel to an- transfer of Dissostichus spp. in any form other. However, for purposes of catch from a vessel to dockside even if such documentation as provided for in fish are subsequently transferred to a § 300.106, transship or transshipment container or to another vessel in a port or free trade zone. means the transfer of Dissostichus spp. National observer means a U.S. na- that has not been previously landed, tional placed and operating onboard a from one vessel directly to another, ei- vessel of the United States as a sci- ther at sea or in port. entific observer in accordance with Vessel Monitoring System (VMS) means § 300.111. a system that uses satellite-linked National Seafood Inspection Laboratory EMTUs installed on vessels to allow a means the NMFS laboratory located at flag State or other entity to receive 3209 Frederic Street, Pascagoula, MS automatic transmission of positional 39567, telephone (228) 769–8964, email and other information related to vessel [email protected]. activity. Office of Law Enforcement (OLE) refers to the NOAA Office of Law En- § 300.102 Relationship to other trea- forcement. ties, conventions, laws, and regulations. Port-to-port means from the time the vessel leaves port to the time that the (a) Other conventions and treaties to vessel returns to port and at all points which the United States is a party and in between. other Federal statutes and imple- Real-time means as soon as possible, menting regulations may impose addi- but at least every hour with no more tional restrictions on the harvesting than a 1-hour delay. and importation into the United States Recreational fishing means fishing of AMLRs. with hook and line for personal use and (b) The ACA implements the Ant- not for sale. arctic Treaty Agreed Measures for the Re-export means any movement of a Conservation of Antarctic Fauna and fish or fish product from a territory Flora (12 U.S.T. 794). The ACA and its under the control of a State, free trade implementing regulations (45 CFR part zone, or Member State of a customs 670) apply to certain defined activities union of import unless that State, free of U.S. citizens south of 60° S. lat.

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(c) The Marine Mammal Protection (e) Annual or biennial measures. Act of 1972 (16 U.S.C. 1361 et seq.), the NMFS may implement annual or bien- Endangered Species Act of 1973 (16 nial measures adopted by CCAMLR as U.S.C. 1531 et seq.), the Migratory Bird conditions to vessel permits issued Treaty Act (16 U.S.C. 701 et seq.), and under section 300.107, instead of their implementing regulations also through rulemaking. apply to the harvesting and importation of AMLRs. § 300.103 Scientific research. (d) Rule making exceptions. When (a) This section applies to any per- implementing conservation measures son, using a vessel for research pur- adopted and notified by CCAMLR, poses, who intends to catch more than NMFS may apply the following excep- 1 tonne of finfish or krill or use gear tions to Administrative Procedure Act other than longline, trawl, or pot to (APA) rulemaking requirements at 5 catch Dissostichus spp. U.S.C. 553(b)–(d): (b) Any person planning to use a ves- (1) The foreign affairs function excep- sel for research purposes, when the es- tion of the APA, 5 U.S.C. 553(a)(1); or timated research catch is expected to be less than 50 tonnes of finfish in a (2) The exception under subsection season, and no more than the amounts 307(b) of AMLRCA, 16 U.S.C. 2436(b), specified in Table 1, must notify the that provides that, notwithstanding 5 Assistant Administrator at least 2 U.S.C. 553(b)–(d), NMFS may publish in months in advance of the planned re- the FEDERAL REGISTER a final regula- search using the CCAMLR Format for tion to implement any CCAMLR-adopt- Notification of Research Vessel Activ- ed conservation measure— ity, Format 1. A copy of the format is (i) That has been in effect for 12 available from NMFS Headquarters. months or less, beginning on the date The format requires: that the Commission notifies the (1) Name and registration number of United States of the conservation vessel; measure under Article IX of the Con- (2) Division and subarea in which re- vention; and search is to be carried out; (ii) With respect to which the Sec- (3) Estimated dates of entering and retary of State does not notify the leaving the Convention Area; Commission in accordance with section (4) Purposes of research; and 305(a)(1) of AMLRCA within the time (5) Fishing equipment to be used period allotted for objections under Ar- (bottom trawl, midwater trawl, ticle IX of the Convention. longline, crab pots, other).

TABLE 1—TAXA-SPECIFIC THRESHOLDS FOR NOTIFICATION OF RESEARCH VESSEL ACTIVITY

Taxon Gear type Expected catch

Thresholds for finfish taxa: Dissostichus spp ...... Longline ...... 5 tonnes. Trawl ...... 5 tonnes. Pot ...... 5 tonnes. Other ...... 0 tonnes. Champsocephalus gunnari ...... All ...... 10 tonnes. Thresholds for non-finfish taxa: Krill ...... All ...... 0.1 percent of the catch limit for a given area. Squid. Crabs.

(c) Any person planning to use any Notification of Research Vessel Activ- vessel for research purposes, when the ity. The format must be submitted to estimated research catch is expected to Assistant Administrator at least 7 be more than 50 tonnes or greater than months in advance of the planned start the amounts specified in Table 1 must date for the research. A copy of the for- report the details of the research plan mat is available from NMFS Head- to NMFS using CCAMLR Format 2 for quarters. The format requires:

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(1) Description of the main objective of entry of Dissostichus spp. into the of the research; United States, NMFS will only accept (2) Description of the fishery oper- electronic CDS documents described in ations; § 300.106. (3) Description of the survey design, (3) Imports of fresh or frozen data collection, and analysis; Dissostichus spp. accompanied by an (4) Proposed catch limit; SVDCD are prohibited. (5) Description of the research capa- (b) International Fisheries Trade Per- bility; and mit. A person intending to import, ex- (6) Description of the reporting for port, or re-export AMLR must possess evaluation and review. a valid IFTP issued under § 300.322 and (d) Where the expected catch is more file required data sets electronically than 50 tonnes of fish or greater than with Customs and Border Protection the amounts specified in Table 1, the (CBP) at the time, or in advance, of im- planned fishing for research purposes portation, exportation or re-expor- shall not proceed until the Assistant tation. ‘‘Required data set’’ has the Administrator authorizes the person in same meaning as § 300.321 (see defini- writing that he or she may proceed. tion of ‘‘Documentation and data sets Such authorization may be provided required’’). See § 300.322 for IFTP appli- after completion of review of the sci- cation procedures and permit regula- entific research plan by the CCAMLR tions. The IFTP holder may only con- Scientific Committee and Commission. duct those specific activities stipulated (e) A summary of the results of any by the IFTP. research subject to these provisions (c) AMLR First Receiver Permits—(1) must be provided to the Assistant Ad- General. First receivers of AMLR catch ministrator within 150 days of the com- landed from a vessel permitted under pletion of the research and a full report § 300.107 at a U.S. port of landing must must be provided within 11 months. possess an AMLR first receiver permit (f) Catch, effort, and biological data and may only conduct those activities resulting from the research must be re- described in the permit. A person ported using the reporting format for issued, or required to have been issued research vessels in accordance with rel- a first receiver permit under this sub- evant conservation measures, with a part may only receive fish from a U.S. copy to NMFS Headquarters. vessel that has a valid vessel permit § 300.104 International Fisheries Trade issued under § 300.107 as well as a valid Permits and AMLR first receiver High Seas Fishing Permit issued under permits. 50 CFR part 300, subpart R. (a) General. (1) A person may import, (2) Application. Applications for the export, or re-export AMLR into the AMLR first receiver permit are avail- United States only under a NMFS- able from NMFS Headquarters. issued International Fisheries Trade (3) Issuance. NMFS may issue an Permit (IFTP). For AMLRs to be re- AMLR first receiver permit if the per- leased for entry into the United States, mit application is complete and NMFS the product must be accompanied by a determines that the activity proposed vessel permit, individual permit, by the first receiver meets the require- AMLR first receiver permit, or IFTP. ments of the Act. First receivers of (2) All shipments of Dissostichus spp. AMLR required to have a first receiver must also be accompanied by accurate, permit may only receive AMLR that complete and valid CDS documentation were harvested in a manner consistent (including all required validations and with CCAMLR conservation measures DEDs/DREDs) as described in § 300.106, and this subpart. and, in the case of shipments of frozen (4) Duration. Unless revoked or sus- Dissostichus species, a preapproval cer- pended, an AMLR first receiver permit tificate issued under § 300.105, as well as is valid from its date of issuance to its verifiable information that the har- date of expiration. vesting vessel was reporting to C–VMS (5) Prohibition on transfer or assign- from port-to-port, regardless of where ment. AMLR first receiver permits are the fish were harvested. For purposes valid only for the person to whom

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NMFS issued the permit and may not § 300.105 Preapproval for importation be transferred or assigned. of frozen Dissostichus species. (6) Changes in information submitted by (a) A NMFS-issued preapproval cer- permit applicants or permit holders: tificate is required to import each ship- (i) Changes in pending applications. ment of frozen Dissostichus species. Applicants for an AMLR first receiver (b) Application. Application forms for permit must report any change in the a preapproval certificate are available information contained in the applica- from NMFS Headquarters and the Na- tion to the Assistant Administrator in tional Seafood Inspection Laboratory. writing as soon as possible. With the exception of the U.S. Customs (ii) Changes occurring after permit 7501 entry number, a complete and ac- issuance. An AMLR first receiver per- curate application must be received by mit holder must report any change to NMFS for each preapproval certificate information previously submitted to at least 10 working days before the an- the Assistant Administrator in writing ticipated date of the importation. within 15 days of the change. Based on Dealers must supply the U.S. Customs such information, the Assistant Ad- 7501 entry number at least three work- ministrator may revise the permit ef- ing days prior to the expected arrival fective upon notification to the permit of a shipment of frozen Dissostichus spe- holder. cies at a U.S. port. (7) Fees. NMFS may charge a fee to (c) Fees. A person must include the recover the administrative expenses of processing fee with each preapproval permit issuance. NMFS will determine certificate application. NMFS will de- the fee in accordance with the proce- termine the fee under the NOAA fi- dures in the NOAA finance handbook, nance handbook procedures for calcu- available from NMFS, for calculating lating administrative costs of special administrative costs of special prod- products and services and user fees col- ucts and services. lected for administrative expenses as- (8) Reporting and recordkeeping re- sociated with processing applications quirements. First receivers of AMLRs for preapproval certificates. who have been issued, or are required (d) Issuance. NMFS may issue a to have, a first receiver permit under preapproval certificate for importation this subpart must: of a shipment of frozen Dissostichus spe- (i) Accurately maintain all reports cies if the preapproval application form and records required by their first re- is complete and NMFS determines that ceiver permit and this subpart at their the activity proposed by the applicant place of business; meets the requirements of the Act and (ii) Maintain the original permit at that the resources were not harvested their place of business; in violation of any CCAMLR conserva- (iii) Make their permit, and all re- tion measure or in violation of any reg- quired reports and records, available ulation in this subpart. No preapproval for inspection upon the request of an will be issued for Dissostichus species authorized officer; and without verifiable documentation that (iv) Within the time specified in the the harvesting vessel reported to C– permit, submit a copy of such reports VMS continuously and in real-time and records to NMFS at an address des- from port-to-port, regardless of where ignated by NMFS. such Dissostichus species were har- (d) Revision, suspension, or revocation. vested. NMFS may revise, suspend, or revoke (e) Duration. A preapproval certifi- an IFTP, or first receiver permit, cate is valid until the Dissostichus issued under this section based upon a product specified in the preapproval violation of the permit, the Act, or this application is imported. subpart. (f) Transfer. A person may not trans- (e) A person may not import a ma- fer or assign a preapproval certificate. rine mammal into the United States (g) Changes in information. (1) For unless authorized and accompanied by pending preapproval certificates, appli- an import permit issued under the Ma- cants must report in writing to NMFS rine Mammal Protection Act and/or any changes in the information sub- the Endangered Species Act. mitted in their preapproval certificate

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applications. NMFS may extend the of Dissostichus species as required in processing period for the application as this section. necessary to review and consider any (2) No shipment of Dissostichus spe- changes. cies shall be released for entry into the (2) Issued preapprovals. For issued United States unless accompanied by preapproval certificates, the certificate an accurate, complete, valid and vali- holder must report in writing to NMFS dated CCAMLR CDS document. any changes to information included in (3) Dissostichus species shall not be the preapproval certificate application. released for entry into the United Any changes related to fish being im- States unless all of the applicable reported, such as harvesting vessel or quirements of the CCAMLR Conserva- country of origin, type and quantity of tion Measures and U.S. regulations the fish to be imported or Convention have been met. statistical subarea from which the re- (b) Harvesting vessels. (1) A U.S. vessel source was harvested, will void the harvesting or attempting to harvest preapproval certificate and the ship- Dissostichus species, whether within or ment may not be imported unless au- outside of the Convention Area, must thorized by NMFS through issuance of possess a valid vessel permit issued a revised or new preapproval certifi- under § 300.107, a valid High Seas Fish- cate. ing Permit issued under 50 CFR part (3) The provision of false information 300, subpart R, as well as DCD issued by in a preapproval application, or the NMFS, which is non-transferable. The failure to report a change in the infor- master of the harvesting vessel must mation contained in a preapproval ap- ensure that catch and other informa- plication, voids the application or tion specified on the DCD are accu- preapproval as applicable. rately recorded. (h) NMFS will not issue a (2) Prior to offloading Dissostichus preapproval certificate for any ship- species, the master of the harvesting ment of Dissostichus species: vessel must: (1) Identified as originating from a (i) Electronically convey, by the high seas area designated by the Food most rapid means possible, catch and and Agriculture Organization of the other information to NMFS and record United Nations as Statistical Area 51 on the DCD a confirmation number re- or Statistical Area 57 in the eastern ceived from NMFS; and western Indian Ocean outside and (ii) Obtain on the DCD (or copies north of the Convention Area; thereof) the signature(s) of the fol- (2) Determined to have been har- lowing persons: If catch is offloaded for vested or transshipped in contraven- transshipment, the master of the ves- tion of any CCAMLR Conservation sel(s) to which the catch is transferred; Measure in force at the time of harvest or if catch is offloaded for landing, the or transshipment; signature of both the responsible official(s) designated by NMFS in the ves- (3) Determined to have been har- sel permit and the recipient of the vested or transshipped by a vessel iden- catch at the port(s) of landing; and tified by CCAMLR as having engaged (iii) Sign the DCD (or copies thereof), in illegal, unreported and unregulated electronically convey by the most (IUU) fishing; or rapid means possible each copy to (4) Accompanied by inaccurate, in- NMFS and provide a copy to each re- complete, invalid, or improperly vali- cipient of the catch. dated CDS documentation or by a (3) The master of the harvesting ves- SVDCD. sel must submit the original DCD (and [82 FR 6223, Jan. 19, 2017, as amended at 84 all copies thereof with original signa- FR 8625, Mar. 11, 2019] tures) to NMFS no later than 30 days after the end of the fishing season for § 300.106 Catch Documentation which the vessel permit was issued and Scheme (CDS): Documentation and retain copies of the DCD for a period of other requirements. 2 years. (a) General. (1) CCAMLR CDS docu- (c) Transshipment vessels. (1) A U.S. ment(s) must accompany all shipments vessel transshipping or attempting to

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transship Dissostichus species, whether DRED corresponding to the intended within or outside of the Convention import shipment and, if requested by Area, must possess a valid vessel per- NMFS, additional information for mit issued under § 300.107 and a valid NMFS to verify that the harvesting High Seas Fishing Permit issued under vessel reported to the C–VMS continu- subpart R of this part. The master of a ously and in real-time, from port-to- U.S. vessel receiving Dissostichus spe- port, regardless of where the fish were cies by transshipment must, upon re- harvested; ceipt of Dissostichus species, sign each (ii) Ensure that the quantity of DCD provided by the master of the ves- toothfish listed on the DED (or the sel that offloads Dissostichus species. Dissostichus re-export document if prod- (2) Prior to landing Dissostichus spe- uct is a re-export) matches the quan- cies, the master of the transshipping tity listed on the preapproval applica- vessel must: tion within a variance of 10 percent; (i) Obtain on each DCD (or copies and thereof) the signature(s) of both the re- (iii) Provide copies of the DED or sponsible official(s) designated by DRED as needed to persons who re-ex- NMFS in the vessel permit and the report Dissostichus species. cipient of the catch at the port(s) of (2) Imports of fresh Dissostichus spe- landing; and cies do not require a preapproval cer- (ii) Sign each DCD (or copies there- tificate. If the amount or value of the of), and electronically convey by the fresh Dissostichus species to be im- most rapid means possible each copy to ported is below thresholds that trigger NMFS and to the flag state(s) of the the requirement to file entry docu- offloading vessel(s) and provide a copy mentation with U.S. Customs and Bor- to each recipient of Dissostichus spe- der Protection via the Automated cies. Commercial Environment (see defini- (3) The master of the transshipping tion in § 300.321), the importer must vessel must submit all DCDs with complete a report of each shipment and original signatures to NMFS no later submit the report to NMFS within 24 than 30 days after offloading and retain hours following importation. copies for a period of 2 years. Verification of the harvesting vessel’s (d) First receivers. Any person who re- reporting to C–VMS from port-to-port ceives Dissostichus species landed by a is not required for imports of fresh vessel at a U.S. port must hold an Dissostichus species. AMLR first receiver permit issued (f) Re-export. (1) To re-export under § 300.104 and must sign the Dissostichus species, a person must hold DCD(s) provided by the master of the an IFTP issued under § 300.322 and: vessel and retain copies at their place (i) Submit to NMFS a complete and of business for a period of 2 years. A accurate application for a NMFS person issued, or required to have been Dissostichus re-export document, and issued, a first receiver permit under (ii) Obtain validation by a respon- this subpart may only receive fish from sible official(s) designated by NMFS a U.S. vessel that has a valid vessel and receive an electronically-generated permit issued under § 300.107 as well as DRED. a valid High Seas Fishing Permit (2) When applying for a re-export ap- issued under 50 CFR part 300, subpart proval, a person must reference or in- R. clude the approval number issued by (e) Import. (1) A person who imports NOAA, for the original validated fresh Dissostichus species must hold an Dissostichus import document. IFTP issued under § 300.322. To import (g) Export. (1) To export U.S.-har- frozen Dissostichus species into the vested Dissostichus species, the person United States, a person must: must possess an IFTP issued under (i) Obtain a preapproval certificate § 300.322 and: issued under § 300.105 for each ship- (i) Submit to NMFS a complete and ment. Among the information required accurate NMFS application for a DED; on the application, applicants must and provide the document number and ex- (ii) Obtain validation by a respon- port reference number on the DED or sible official(s) designated by NMFS

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and receive an electronically-generated States to harass, capture, harm, kill, DED. harvest, or importo Marine mammals. (2) Any person who exports No marine mammals may be taken in Dissostichus species must include the the course of commercial fishing oper- original validated DED with the export ations unless the taking is authorized shipment. under the Marine Mammal Protection (h) Recordkeeping. Any person who Act and/or the Endangered Species Act imports, exports or re-exports pursuant to an exemption or permit Dissostichus spp. must: granted by the appropriate agency. (1) Retain a copy of all CDS docu- (b) Responsibility of owners and opera- ments at the person’s place of business tors. (1) The owners and operators of for a period of 2 years from the date on vessels permitted, or required to be the documents and provide copies as permitted, under this subpart are joint- needed to NMFS; and ly and severally responsible for compli- (2) Make the IFTP and all CDS docu- ance with the Act, this subpart, and ments and other records and reports re- any permit issued under the Act and quired by this subpart available for in- this subpart. spection upon request of an authorized (2) The owners and operators of each officer. such vessel are responsible for the acts of their employees and agents consti- § 300.107 Vessel permits and require- tuting violations, regardless of whether ments. the specific acts were authorized or for- (a) General. In addition to the High bidden by the owners or operators, and Seas Fishing Permit requirements at 50 regardless of knowledge concerning CFR part 300, subpart R: their occurrence. (1) Every vessel of the United States (3) The owner of a vessel issued a ves- that attempts to harvest or harvests sel permit under this subpart must re- any AMLR must have a vessel permit port any sale, change in ownership, or authorizing the harvest issued under other disposition of the vessel to the this subpart, unless the attempt or Assistant Administrator as soon as harvest occurs during recreational fish- possible but no later than 15 days after ing or is covered by an individual per- the change. mit. Boats launched from a vessel (4) The owner and operator of a har- issued a vessel permit do not require a vesting vessel issued a permit to fish separate permit, but are covered by the for krill in the Convention Area using permit issued to the launching vessel. trawl gear must install a seal excluder Any enforcement action that results device and may not possess onboard or from the activities of a launched boat deploy trawl gear without a seal ex- will be taken against the owner and op- cluder device installed. erator of the launching vessel. (c) Application. Application forms for (2) Any vessel of the United States vessel permits are available from that receives or attempts to receive NMFS Headquarters. any harvested AMLR from another ves- (1) A separate, fully completed and sel at sea, regardless of whether such accurate application is required for transshipment occurs in the Conven- each vessel for which a permit is re- tion Area or that receives, or attempts quested. to receive any other goods or materials (2) NMFS must receive applications from another vessel in the Convention for vessel permits no later than April 1 Area, must have a vessel permit au- for the fishing season that will com- thorizing transshipment issued under mence on or after December 1 of that this subpart. Transshipment vessels year. must comply with the permitting pro- (3) Applications for a permit to har- visions of this section. This require- vest krill must, to the extent possible, ment does not apply to scientific re- identify the products to be derived search vessels or to transshipments from the anticipated krill catch. covered under an individual permit. (4) NMFS will only accept permit ap- (3) Permits issued under this section plications for vessels that have been do not authorize vessels or persons sub- issued an International Maritime Orga- ject to the jurisdiction of the United nization (IMO) number.

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(5) NMFS may charge a fee to recover quest of an authorized officer or the administrative expense of permit CCAMLR inspector. issuance. NMFS will determine the fee (h) Changes in information submitted in accordance with procedures in the by permit applicants or holders—(1) NOAA finance handbook, available Changes in pending applications. Appli- from NMFS, for calculating adminis- cants for a vessel permit must report trative costs of special products and to the Assistant Administrator in writ- services and user fees. ing any change in the information con- (d) Issuance. The Assistant Adminis- tained in the application. The proc- trator may issue a vessel permit if the essing period for the application will be Assistant Administrator determines extended as necessary to review the that the harvesting or transshipment change. activities described in the application (2) Changes occurring after permit will meet the requirements of the Act issuance—(i) Requested changes in the lo- and will not: cation, manner, or amount of harvesting. (1) Decrease the size of any harvested Any changes in the location, manner or population to levels below those that amount of harvesting must be proposed ensure its stable recruitment. For this in writing to the Assistant Adminis- purpose, the Convention provides that trator and may not be undertaken units size should not be allowed to fall less authorized by the Assistant Ad- below a level close to that which en- ministrator through a permit revision sures the greatest net annual incre- or issuance of a new permit. If the As- ment. sistant Administrator determines that (2) Upset the ecological relationships the requested change in the location, between harvested, dependent, and re- manner, or amount of harvesting could lated populations of AMLRs and the significantly affect the status of any restoration of depleted populations to Antarctic marine living resource, the levels that will ensure stable recruit- Assistant Administrator will treat the ment. requested change as an application for (3) Cause changes or increase the risk a new permit and so notify the holder. of changes in the marine ecosystem (ii) Changes other than in the location, that are not potentially reversible over manner or amount of harvesting. For 2 or 3 decades, taking into account the changes other than those addressed in state of available knowledge of the di- paragraph (h)(2)(i) of this section, the rect and indirect impact of harvesting, owner or operator of a vessel that has the effects of the introduction of alien been issued a vessel permit must report species, the effects of associated activi- to the Assistant Administrator in writ- ties on the marine ecosystem and the ing any change in previously submitted effects of environmental changes, with information as soon as possible but no the aim of making possible the sus- later than within 15 days after the tained conservation of AMLRs. change. Based on such reported infor- (4) Violate the Convention or any mation, the Assistant Administrator conservation measures in force with re- may revise the permit and any revised spect to the United States under the permit would be effective upon notifi- Convention. The Convention and the cation to the permit holder. schedule of conservation measures in (i) Conditions and restrictions. The ves- force can be found on the CCAMLR sel permit will contain conditions and Web site: www.ccamlr.org. restrictions that the Assistant Admin- (e) Duration. A vessel permit is valid istrator deems necessary for implemen- from its date of issuance to its date of tation of conservation measures that expiration unless it is revoked or sus- apply to the harvesting or trans- pended. shipment activities. The Assistant Ad- (f) Transfer. Permits are not transfer- ministrator may revise the vessel per- able or assignable. A permit is valid mit to include additional conditions only for the vessel to which it is issued. and restrictions on the harvesting ves- (g) Display. Each vessel must have on sel as necessary to implement con- board, at all times, a valid vessel per- servation measures in force with re- mit and the vessel operator must spect to the United States or to produce it for inspection upon the re- achieve the purposes of the Convention

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or the Act. Any additional conditions (2) Make such reports and records or restrictions will be effective upon available for inspection upon the re- notification to the permit holder. quest of an authorized officer or (j) Revision, suspension, or revocation CCAMLR inspector. for violations. A vessel permit may be (3) Within the time specified in the revised, suspended, or revoked if the vessel permit, submit a copy of such re- harvesting vessel is involved in the ports and records to NMFS. commission of any violation of its per- (4) Install a NMFS-approved EMTU mit, the Act, or this subpart. The As- on board U.S. flagged vessels har- sistant Administrator may deny a ves- vesting AMLR for use in real-time C– sel permit if the applicant or har- VMS port-to-port reporting to a vesting vessel was previously involved NMFS-designated land-based fisheries in the commission of any violation of monitoring center or centers. The re- its permit, the Act, or this subpart. quirements for the installation and op- Failure to report a change in the infor- eration of the VMS are set forth in mation contained in an application § 300.112. within 15 days of the change is a viola- (5) Provide advance notice of the ves- tion of this subpart and voids the appli- sel’s entry into port using the cation or permit, as applicable. If a CCAMLR Port Inspection Report, in- change in vessel ownership is not re- cluding the written declaration that ported, the violation is chargeable to the vessel has not engaged in or sup- the previous owner. ported illegal, unreported and unregu- (k) Transshipment notification. The lated (IUU) fishing in the Convention vessel operator must notify the Area and has complied with relevant CCAMLR Secretariat of trans- CCAMLR requirements. The CCAMLR shipments of AMLRs, bait, or fuel, and Port Inspection Report, and instruc- submit a confirmation of the notifications for its submission, is available tion to NMFS Headquarters, no later from NMFS Headquarters. than 72 hours before the transshipment will take place. The vessel operator § 300.108 Vessel and gear identifica- must notify the CCAMLR Secretariat tion. of transfers of all other goods, and sub- (a) Vessel identification. (1) A vessel mit a confirmation of the notification issued a permit under this subpart to NMFS Headquarters, no later than 2 must be marked with the vessel’s name hours before the transshipment will and its International Radio Call Sign take place. Notifications of intended (IRCS) amidships on both the port and transshipments shall include the fol- starboard sides of the superstructure or lowing information, for all vessels in- hull, so that it is visible at all times volved: from an enforcement or inspection ves- (1) Names, registration numbers, and sel. Fixtures inclined at an angle to the IMO numbers; vessel’s side or superstructure would be (2) International radio call signs; considered as suitable provided that (3) Flag State; the angle of inclination would not pre- (4) Type of vessels, length, gross reg- vent sighting of the IRCS from another istered tonnage and carrying capacity; vessel or from the air. The vessel’s (5) Proposed time and position, in IRCS shall also be marked on the deck. latitude and longitude, of trans- Should an awning or other temporary shipment; and cover be placed so as to obscure the (6) Details of the type and amount of mark on the deck, the awning or cover catches and/or other goods, such as shall also be marked with the IRCS. food stores and fuel, involved in the The marks should be placed athwart- transshipment. ship with the top of the numbers or let- (l) Reporting and recordkeeping require- ters towards the bow. ments. The operator of any vessel re- (2) Boats, skiffs and craft carried by quired to have a vessel permit under the vessel for fishing operations shall this subpart must: bear the same mark as the vessel, ex- (1) Accurately maintain on board the cept that a numerical suffix specific for vessel all CCAMLR reports and records the boat, skiff, or craft must follow the required by its permit. IRCS.

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(3) The vessel identification must be abandoned and may be disposed of in in a color in contrast to the back- accordance with applicable CCAMLR ground and must be permanently af- Conservation Measures in force with fixed to the vessel in block Roman al- respect to the United States by any au- phabet letters and Arabic numerals thorized officer or CCAMLR inspector. using good quality marine paints. The (d) Maintenance. The operator of each letters and numbers shall be: At least 1 vessel issued a vessel permit must: meter in height (h) for the IRCS placed (1) Keep the vessel and gear identi- on the hull, superstructure and/or in- fication clearly legible and in good clined surfaces and at least 0.3 meter condition at all times; for marks placed on deck. The length (2) Ensure that nothing on the vessel of the hyphen shall be half the height obstructs the view of the markings of the letters and numbers. The width from an enforcement or inspection ves- of the stroke for all letters, numbers sel or aircraft; and and the hyphen shall be h/6. The space (3) Ensure that the proper naviga- between letters and/or numbers shall tional lights and shapes are displayed not exceed h/4 nor be less than h/6. The for the vessel’s activity and are prop- space between adjacent letters having erly functioning. sloping sides (e.g., A and V) shall not exceed h/8 nor be less than h/10. If a § 300.109 Initiating a new fishery. contrasting color is used for the back- (a) A new fishery, for purposes of this ground of the marks, it shall extend to section, is a fishery that uses bottom provide a border around the mark of at trawls on the high seas of the Conven- least h/6. tion Area or a fishery for a species, (4) The marks and the background using a particular method, in a statis- shall be maintained in good condition tical subarea or division for which: at all times. (1) Information on distribution, abun- (b) Navigational lights and shapes. dance, demography, potential yield and Each vessel issued a vessel permit must stock identity from comprehensive re- display the lights and shapes pre- search/surveys or exploratory fishing scribed by the International Regula- has not been submitted to CCAMLR; tions for Preventing Collisions at Sea, (2) Catch and effort data have never 1972 (TIAS 8587, and 1981 amendment been submitted to CCAMLR; or TIAS 10672), for the activity in which (3) Catch and effort data from the the harvesting vessel is engaged (as de- two most recent seasons in which fish- scribed at 33 CFR part 81). ing occurred have not been submitted (c) Gear identification. (1) The oper- to CCAMLR. ator of each fishing vessel must ensure (b) Persons intending to develop a that all deployed fishing gear is clearly new fishery shall notify the Assistant marked at all times at the surface with Administrator no later than April 1 for a buoy displaying the vessel identifica- the fishing season that will commence tion of the harvesting vessel (see para- on or after December 1 and shall not graph (a) of this section) to which the initiate the fishery pending NMFS and gear belongs, a light visible for 2 miles CCAMLR review or until a vessel per- at night in good visibility, and a radio mit has been used under this subpart. buoy. (c) The notification shall be accom- (2) The operator of each harvesting panied by a complete vessel permit ap- vessel must ensure that deployed plication required under § 300.107 and longlines and strings of traps or pots, information on: and gillnets are clearly marked at all (1) The nature of the proposed fish- times at the surface at each terminal ery, including target species, methods end with a buoy displaying the vessel of fishing, proposed region and max- identification of the harvesting vessel imum catch levels proposed for the to which the gear belongs (see para- forthcoming season; graph (a) of this section), a light visible (2) Biological information on the tar- for 2 miles at night in good visibility, get species from comprehensive re- and a radio buoy. search/survey cruises, such as distribu- (3) Unmarked or incorrectly identi- tion, abundance, demographic data and fied fishing gear may be considered information on stock identity;

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(3) Details of dependent and related (e) The notification shall be accom- species and the likelihood of them panied by a complete vessel permit ap- being affected by the proposed fishery; plication required under § 300.107 and (4) Information from other fisheries information on: in the region or similar fisheries else- (1) The nature of the exploratory where that may assist in the evalua- fishery, including target species, meth- tion of potential yield; and ods of fishing, proposed region and (5) If the proposed fishery will be un- maximum catch levels proposed for the dertaken using bottom trawl gear, the forthcoming season; known and anticipated impacts of this (2) Specification and full description gear on vulnerable marine ecosystems, of the types of fishing gear to be used; including benthos and benthic commu- (3) Biological information on the tar- nities. get species from comprehensive research/survey cruises, such as distribu- § 300.110 Exploratory fisheries. tion, abundance, demographic data and (a) An exploratory fishery, for pur- information on stock identity; details poses of this section, is a fishery that of dependent and related species and was previously defined as a new fishery the likelihood of their being affected under § 300.109. by the proposed fishery; (b) A fishery continues to be classi- (4) Information from other fisheries fied by CCAMLR as an exploratory in the region or similar fisheries else- fishery until sufficient information is where that may assist in the evalua- available to: tion of potential yield; (1) Evaluate the distribution, abun- (5) If the proposed fishery will be un- dance, and demography of the target dertaken using bottom trawl gear, in- species, leading to an estimate of the formation on the known and antici- fishery’s potential yield; pated impacts of this gear on vulner- (2) Review the fishery’s potential im- able marine ecosystems, including pacts on dependent and related species; benthos and benthic communities; and and (6) Any other information the Assist- (3) Allow the CCAMLR Scientific ant Administrator requires to fully im- Committee to formulate and provide plement the relevant conservation advice to the Commission on appro- measures. priate harvest catch levels and fishing gear. § 300.111 Scientific observers. (c) The operator of any vessel engaging in an exploratory fishery must sub- (a) Except as otherwise specified, this mit, by the date specified in the vessel section applies to both national observ- permit issued under § 300.107, catch, ef- ers and international observers, as well fort, and related biological, ecological, as to vessels of the United States car- and environmental data as required by rying, or required to carry, such ob- a data collection plan for the fishery servers. formulated by the CCAMLR Scientific (b) All vessels of the United States Committee. fishing in the Convention Area must (d) In addition to the requirements in carry one or more scientific observers § 300.107, any person planning to enter as required by CCAMLR conservation an exploratory fishery must notify the measures or as specified in a vessel per- Assistant Administrator no later than mit issued under this subpart. April 1 for the fishing season that will (c) All vessels of the United States commence on or after December 1 and conducting longline sink rate testing shall not enter the fishery pending outside the Convention Area and pur- NMFS and CCAMLR review or until a suant to CCAMLR protocols must vessel permit has been used under this carry one or more scientific observers subpart. The Assistant Administrator as specified in the vessel permit issued will not issue a permit to enter an ex- under this subpart. ploratory fishery until after the re- (d) Procurement of observers by vessel. quirements of § 300.107 have been met Owners of vessels required to carry sci- and CCAMLR has considered the notifi- entific observers under this section cation. must arrange for observer services in

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coordination with the NMFS South- weight scales, cargo holds, and any west Fisheries Science Center Ant- other space that may be used to hold, arctic Ecosystem Research Division. process, weigh, or store fish or fish The vessel owner is required to pay for products at any time. observer services through an observer (7) Prior notification. Notify observers service provider who has provided ob- at least 15 minutes before fish are server services to the Federal govern- brought on board, or fish and fish prod- ment within the past year. In situa- ucts are transferred from the vessel, to tions where no qualified observer is allow sampling the catch or observing available through a qualified observer the transfer, unless the observers spe- provider, the Secretary may authorize cifically request not to be notified. a vessel owner to arrange for an ob- (8) Records. Allow observers to in- server by alternative methods. An ob- spect and copy the vessel’s DCD, prod- server may not be paid directly by the uct transfer forms, any other logbook vessel owner. or document required by regulations or (e) Vessel responsibilities. An operator CCAMLR conservation measures, of a vessel required to carry one or printouts or tallies of scale weights, more scientific observers must: scale calibration records, bin sensor (1) Accommodations and food. Provide, readouts, and production records. at no cost to the observers or the (9) Assistance. Provide all other rea- United States, accommodations and sonable assistance to enable observers food on the vessel for the observer or to carry out their duties, including, observers that are equivalent to those but not limited to: provided for officers of the vessel; and (i) Measuring decks, codends, and (2) Safe conditions. Maintain safe con- holding bins; ditions on the vessel for the protection (ii) Providing the observers with a of observers including adherence to all safe work area adjacent to the sample U.S. Coast Guard and other applicable collection site; rules, regulations, or statutes per- (iii) Collecting bycatch when retaining to safe operation of the vessel quested by the observers; and have on board: (iv) Collecting and carrying baskets (i) A valid Commercial Fishing Ves- of fish when requested by observers; sel Safety Decal issued within the past and 2 years that certifies compliance with (v) Allowing observers to determine regulations found in 33 CFR chapter I the sex of fish when this procedure will and 46 CFR chapter I; not decrease the value of a significant (ii) A certificate of compliance issued portion of the catch. pursuant to 46 CFR 28.710; or (10) Transfer at sea. (i) Ensure that (iii) A valid certificate of inspection transfers of observers at sea via small pursuant to 46 U.S.C. 3311. boat or raft are carried out during day- (3) Health and safety regulations. Com- light hours, under safe conditions, and ply with the observer health and safety with the agreement of observers in- regulations at part 600 of this title. volved. (4) Transmission of data. Facilitate (ii) Notify observers at least 3 hours transmission of observer data by allow- before observers are transferred, such ing observers, on request, to use the that the observers can collect personal vessel’s communications equipment belongings, equipment, and scientific and personnel for the confidential samples. entry, transmission, and receipt of (iii) Provide a safe pilot ladder and work-related messages. conduct the transfer to ensure the safe- (5) Vessel position. Allow observers ac- ty of observers during transfers. cess to, and the use of, the vessel’s (iv) Provide an experienced crew navigation equipment and personnel, member to assist observers in the on request, to determine the vessel’s small boat or raft in which any trans- position, course and speed. fer is made. (6) Access. Allow observers free and (f) Insurance. The observer service unobstructed access to the vessel’s provider or vessel owner must provide bridge, trawl or working decks, holding insurance for national observers that bins, processing areas, freezer spaces, provides compensation in the event of

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an injury or death during the entire de- taking, harvesting or processing of ployment, from the point of hire loca- fish; tion to return, equivalent to the stand- (B) Any business involved with sell- ards of the North Pacific Groundfish ing supplies or services to any vessel, Observer Program set forth in § 679.50 shoreside or floating stationary proc- of this title. essing facility; or (g) Educational requirements. National (C) Any business involved with pur- observer candidates must: chasing raw or processed products from (1) Have a Bachelor’s degree or higher any vessel, shoreside or floating sta- from an accredited college or univer- tionary processing facilities. sity with a major in one of the natural (ii) Must not solicit or accept, di- sciences; or rectly or indirectly, any gratuity, gift, (2) Have successfully completed a favor, entertainment, loan, or anything minimum of 30 semester hours or of monetary value from anyone who ei- equivalent in applicable biological ther conducts activities that are regu- sciences with extensive use of dichoto- lated by NMFS or has interests that mous keys in at least one course. may be substantially affected by the (h) Health requirements. National ob- performance or nonperformance of the servers, and U.S. observers deployed as observers’ official duties. international observers, must have a (iii) Must not serve as observers on signed and dated statement from a li- any vessel or at any shoreside or float- censed physician that he or she has ing stationary processing facility physically examined the observer. The owned or operated by a person who pre- statement must confirm that, based viously employed the observers. upon the physical examination, the ob- (iv) Must not solicit or accept em- server does not have any health prob- ployment as a crew member or an em- lems or conditions that would jeop- ployee of a vessel, shoreside processor, ardize that individual’s safety or the or stationary floating processor while safety of others while deployed, or pre- employed by an observer provider. vent the observer from performing his (2) Provisions for remuneration of ob- or her duties satisfactorily. The state- servers under this section do not con- ment must declare that, prior to the stitute a conflict of interest. examination, the physician was made (j) Standards of observer behavior. Ob- aware of the duties of an observer and servers must: the dangerous, remote and rigorous na- (1) Avoid any behavior that could ad- ture of the work. The physician’s state- versely affect the confidence of the ment must be submitted to the NMFS public in the integrity of the CCAMLR Southwest Fisheries Science Center Scheme of International Scientific Ob- Antarctic Ecosystem Research Divi- servation or of the government, includ- sion program office prior to approval of ing but not limited to the following: an observer. The physical exam must (2) Perform their assigned duties as have occurred during the 12 months described in the CCAMLR Scientific prior to the observer’s deployment. The Observers Manual and must complete physician’s statement will expire 12 the CCAMLR Scientific Observer months after the physical exam oc- Logbooks and submit them to the curred. A new physical exam must be CCAMLR Data Manager at the inter- performed, and accompanying state- vals specified by the Data Manager. ment submitted, prior to any deploy- (3) Accurately record their sampling ment occurring after the expiration of data, write complete reports, and re- the statement. port accurately any observations of (i) Standards of observer conduct. (1) suspected violations of regulations rel- Observers: evant to conservation of marine re- (i) Must not have a direct financial sources or their environment. interest in the fishery being observed, (4) Not disclose collected data and including but not limited to: observations made on board the vessel (A) Any ownership, mortgage holder, or in the processing facility to any per- or other secured interest in a vessel, son, except the owner or operator of shoreside or floating stationary proc- the observed vessel or processing facil- essor facility involved in the catching, ity or NMFS.

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(5) Refrain from engaging in any ille- has a NMFS-type-approved, operating gal actions or any other activities that EMTU installed and continuously oper- would reflect negatively on their image ating for the duration of any fishing as professional scientists, on other ob- trip involving the harvesting of AMLR. servers, or on the CCAMLR Scheme of (b) Installing and activating the EMTU. International Scientific Observation as Only EMTUs that have been approved a whole. This includes, but is not lim- by NMFS for use in the AMLR fishery ited to: may be used. The vessel owner or oper- (i) Refrain from engaging in the use, ator shall obtain and have installed on possession, or distribution of illegal the fishing vessel, by a qualified ma- drugs; or rine electrician and in accordance with (ii) Refrain from engaging in physical any instructions provided by the VMS sexual contact with personnel of the Helpdesk or OLE, a NMFS type-ap- vessel or processing facility to which proved EMTU. the observer is assigned, or with any (c) Interference with the EMTU. No vessel or processing plant personnel person may interfere with, tamper who may be substantially affected by with, alter, damage, disable, or impede the performance or non-performance of the operation of the EMTU, or attempt the observer’s official duties. any of the same. (k) Sampling station—(1) Minimum (d) Interruption of operation of the work space aboard at sea processing ves- VMS. When a vessel’s EMTU is not op- sels. The observer must have a working erating properly, the owner or operator area of 4.5 square meters, including the must immediately contact OLE, and observer’s sampling table, for sampling and storage of fish to be sampled. The follow instructions from that office. If observer must be able to stand upright notified by NMFS that a vessel’s and have a work area at least 0.9 meter EMTU is not operating properly, the (m) deep in the area in front of the owner and operator must follow in- table and scale. structions from that office. In either (2) Table aboard at-sea processing ves- event, such instructions may include, sels. The observer sampling station but are not limited to, manually com- must include a table at least 0.6 m municating to a location designated by deep, 1.2 m wide and 0.9 m high and no NMFS the vessel’s positions or return- more than 1.1 m high. The entire sur- ing to port until the EMTU is operable. face area of the table must be available (e) Access to data. OLE is authorized for use by the observer. Any area for to receive and relay transmissions the observer sampling scale is in addi- from the EMTU. OLE will share a ves- tion to the minimum space require- sel’s position data obtained from the ments for the table. The observer’s EMTU, if requested, with other NMFS sampling table must be secured to the offices, the USCG, and their authorized floor or wall. officers and designees. (3) Other requirement for at-sea proc- (f) Installation and operation of the essing vessels. The sampling station VMS. NMFS has authority over the in- must be in a well-drained area that installation and operation of the EMTU. cludes floor grating (or other material NMFS may authorize the connection or that prevents slipping), lighting ade- order the disconnection of additional quate for day or night sampling, and a equipment, including a computer, to hose that supplies fresh or sea water to any EMTU when deemed appropriate the observer. by NMFS.

§ 300.112 Vessel monitoring system. § 300.113 CCAMLR Ecosystem Moni- (a) Requirement for use. Within 30 days toring Program sites. after NMFS publishes in the FEDERAL (a) General. (1) Any person subject to REGISTER a list of approved EMTUs and the jurisdiction of the United States associated communications service must apply for and be granted an entry providers for the AMLR fishery, an permit authorizing specific activities owner or operator of a vessel that has prior to entering a CCAMLR Eco- been issued a vessel permit under system Monitoring Program (CEMP) § 300.107 must ensure that such vessel site designated in accordance with the

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CCAMLR conservation measure de- Antarctic Treaty or the Protocol scribing the procedure for according should contact the Office of Polar Pro- protection for CEMP sites. grams, NSF). (2) If a CEMP site is also a site spe- (2) The Convention for the Conserva- cially protected under the Antarctic tion of Antarctic Seals. Treaty (or the Protocol on Environ- (3) The Convention and its Conserva- mental Protection to the Antarctic tion Measures in force, implemented Treaty and its Annexes, such as the under the Act. sites listed in 45 CFR 670.29), an appli- (d) Prohibitions on takings. Permits cant seeking to enter such site must issued under this section do not au- apply to the Director of the NSF for a thorize any takings as defined in the permit under applicable provisions of applicable statutes and implementing the ACA or any superseding legisla- regulations governing the activities of tion. The permit granted by NSF shall persons in Antarctica. constitute a joint CEMP/ACA Pro- (e) Issuance criteria. Permits des- tected Site permit and any person ignated in this section may be issued holding such a permit must comply by the Assistant Administrator upon a with the appropriate CEMP site man- determination that: agement plan. In all other cases, an ap- (1) The specific activities meet the plicant seeking a permit to enter a requirements of the Act; CEMP site must apply to the Assistant (2) There is sufficient reason, estab- Administrator for a CEMP permit in lished in the CEMP permit application, accordance with the provisions of this that the scientific purpose for the in- section. tended entry cannot be served else- (b) Responsibility of CEMP permit hold- where; and ers and persons designated as agents (3) The actions permitted will not under a CEMP permit. (1) The CEMP violate any provisions or prohibitions permit holder and person designated as of the site’s management plan sub- agents under a CEMP permit are joint- mitted in compliance with the ly and severally responsible for compli- CCAMLR Conservation Measure de- ance with the Act, this subpart, and scribing the procedure for according any permit issued under this subpart. protection to CEMP sites. (2) The CEMP permit holder and (f) Application process. An applicant agents designated under a CEMP per- seeking a CEMP permit from the As- mit are responsible for the acts of their sistant Administrator to enter a CEMP employees and agents constituting vio- site shall include the following in the lations, regardless of whether the spe- application. cific acts were authorized or forbidden (1) A detailed justification that the by the CEMP permit holder or agents, scientific objectives of the applicant and regardless of knowledge concerning cannot be accomplished elsewhere and their occurrence. a description of how said objectives (c) Prohibitions regarding the Antarctic will be accomplished within the terms Treaty System and other applicable trea- of the site’s management plan. ties and statutes. Holders of permits to (2) A statement signed by the appli- enter CEMP Protected Sites are not cant that the applicant has read and authorized to undertake any activities fully understands the provisions and within a CEMP Protected Site that are prohibitions of the site’s management not in compliance with the conditions plan. Prospective applicants may ob- of the CEMP permit and the provisions tain copies of the relevant manage- of: ment plans and the CCAMLR Conserva- (1) The Antarctic Treaty, including tion Measure describing the procedure the Agreed Measures for the Conserva- for according protection to CEMP sites tion of Antarctic Fauna and Flora (in- by requesting them from NMFS Head- cluding the Protocol on the Environ- quarters. mental Protection to the Antarctic (g) Conditions. CEMP permits issued Treaty and its Annexes), as imple- under this section will contain special mented by the ACA and any super- and general conditions including a con- seding legislation. (Persons interested dition that the permit holder shall sub- in conducting activities subject to the mit a report describing the activities

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conducted under the permit within 30 this subpart or by a foreign-flagged days of the expiration of the CEMP vessel without valid authorization permit. from the applicable flag state to har- (h) Transfer. CEMP permits are not vest those resources; without accurate, transferable or assignable. A CEMP complete, valid and properly validated permit is valid only for the person to CDS documentation as required by whom it is issued. § 300.106; without an IFTP as required (i) Additional conditions and restric- by § 300.104; or in violation of the terms tions. The Assistant Administrator and conditions for such import, export may revise the CEMP permit effective or re-export as specified on the IFTP. upon notification of the permit holder, (c) Engage in or benefit from har- to impose additional conditions and re- vesting or other associated activities strictions as necessary to achieve the in violation of the provisions of the purposes of the Convention, the Act Convention or in violation of a con- and the CEMP Management Plan. The servation measure in force with respect CEMP permit holder must, as soon as to the United States under Article IX possible, notify any and all agents op- of the Convention. erating under the permit of any and all (d) Ship, transport, offer for sale, revisions or modifications to the per- sell, purchase, import, export, re-ex- mit. port or have custody, control or posses- (j) Revocation or suspension. CEMP sion of, any AMLR that was harvested permits may be revoked or suspended in violation of a conservation measure based upon information received by the in force with respect to the United Assistant Administrator and such rev- States under Article IX of the Conven- ocation or suspension shall be effective tion or in violation of any regulation upon notification to the permit holder. promulgated under the Act, without re- (1) A CEMP permit may be revoked gard to the citizenship of the person or suspended based on a violation of that harvested, or vessel that was used the permit, the Act, or this subpart. in the harvesting of, the AMLR. (2) Failure to report a change in the information submitted in a CEMP per- (e) Refuse to allow any CCAMLR in- mit application within 10 days of the spector or authorized officer to board a change is a violation of this subpart vessel of the United States or a vessel and voids the application or permit, as subject to the jurisdiction of the applicable. Title 15 CFR part 904 gov- United States for the purpose of con- erns permit sanctions under this sub- ducting any search, investigation, or part. inspection authorized by the Act, this (k) Exceptions. Entry into a CEMP subpart, or any permit issued under the site is lawful if committed under emer- Act. gency conditions to prevent the loss of (f) Refuse to provide appropriate as- human life, avoid compromising sistance, including access as necessary human safety, prevent the loss of ves- to communications equipment, to any sels or aircraft, or to prevent environ- CCAMLR inspector or authorized offi- mental damage. cer. (l) Protected sites. Sites protected by (g) Refuse to sign a written notifica- the Antarctic Treaty and regulated tion of alleged violations of CCAMLR under the ACA are listed at 45 CFR conservation measures in force pre- part 670 subpart F. pared by a CCAMLR inspector. (h) Assault, resist, oppose, impede, § 300.114 Prohibitions. intimidate, or interfere with a In addition to the prohibitions in CCAMLR inspector or authorized offi- § 300.4, it is unlawful for any person to: cer in the conduct of any boarding, (a) Harvest any AMLR without a per- search, investigation, or inspection au- mit for such activity as required by thorized by the Act, this subpart, or § 300.107. any permit issued under the Act. (b) Import into, or export or re-ex- (i) Use any vessel to engage in har- port from, the United States any vesting, or receive, import, export or AMLR: Taken by a vessel of the United re-export, AMLRs after the revocation, States without a permit issued under or during the period of suspension, of

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an applicable permit issued under the fusal of reasonable assistance, an ob- Act. server from collecting samples, con- (j) Fail to identify, falsely identify, ducting product recovery rate deter- fail to properly maintain, or obscure minations, making observations, or the identification of a harvesting ves- otherwise performing the observer’s sel or its gear as required by this sub- duties. part. (5) Harass an observer by conduct (k) Fish in an area where fishing is that has sexual connotations, has the prohibited by the Commission, other purpose or effect of interfering with than for scientific research purposes in the observer’s work performance, or accordance with § 300.103. otherwise creates an intimidating, hos- (l) Violate or attempt to violate any tile, or offensive environment. provision of this subpart, the Act, any (6) Fish for or process fish without other regulation promulgated under observer coverage required under the Act or the conditions of any permit § 300.111. issued under the Act. (7) Require, pressure, coerce, or (m) Provide incomplete or inaccurate threaten an observer to perform duties information about the harvest, trans- normally performed by crew members, shipment, landing, import, export, or including, but not limited to, cooking, re-export of applicable species on any washing dishes, standing watch, vessel document required under this subpart. maintenance, assisting with the set- (n) Receive AMLR from a vessel, ting or retrieval of gear, or any duties without holding an AMLR first re- associated with the processing of fish, ceiver permit as required under from sorting the catch to the storage § 300.104, or receive AMLR from a fish- of the finished product. ing vessel that does not hold a valid (8) Refuse to provide appropriate as- vessel permit issued under § 300.107. sistance, including access as necessary (o) Import, export or re-export to communications equipment, to an Dissostichus spp. harvested or trans- observer. shipped by a vessel identified by (r) Vessel monitoring systems. (1) Use CCAMLR as having engaged in illegal, any vessel of the United States issued, unreported and unregulated (IUU) fish- or required to be issued, an AMLR ves- ing, originating from a high seas area sel permit to conduct fishing oper- designated by the Food and Agri- ations unless that vessel carries a culture Organization of the United Na- NMFS-type-approved EMTU and com- tions as Statistical Area 51 or Statis- plies with the requirements described tical Area 57 or accompanied by inac- in this subpart. curate, incomplete, invalid, or improp- (2) Fail to install, activate, repair or erly validated CDS documentation or replace an EMTU prior to leaving port import or re-export Dissostichus spp. ac- as specified in this subpart. companied by a SVDCD. (3) Fail to operate and maintain an (p) Import shipments of frozen EMTU on board the vessel at all times Dissostichus spp. without a preapproval as specified in this subpart. issued under § 300.105. (4) Tamper with, damage, destroy, (q) Observers. (1) Assault, resist, op- alter, or in any way distort, render use- pose, impede, intimidate, harass, bribe, less, inoperative, ineffective, or inac- or interfere with an observer. curate the EMTU required to be in- (2) Interfere with or bias the sam- stalled on a vessel or the EMTU posi- pling procedure employed by an ob- tion reports transmitted by a vessel as server, including physical, mechanical, specified in this subpart. or other sorting or discarding of catch (5) Fail to contact OLE or follow OLE before sampling. instructions when automatic position (3) Tamper with, destroy, or discard reporting has been interrupted as spec- an observer’s collected samples, equip- ified in this subpart. ment, records, photographic film, pa- (6) Register an EMTU to more than pers, or personal effects without the one vessel at the same time. express consent of the observer. (7) Connect, or leave connected, addi- (4) Prohibit or bar by command, im- tional equipment to an EMTU without pediment, threat, coercion, or by re- the prior approval of the OLE.

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(8) Make a false statement, oral or (2) The owner and operator of each written, to an authorized officer re- harvesting vessel must provide to au- garding the installation, use, oper- thorized officers and CCAMLR inspec- ation, or maintenance of an EMTU or tors all records and documents per- communication service provider. taining to the harvesting activities of (9) Fail to report to NMFS and to the vessel, including but not limited to CCAMLR’s C–VMS from port-to-port production records, fishing logs, navi- on any trip during which AMLR are, or gation logs, transfer records, product are expected to be, harvested regard- receipts, cargo stowage plans or less of whether the vessel operates, or records, draft or displacement calcula- is expected to operate, inside the Con- tions, customs documents or records, vention Area. and an accurate hold plan reflecting (s) Trawl for krill in Convention Area the current structure of the vessel’s fisheries without a seal excluder device storage and factory spaces. or possess trawl gear without a seal ex- (3) Before leaving vessels that have cluder device installed onboard a vessel been inspected, the CCAMLR inspector permitted, or required to be permitted, will give the master of the vessel a Cer- under this subpart to harvest krill with tificate of Inspection and a written no- trawl gear. tification of any alleged violations of (t) Harvest any AMLR in the Conven- CCAMLR conservation measures in ef- tion Area without a vessel permit re- fect and will afford the master the op- quired by this subpart. portunity to comment on it. The ship’s (u) Ship, transport, offer for sale, master must sign the notification to sell, purchase, import, export, re-ex- acknowledge receipt and the oppor- port or have custody, control, or pos- tunity to comment on it. session of, any frozen Dissostichus spe- (4) Any person issued a first receiver cies without verifiable documentation permit under this subpart, or an IFTP that the harvesting vessel reported to under § 300.322, must as a condition of CCAMLR’s C–VMS continuously and in that permit, allow an authorized offi- real-time, from port-to-port, regardless cer access to any facility from which of where such Dissostichus species were they engage in the first receipt, im- harvested. port, export or re-export of AMLR for the purpose of inspecting the facility § 300.115 Facilitation of enforcement and any fish, equipment or records and inspection. therein. In addition to the facilitation of en- (b) Reports by non-inspectors. All sci- forcement provisions of § 300.5, the fol- entists, fishermen, and other non-in- lowing requirements apply to this sub- spectors present in the Convention part. Area and subject to the jurisdiction of (a) Access and records. (1) The owners the United States are encouraged to re- and operator of each harvesting vessel port any violation of CCAMLR con- must provide authorized officers and servation measures observed in the CCAMLR inspectors access to all Convention Area to the Office of Ocean spaces where work is conducted or and Polar Affairs (CCAMLR Viola- business papers and records are pre- tions), Department of State, Room pared or stored, including but not lim- 5801, Washington, DC 20520. ited to personal quarters and areas (c) Storage of AMLR. The operator of within personal quarters. If inspection each harvesting vessel storing AMLR of a particular area would interfere in a storage space on board a vessel with specific on-going scientific re- must ensure that non-resource items search, and if the operator of the har- are neither stowed beneath nor covered vesting vessel makes such assertion by resource items, unless required to and produces an individual permit that maintain the stability and safety of covers that specific research, the au- the vessel. Non-resource items include, thorized officer or CCAMLR inspector but are not limited to, portable con- will not disturb the area, but will veyors, exhaust fans, ladders, nets, fuel record the information pertaining to bladders, extra bin boards, or other the denial of access. moveable non-resource items. These

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non-resource items may be in a re- Science and Research Director means source storage space when necessary the Director, Southeast Fisheries for the safety of the vessel or crew or Science Center. for the storage of the items. Lumber, Treaty waters means the waters of one bin boards, or other dunnage may be or more of the following: used for shoring or bracing of product (1) Quita Sueno, enclosed by latitudes to ensure the safety of crew and to pre- 13°55′ N. and 14°43′ N. between lon- vent shifting of cargo within the space. gitudes 80°55′ W. and 81°28′ W. (2) Serrana, enclosed by arcs 12 nau- § 300.116 Penalties. tical miles from the low water line of Any person or harvesting vessel the cays and islands in the general area found to be in violation of the Act, this of 14°22′ N. lat., 80°20′ W. long. subpart, or any permit issued under (3) Roncador, enclosed by arcs 12 nau- this subpart will be subject to the civil tical miles from the low water line of and criminal penalty provisions and Roncador Cay, in approximate position forfeiture provisions prescribed in the 13°35′ N. lat., 80°05′ W. long. Act, 15 CFR part 904, and other applica- [61 FR 35550, July 5, 1996, as amended at 76 ble laws. FR 59305, Sept. 26, 2011]

Subpart H—Vessels of the United § 300.122 Relation to other laws. States Fishing in Colombian (a) The relation of this subpart to Treaty Waters other laws is set forth in § 600.705 of this title and paragraph (b) of this sec- AUTHORITY: 16 U.S.C. 1801 et seq. tion. Particular note should be made to the reference in § 600.705 to the applica- § 300.120 Purpose. bility of title 46 U.S.C., under which a This subpart implements fishery con- Certificate of Documentation is invalid servation and management measures when the vessel is placed under the as provided in fishery agreements pur- command of a person who is not a cit- suant to the Treaty Between the Gov- izen of the United States. ernment of the United States of Amer- (b) Minimum size limitations for cer- ica and the Government of the Repub- tain species, such as reef fish in the lic of Colombia Concerning the Status Gulf of Mexico, may apply to vessels of Quita Sueno, Roncador and Serrana transiting the EEZ with such species (TIAS 10120) (Treaty). aboard.

§ 300.121 Definitions. § 300.123 Certificates and permits. In addition to the terms defined in (a) Applicability. An owner of a vessel § 300.2, the Magnuson-Stevens Act, and of the United States that fishes in trea- § 600.10 of this title, and in the Treaty, ty waters is required to obtain an an- the terms used in this subpart have the nual certificate issued by the Republic following meanings. If a term is de- of Colombia and an annual vessel per- fined differently in § 300.2, the Magnu- mit issued by the Regional Adminis- son-Stevens Act, or the Treaty, the trator. definition in this section shall apply. (b) Application for certificate/permit. (1) Conch means Strombus gigas. An application for a permit must be Factory vessel means a vessel that submitted and signed by the vessel’s processes, transforms, or packages owner. An application may be sub- aquatic biological resources on board. mitted at any time, but should be sub- Lobster means one or both of the fol- mitted to the Regional Administrator lowing: not less than 90 days in advance of its (1) Smoothtail lobster, Panulirus need. Applications for the ensuing cal- laevicauda. endar year should be submitted to the (2) Caribbean spiny lobster or spiny Regional Administrator by October 1. lobster, Panulirus argus. (2) An applicant must provide the fol- Regional Administrator means the Ad- lowing: ministrator of the Southeast Region, (i) A copy of the vessel’s valid USCG or a designee. certificate of documentation or, if not

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documented, a copy of its valid state is in treaty waters. The operator of a registration certificate. fishing vessel must present the certifi- (ii) Vessel name and official number. cate and permit for inspection upon re- (iii) Name, address, telephone num- quest of an authorized officer or an en- ber, and other identifying information forcement officer of the Republic of Co- of the vessel owner or, if the owner is lombia. a corporation or partnership, of the re- (g) Sanctions and denials. Procedures sponsible corporate officer or general governing enforcement-related permit partner. sanctions and denials are found at sub- (iv) Principal port of landing of fish part D of 15 CFR part 904. taken from treaty waters. (h) Alteration. A certificate or permit (v) Type of fishing to be conducted in that is altered, erased, or mutilated is treaty waters. invalid. (vi) Any other information con- (i) Replacement. A replacement cer- cerning the vessel, gear characteris- tificate or permit may be issued upon tics, principal fisheries engaged in, or request. Such request must clearly fishing areas, as specified on the appli- state the reason for a replacement cer- cation form. tificate or permit. (vii) Any other information that may (j) Change in application information. be necessary for the issuance or admin- The owner of a vessel with a permit istration of the permit, as specified on must notify the Regional Adminis- the application form. trator within 30 days after any change (c) (1) The Regional Admin- Issuance. in the application information required istrator will request a certificate from by paragraph (b)(2) of this section. The the Republic of Colombia if: permit is void if any change in the in- (i) The application is complete. formation is not reported within 30 (ii) The applicant has complied with days. all applicable reporting requirements of § 300.124 during the year immediately § 300.124 Recordkeeping and report- preceding the application. ing. (2) Upon receipt of an incomplete application, or an application from a per- (a) Arrival and departure reports. The son who has not complied with all ap- operator of each vessel of the United plicable reporting requirements of States for which a certificate and per- § 300.124 during the year immediately mit have been issued under § 300.123 preceding the application, the Regional must report by radio to the Port Cap- Administrator will notify the applicant tain, San Andres Island, voice radio of the deficiency. If the applicant fails call sign ‘‘Capitania de San Andres,’’ to correct the deficiency within 30 days the vessel’s arrival in and departure of the Regional Administrator’s notifi- from treaty waters. Radio reports must cation, the application will be consid- be made on 8222.0 kHz or 8276.5 kHz be- ered abandoned. tween 8:00 a.m. and 12 noon, local time (3) The Regional Administrator will (1300–1700, Greenwich mean time) Mon- issue a permit as soon as the certifi- day through Friday. cate is received from the Republic of (b) Catch and effort reports. Each ves- Colombia. sel of the United States must report its (d) Duration. A certificate and permit catch and effort on each trip into trea- are valid for the calendar year for ty waters to the Science and Research which they are issued, unless the per- Director on a form available from the mit is revoked, suspended, or modified Science and Research Director. These under subpart D of 15 CFR part 904. forms must be submitted to the (e) Transfer. A certificate and permit Science and Research Director so as to issued under this section are not trans- be received no later than 7 days after ferable or assignable. They are valid the end of each fishing trip. only for the fishing vessel and owner for which they are issued. § 300.125 Vessel identification. (f) Display. A certificate and permit (a) Official number. A vessel with a issued under this section must be car- permit issued pursuant to § 300.123, ried aboard the fishing vessel while it when in treaty waters, must display its

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official number on the port and star- (j) Possess conch smaller than the board sides of the deckhouse or hull, minimum size limit, as specified in and on an appropriate weather deck, so § 300.131(a). as to be clearly visible from an enforce- (k) Fish for or possess conch in the ment vessel or aircraft. The official closed area or during the closed season, number must be permanently affixed to as specified in § 300.131(b) and (c). or painted on the vessel and must be in (l) Retain on board a berried lobster block arabic numerals in contrasting or strip eggs from or otherwise molest color to the background at least 18 a berried lobster, as specified in inches (45.7 cm) in height for fishing § 300.132(a). vessels over 65 ft (19.8 m) in length, and (m) Possess a lobster smaller than at least 10 inches (25.4 cm) in height for the minimum size, as specified in all other vessel. § 300.132(b). (b) Duties of operator. The operator of (n) Fail to return immediately to the each fishing vessel must— water unharmed a berried or under- (1) Keep the official number clearly sized lobster, as specified in § 300.132(a) legible and in good repair. and (b). (2) Ensure that no part of the fishing § 300.127 Facilitation of enforcement. vessel, its rigging, fishing gear, or any other material aboard obstructs the (a) The provisions of § 600.730 of this view of the official number from an en- title and paragraph (b) of this section forcement vessel or aircraft. apply to vessels of the United States fishing in treaty waters. § 300.126 Prohibitions. (b) The operator of, or any other person aboard, any vessel of the United In addition to the general prohibi- States fishing in treaty waters must tions specified in § 600.725 of this title immediately comply with instructions and the prohibited acts specified in and signals issued by an enforcement § 300.4, it is unlawful for any person to officer of the Republic of Colombia to do any of the following: stop the vessel and with instructions to (a) Fish in treaty waters without the facilitate safe boarding and inspection certificate and permit aboard, or fail to of the vessel, its gear, equipment, fish- display the certificate and permit, as ing record, and catch for purposes of specified in § 300.123(a) and (f). enforcing this subpart. (b) Fail to notify the Regional Ad- ministrator of a change in application § 300.128 Penalties. information, as specified in § 300.123(j). Any person committing or fishing (c) Fail to report a vessel’s arrival in vessel used in the commission of a vio- and departure from treaty waters, as lation of the Magnuson-Stevens Act or required by § 300.124(a). any regulation issued under the Mag- (d) Falsify or fail to display and nuson-Stevens Act, is subject to the maintain vessel identification, as re- civil and criminal penalty provisions quired by § 300.125. and civil forfeiture provisions of the (e) Fail to comply immediately with Magnuson-Stevens Act, to part 600 of instructions and signals issued by an this title, to 15 CFR part 904, and to enforcement officer of the Republic of other applicable law. In addition, Co- Colombia, as specified in § 300.127. lombian authorities may require a ves- (f) Operate a factory vessel in treaty sel involved in a violation of this sub- waters, as specified in § 300.130(a). part to leave treaty waters. (g) Use a monofilament gillnet in treaty waters, as specified in § 300.129 Fishing year. § 300.130(b). The fishing year for fishing in treaty (h) Use autonomous or semi-autono- waters begins on January 1 and ends on mous diving equipment in treaty wa- December 31. ters, as specified in § 300.130(c). (i) Use or possess in treaty waters a § 300.130 Vessel and gear restrictions. lobster trap or fish trap without a de- (a) Factory vessels. Factory vessels gradable panel, as specified in are prohibited from operating in treaty § 300.130(d). waters.

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(b) Monofilament gillnets. A Subpart I—United States-Canada monofilament gillnet made from nylon Fisheries Enforcement or similar synthetic material are prohibited from being used in treaty waters. AUTHORITY: 16 U.S.C. 1801 et seq. (c) Tanks and air hoses. Autonomous § 300.140 Purpose and scope. or semiautonomous diving equipment (tanks or air hoses) are prohibited from This subpart implements the Agree- being used to take aquatic biological ment Between the Government of the resources in treaty waters. United States of America and the Gov- (d) Trap requirements. A lobster trap ernment of Canada on Fisheries En- or fish trap used or possessed in treaty forcement executed at Ottawa, Canada, waters that is constructed of material on September 26, 1990 (Agreement), al- other than wood must have an escape lowing each party to the Agreement to panel located in the upper half of the take appropriate measures, consistent sides or on top of the trap that, when with international law, to prevent its removed, will leave an opening no nationals, residents and vessels from smaller than the throat or entrance of violating those national fisheries laws the trap. Such escape panel must be and regulations of the other party. constructed of or attached to the trap This subpart applies, except where oth- with wood, cotton, or other degradable erwise specified in this subpart, to all material. persons and all places (on water and on (e) Poisons and explosives. [Reserved] land) subject to the jurisdiction of the United States under the Magnuson-Ste- § 300.131 Conch harvest limitations. vens Act. This includes, but is not lim- (a) Size limit. The minimum size limit ited to, activities of nationals, resi- for possession of conch in or from trea- dents and vessels of the United States ty waters is 7.94 oz (225 g) for an (including the owners and operators of uncleaned meat and 3.53 oz (100 g) for a such vessels) within waters subject to cleaned meat. the fisheries jurisdiction of Canada as (b) Closed area. The treaty waters of defined in this subpart, as well as on Quita Sueno are closed to the harvest the high seas and in waters subject to or possession of conch. the fisheries jurisdiction of the United (c) Closed season. During the period States. July 1 through September 30 of each year, the treaty waters of Serrana and § 300.141 Definitions. Roncador are closed to the harvest or In addition to the terms defined in possession of conch. § 300.2 and those in the Magnuson-Ste- vens Act and the Agreement, the terms § 300.132 Lobster harvest limitations. used in this subpart have the following (a) Berried lobsters. A berried (egg- meanings. If a term is defined dif- bearing) lobster in treaty waters may ferently in § 300.2, the Magnuson-Ste- not be retained on board. A berried lob- vens Act, or the Agreement, the defini- ster must be returned immediately to tion in this section applies. the water unharmed. A berried lobster Applicable Canadian fisheries law may not be stripped, scraped, shaved, means any Canadian law, regulation or clipped, or in any other manner mo- similar provision relating in any man- lested to remove the eggs. ner to fishing by any fishing vessel (b) Size limit. The minimum size limit other than a Canadian fishing vessel in for possession of lobster in or from waters subject to the fisheries jurisdic- treaty waters is 5.5 inches (13.97 cm), tion of Canada, including, but not lim- tail length. Tail length means the ited to, any provision relating to stow- measurement, with the tail in a age of fishing gear by vessels passing straight, flat position, from the ante- through such waters, and to obstruc- rior upper edge of the first abdominal tion or interference with enforcement (tail) segment to the tip of the closed of any such law or regulation. tail. A lobster smaller than the min- Authorized officer of Canada means imum size limit must be returned im- any fishery officer, protection officer, mediately to the water unharmed. officer of the Royal Canadian Mounted

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Police, or other employee authorized gear is not readily available for fish- by the appropriate authority of any na- ing; or tional or provincial agency of Canada (2) If the gear cannot readily be to enforce any applicable Canadian moved, in a secured and covered man- fisheries law. ner, detached from all towing lines, so Canadian fishing vessel means a fish- that it is rendered unusable for fishing; ing vessel: unless the vessel has been authorized (1) That is registered or licensed in by the Government of Canada to fish in Canada under the Canada Shipping Act the particular location within waters and is owned by one or more persons subject to the fisheries jurisdiction of each of whom is a Canadian citizen, a Canada in which it is operating. person resident and domiciled in Can- (d) While on board a fishing vessel in ada, or a corporation incorporated waters subject to the fisheries jurisdic- under the laws of Canada or of a prov- tion of Canada, fail to respond to any ince, having its principal place of busi- inquiry from an authorized officer of ness in Canada; or Canada regarding the vessel’s name, (2) That is not required by the Can- flag state, location, route or destina- ada Shipping Act to be registered or li- tion, and/or the circumstances under censed in Canada and is not registered which the vessel entered such waters. or licensed elsewhere but is owned as (e) Violate the Agreement, any appli- described in paragraph (1) of this defi- cable Canadian fisheries law, or the nition. terms or conditions of any permit, li- Waters subject to the fisheries jurisdic- cense or any other authorization grant- tion of Canada means the internal wa- ed by Canada under any such law. ters, territorial sea, and the zone that (f) Fail to comply immediately with Canada has established, extending 200 any of the enforcement and boarding nautical miles from its coasts, in which procedures specified in § 300.143. it exercises sovereign rights for the (g) Destroy, stave, or dispose of in purpose of exploration, exploitation, any manner, any fish, gear, cargo or conservation and management of living other matter, upon any communication marine resources, to the extent recog- or signal from an authorized officer of nized by the United States. Canada, or upon the approach of such an officer, enforcement vessel or air- § 300.142 Prohibitions. craft, before the officer has had the op- The prohibitions in this section apply portunity to inspect same, or in con- within waters subject to the fisheries travention of directions from such an jurisdiction of Canada and during hot officer. pursuit therefrom by an authorized of- (h) Refuse to allow an authorized officer of Canada. It is unlawful for any ficer of Canada to board a vessel for the national or resident of the United purpose of conducting any inspection, States, or any person on board a vessel search, seizure, investigation or arrest of the United States, or the owner or in connection with the enforcement of operator of any such vessel, to do any any applicable Canadian fisheries law. of the following: (i) Assault, resist, oppose, impede, in- (a) Engage in fishing in waters sub- timidate, threaten, obstruct, delay, ject to the fisheries jurisdiction of Can- prevent, or interfere, in any manner, ada without the express authorization with an authorized officer of Canada in of the Government of Canada. the conduct of any boarding, inspec- (b) Take or retain fish in waters sub- tion, search, seizure, investigation or ject to the fisheries jurisdiction of Can- arrest in connection with the enforce- ada without the express authorization ment of any applicable Canadian fish- of the Government of Canada. eries law. (c) Be on board a fishing vessel in wa- (j) Make any false statement, oral or ters subject to the fisheries jurisdic- written, to an authorized officer of tion of Canada, without stowing all Canada in response to any inquiry by fishing gear on board either: that officer in connection with enforce- (1) Below deck, or in an area where it ment of any applicable Canadian fish- is not normally used, such that the eries law.

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(k) Falsify, cover, or otherwise ob- (iii) The sounding of a horn or whis- scure, the name, home port, official tle to indicate the International Morse number (if any), or any other similar Code letter ‘‘L’’, consisting of one marking or identification of any fish- short blast, followed by one long blast, ing vessel subject to this subpart such followed by two short blasts (. — . .). that the vessel cannot be readily iden- (2) Authorized officers of Canada use tified from an enforcement vessel or the following signals to require a fish- aircraft. ing vessel to prepare to be boarded: (l) Attempt to do any of the fore- (i) The hoisting of flags representing going. the International Code Flag ‘‘SQ3’’; or (ii) The flashing of a light, or the § 300.143 Facilitation of enforcement. sounding of a horn or whistle, to indi- (a) General. Persons aboard fishing cate the International Morse Code Sig- vessels subject to this subpart must nal ‘‘SQ3’’ (. . .——.—. . .——). immediately comply with instructions § 300.144 Penalties and sanctions. and/or signals issued by an authorized officer of the United States or Canada, Any person, any fishing vessel, or the or by an enforcement vessel or aircraft, owner or operator of any such vessel, to stop the vessel, and with instruc- who violates any provision of the tions to facilitate safe boarding and in- Agreement or this subpart, is subject spection for the purpose of enforcing to the civil and criminal fines, pen- any applicable Canadian fisheries law, alties, forfeitures, permit sanctions, or the Agreement, or this subpart. All of other sanctions provided in the Magnu- the provisions of § 300.5 regarding com- son-Stevens Act, part 600 of this title, munications, boarding, and signals 15 CFR part 904 (Civil Procedures), and apply to this subpart. For purposes of any other applicable law or regulation. this subpart, authorized officer in § 305 means an authorized officer of the Subpart J—U.S. Nationals Fishing United States or Canada. (See para- in Russian Fisheries graph (b) of this section for specific requirements for complying with signals AUTHORITY: 16 U.S.C. 1801 et seq. and instructions issued by an authorized officer of Canada.) § 300.150 Purpose. (b) Canadian signals. In addition to This subpart regulates U.S. nationals signals set forth in § 300.5, persons fishing in the Russian fisheries and im- aboard fishing vessels subject to this plements the Agreement between the subpart must immediately comply with Government of the United States of the following signals by an authorized America and the Government of the officer of Canada. Union of Soviet Socialist Republics on (1) Authorized officers of Canada use Mutual Fisheries Relations, signed the following signals to require fishing May 31, 1988. vessels to stop or heave to: (i) The hoisting of a rectangular flag, § 300.151 Definitions. known as the International Code Flag In addition to the terms defined in ‘‘L’’, which is divided vertically and § 300.2 and those in the Magnuson-Ste- horizontally into quarters and colored vens Act, the terms used in this sub- so that: part have the following meanings. If a (A) The upper quarter next to the term is defined differently in § 300.2 or staff and the lower quarter next to the the Magnuson-Stevens Act, the defini- fly are yellow; and tion in this section shall apply. (B) The lower quarter next to the Affiliates means two persons (includ- staff and the upper quarter next to the ing individuals and entities) related in fly are black; such a way that— (ii) The flashing of a light to indicate (1) One indirectly or directly controls the International Morse Code letter or has power to control the other; or ‘‘L’’, consisting of one short flash, fol- (2) A third party controls or has lowed by one long flash, followed by power to control both. Indicia of con- two short flashes (. — . .); or trol include, but are not limited to,

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interlocking management or owner- Relevant laws and regulations of the ship, identity of interests among fam- Russian Federation means those Rus- ily members, shared facilities and sian laws and regulations that concern equipment, common use of employees, fishing for fishery resources over which or a reorganized entity having the Russia exercises sovereign rights or same or similar management, owner- fishery management authority. ship, or employees as a former entity. Russian and Federation mean the Rus- Agreement means the Agreement Be- sian Federation, its government, or tween the Government of the United any organ or entity of its government. States of America and the Government Russian continental shelf or conti- of the Union of Soviet Socialist Repub- nental shelf of Russia means the seabed lics on Mutual Fisheries Relations, signed May 31, 1988. and subsoil of the submarine areas over Embassy of the Russian Federation which, consistent with international means the Fisheries Attache of the em- law, Russia exercises sovereign rights. bassy located in Washington, D.C. Russian Economic Zone or Russian EZ Fishery resource means any fish, any means a zone of waters off the coast of stock of fish, any species of fish, and Russia beyond and adjacent to the Rus- any habitat of fish. sian territorial sea extending a dis- Fishing or to fish means any activity tance of up to 200 nautical miles from that does, is intended to, or can reason- the baseline from which the territorial ably be expected to result in catching sea is measured, within which, con- or removing from the water fishery re- sistent with international law, Russia sources. Fishing also includes the acts has sovereign rights over the fishery of scouting, processing, and support. resources. Operator, with respect to any vessel, Russian Federation or Russia means means the master or other individual the governing entity that succeeded on board and in charge of either the the Union of Soviet Socialist Repub- vessel, the vessel’s fishing operation, or lics, and that is the successor party to both. the Agreement of May 31, 1988. Owner, with respect to any vessel, Russian fisheries, Russian fishery re- means any person who owns that vessel or in whole or in part, whether or not it is sources, fishery resources over which leased or chartered to or managed by Russia exercises sovereign rights or fish- another person, or any charterer, ery management authority means fishery whether bareboat, time, or voyage, and resources within the Russian EZ, fish- any person who acts in the capacity of ery resources of the Russian conti- a charterer, or manager, including but nental shelf, and anadromous species not limited to parties to a management that originate in the waters of Russia, agreement, operating agreement, or whether found in the Russian EZ or be- any similar agreement that bestows yond any exclusive economic zone or control over the destination, function, its equivalent. or operation of the vessel, any officer, Scouting means any operation by a director, manager, controlling share- vessel exploring (on behalf of the vessel holder of any entity described in this or another vessel) for the presence of definition, any agent designated as fish by any means that do not involve such by any person described in this the catching of fish. definition, and any affiliate of any per- Support means any operation by a son described in this definition. vessel assisting fishing by another ves- Processing means any operation by a sel, including— vessel to receive fish from a fishing (1) Transferring or transporting fish vessel and/or the preparation of fish, or fish products; or including but not limited to cleaning, (2) Supplying a fishing vessel with cooking, canning, smoking, salting, water, fuel, provisions, fishing equip- drying, or freezing, either on the ves- ment, fish processing equipment, or sel’s behalf or to assist another vessel. other supplies. Regional Administrator means Admin- istrator of the Alaska Region, or a des- [61 FR 35550, July 5, 1996, as amended at 76 ignee. FR 59305, Sept. 26, 2011]

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§ 300.152 Procedures. permit. The vessel owner is prohibited (a) Application for annual permits. U.S. from transferring the permit to any vessel owners and operators must have other vessel or person. Any such trans- a valid permit issued by the Russian fer, or the sale or other transfer of the Federation obtained pursuant to a vessel, will immediately invalidate the complete application submitted permit. The vessel owner must notify through NMFS before fishing in the NMFS of any change in the permit ap- Russian EZ or for Russian fishery re- plication information submitted to sources. Application forms and copies NMFS Headquarters under § 300.152 of applicable laws and regulations of within 7 calendar days of the change. the Russian Federation may be ob- (b) Copies. The vessel owner and oper- tained from NMFS Headquarters. ator must mail a copy of each permit (b) Other application information. Ap- and any conditions and restrictions plications for motherships, processing issued for that vessel by the Russian or transport vessels must identify the Federation within 7 calendar days of type of fishing gear to be employed or its receipt to NMFS Headquarters. the fishing quotas if the vessel has re- (c) Validity. Any permit issued by the ceived or is requesting a quota. To fa- Russian Federation with respect to a cilitate processing, NMFS requests vessel subject to this subpart will be that permit applications for more than deemed to be a valid permit only if: 10 vessels be grouped by type and fish- (1) A completed permit application ing area, and provide the name, ad- has been forwarded to the competent dress, telephone, and FAX number(s) of authorities of the Russian Federation an individual who will be the official as provided in § 300.152(b)(1). point of contact for an application. (2) Such application has been ap- (c) Review of Applications. NMFS will proved and a permit issued by the com- review each application, and, if it is petent authorities of the Russian Fed- complete, forward it to the Department eration as provided in paragraph (a) of of State for submission to the com- this section. petent authorities of the Russian Fed- (3) The U.S. Department of State has eration. NMFS will notify the permit notified the competent authorities of applicant when the permit is submitted the Russian Federation that it has ac- to the Russian Federation. NMFS will cepted the conditions and restrictions return incomplete applications to the as provided in paragraph (a) of this sec- applicant. tion. The permit will be rendered in- (d) Direct Communication. U.S. appli- valid by: The transfer or sale of the cants may communicate directly with permit specified in paragraph (a) of the Russian Federation with regard to this section; the failure to submit to the status of their applications or per- NMFS any changes in permit applica- mits and are encouraged to do so. Own- tion information as required by para- ers and operators should make direct graph (a) of this section; failure to sub- contact and work with Russian indus- mit to NMFS any permit copy required try and government authorities. by paragraph (b) of this section or any other information or report required by § 300.153 Permit issuance. any other provision of this subpart; or (a) Acceptance. Once the Department the failure to pay required permit fees. of State has accepted the conditions (d) Russian-imposed sanctions. (1) The and restrictions proposed by the Rus- Russian Federation will impose appro- sian Federation and all fees have been priate fines, penalties, or forfeitures in paid, the competent authorities of the accordance with its laws, for violations Russian Federation will approve the of its relevant laws or regulations. application. The Russian Federation (2) In the case of arrest and seizure of will issue a permit to the vessel owner a U.S. vessel by Russian authorities, for each fishing vessel for which it has notification will be given promptly approved an application. That vessel through diplomatic channels informing will thereupon be authorized by the the United States of the facts and ac- Russian Federation to fish in accord- tions taken. ance with the Agreement and the (3) The Russian Federation will re- terms and conditions set forth in the lease U.S. vessels and their crews

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promptly, subject to the posting of rea- vessel at the time it will depart the sonable bond or other security. EEZ. (4) The sanctions for violations of (2) Return Report (Action code RE- limitations or restrictions on fishing TURN). At least 24 hours before a ves- operations will be appropriate fines, sel that has been in the Russian EZ en- penalties, forfeitures, or revocations or ters the EEZ, NMFS must receive the suspensions of fishing privileges. following information: (i) The date (month and day), time § 300.154 Recordkeeping and reporting. (hour and minute GMT), and position (latitude and longitude to the nearest (a) General. The owner and operator degree and minute), at which the vessel of a vessel subject to this subpart are will enter the EEZ. responsible for complying with all rec- (ii) The weight in metric tons (to the ordkeeping and reporting requirements nearest hundredth of a metric ton) of in this part in a timely and accurate all fish and fish products (listed by spe- manner. Reports and records required cies and product codes) on board the by this subpart must be in English, in vessel at the time it will enter the the formats specified, and unless otherwise specified, based on Greenwich EEZ, and the areas (Russian EZ, U.S. mean time (GMT). EEZ, or other) in which such fish prod- (b) Vessel permit abstract report. (1) ucts were harvested or received. The owner and operator of a vessel sub- (3) All reports must specify: The ap- ject to this subpart must submit to propriate action code (‘‘DEPART’’ or NMFS Headquarters a permit abstract ‘‘RETURN’’); the vessel’s name and report containing the following infor- international radio call sign (IRCS); mation: the sender’s name and telephone num- (i) Vessel name. ber, and FAX, TELEX, and COMSAT (ii) Russian Federation permit num- numbers; the date (month and day) and ber. time (hour and minute GMT) that the (iii) Duration of permit (e.g., 1/1/91–12/ report is submitted to NMFS; and the 31/91). intended date and U.S. port of landing. (iv) Authorized areas of fishing oper- A list of species and product codes may ations in geographic coordinates. be obtained from the Regional Admin- (v) Authorized catch quota in tons. istrator. (vi) Authorized fishing gear. (d) Recordkeeping. The owner and op- (vii) Type of permit (e.g., catcher). erator of a vessel subject to this sub- (2) The report must be faxed to (301) part must retain all copies of all re- 713–2313 within 5 calendar days of reports required by this subpart on board ceipt of the Russian permit. the vessel for 1 year after the end of (c) Activity reports. The owner and op- the calendar year in which the report erator of a vessel subject to this sub- was generated. The owner and operator part must submit to the Regional Ad- must retain and make such records ministrator by telefax to (907) 586–7313, available for inspection upon the re- the following reports: quest of an authorized officer at any (1) Depart Report (Action code DE- time for 3 years after the end of the PART). At least 24 hours before the calendar year in which the report was vessel departs from the EEZ for the generated, whether or not such records Russian EZ, NMFS must receive the on board the vessel. following information: (i) The date (month and day), and [61 FR 35550, July 5, 1996, as amended at 76 time (hour and minute GMT), and posi- FR 59305, Sept. 26, 2011] tion (latitude and longitude to the nearest degree and minute), at which § 300.155 Requirements. the vessel will depart the EEZ for the (a) Compliance with permit require- Russian EZ. ments. (1) U.S. nationals and vessels (ii) The weight in metric tons (to the subject to this subpart must have a nearest hundredth of a metric ton) of valid permit, as specified in § 300.153(c) all fish and fish product (listed by spe- in order to fish for Russian fishery re- cies and product codes) on board the sources.

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(2) U.S. nationals and vessels subject subpart must immediately comply with to this subpart that are fishing for Rus- instructions and signals issued by an sian fishery resources must comply authorized officer of the United States with all provisions, conditions, and re- to stop the vessel and with instructions strictions of any applicable permit. to facilitate safe boarding and inspec- (b) Compliance with Russian law. U.S. tion of the vessel, its gear, equipment, nationals and vessels fishing for Rus- fishing records, and catch for purposes sian fishery resources must comply of enforcing the Magnuson-Stevens with the relevant laws and regulations Act, the Agreement, and this subpart. of the Russian Federation. (e) Compliance with observer require- (c) Protection of marine mammals. U.S. ments. The owner of, operator of, and nationals and vessels fishing for Rus- any person aboard, any U.S. vessel fish- sian fishery resources may not harass, ing in the Russian EZ or for Russian hunt, capture, or kill any marine mam- fishery resources to which a Russian mal within the Russian EZ, attempt to observer is assigned must— do so, except as may be provided for by (1) Allow and facilitate, on request, an international agreement to which boarding of a U.S. vessel by the ob- both the United States and Russia are server. parties, or in accordance with specific (2) Provide to the observer, at no cost authorization and controls established to the observer or the Russian Federa- by the Russian Federation. The provi- tion, the courtesies and accommoda- sions of the Marine Mammal Protec- tions provided to ship’s officers. tion Act (MMPA), 16 U.S.C. 1361 et seq. (3) Cooperate with the observer in the also apply to any person or vessel sub- conduct of his or her official duties. ject to the jurisdiction of the United (4) Reimburse the Russian Federation States while in the Russian EZ, and it for the costs of providing an observer shall not be a defense to any violation aboard the vessel. of the MMPA that the person or vessel was acting in accordance with any per- § 300.156 Prohibited acts. mit or authorization issued by the Rus- sian Federation. In addition to the prohibited acts (d) Cooperation with enforcement proce- specified at § 300.4, it shall be unlawful dures. (1) The operator of, or any per- for any U.S. national or vessel, or the son aboard, any U.S. vessel subject to owner or operator of any such vessel: this subpart must immediately comply (a) To fish for Russian fishery re- with instructions and signals issued by sources without a valid permit issued an authorized officer of the Russian by the competent authorities of the Federation to stop the vessel and with Russian Federation. instructions to facilitate safe boarding (b) To violate the provisions, condi- and inspection of the vessel, its gear, tions, and restrictions of an applicable equipment, fishing record, and catch permit. for purposes of enforcing the relevant (c) To violate the relevant laws and laws and regulations of Russia. regulations of Russia. (2) The operator of, and any person (d) To harass, hunt, capture, or kill aboard, any U.S. vessel subject to this any marine mammal within the Rus- subpart, must comply with directions sian EZ, or while fishing for Russian issued by authorized officers of the fishery resources, except as provided in Russian Federation in connection with § 300.155 (c). the seizure of the vessel for violation of (e) To fail to comply immediately the relevant laws or regulations of the with enforcement and boarding proce- Russian Federation. dures specified in § 300.155 (d). (3) U.S. nationals and vessels subject (f) To refuse to allow an authorized to this subpart must pay all fines and officer of the Russian Federation to penalties and comply with forfeiture board and inspect a vessel subject to sanctions imposed by the Russian Fed- this subpart for purposes of conducting eration for violations of its relevant any search, inspection, arrest, or sei- laws and regulations. zure in connection with the enforce- (4) The operator of, and any person ment of the relevant laws and regula- aboard, any U.S. vessel subject to this tions of the Russian Federation.

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(g) To assault, resist, oppose, impede, ject to this subpart within 7 calendar intimidate, threaten, or interfere with, days of such change. in any manner, any authorized officer (q) To attempt to do, cause to be of the Russian Federation in the con- done, or aid and abet in doing, any of duct of any search, inspection, seizure, the foregoing. or arrest in connection with enforce- (r) To violate any other provision of ment of the relevant laws and regula- this subpart. tions of the Russian Federation. (h) To fail to pay fines or penalties or § 300.157 Penalties. comply with forfeitures imposed for a In addition to any fine, penalty, or violation of the relevant laws and regu- forfeiture imposed by the Russian Fed- lations of the Russian Federation. eration, nationals and vessels of the (i) To refuse or fail to allow a Rus- United States violating the prohibi- sian observer to board a vessel subject tions of § 300.156 are subject to the to this subpart while fishing in the fines, penalties, and forfeitures and the Russian EZ, or for Russian fishery re- adjudicative procedures provided in the sources. Magnuson-Stevens Act, 16 U.S.C. 1858, (j) To fail to provide to a Russian ob- 1860, 1861, and any other applicable server aboard a vessel fishing in the laws and regulations of the United Russian EZ or for Russian fishery re- States. sources, the courtesies and accommodations provided to ship’s officers. Subpart K—Transportation and (k) To assault, resist, oppose, impede, intimidate, threaten, interfere with, Labeling of Fish or Wildlife harass, or fail to cooperate, in any manner, with a Russian observer AUTHORITY: 16 U.S.C. 3371–3378. placed aboard a vessel subject to this subpart. § 300.160 Requirement for marking of containers or packages. (l) To fail to reimburse the Russian Federation for the costs incurred in the Except as otherwise provided in this utilization of Russian observers placed subpart, all persons are prohibited aboard such vessel. from importing, exporting, or trans- (m) To possess, have custody or con- porting in interstate commerce any trol of, ship, transport, offer for sale, container or package containing any sell, purchase, transship, import, ex- fish or wildlife (including shellfish) un- port, or traffic in any manner, any fish less each container or package is con- or parts thereof taken or retained, spicuously marked on the outside with landed, purchased, sold, traded, ac- both the name and address of the ship- quired, or possessed, in any manner, in per and consignee and an accurate list violation of the relevant laws and regu- of its contents by species and number lations of the Russian Federation, the of each species. Magnuson-Stevens Act, or this subpart. (n) To enter the Russian EZ to fish § 300.161 Alternatives and exceptions. unless a permit application has been (a) The requirements of § 300.160 may submitted through NMFS to the com- be met by complying with one of the petent authorities of the Russian Fed- following alternatives to the marking eration by the U.S. Department of requirement: State for such vessel as provided in (1)(i) Conspicuously marking the out- this subpart. side of each container or package con- (o) To fish for Russian fisheries or to taining fish or wildlife with the word possess fish taken in Russian fisheries ‘‘fish’’ or ‘‘wildlife’’ as appropriate for on board a vessel subject to this sub- its contents, or with the common name part without a valid permit or other of its contents by species, and valid form of authorization issued by (ii) Including an invoice, packing the competent authorities of the Rus- list, bill of lading, or similar document sian Federation on board the vessel. to accompany the shipment that accu- (p) To falsify, or fail to report to rately states the name and address of NMFS, any change in the information the shipper and consignee, states the contained in a permit application sub- total number of packages or containers

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in the shipment, and for each species in karakul that have been bred and born the shipment specifies: The common in captivity, or their products, if a name that identifies the species (exam- signed statement certifying that the ples include: chinook (or king) salmon; animals were bred and born in cap- bluefin tuna; and whitetail deer); and tivity accompanies the shipping docu- the number of that species (or other ments; appropriate measure of quantity such (2) Fish or shellfish contained in re- as gross or net weight). The invoice, tail consumer packages labeled pursu- packing list, bill of lading, or equiva- ant to the Food, Drug and Cosmetic lent document must be securely at- Act, 21 U.S.C. 301 et seq.; or tached to the outside of one container (3) Fish or shellfish that are landed or package in the shipment or other- by, and offloaded from, a fishing vessel wise physically accompany the ship- (whether or not the catch has been car- ment in a manner that makes it read- ried by the fishing vessel interstate), as ily accessible for inspection; or long as the fish or shellfish remain at (2) Affixing the shipper’s wildlife im- the place where first offloaded. port/export license number preceded by ‘‘FWS’’ on the outside of each con- Subpart L—Pacific Albacore Tuna tainer or package containing fish or Fisheries wildlife if the shipper has a valid wildlife import/export license issued under authority of part 14 of this title. For AUTHORITY: Sec. 401, Pub. L. 108-219, 118 Stat. 616 (16 U.S.C. 1821 note). each shipment marked in accordance with this paragraph (a)(2), the records SOURCE: 69 FR 31535, June 4, 2004, unless maintained under § 14.93(d) of this title otherwise noted. must include a copy of the invoice, packing list, bill of lading, or other § 300.170 Purpose and scope. similar document that accurately The regulations in this subpart gov- states the information required by ern fishing by U.S. vessels in waters paragraph (a)(1)(ii) of this section. under the fisheries jurisdiction of Can- (3) In the case of subcontainers or ada pursuant to the 1981 Treaty Be- packages within a larger packing con- tween the Government of the United tainer, only the outermost container States of America and the Government must be marked in accordance with of Canada on Pacific Coast Albacore this section, provided, that for live fish Tuna Vessels and Port Privileges as or wildlife that are packed in subcon- amended in 2002. Regulations governing tainers within a larger packing con- fishing by Canadian vessels in waters tainer, if the subcontainers are num- under the fisheries jurisdiction of the bered or labeled, the packing list, in- United States pursuant to this Treaty voice, bill of lading, or other similar as amended in 2002 are found at § 600.530 document, must reflect that number or of chapter VI of this title. label. (4) A conveyance (truck, plane, boat, § 300.171 Definitions. etc.) is not considered a container for In addition to the definitions in the purposes of requiring specific marking Magnuson-Stevens Fishery Conserva- of the conveyance itself, provided that: tion and Management Act and § 600.10 (i) The fish or wildlife within the con- of Chapter VI of this title, the terms veyance is carried loosely or is readily used in this subpart have the following identifiable, and is accompanied by the meanings: document required by paragraph Fishing under the Treaty as amended in (a)(1)(ii) of this section; or 2002 means to engage in fishing for al- (ii) The fish or wildlife is otherwise bacore tuna in waters under the fish- packaged and marked in accordance eries jurisdiction of Canada seaward of with this subpart. 12 nautical miles from the baseline (b) The requirements of § 300.160 of from which the territorial sea is meas- chapter III of this title do not apply to ured. containers or packages containing— Regional Administrator means the Re- (1) Fox, nutria, rabbit, mink, chin- gional Administrator, Southwest Re- chilla, marten, fisher, muskrat, and gion, NMFS, 501 W. Ocean Boulevard,

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Suite 4200, Long Beach, CA 90802–4213, (1) Sections 300.14 and 300.217, or or a designee. (2) The vessel’s name and U.S. Coast Reporting Office means the office des- Guard Documentation number (or if ignated by the Regional Administrator not documented, the state registration to take hail-in and hail-out reports number) followed by the letter U must from U.S. and Canadian vessel opera- be prominently displayed where they tors. are clearly visible both from the air Treaty means the 1981 Treaty Be- and from a surface vessel. Numerals tween the Government of the United and the letter U must meet the size re- States of America and the Government quirements of § 660.704 of this title. of Canada on Pacific Coast Albacore Markings must be legible and of a color Tuna Vessels and Port Privileges as amended in 2002. that contrasts with the background. [76 FR 73520, Nov. 29, 2011] § 300.172 Vessel list. The ‘‘vessel list’’ is the list of U.S. § 300.174 Logbook reports. vessels that are authorized to fish The owner of any U.S. vessel that under the Treaty as amended in 2002. fishes for albacore tuna in Canadian Only a vessel on the list for at least 7 waters under the Treaty as amended in days may engage in fishing in Canadian 2002 must maintain and submit to the waters under the Treaty as amended in Regional Administrator a logbook of 2002. The owner of any U.S. vessel that wishes to be eligible to fish for alba- catch and effort of such fishing. The core tuna under the Treaty as amended logbook form will be provided to the in 2002 must provide the Regional Ad- vessel owner as soon as practicable ministrator or his designee with the after the request to be placed on the vessel name, the owner’s name and ad- list of vessels. The logbook must be dress, phone number where the owner submitted to the Regional Adminis- can be reached, the USCG documenta- trator within 15 days of the end of a tion number (or state registration trip, regardless of whether the trip number if not documented), and vessel ends by reentry to U.S. waters or entry operator (if different from the owner) to Canada’s territorial sea, other Cana- and his or her address and phone num- dian waters in which fishing is not per- ber. On the date that NMFS receives a mitted, or a Canadian port. If the de- request that includes all the required parture is due to exit to the high seas, information, NMFS will place the ves- the vessel operator must submit the sel on the annual vessel list. NMFS logbook within 7 days of its next land- will notify fishermen by a confirma- ing. tion letter or email of the date the vessel was placed on the list. Because the § 300.175 Hail-in and hail-out reports. vessel list will revert to zero vessels on December 31 of each year, the required (a) The operator of any U.S. vessel information must be provided in the that wishes to engage in fishing in wa- manner specified on an annual basis. ters under the fisheries jurisdiction of Canada must file a hail-in report to the [72 FR 19123, Apr. 17, 2007] Reporting Office at least 24 hours prior to engaging in fishing in such waters. § 300.173 Vessel identification. (b) The operator of a U.S. vessel that Each U.S. vessel fishing under the has been fishing under the Treaty as Treaty must be marked for identifica- amended in 2002 must file a hail-out re- tion purposes, as follows: port to the Reporting Office within 24 (a) A vessel used to fish on the high hours of departing waters under the seas within the Convention Area as defined in § 300.211 must be marked in ac- fisheries jurisdiction of Canada. cordance with the requirements at § 300.176 Prohibitions. §§ 300.14 and 300.217. (b) A vessel not used to fish on the It is prohibited for the owner or oper- high seas within the Convention Area ator of a U.S. fishing vessel to: as defined in § 300.211 must be marked (a) Engage in fishing in waters under in accordance with either: the fisheries jurisdiction of Canada if:

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(1) The vessel has not been on the list Automated Export System (AES) has of fisheries pursuant to § 300.172 for at the same meaning as that term is de- least 7 days; fined in § 300.321 of this part. (2) The vessel is not clearly marked BCD tag means a numbered tag af- as required under § 300.173; fixed to a bluefin tuna issued by any (3) The vessel operator has not filed a country in conjunction with a catch hail-in report with the Reporting Office statistics information program and re- as required under § 300.175(a); or corded on a BCD or eBCD. (4) The Regional Administrator has Bigeye tuna means the species announced that the U.S. limit on fish- Thunnus obesus found in any ocean ing under the Treaty as amended in area. 2002 has been reached. Bluefin Tuna Catch Document (BCD) means a bluefin tuna catch document (b) Fail to maintain and submit log- issued by a nation implementing the book records of catch and effort statis- ICCAT bluefin tuna catch documenta- tics as required under § 300.174; tion program. (c) Fail to report an exit from waters BSD tag means a numbered tag af- under the fisheries jurisdiction of Can- fixed to a bluefin tuna issued by any ada as required by § 300.175(b). country in conjunction with a catch statistics information program and re- Subpart M—International Trade corded on a bluefin tuna statistical Documentation and Tracking document (BSD). Programs for Highly Migratory CBP means U.S. Customs and Border Species Protection, Department of Homeland Security. CCSBT means the Commission for the AUTHORITY: 16 U.S.C. 951–961 and 971 et seq.; Conservation of Southern Bluefin Tuna 16 U.S.C. 1801 et seq. established pursuant to the Convention SOURCE: 69 FR 67277, Nov. 17, 2004, unless for the Conservation of Southern otherwise noted. Bluefin Tuna. Consignment document means either § 300.180 Purpose and scope. an ICCAT eBCD or paper BCD issued by The regulations in this subpart are a nation to comply with the ICCAT issued under the authority of the At- bluefin tuna catch documentation pro- lantic Tunas Convention Act of 1975 gram consistent with ICCAT rec- (ATCA), Tuna Conventions Act of 1950, ommendations; or an ICCAT, IATTC, and Magnuson-Stevens Act. The regu- IOTC, or CCSBT statistical document lations implement the recommenda- or a statistical document issued by a tions of the International Commission nation to comply with such statistical for the Conservation of Atlantic Tunas document programs. (ICCAT) for the conservation and man- Consignment documentation programs means the ICCAT, IOTC, IATTC or agement of tuna and tuna-like species CCSBT catch document or statistical in the Atlantic Ocean and of the Inter- document programs. American Tropical Tuna Commission Customs territory of the United States (IATTC) for the conservation and man- has the same meaning as in 19 CFR agement of highly migratory fish re- 101.1 and includes only the States, the sources in the Eastern Tropical Pacific District of Columbia, and Puerto Rico. Ocean, so far as they affect vessels and Dealer tag means the numbered, flexi- persons subject to the jurisdiction of ble, self-locking ribbon issued by the United States. NMFS for the identification of Atlan- tic bluefin tuna sold to a dealer per- § 300.181 Definitions. mitted under § 635.4 of this title as re- Atlantic bluefin tuna means the spe- quired under § 635.5(b) of this title. cies Thunnus thynnus found in the At- Document Imaging System (DIS) means lantic Ocean. the system established by CBP to re- Automated Commercial Environment ceive image files of paper documents in (ACE) has the same meaning as that ACE or AES and associate the image term is defined in § 300.321 of this part. files with specific trade transactions.

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eBCD means an electronic bluefin mass of things belonging to one coun- tuna catch document (eBCD) generated try with the intention of uniting them by the ICCAT eBCD system to track to the mass of things belonging to bluefin tuna catch and trade as speci- some foreign country. For purposes of fied in ICCAT recommendations. this subpart, a shipment between the eBCD system is the ICCAT electronic United States and its insular posses- system for creating, editing, and trans- sions is not an export. mitting ICCAT catch and trade docu- Exporter, for purposes of this subpart, mentation for bluefin tuna as specified is the principal party in interest, in ICCAT recommendations and re- meaning the party that receives the quired in these regulations. primary benefit, monetary or other- Entered for consumption has the same wise, of the export transaction. For ex- meaning as in 19 CFR 141.0a(f) and gen- ports from the United States, the ex- erally refers to the filing of an entry porter is the U.S. principal party in in- summary for consumption with cus- terest, as identified in part 30 of title 15 toms authorities, in proper form, with of the CFR. An exporter is subject to estimated duties attached. the requirements of this subpart, even Entry for consumption, for purposes of if exports are exempt from statistical this subpart, has the same meaning as reporting requirements under part 30 of entry for consumption, withdrawal title 15 of the CFR. from warehouse for consumption, or Finlet means one of the small indi- entry for consumption of merchandise vidual fins on a tuna located behind from a foreign trade zone, as provided the second dorsal and anal fins and for- under 19 CFR parts 101.1, 141, 144, and ward of the tail fin. 146. For purposes of this subpart, Fish or fish products regulated under ‘‘entry for consumption’’ generally this subpart means bluefin tuna, frozen means an import into the Customs ter- bigeye tuna, southern bluefin tuna and ritory of the United States or the sepa- swordfish and all such products of rate customs territory of a U.S. insular these species, except parts other than possession, for domestic use, that is meat (e.g., heads, eyes, roe, guts, and classified for customs purposes in the tails), and shark fins. ‘‘consumption’’ category (entry type IATTC means the Inter-American codes 00–08) or withdrawal from ware- Tropical Tuna Commission, established house or foreign trade zone for con- pursuant to the Convention for the Es- sumption category (entry type codes tablishment of an Inter-American 30–34 and 38). For purposes of this sub- Tropical Tuna Commission. part, HMS destined from one foreign ICCAT means the International Com- country to another, which transits the mission for the Conservation of Atlan- Customs territory of the United States tic Tunas established pursuant to the or the separate customs territory of a International Convention for the Con- U.S. insular possession, and is not clas- servation of Atlantic Tunas. sified as an entry for consumption Import means to land on, bring into, upon release from CBP or other cus- or introduce into, or attempt to land toms custody, is not an entry for con- on, bring into, or introduce into, any sumption under this definition. place subject to the jurisdiction of the Entry number, for purposes of this United States, whether or not such subpart, means the unique number/ landing, bringing or introduction con- identifier assigned by customs authori- stitutes an importation within the ties for each entry into a customs ter- meaning of the customs laws of the ritory. For CBP, the entry number is United States. Import, for purposes of assigned at the time of filing an entry this subpart, does not include any ac- summary (CBP Form 7501 or equivalent tivity described in the previous sen- electronic filing) for entries into the tence with respect to fish caught in the Customs territory of the United States. exclusive economic zone or by a vessel Export, for purposes of this subpart, of the United States. For purposes of means to effect exportation. this subpart, goods brought into the Exportation has the same general United States from a U.S. insular pos- meaning as 19 CFR 101.1 and generally session, or vice-versa, are not consid- refers to a severance of goods from the ered imports.

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Importer, for purposes of this subpart, Required data set has the same mean- means the principal party responsible ing as § 300.321 (see definition of ‘‘Doc- for the import of product into a coun- umentation and data sets required’’). try. For imports into the United RFMO, as defined under this subpart, States, and for purposes of this sub- means regional fishery management part, ‘‘importer’’ means the consignee organization, including CCSBT, IATTC, as identified on entry documentation ICCAT, or IOTC. or any authorized, equivalent elec- Separate customs territory of a U.S. in- tronic medium required for release of sular possession means the customs ter- shipments from the customs authority ritory of a U.S. insular possession when that possession’s customs territory is of the United States or the separate not a part of the Customs territory of customs territory of a U.S. insular pos- the United States. session. If a consignee is not declared, Shark fin, for purposes of this sub- then the importer of record is consid- part, means any fin removed from a ered to be the consignee. shark, which is an animal of the Lin- Insular possession of the United States naean taxonomic superorder or U.S. insular possession, for purposes Selachimorpha, subclass of this subpart, means the Common- Elasmobranchii, class Chondrichthyes. wealth of the Northern Mariana Is- Southern bluefin tuna means the spe- lands, Guam, American Samoa, and cies Thunnus maccoyii found in any other possessions listed under 19 CFR ocean area. 7.2, that are outside the customs terri- Statistical document means an ICCAT, tory of the United States. IATTC, IOTC, or CCSBT statistical Intermediate country means a country document, or a statistical document that exports to another country HMS issued by a nation to comply with such previously imported as an entry for statistical document programs. consumption by that nation. A ship- Statistical document program means ei- ment of HMS through a country on a ther the ICCAT, IOTC, IATTC or through bill of lading, or in another CCSBT statistical document program. Swordfish means the species Xiphias manner that does not enter the ship- gladius that is found in any ocean area. ment into that country as an entry for Tag means either a dealer tag or a consumption, does not make that coun- BCD tag. try an intermediate country under this definition. [61 FR 35550, July 5, 1996, as amended at 73 International Fisheries Trade Permit FR 31385, June 2, 2008; 81 FR 18799, Apr. 1, 2016; 81 FR 51134, Aug. 3, 2016] (IFTP) or trade permit means the permit issued by NMFS under § 300.322. § 300.182 International fisheries trade IOTC means the Indian Ocean Tuna permit. Commission established pursuant to An importer, entering for consump- the Agreement for the Establishment tion any fish or fish products regulated of the Indian Ocean Tuna Commission under this subpart, harvested from any approved by the Food and Agriculture ocean area, into the United States, or Organization (FAO) Council of the an exporter exporting or re-exporting United Nations. such product, must possess a valid Pacific bluefin tuna means the species International Fisheries Trade Permit Thunnus orientalis found in the Pacific (IFTP) issued under § 300.322. Ocean. [81 FR 51134, Aug. 3, 2016] Permit holder, for purposes of this subpart, means, unless otherwise speci- § 300.183 Permit holder reporting and fied, a person who is required to obtain recordkeeping requirements. an International Fisheries Trade Per- (a) Biweekly reports. Any person trad- mit (IFTP) under § 300.322. ing fish and fish products regulated Re-export, for purposes of this sub- under this subpart and required to ob- part, means the export of goods that tain a trade permit under § 300.322 must were previously entered for consump- submit to NMFS, on forms supplied by tion into the customs territory of a NMFS, a biweekly report of entries for country. consumption, exports and re-exports of

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fish and fish products regulated under part, biweekly reports, statistical doc- this subpart, except shark fins. uments, catch documents, re-export (1) The report required to be sub- certificates, relevant sales receipts, mitted under this paragraph (a) must import and export documentation, and be received within 10 days after the end any other records or reports made, re- of each biweekly reporting period in tained, or submitted pursuant to this which fish or fish products regulated subpart. A permit holder must allow under this subpart except shark fins NMFS or an authorized person to in- were entered for consumption, ex- spect any fish or fish products regu- ported, or re-exported. The bi-weekly lated under this subpart, and inspect reporting periods are the first day to and copy any import export, and re-ex- the 15th day of each month, and the 16th port documentation and any reports re- day to the last day of each month. quired under this subpart, and the (2) Each report must specify accu- records, in any form, on which the rately and completely the requested in- completed reports are based, wherever formation for each consignment of fish they exist. Any agent of a person trad- or fish products regulated under this ing and required to obtain a trade per- subpart, except shark fins, that is en- mit under § 300.322, or anyone respon- tered for consumption, exported, or re- sible for importing, exporting, re-ex- exported. porting, storing, packing, or selling (3) A biweekly report is not required fish or fish products regulated under for export consignments of bluefin tuna this subpart, shall be subject to the in- when the information required on the spection provisions of this section. biweekly report has been previously (e) Applicability of reporting and rec- supplied on a biweekly report sub- ordkeeping requirements. Reporting and mitted under § 635.5(b)(2)(i)(B) of this recordkeeping requirements in this title. The person required to obtain a subpart apply to any person engaging trade permit under § 300.322 must rein international trade regardless of tain, at his/her principal place of busi- whether a trade permit has been issued ness, a copy of the biweekly report to that person. which includes the required informa- [73 FR 31385, June 2, 2008, as amended at 81 tion and is submitted under FR 51134, Aug. 3, 2016] § 635.5(b)(2)(i)(B) of this title, for a period of 2 years from the date on which § 300.184 Species subject to permitting, each report was submitted to NMFS. documentation, reporting, and rec- (b) Recordkeeping. Any person trading ordkeeping requirements. fish and fish products regulated under (a) Except as noted in paragraphs (b) this subpart and required to submit bi- and (c) of this section, the following weekly reports under paragraph (a) of fish or fish products are subject to the this section must retain, at his/her documentation requirements of this principal place of business, a copy of subpart, regardless of ocean area of each biweekly report and all sup- catch, and must be reported under the porting records for a period of 2 years appropriate heading or subheading from the date on which each report was numbers from the Harmonized Tariff submitted to NMFS. Schedule of the United States (HTS): (c) Other requirements. Any person (1) Bluefin tuna, trading fish and fish products regulated (2) Southern bluefin tuna, under this subpart and required to ob- (3) Frozen bigeye tuna, tain a trade permit under § 300.322 is (4) Swordfish, and also subject to the reporting and rec- (5) Shark fins. ordkeeping requirements identified in (b) For bluefin tuna, southern bluefin § 300.185. tuna, frozen bigeye tuna, and sword- (d) Inspection. Any person authorized fish, fish parts other than meat (e.g., to carry out the enforcement activities heads, eyes, roe, guts, and tails) may under the regulations in this subpart be imported without the documenta- (authorized person) has the authority, tion required under this subpart. without warrant or other process, to (c) Bigeye tuna caught by purse sein- inspect, at any reasonable time: fish or ers or pole and line (bait) vessels and fish products regulated under this sub- destined for canneries within the

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United States, including all U.S. com- (1) For Atlantic bluefin tuna, this re- monwealths, territories, and posses- quirement must be satisfied by the sions, may be imported without the U.S. importer through electronic re- documentation required under this sub- ceipt and completion of a re-export cer- part. tificate in the ICCAT eBCD system, un- [81 FR 51135, Aug. 3, 2016] less NMFS provides otherwise through actual notice or FEDERAL REGISTER no- § 300.185 Documentation, reporting tice. In cases where the documentation and recordkeeping requirements requirements have been completed in for consignment documents and re- the ICCAT eBCD system, a reduced export certificates. data set consisting of the eBCD number (a) Imports—(1) Applicability of require- or re-export certificate number, as ap- ments. The documentation require- plicable, and the importer trade permit ments in paragraph (a)(2) of this sec- number would suffice as an import fil- tion apply to all imports of fish or fish ing, without need to submit any forms products regulated under this subpart, via DIS in ACE. into the Customs territory of the (2) For bluefin tuna harvested from United States, except shark fins, or ex- other than the Atlantic Ocean, or for cept when entered as a product of an Atlantic Bluefin tuna entered pursuant American fishery landed overseas (HTS to a notified exception under heading 9815). For insular possessions (a)(2)(ii)(A)(1), an image of the original with customs territories separate from paper re-export certificate and the sup- the Customs territory of the United porting consignment documents must States, documentation requirements in be submitted to CBP via the ACE DIS. paragraph (a)(2) of this section apply (B) Bluefin tuna, imported into the only to entries for consumption. The Customs territory of the United States reporting requirements of paragraph or entered for consumption into the (a)(3) of this section do not apply to separate customs territory of a U.S. in- fish products destined from one foreign sular possession, from a country re- country to another which transit the quiring a BCD tag on all such bluefin United States or a U.S. insular posses- tuna available for sale, must be accom- sion and are designated as an entry panied by the appropriate BCD tag type other than entry for consumption issued by that country, and said BCD as defined in § 300.181. tag must remain on any bluefin tuna (2) Documentation requirements. (i) Ex- until it reaches its final import des- cept for shark fins, all fish or fish products regulated under this subpart, im- tination. If the final import destina- ported into the Customs territory of tion is the United States, which in- the United States or entered for concludes U.S. insular possessions, the sumption into a separate customs ter- BCD tag must remain on the bluefin ritory of a U.S. insular possession, tuna until it is cut into portions. If the must, at the time of presenting entry bluefin tuna portions are subsequently documentation for clearance by cus- packaged for domestic commercial use toms authorities (e.g., electronic filing or re-export, the BCD tag number and via ACE or other documentation re- the issuing country must be written quired by the port director) be accom- legibly and indelibly on the outside of panied by an original, complete, accu- the package. rate, approved and properly validated, (iii) Fish or fish products regulated species-specific consignment docu- under this subpart other than bluefin ment. An image of such document and tuna and shark fins: the required data set must be filed (A) Imports that were previously re- electronically with CBP via ACE. exported and were subdivided or con- (ii) Bluefin tuna: solidated with another consignment be- (A) Imports that were re-exported fore re-export, must also be accom- from another nation must also be ac- panied by an original, completed, accu- companied by an original, complete, rate, valid, approved and properly vali- accurate, approved and properly validated, species-specific re-export certifi- dated, species-specific re-export certificate. An image of such document, an cate. image of the original import document,

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and the required data set must be filed directed in paragraph (a)(2)(vi)(A) of electronically with CBP via ACE. this section, unless NMFS provides (B) Imports that have been pre- otherwise through actual notice or viously re-exported from another na- FEDERAL REGISTER notice. In cases tion must have the intermediate im- where the documentation requirements porter’s certification of the original have been completed in the ICCAT statistical document completed. eBCD system, a reduced data set con- (iv) Consignment documents must be sisting of the eBCD number or the re- validated as specified in § 300.187 by an export certificate number, as applica- authorized government official of the ble, and the importer trade permit flag country whose vessel caught the number would suffice as an import fil- fish (regardless of where the fish are ing, without need to submit any forms first landed). Re-export certificates via DIS in ACE. must be validated by an authorized (b) Exports—(1) Applicability of require- government official of the re-exporting ments. The documentation and report- country. For electronically generated Atlantic bluefin tuna catch documents, ing requirements of this paragraph (b) validation must be electronic using the apply to exports of fish or fish products ICCAT eBCD system. regulated under this subpart, except (v) A permit holder may not accept shark fins, that were harvested by U.S. an import without the completed con- vessels and first landed in the United signment document or re-export cer- States, or harvested by vessels of a tificate as described in paragraphs U.S. insular possession and first landed (a)(2)(i) through (iv) of this section. in that possession. This paragraph (b) (vi) For fish or fish products, except also applies to products of American shark fins, regulated under this sub- fisheries landed overseas. part that are entered for consumption, (2) Documentation requirements. A per- the permit holder must provide correct mit holder must complete an original, and complete information, as requested approved, numbered, species-specific by NMFS, on the original consignment consignment document issued to that document that accompanied the con- permit holder by NMFS for each export signment. referenced under paragraph (b)(1) of (A) For Atlantic bluefin tuna, this in- this section, and electronically file an formation must be provided electroni- image of such documentation and the cally in the ICCAT eBCD system, un- required data set with CBP via AES. less NMFS provides otherwise through Such an individually numbered docu- actual notice or FEDERAL REGISTER no- ment is not transferable and may be tice. used only once by the permit holder to (B) For non-Atlantic bluefin tuna, which it was issued to report on a spe- this information must be provided on cific export consignment. A permit the original paper consignment docu- holder must provide on the consignment that accompanied the consignment document the correct informa- ment. tion and exporter certification. The (3) Reporting requirements. (i) For fish consignment document must be vali- or fish products regulated under this dated, as specified in § 300.187, by subpart, except shark fins, that are entered for consumption and whose final NMFS, or another official authorized destination is within the United by NMFS. A list of such officials may States, which includes U.S. insular pos- be obtained by contacting NMFS. A sessions, a permit holder must submit permit holder requesting U.S. valida- an image of the original consignment tion for exports should notify NMFS as document that accompanied the fish soon as possible after arrival of the product as completed under paragraph vessel to avoid delays in inspection and (a)(2) of this section to CBP electroni- validation of the export consignment. cally through the ACE DIS. (i) For Atlantic bluefin tuna, this re- (ii) For Atlantic bluefin tuna, this requirement must be satisfied by elec- quirement must be satisfied electroni- tronic completion of a consignment cally by entering the specified informa- document in the ICCAT eBCD system, tion into the ICCAT eBCD system as unless NMFS provides otherwise

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through actual notice or FEDERAL REG- (2) Documentation requirements. (i) If a ISTER notice. In cases where the docu- permit holder re-exports a consignment mentation requirements have been of bluefin tuna, or subdivides or con- completed in the ICCAT eBCD system, solidates a consignment of fish or fish a reduced data set consisting of the products regulated under this subpart, eBCD number and the exporter trade other than shark fins, that was pre- permit number would suffice as an ex- viously entered for consumption as de- port filing, without need to submit any scribed in paragraph (c)(1) of this sec- forms in AES via DIS. tion, the permit holder must complete (ii) For non-Atlantic bluefin tuna, an original, approved, individually this requirement must be satisfied by numbered, species-specific re-export completion of a paper consignment certificate issued to that permit holder document, and electronic filing of an by NMFS for each re-export consign- image of such documentation and the ment. Such an individually numbered required data set with CBP via AES. document is not transferable and may (3) Reporting requirements. (i) A per- be used only once by the permit holder mit holder must ensure that the origi- to which it was issued to report on a nal, approved, consignment document specific re-export consignment. A per- as completed under paragraph (b)(2) of mit holder must provide on the re-ex- this section accompanies the export of port certificate the correct informa- such products to their export destination and re-exporter certification. The tion and must electronically file an permit holder must also attach the image of such documentation and the original consignment documentation required data set with CBP via AES. that accompanied the import consign- (ii) For Atlantic bluefin tuna, this re- ment or a copy of that documentation, quirement must be satisfied electroni- and must note on the top of both the cally by entering the specified informa- consignment documents and the re-ex- tion into the eBCD system as directed port certificates the entry number as- in paragraph (b)(2)(i) of this section, signed by CBP authorities at the time unless NMFS provides otherwise of filing the entry for the previously through actual notice or FEDERAL REG- imported consignment. An electronic ISTER notice. In cases where the docu- image of these documents and the re- mentation requirements have been quired data set must be filed electroni- completed in the ICCAT eBCD system, cally with CBP via AES at the time of a reduced data set consisting of the export. eBCD number and the exporter trade permit number would suffice as an ex- (A) For Atlantic bluefin tuna, these port filing without need to submit any requirements must be satisfied by elec- forms in AES via DIS. tronic completion of a re-export cer- (c) Re-exports—(1) Applicability of re- tificate in the ICCAT eBCD system, un- quirements. The documentation and re- less NMFS provides otherwise through porting requirements of this paragraph actual notice or FEDERAL REGISTER no- (c) apply to exports of fish or fish prod- tice. In cases where the documentation ucts regulated under this subpart, ex- requirements have been completed in cept shark fins, that were previously the ICCAT eBCD system, a reduced entered for consumption into the Cus- data set consisting of the eBCD number toms territory of the United States or and the exporter trade permit number the separate customs territory of a would suffice as a re-export filing, U.S. insular possession, through filing without need to submit any forms in the documentation specified in para- AES via DIS. graph (a) of this section. The require- (B) For non-Atlantic bluefin tuna, ments of this paragraph (c) do not these requirements must be satisfied apply to fish or fish products destined by completion of a paper re-export cer- from one foreign country to another tificate, and electronic filing of an which transit the United States or a image of such documentation and the U.S. insular possession and which are required data set with CBP via AES. designated as an entry type other than (ii) If a consignment of fish or fish entry for consumption as defined in products regulated under this subpart, § 300.181. except bluefin tuna or shark fins, that

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was previously entered for consump- port filing, without need to submit any tion as described in paragraph (c)(1) of forms in AES via DIS. this section is not subdivided into sub- (d) Document completion. To be consignments or consolidated with deemed complete, a consignment docu- other consignments or parts thereof, ment or re-export certificate must be for each such re-export consignment, a filled out according to the cor- permit holder must complete the inter- responding instructions for each docu- mediate importer’s certification on the ment with all requested information original consignment document and provided. note the entry number previously (e) Recordkeeping. A permit holder issued by CBP for the consignment at must retain at his or her principal the top of the document. Such re-exports do not need a re-export certifi- place of business, a copy of each con- cate and the re-export does not require signment document and re-export cer- validation. An electronic image of the tificate required to be submitted to consignment document with the com- NMFS pursuant to this section, and pleted intermediate importer’s certifi- supporting records for a period of 2 cation and the required data set must years from the date on which it was be filed electronically with CBP via submitted to NMFS. AES at the time of re-export. (f) Inspection. Any person responsible (iii) Re-export certificates must be for importing, exporting, storing, pack- validated, as specified in § 300.187, by ing, or selling fish or fish products reg- NMFS or another official authorized by ulated under this subpart, including NMFS. A list of such officials may be permit holders, consignees, customs obtained by contacting NMFS. A per- brokers, freight forwarders, and im- mit holder requesting validation for re- porters of record, shall be subject to exports should notify NMFS as soon as the inspection provisions at § 300.183(d). possible to avoid delays in inspection and validation of the re-export ship- [69 FR 67277, Nov. 17, 2004, as amended at 71 ment. Electronic re-export certificates FR 58163, Oct. 2, 2006; 73 FR 31386, June 2, created for Atlantic bluefin tuna using 2008; 74 FR 66586, Dec. 16, 2009; 81 FR 18799, the ICCAT eBCD system will be vali- Apr. 1, 2016; 81 FR 51135, Aug. 3, 2016] dated electronically. § 300.186 Completed and approved (3) Reporting requirements. (i) For each documents. re-export, a permit holder must submit the original of the completed re-export (a) NMFS-approved forms. A NMFS- certificate (if applicable) and the origi- approved consignment document or re- nal or a copy of the original consign- export certificate may be obtained ment document completed as specified from NMFS to accompany exports of under paragraph (c)(2) of this section, fish or fish products regulated under to the shipper to accompany the con- this subpart from the Customs terri- signment of such products to their re- tory of the United States or the sepa- export destination, and an image of rate customs territory of a U.S. insular such documentation and the required possession. data set must be filed electronically (b) Nationally approved forms from with CBP via AES. other countries. A nationally approved (ii) For Atlantic bluefin tuna, this re- form from another country may be quirement must be satisfied electroni- used for exports to the United States if cally by entering the specified informa- that document strictly conforms to the tion into the ICCAT eBCD system as information requirements and format directed in paragraph (c)(2)(i)(A) of this of the applicable RFMO documents. An section, unless NMF provides otherwise approved consignment document or re- through actual notice or FEDERAL REG- export certificate for use in countries ISTER notice. In cases where the documentation requirements have been without a nationally approved form to completed in the ICCAT eBCD system, accompany consignments to the United a reduced data set consisting of the States may be obtained from the fol- eBCD number and the exporter trade lowing websites, as appropriate: permit number would suffice as an ex-

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www.iccat.org, www.iattc.org, (e) Authorization for non-NMFS valida- www.ccsbt.org, or www.iotc.org. tion. An official from an organization or government agency seeking author- [61 FR 35550, July 5, 1996, as amended at 73 FR 31388, June 2, 2008; 81 FR 18800, Apr. 1, ization to validate consignment docu- 2016] ments or re-export certificates accompanying exports or re-exports from the § 300.187 Validation requirements. United States, which includes U.S. (a) Imports. The approved consign- commonwealths, territories, and pos- ment document accompanying any im- sessions, must apply in writing, to port of any fish or fish product regu- NMFS, at an address designated by lated under this subpart must be vali- NMFS for such authorization. The ap- dated by a government official from plication must indicate the procedures the issuing country, unless NMFS to be used for verification of informa- waives this requirement pursuant to an tion to be validated; list the names, ad- applicable RFMO recommendation. dresses, and telephone/fax numbers of NMFS will furnish a list of countries individuals to perform validation; pro- for which government validation re- cedures to be used to notify NMFS of quirements are waived to the appro- validations; and an example of the priate customs officials. Such list will stamp or seal to be applied to the con- indicate the circumstances of exemp- signment document or re-export cer- tion for each issuing country and the tificate. NMFS, upon finding the appli- non-government institutions, if any, cant capable of verifying the informa- accredited to validate statistical docu- tion required on the consignment documents and re-export certificates for ment or re-export certificate, will that country. issue, within 30 days, a letter speci- (b) Exports. The approved consign- fying the duration of effectiveness and ment document accompanying any ex- conditions of authority to validate con- port of fish or fish products regulated signment documents or re-export cer- under this subpart must be validated, tificates accompanying exports or re- except pursuant to a waiver described exports from the United States. The ef- in paragraph (d) of this section. Valida- fective date of such authorization will tion must be made by NMFS or an- be delayed as necessary for NMFS to other official authorized by NMFS. notify the appropriate RFMO of other (c) Re-exports. The approved re-export officials authorized to validate con- certificate accompanying any re-export signment document or re-export cer- of fish or fish products regulated under tificates. Non-government organiza- this subpart, as required under tions given authorization to validate § 300.185(c), must be validated, except consignment documents or re-export pursuant to a waiver described in para- certificates must renew such author- graph (d) of this section. Validation ization on a yearly basis. must be made by NMFS or another of- (f) BCD tags. The requirements of this ficial authorized by NMFS. paragraph apply to Pacific bluefin (d) Validation waiver. Any waiver of tuna. Requirements for tagging Atlan- government validation will be con- tic bluefin tuna are specified in § 635.5. sistent with applicable RFMO rec- (1) Issuance. NMFS will issue num- ommendations concerning validation bered BCD tags for use on Pacific of consignment documents and re-ex- bluefin tuna upon request to each per- port certificates. If authorized, such mit holder. waiver of government validation may (2) Transfer. BCD tags for use on Pa- include exemptions from government cific bluefin tuna issued under this sec- validation for Pacific bluefin tuna with tion are not transferable and are usable individual BCD tags affixed pursuant only by the permit holder to whom to paragraph (f) of this section or for they are issued. Atlantic bluefin tuna with tags affixed (3) Affixing BCD tags. At the discre- pursuant to § 635.5(b) of this title. Waiv- tion of permit holders, a tag issued ers will be specified on consignment under this section may be affixed to documents and re-export certificates or each Pacific bluefin tuna purchased or accompanying instructions, or in a let- received by the permit holder. If so ter to permit holders from NMFS. tagged, the tag must be affixed to the

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tuna between the fifth dorsal finlet and may be imported into the United the keel. States. (4) Removal of tags. A tag, as defined [73 FR 31388, June 2, 2008] in this subpart and affixed to any bluefin tuna, must remain on the tuna § 300.189 Prohibitions. until it is cut into portions. If the In addition to the prohibitions speci- bluefin tuna or bluefin tuna parts are fied in § 300.4, and §§ 600.725 and 635.71 of subsequently packaged for transport this title, it is unlawful for any person for domestic commercial use or for ex- subject to the jurisdiction of the port, the number of each dealer tag or United States to violate any provision BCD tag must be written legibly and of this part, the Atlantic Tunas Con- indelibly on the outside of any package vention Act, the Magnuson-Stevens containing the bluefin tuna or bluefin Act, the Tuna Conventions Act of 1950, tuna parts. Such tag number also must or any other rules promulgated under be recorded on any document accom- those Acts. It is unlawful for any per- panying the consignment of bluefin son or vessel subject to the jurisdiction tuna or bluefin tuna parts for commer- of the United States to: cial use or export. (a) Falsify information required on (5) Labeling. The number of a BCD tag an application for a permit submitted affixed to each Pacific bluefin tuna under § 300.322. under this section must be recorded on (b) Import as an entry for consump- NMFS reports required by § 300.183, on tion, purchase, receive for export, ex- any documents accompanying the con- port, or re-export any fish or fish prod- signment of Pacific bluefin tuna for do- uct regulated under this subpart with- mestic commercial use or export as in- out a valid trade permit issued under dicated in § 300.185, and on any addi- § 300.322. tional documents that accompany the (c) Fail to possess, and make avail- consignment (e.g., bill of lading, cus- able for inspection, a trade permit at toms manifest, etc.) of the tuna for the permit holder’s place of business, commercial use or for export. or alter any such permit as specified in (6) Reuse. BCD tags issued under this § 300.322. section are separately numbered and (d) Falsify or fail to record, report, or may be used only once, one tag per Pa- maintain information required to be cific bluefin tuna, to distinguish the recorded, reported, or maintained, as purchase of one Pacific bluefin tuna. specified in § 300.183 or § 300.185. Once affixed to a tuna or recorded on (e) Fail to allow an authorized agent any package, container or report, a of NMFS to inspect and copy reports BCD tag and associated number may and records, as specified in § 300.183 or not be reused. § 300.185. [61 FR 35550, July 5, 1996, as amended at 73 (f) Fail to comply with the docu- FR 31388, June 2, 2008; 81 FR 18801, Apr. 1, mentation requirements as specified in 2016] § 300.185, § 300.186 or § 300.187, for fish or fish products regulated under this sub- § 300.188 Ports of entry. part that are imported, entered for NMFS shall monitor the importation consumption, exported, or re-exported. of fish or fish products regulated under (g) Fail to comply with the docu- this subpart into the United States. If mentation requirements as specified in NMFS determines that the diversity of § 300.186, for the importation, entry for handling practices at certain ports at consumption, exportation, or re-expor- which fish or fish products regulated tation of an Atlantic swordfish, or part under this subpart are being imported thereof, that is less than the minimum into the United States allows for cir- size. cumvention of the consignment docu- (h) Validate consignment documents ment requirement, NMFS may under- or re-export certificates without au- take a rulemaking to designate, after thorization as specified in § 300.187. consultation with the CBP, those ports (i) Validate consignment documents at which fish or fish products regulated or re-export certificates as provided for under this subpart from any ocean area in § 300.187 with false information.

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(j) Remove any NMFS-issued num- SOURCE: 76 FR 2024, Jan. 12, 2011, unless bered tag affixed to any Pacific bluefin otherwise noted. tuna or any tag affixed to a bluefin tuna imported from a country with a § 300.200 Purpose and scope. BCD tag program before removal is al- The purpose of this subpart is to im- lowed under § 300.187; fail to write the plement the requirements in the High tag number on the shipping package or Seas Driftnet Fishing Moratorium Pro- container as specified in § 300.187; or tection Act (‘‘Moratorium Protection reuse any NMFS-issued numbered tag Act’’) to identify and certify nations affixed to any Pacific bluefin tuna, or whose vessels engaged in illegal, unre- any tag affixed to a bluefin tuna imported, or unregulated fishing; whose ported from a country with a BCD tag fishing activities result in bycatch of program, or any tag number previously protected living marine resources; or written on a shipping package or con- whose vessels engaged in fishing activi- tainer as prescribed by § 300.187. ties or practices on the high seas that (k) Import, or attempt to import, any target or incidentally catch sharks fish or fish product regulated under where the nation has not adopted a this subpart in a manner inconsistent regulatory program for the conserva- with any ports of entry designated by tion of sharks, comparable in effective- NMFS as authorized by § 300.188. ness to that of the United States, tak- (l) Ship, transport, purchase, sell, ing into account different conditions. offer for sale, import, enter for con- This language applies to vessels enti- sumption, export, re-export, or have in tled to fly the flag of the nation in custody, possession, or control any fish question. Where the Secretary of Com- or fish product regulated under this merce determines that an identified subpart that was imported, entered for nation has not taken the necessary ac- consumption, exported, or re-exported tions to warrant receipt of a positive contrary to this subpart. certification, the Secretary of Com- (m) Fail to electronically file via merce may recommend to the Presi- ACE a validated consignment docu- dent that the United States prohibit ment and the required data set for im- the importation of certain fish and fish ports at time of entry into the Customs products from the identified nation or territory of the United States of fish or other measures. The Secretary of Com- fish products regulated under this sub- merce will recommend to the President part except shark fins, regardless of appropriate measures, including trade whether the importer, exporter, or re- restrictive measures, to be taken exporter holds a valid trade permit against identified nations that have issued pursuant to § 300.322 or whether not received a positive certification, to the fish products are imported as an address the fishing activities or prac- entry for consumption. tices for which such nations were iden- (n) Import or accept an imported con- tified in the biennial report. The Sec- signment of fish or fish products regu- retary of Commerce will make such a lated under this subpart, except shark recommendation on a case-by-case fins, without an original, complete, ac- basis in accordance with international curate, approved and properly vali- obligations, including the World Trade dated, species-specific consignment Organization (WTO) Agreement. The document and re-export certificate (if Moratorium Protection Act also au- applicable) with the required informa- thorizes cooperation and assistance to tion and exporter’s certification com- nations to take action to combat ille- pleted. gal, unreported, or unregulated fishing, reduce bycatch of protected living ma- [61 FR 35550, July 5, 1996, as amended at 73 FR 31388, June 2, 2008; 81 FR 51136, Aug. 3, rine resources, and achieve shark con- 2016] servation. [78 FR 3342, Jan. 16, 2013] Subpart N—Identification and Certification of Nations § 300.201 Definitions. For the purposes of the Moratorium AUTHORITY: 16 U.S.C. 1826d et seq. Protection Act:

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Bycatch means: the incidental or dis- International agreement means: an carded catch of protected living marine agreement between two or more resources or entanglement of such re- States, agencies of two or more States, sources with fishing gear. or intergovernmental organizations Fishing vessel means: any vessel, boat, which is legally binding and governed ship, or other craft which is used for, by international law. equipped to be used for, or of a type International fishery management which is normally used for— agreement means: any bilateral or mul- (1) Fishing; or tilateral treaty, convention, or agree- (2) Any activity relating to fishing, ment for the conservation and manage- including, but not limited to, prepara- ment of fish. tion, supply, storage, refrigeration, International fishery management orga- transportation, or processing, bun- nization means: an international orga- kering or purchasing catch, or aiding nization established by any bilateral or or assisting one or more vessels at sea multilateral treaty, convention, or in the performance of such activity. agreement for the conservation and Illegal, unreported, or unregulated management of fish. (IUU) fishing means: Protected living marine resources (1) In the case of parties to an inter- (PLMRs) means: non-target fish, sea national fishery management agree- turtles, or marine mammals that are ment to which the United States is a protected under United States law or party, fishing activities that violate international agreement, including the conservation and management meas- Marine Mammal Protection Act, the ures required under an international Endangered Species Act, the Shark fishery management agreement to Finning Prohibition Act, and the Con- which the United States is a party, in- vention on International Trade in En- cluding but not limited to catch limits dangered Species of Wild Flora and or quotas, capacity restrictions, by- Fauna; but they do not include species, catch reduction requirements, shark except sharks, that are managed under conservation measures, and data re- the Magnuson-Stevens Fishery Con- porting; servation and Management Act, the (2) In the case of non-parties to an Atlantic Tunas Convention Act, or by international fishery management any international fishery management agreement to which the United States agreement. is a party, fishing activities that would [76 FR 2024, Jan. 12, 2011, as amended at 78 undermine the conservation of the re- FR 3342, Jan. 16, 2013] sources managed under that agreement; § 300.202 Identification and certifi- (3) Overfishing of fish stocks shared cation of nations engaged in illegal, by the United States, for which there unreported, or unregulated fishing are no applicable international con- activities. servation or management measures, or (a) Procedures to identify nations whose in areas with no applicable inter- fishing vessels are engaged in IUU fishing national fishery management organiza- (1) NMFS will identify and list, in a bi- tion or agreement, that has adverse ennial report to Congress, nations impacts on such stocks; or, whose fishing vessels are engaged, or (4) Fishing activity that has a signifi- have been engaged at any point during cant adverse impact on seamounts, hy- the preceding two years, in IUU fish- drothermal vents, cold water corals ing. and other vulnerable marine eco- (2) When determining whether to systems located beyond any national identify a nation as having fishing ves- jurisdiction, for which there are no ap- sels engaged in IUU fishing, NMFS will plicable conservation or management take into account all relevant matters, measures or in areas with no applicable including but not limited to the his- international fishery management or- tory, nature, circumstances, extent, ganization or agreement. duration, and gravity of the IUU fish- (5) Fishing activities by foreign ing activity in question, and any meas- flagged vessels in U.S. waters without ures that the nation has implemented authorization of the United States. to address the IUU fishing activity.

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NMFS will also take into account the IUU fishing activities described in whether an international fishery man- the biennial report. agement organization exists with a (d) Procedures to certify nations identi- mandate to regulate the fishery in fied as having fishing vessels engaged in which the IUU activity in question IUU fishing. Each nation that is identi- takes place. If such an organization ex- fied as having fishing vessels engaged ists, NMFS will consider whether the in IUU fishing shall receive either a relevant international fishery manage- positive or a negative certification ment organization has adopted meas- from the Secretary of Commerce, and ures that are effective at addressing this certification will be published in the IUU fishing activity in question the biennial report to Congress. A posi- and, if the nation whose fishing vessels tive certification indicates that a na- are engaged, or have been engaged, in tion has taken appropriate corrective IUU fishing is a party to, or maintains action to address the IUU fishing activ- cooperating status with, the organiza- ity described in the biennial report. A tion. NMFS will also take into account negative certification indicates that a any actions taken or on-going pro- nation has not taken appropriate cor- ceedings by the United States and/or rective action. flag State to address the IUU fishing (1) The Secretary of Commerce shall activity of concern as well as the effec- issue a positive certification to an tiveness of such actions. identified nation upon making a deter- (b) Notification of nations identified as mination that such nation has taken having fishing vessels engaged in IUU appropriate corrective action to ad- fishing. Upon identifying a nation dress the activities for which such na- whose vessels have been engaged in tion has been identified in the biennial IUU fishing activities in the biennial report to Congress. When making such report to Congress, the Secretary of determination, the Secretary shall Commerce will notify the President of take into account the following: such identification. Within 60 days (i) Whether the government of the after submission of the biennial report nation identified pursuant to para- to Congress, the Secretary of Com- graph (a) of this section has provided merce, acting through or in consulta- evidence documenting that it has tion with the Secretary of State, will: taken corrective action to address the (1) Notify nations that have been IUU fishing activity described in the identified in the biennial report as hav- biennial report; ing fishing vessels that are currently (ii) Whether the relevant inter- engaged, or were engaged at any point national fishery management organiza- during the preceding two calendar tion has adopted and, if applicable, the years, in IUU fishing activities; identified member nation has imple- (2) Notify identified nations of the re- mented and is enforcing, measures to quirements under the Moratorium Pro- effectively address the IUU fishing ac- tection Act and this subpart; and tivity of the identified nation’s fishing (3) Notify any relevant international vessels described in the biennial report; fishery management organization of (iii) Whether the United States has actions taken by the United States to taken enforcement action to effec- identify nations whose fishing vessels tively address the IUU fishing activity are engaged in IUU fishing and initiate of the identified nation described in consultations with such nations. the biennial report; and (c) Consultation with nations identified (iv) Whether the identified nation has as having fishing vessels engaged in IUU cooperated in any action taken by the fishing. Within 60 days after submission United States to address the IUU fish- of the biennial report to Congress, the ing activity described in the biennial Secretary of Commerce, acting through report. or in cooperation with the Secretary of (2) Prior to a formal certification de- State, will initiate consultations with termination, nations will be provided nations that have been identified in the with preliminary certification deter- biennial report for the purpose of en- minations and an opportunity to sup- couraging such nations to take appro- port and/or refute the preliminary de- priate corrective action with respect to terminations and communicate any

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corrective actions taken to address the in effectiveness to those of the United activities for which such nations were States, NMFS will evaluate if different identified. The Secretary of Commerce conditions exist that could bear on the shall consider any information re- feasibility and efficiency of such meas- ceived during the course of these con- ures to end or reduce bycatch of the sultations when making the subse- pertinent PLMRs. quent certification determinations. (b) Notification of nations identified as [76 FR 2024, Jan. 12, 2011, as amended at 78 having fishing vessels engaged in PLMR FR 3343, Jan. 16, 2013] bycatch. Upon identifying a nation whose vessels have been engaged in by- § 300.203 Identification and certifi- catch of PLMRs in the biennial report cation of nations engaged in by- to Congress, the Secretary of Com- catch of protected living marine resources. merce will notify the President of such identification. Within 60 days after (1) NMFS will identify and list, in the submission of the biennial report to biennial report to Congress nations— Congress, the Secretary of Commerce, (i) whose fishing vessels are engaged, acting through or in consultation with or have been engaged during the preceding calendar year prior to publica- the Secretary of State, will notify tion of the biennial report to Congress, identified nations about the require- in fishing activities or practices either ments under the Moratorium Protec- in waters beyond any national jurisdiction Act and this subpart. tion that result in bycatch of a PLMR, (c) Consultations and negotiations. or in waters beyond the U.S. EEZ that Upon submission of the biennial report result in bycatch of a PLMR that is to Congress, the Secretary of Com- shared by the United States; merce, acting through or in consulta- (ii) if the nation is a party to or tion with the Secretary of State, will: maintains cooperating status with the (1) Initiate consultations within 60 relevant international organization days after submission of the biennial with jurisdiction over the conservation report to Congress with the govern- and protection of the relevant PLMRs, ments of identified nations for the pur- or a relevant international or regional poses of encouraging adoption of a reg- fishery organization, and the organiza- ulatory program for protected living tion has not adopted measures to effec- marine resources that is comparable in tively end or reduce bycatch of such effectiveness to that of the United species; and States, taking into account different (iii) the nation has not implemented conditions, and establishment of a measures designed to end or reduce management plan that assists in the such bycatch that are comparable in collection of species-specific data; effectiveness to U.S. regulatory re- (2) Seek to enter into bilateral and quirements, taking into account dif- multilateral treaties with such nations ferent conditions that could bear on to protect the PLMRs from bycatch ac- the feasibility and efficacy of comparable measures. tivities described in the biennial re- (2) When determining whether to port; and identify nations as having fishing ves- (3) Seek agreements through the ap- sels engaged in PLMR bycatch, NMFS propriate international organizations will take into account all relevant calling for international restrictions matters including, but not limited to, on the fishing activities or practices the history, nature, circumstances, ex- described in the biennial report that tent, duration, and gravity of the by- result in bycatch of PLMRs and, as catch activity in question. necessary, request the Secretary of (3) NMFS will also examine whether State to initiate the amendment of any the nation has implemented measures existing international treaty to which designed to end or reduce such bycatch the United States is a party for the that are comparable in effectiveness to protection and conservation of the U.S. regulatory requirements. In con- PLMRs in question to make such sidering whether a nation has imple- agreements consistent with this sub- mented measures that are comparable part.

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(d) International cooperation and as- the collection of species-specific data sistance. To the greatest extent pos- on PLMR bycatch to support inter- sible, consistent with existing author- national stock assessments and con- ity and the availability of funds, the servation efforts for PLMRs. Secretary shall: (2) Nations will be notified prior to a (1) Provide appropriate assistance to formal certification determination and nations identified by the Secretary will be provided with an opportunity to under paragraph (a) of this section and support and/or refute preliminary cer- international organizations of which tification determinations, and commu- those nations are members to assist nicate any corrective actions taken to those nations in qualifying for a posi- address the activities for which such tive certification under paragraph(e) of nations were identified. The Secretary this section; of Commerce shall consider any infor- (2) Undertake, where appropriate, co- mation received during the course of operative research activities on species these consultations when making the assessments and improved bycatch subsequent certification determina- mitigation techniques, with those nations. tions or organizations; [76 FR 2024, Jan. 12, 2011, as amended at 78 (3) Encourage and facilitate the FR 3343, Jan. 16, 2013] transfer of appropriate technology to those nations or organizations to assist § 300.204 Identification and certifi- those nations in qualifying for positive cation of nations whose vessels are certification under paragraph (e) of engaged in shark catch. this section; and (a) Procedures to identify nations if (4) Provide assistance to those na- fishing vessels of that nation are engaged tions or organizations in designing and in fishing activities or practices in waters implementing appropriate fish har- beyond any national jurisdiction that tar- vesting plans. get or incidentally catch sharks during (e) Procedures to certify nations identi- the preceding calendar year. (1) NMFS fied as having fishing vessels engaged in will identify and list in the biennial re- PLMR bycatch. (1) Each nation that is port to Congress nations— identified as having fishing vessels en- (i) Whose fishing vessels are engaged, gaged in PLMR bycatch shall receive or have been engaged during the cal- either a positive or a negative certifi- endar year prior to publication of the cation from the Secretary of Com- biennial report to Congress, in fishing merce, and this certification will be activities or practices in waters beyond published in the biennial report to Con- any national jurisdiction that target or gress. The Secretary of Commerce incidentally catch sharks; and shall issue a positive certification to (ii) Where that nation has not adopt- an identified nation upon making a de- ed a regulatory program to provide for termination that: the conservation of sharks, including (i) Such nation has provided evidence measures to prohibit removal of any of documenting its adoption of a regu- the fins of a shark (including the tail) latory program to end or reduce by- and discard the carcass of the shark at catch of such PLMRs that is com- sea, that is comparable in effectiveness parable in effectiveness to regulatory to that of the United States, taking measures required under U.S. law to into account different conditions, in- address bycatch in the relevant fish- cluding conditions that could bear on eries, taking into account different the feasibility and effectiveness of conditions that could bear on the feasi- measures. bility and efficacy of these measures, (2) When determining whether to and which, in the case of an identified identify nations for these activities, nation with fishing vessels engaged in NMFS will take into account all rel- pelagic longline fishing, includes the evant matters including, but not lim- mandatory use of circle hooks, careful ited to, the history, nature, cir- handling and release equipment, train- cumstances, duration, and gravity of ing and observer programs; and the fishing activity of concern. (ii) Such nation has established a (b) Notification of nations identified as management plan that will assist in having fishing vessels engaged in fishing

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activities or practices that target or inci- those nations in qualifying for a posi- dentally catch sharks. Upon identifying tive certification under paragraph (e) in the biennial report to Congress a na- of this section; tion whose vessels engaged in fishing (2) Undertake, where appropriate, co- activities or practices in waters beyond operative research activities on species any national jurisdiction that target or assessments and harvesting techniques incidentally catch sharks, the Sec- aimed at mitigating or eliminating the retary of Commerce will notify the non-target catch of sharks, with those President of such identification. With- nations or organizations; in 60 days after submission of the bien- (3) Encourage and facilitate the nial report to Congress, the Secretary transfer of appropriate technology to of Commerce, acting through or in con- those nations or organizations to assist sultation with the Secretary of State, those nations in qualifying for positive will notify identified nations about the certification under paragraph (e) of requirements under the Moratorium this section; and Protection Act and this subpart N. (4) Provide assistance to those na- (c) Consultations and negotiations. tions or organizations in designing, im- Upon submission of the biennial report plementing, and enforcing appropriate to Congress, the Secretary of Com- fish harvesting plans for the conserva- merce, acting through or in consultation and sustainable management of tion with the Secretary of State, will: sharks. (1) Initiate consultations within 60 (e) Procedures to certify nations identi- days after submission of the biennial fied as having fishing vessels engaged in report to Congress with the govern- fishing activities or practices that target ments of identified nations for the pur- or incidentally catch sharks. Each nation poses of encouraging adoption of a reg- that is identified as having fishing ves- ulatory program for the conservation sels engaged in fishing activities or of sharks that is comparable in effec- practices in waters beyond any na- tiveness to that of the United States, tional jurisdiction that target or inci- taking into account different condi- dentally catch sharks and has not tions, and establishment of a manage- adopted a regulatory program for the ment plan that assists in the collection conservation of sharks, including of species-specific data; measures to prohibit removal of any of (2) Seek to enter into bilateral and the fins of a shark (including the tail) multilateral treaties or other arrange- and discard the carcass of the shark at ments with such nations to protect sea, that is comparable to that of the sharks; and United States, taking into account dif- (3) Seek agreements through the ap- ferent conditions, shall receive either a propriate international organizations positive or a negative certification calling for international restrictions from the Secretary of Commerce. This on the fishing activities or practices certification will be published in the described in the biennial report and, as biennial report to Congress. The Sec- necessary, request the Secretary of retary of Commerce shall issue a posi- State to initiate the amendment of any tive certification to an identified na- existing international treaty to which tion upon making a determination the United States is a party for the that: conservation of sharks to make such (1) Such nation has provided evidence agreements consistent with this sub- documenting its adoption of a regu- part. latory program for the conservation of (d) International Cooperation and As- sharks that is comparable in effective- sistance. To the greatest extent pos- ness to regulatory measures required sible, consistent with existing author- under U.S. law in the relevant fish- ity and the availability of funds, the eries, taking into account different Secretary shall: conditions, including conditions that (1) Provide appropriate assistance to could bear on the feasibility and effec- nations identified by the Secretary tiveness of measures; and such nation under paragraph (a) of this section and has established a management plan international organizations of which that will assist in the collection of spe- those nations are members to assist cies-specific data on sharks to support

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international stock assessments and taliated against the United States as a conservation efforts for sharks. result of that prohibition. The Sec- (2) Prior to a formal certification de- retary of Commerce shall certify to the termination, nations will be provided President each affirmative determina- with preliminary certification deter- tion that an import prohibition is in- minations, and an opportunity to sup- sufficient to cause a nation to effec- port and/or refute the preliminary de- tively address such IUU fishing activ- terminations, and communicate ac- ity, bycatch, or shark catch or that a tions taken to adopt a regulatory pro- nation has taken retaliatory action gram that is comparable in effective- against the United States. This certifi- ness to that of the United States, tak- cation is deemed to be a certification ing into account different conditions. under section 1978(a) of Title 22, which The Secretary of Commerce shall con- provides that the President may direct sider any relevant information re- the Secretary of the Treasury to pro- ceived during consultations when mak- hibit the bringing or the importation ing its formal certification determina- into the United States of any products tion. from the offending country for any duration as the President determines ap- [78 FR 3343, Jan. 16, 2013] propriate and to the extent that such § 300.205 Effect of certification. prohibition is sanctioned by the World Trade Organization. (a) If a nation identified under (e) Duration of certification. Any na- § 300.202(a), § 300.203(a), or § 300.204(a) tion identified in the biennial report to does not receive a positive certification Congress for having vessels engaged in under this subpart (i.e., the nation re- IUU fishing that is negatively certified ceives a negative certification or no will remain negatively certified until certification is made), the Secretary of the Secretary of Commerce determines Treasury shall, in accordance with rec- that the nation has taken appropriate ognized principles of international law: corrective action to address the IUU (1) Withhold or revoke the clearance required by section 91 of the appendix fishing activities for which it was iden- to Title 46 for the fishing vessels of tified in the biennial report. Any na- such nation; and tion identified in the biennial report to (2) Deny entry to the fishing vessels Congress for having vessels engaged in of such nation to any place in the PLMR bycatch or catch of sharks that United States and to the navigable wa- is negatively certified will remain neg- ters of the United States. atively certified until the Secretary of (b) Upon notification and any rec- Commerce determines that the nation ommendations by the Secretary of has taken the necessary actions pursu- Commerce to the President that an ant to the Moratorium Protection Act identified nation has failed to receive a to receive a positive certification. positive certification, the President is (f) Consultations. NMFS will, working authorized to direct the Secretary of through or in consultation with the the Treasury to prohibit the importa- Department of State, continue con- tion of certain fish and fish products sultations with nations that do not re- from such nation (see § 300.206). ceive a positive certification with re- (c) Any action recommended under spect to the fishing activities described paragraph (b) of this section shall be in the biennial report to Congress. The consistent with international obliga- Secretary of Commerce shall take the tions, including the WTO Agreement. results of such consultations into con- (d) If certain fish and fish products sideration when making a subsequent are prohibited from entering the certification determination for each United States, within six months after such nation. the imposition of the prohibition, the [78 FR 3344, Jan. 16, 2013] Secretary of Commerce shall determine whether the prohibition is insuffi- § 300.206 Denial of port privileges and cient to cause that nation to effec- import restrictions on fish or fish tively address the IUU fishing, by- products. catch, or shark catch described in the (a) Scope of applicability. (1) Vessels biennial report, or that nation has re- from a nation identified in the biennial

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report under § 300.202(a), § 300.203(a), or Commerce cannot make positive cer- § 300.204(a) and not positively certified tifications for identified nations, and by the Secretary of Commerce that the President determines that certain enter any place in the United States or fish and fish products from such na- the navigable waters of the United tions are ineligible for entry into the States remain subject to inspection United States and U.S. territories, the and may be prohibited from landing, Secretary of Commerce, in cooperation processing, or transshipping fish and with the Secretaries of Treasury, fish products, under applicable law. Homeland Security, and State, will file Services, including the refueling and a notice with the Office of the Federal re-supplying of such fishing vessels, Register. may be prohibited, with the exception (2) Certification of admissibility. If cer- of services essential to the safety, tain fish or fish products are subject to health, and welfare of the crew. Fish- import prohibitions, NMFS may pub- ing vessels will not be denied port ac- lish in the FEDERAL REGISTER the recess or services in cases of force quirement that, in addition to any majeure or distress. other import documentation require- (2) For nations identified in the pre- ments that otherwise apply, other fish vious biennial report under § 300.202(a) or fish products from the relevant na- that are not positively certified in the tion, that are not subject to the prohi- current biennial report, the Secretary bitions, offered for entry under this of Commerce shall so notify and make section must be accompanied by cer- recommendations to the President, tification of admissibility, for which a who is authorized to direct the Sec- form is available from NMFS. The cer- retary of Treasury to impose import tification of admissibility must be prohibitions with respect to fish and properly completed and signed by a fish products from those nations. Such duly authorized official of the identi- a recommendation would address the fied nation and validated by a respon- relevant fishing activities or practices sible official(s) designated by NMFS. for which such nations were identified The certification must be signed by the in the biennial report. Such import importer of record and submitted to prohibitions, if implemented, would NMFS in a format (electronic facsimile apply to fish and fish products managed under an applicable international (fax), the Internet, etc.) specified by fishery agreement. If there is no appli- NMFS. cable international fishery agreement, (3) Effective date of import restrictions. such prohibitions, if implemented, Effective upon the date of publication would only apply to fish and fish prod- of such finding, shipments of fish or ucts caught by vessels engaged in ille- fish products found to be ineligible will gal, unreported, or unregulated fishing. be denied entry to the United States. For nations identified under § 300.203(a) Entry will not be denied for any such or § 300.204(a) that are not positively shipment that, on the date of publica- certified, the Secretary of Commerce tion, was in transit to the United shall so notify and make recommenda- States. tions to the President, who is author- (4) Removal of negative certifications ized to direct the Secretary of Treas- and import restrictions. Upon a deter- ury to impose import prohibitions with mination by the Secretary of Com- respect to fish and fish products from merce that an identified nation that those nations; such prohibitions would was not certified positively has satis- only apply to fish and fish products factorily met the conditions in this caught by the vessels engaged in the subpart and that nation has been posi- relevant activity for which the nation tively certified, the provisions of was identified. § 300.206 shall no longer apply. The Sec- (3) Any action recommended under retary of Commerce, in cooperation paragraph (a)(2) shall be consistent with the Secretaries of Treasury, with international obligations, includ- Homeland Security, and State, will no- ing the WTO Agreement. tify such nations and will file with the (b) Imposition of import restrictions—(1) Office of the Federal Register for publi- Notification. Where the Secretary of cation notification of the removal of

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the import restrictions effective on the § 300.208 Alternative procedures for date of publication. nations identified as having vessels engaged in bycatch of PLMRs that [76 FR 2024, Jan. 12, 2011. Redesignated and are not certified in this subpart. amended at 78 FR 3343, 3345, Jan. 16, 2013] (a) These certification procedures § 300.207 Alternative procedures for may be applied to fish or fish products nations identified as having vessels from a vessel of a harvesting nation engaged in IUU fishing activities that has been identified under § 300.203 that are not certified in this sub- in the event that the Secretary cannot part. reach a certification determination for (a) These certification procedures that nation by the time of the next bi- may be applied to fish or fish products ennial report. These procedures shall from a vessel of a harvesting nation not apply to fish or fish products from that has been identified under § 300.202 identified nations that have received in the event that the Secretary cannot either a negative or a positive certifi- reach a certification determination for cation under this subpart. that nation by the time of the next bi- (b) Consistent with paragraph (a) of ennial report. These procedures shall this section, the Secretary of Com- not apply to fish or fish products from merce may allow entry of fish or fish identified nations that have received products on a shipment-by-shipment, either a negative or a positive certifi- shipper-by-shipper, or other basis if the cation under this subpart. Secretary determines that imports (b) Consistent with paragraph (a) of were harvested by practices that do not this section, the Secretary of Com- result in bycatch of a protected marine merce may allow entry of fish or fish species, or were harvested by practices products on a shipment-by-shipment, that— shipper-by-shipper, or other basis if the (1) Are comparable to those of the Secretary determines that: United States, taking into account dif- (1) The vessel has not engaged in IUU ferent conditions, and which, in the fishing under an international fishery case of pelagic longline fisheries, the management agreement to which the regulatory program of an identified na- U.S. is a party; or tion includes mandatory use of circle (2) The vessel is not identified by an hooks, careful handling and release international fishery management or- equipment, and training and observer ganization as participating in IUU fish- programs; and ing activities. (2) Include the gathering of species (c) In addition to any other import specific data that can be used to sup- documentation requirements that oth- port international and regional assess- erwise apply, fish and fish products of- ments and conservation efforts for pro- fered for entry under this section must tected living marine resources. be accompanied by certification of ad- (c) In addition to any other import missibility, for which a form is avail- documentation requirements that oth- able from NMFS. The certification of erwise apply, fish and fish products of- admissibility must be properly com- fered for entry under this section must pleted and signed by a duly authorized be accompanied by certification of ad- official of the identified nation and missibility, for which a form is avail- must be validated by a responsible offi- able from NMFS. The certification of cial(s) designated by NMFS. The cer- admissibility must be properly com- tification must also be signed by the pleted and signed by a duly authorized importer of record and submitted to official of the identified nation and NMFS in a format (electronic facsimile must be validated by a responsible offi- (fax), the Internet, etc.) specified by cial(s) designated by NMFS. The cer- NMFS. tification must also be signed by the (d) Any action recommended under importer of record and submitted to this section shall be consistent with NMFS in a format (electronic facsimile international obligations, including (fax), the Internet, etc.) specified by the WTO Agreement. NMFS. [76 FR 2024, Jan. 12, 2011. Redesignated and (d) Any action recommended under amended at 78 FR 3343, 3345, Jan. 16, 2013] this section shall be consistent with

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international obligations, including international obligations, including the WTO Agreement. the WTO Agreement. [76 FR 2024, Jan. 12, 2011. Redesignated and [78 FR 3346, Jan. 16, 2013] amended at 78 FR 3343, 3345, Jan. 16, 2013] Subpart O—Western and Central § 300.209 Alternative procedures for nations identified as having vessels Pacific Fisheries for Highly Mi- engaged in shark catch that are not gratory Species certified in this subpart. (a) These certification procedures SOURCE: 74 FR 38554, Aug. 4, 2009, unless may be applied to fish and fish prod- otherwise noted. ucts from a vessel of a harvesting na- AUTHORITY: 16 U.S.C. 6901 et seq. tion that has been identified under § 300.204 in the event that the Secretary § 300.210 Purpose and scope. cannot reach a certification determina- This subpart implements provisions tion for that nation by the time of the of the Western and Central Pacific next biennial report. These procedures Fisheries Convention Implementation shall not apply to fish and fish prod- Act (Act) and applies to persons and ucts from identified nations that have vessels subject to the jurisdiction of received either a negative or a positive the United States. certification under this subpart. (b) Consistent with paragraph (a) of § 300.211 Definitions. this section, the Secretary of Com- In addition to the terms defined in merce may allow entry of fish and fish § 300.2 and those in the Act and in the products on a shipment-by-shipment, Convention on the Conservation and shipper-by-shipper, or other basis if the Management of Highly Migratory Fish Secretary determines that imports Stocks in the Western and Central Pa- were harvested by fishing activities or cific Ocean, with Annexes (WCPF Con- practices that do not target or inciden- vention), which was adopted at Hono- tally catch sharks, or were harvested lulu, Hawaii, on September 5, 2000, by by practices that— the Multilateral High-Level Conference (1) Are comparable to those of the on Highly Migratory Fish Stocks in United States, taking into account dif- the Western and Central Pacific Ocean, the terms used in this subpart have the ferent conditions; and following meanings. (2) Include the gathering of species 1982 Convention means the United Na- specific shark data that can be used to tions Convention on the Law of the Sea support international and regional as- of 10 December 1982. sessments and conservation efforts for Active FAD is a FAD that is equipped sharks. with a buoy with a clearly marked ref- (c) In addition to any other import erence number allowing its identifica- documentation requirements that oth- tion and equipped with a satellite erwise apply, fish and fish products of- tracking system to monitor its posi- fered for entry under this section must tion. be accompanied by certification of ad- Aggregate or summary form means in- missibility, for which a form is avail- formation structured in such a way able from NMFS. The certification of which does not directly or indirectly admissibility must be properly com- disclose the identity or business of any pleted and signed by a duly authorized person who submits such information. official of the identified nation and Areas under the national jurisdiction of validated by a responsible official(s) the Parties to the Nauru Agreement designated by NMFS. The certification means the exclusive economic zones of must also be signed by the importer of the Parties to the Nauru Agreement. record and submitted to NMFS in a for- Commercial, with respect to commer- mat (electronic facsimile (fax), the cial fishing, means fishing in which the Internet, etc.) specified by NMFS. fish harvested, either in whole or in (d) Any action recommended under part, are intended to enter commerce this section shall be consistent with through sale, barter or trade.

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Commission means the Commission gitude; and 16° S. latitude and 161° W. for the Conservation and Management longitude. of Highly Migratory Fish Stocks in the Effort Limit Area for Purse Seine, or Western and Central Pacific Ocean es- ELAPS, means, within the area be- tablished in accordance with the WCPF tween 20° N latitude and 20° S latitude, Convention, including its employees areas within the Convention Area that and contractors. either are high seas or within the EEZ, Confidential information means any except for the Overlap Area. observer information or any informa- Fish aggregating device, or FAD, tion submitted to the Secretary, a means any artificial or natural floating State fishery management agency, or a object, whether anchored or not and Marine Fisheries Commission by any whether situated at the water surface person in compliance with any require- or not, that is capable of aggregating ment or regulation under the Act or fish, as well as any object used for that under the Magnuson-Stevens Fishery purpose that is situated on board a ves- Conservation and Management Act. sel or otherwise out of the water. The Conservation and management measure definition of FAD does not include a means those conservation and manage- vessel. ment measures adopted by the Com- Fishing means using any vessel, vehi- mission pursuant to Article 10 of the cle, aircraft or hovercraft for any of WCPF Convention. the following activities, or attempting Convention Area means all waters of to do so: the Pacific Ocean bounded to the south (1) Searching for, catching, taking, or and to the east by the following line: harvesting fish; From the south coast of Australia due (2) Engaging in any other activity south along the 141st meridian of east which can reasonably be expected to longitude to its intersection with the result in the locating, catching, tak- 55th parallel of south latitude; thence ing, or harvesting of fish for any pur- due east along the 55th parallel of pose; south latitude to its intersection with the 150th meridian of east longitude; (3) Placing, searching for, or recov- thence due south along the 150th me- ering fish aggregating devices or asso- ridian of east longitude to its intersec- ciated electronic equipment such as tion with the 60th parallel of south radio beacons; latitude; thence due east along the 60th (4) Engaging in any operations at sea parallel of south latitude to its inter- directly in support of, or in preparation section with the 130th meridian of west for, any of the activities previously de- longitude; thence due north along the scribed in paragraphs (1) through (3) of 130th meridian of west longitude to its this definition, including, but not lim- intersection with the 4th parallel of ited to, bunkering; south latitude; thence due west along (5) Engaging in transshipment at sea, the 4th parallel of south latitude to its either unloading or loading fish. intersection with the 150th meridian of Fishing day means, for fishing vessels west longitude; thence due north along equipped with purse seine gear, any the 150th meridian of west longitude. day in which a fishing vessel searches Cooperating Non-Member means a non- for fish, deploys a FAD, services a Member of the Commission that has FAD, or sets a purse seine, with the ex- been accorded Cooperating Non-Mem- ception of setting a purse seine solely ber status by the Commission at the for the purpose of testing or cleaning Commission’s most recent annual the gear and resulting in no catch. meeting. Fishing trip means a period that a Eastern High Seas Special Management fishing vessel spends at sea between Area means the area of the high seas port visits and during which any fish- within the area bounded by the four ing occurs. lines connecting, in the most direct Fishing vessel means any vessel used fashion, the coordinates specified as or intended for use for the purpose of follows: 11° S. latitude and 161° W. lon- fishing, including bunkering and other gitude; 11° S. latitude and 154° W. lon- support vessels, carrier vessels and gitude; 16° S. latitude and 154° W. lon- other vessels that unload or load fish

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in a transshipment, and any other ves- Member of the Commission means any sel directly involved in fishing. Contracting Party to the WCPF Con- Hawaiian Archipelago means the Main vention, and, unless otherwise stated and Northwestern Hawaiian Islands, in- in context, any territory that has been cluding Midway Atoll. authorized by an appropriate Con- High seas means the waters beyond tracting Party to participate in the the territorial sea or exclusive eco- Commission and its subsidiary bodies nomic zone (or the equivalent) of any pursuant to Article 43 of the WCPF nation, to the extent that such terri- Convention and any fishing entity that torial sea or exclusive economic zone has agreed to be bound by the regime (or the equivalent) is recognized by the established by the WCPF Convention United States. pursuant to Annex I of the WCPF Con- High seas fishing permit means a per- vention. mit issued under § 300.13. Highly migratory species (or HMS) Net sharing means the transfer of fish means any of the following species: that have not yet been loaded on board any fishing vessel from the purse seine Common name Scientific name net of one vessel to another fishing ves- Albacore ...... Thunnus alalunga. sel. Fish shall be considered to be on Pacific bluefin tuna Thunnus orientalis. board a fishing vessel once they are on Southern bluefin Thunnus maccoyii. a deck or in a hold, or once they are tuna. Bigeye tuna ...... Thunnus obesus. first lifted out of the water by the ves- Skipjack tuna ...... Katsuwonus pelamis. sel. Yellowfin tuna ...... Thunnus albacares. NOAA means the National Oceanic Little tuna ...... Euthynnus affinis. Frigate mackerel .... Auxis thazard; Auxis rochei. and Atmospheric Administration, De- Pomfrets ...... Family Bramidae. partment of Commerce. Marlins ...... Tetrapturus angustirostris; Tetrapturus Observer employer/observer provider audax; Makaira mazara; Makaira indica; Makaira nigricans. means any person that provides observ- Sail-fishes ...... Istiophorus platypterus. ers to fishing vessels, shoreside proc- Swordfish ...... Xiphias gladius. Dolphinfish ...... Coryphaena hippurus; Coryphaena essors, or stationary floating proc- equiselis. essors under a requirement of the Act Oceanic sharks ...... Hexanchus griseus; Cetorhinus or the Magnuson-Stevens Fishery Con- maximus; Family Alopiidae; servation and Management Act. Rhincodon typus; Family Carcharhinidae; Family Sphyrnidae; Observer information means any infor- Family Isuridae (or Lamnidae). mation collected, observed, retrieved, or created by an observer or electronic Longline gear means a type of fishing monitoring system pursuant to author- gear consisting of a main line that ex- ization by the Secretary, or collected ceeds 1 nautical mile in length, is sus- as part of a cooperative research initia- pended horizontally in the water col- tive, including fish harvest or proc- umn either anchored, floating, or at- essing observations, fish sampling or tached to a vessel, and from which weighing data, vessel logbook data, branch or dropper lines with hooks are vessel or processor-specific information attached; except that, within the pro- (including any safety, location, or op- tected species zone, longline gear erating condition observations), and means a type of fishing gear consisting video, audio, photographic, or written of a main line of any length that is suspended horizontally in the water col- documents. umn either anchored, floating, or at- Overlap Area means the area within ° tached to a vessel, and from which the Pacific Ocean bounded by 50 S branch or dropper lines with hooks are latitude, 4° S latitude, 150° W lon- attached, where ‘‘protected species gitude, and 130° W longitude. zone’’ is used as defined at § 665.12 of Pacific Islands Regional Administrator this title. means the Regional Administrator, Pa- Marine Fisheries Commission means cific Islands Region, NMFS, 1845 Wasp the Atlantic States Marine Fisheries Blvd., Bldg. 176, Honolulu, HI 96818, or Commission, the Gulf States Marine a designee. Fisheries Commission, or the Pacific Parties to the Nauru Agreement means States Marine Fisheries Commission. the parties to the Nauru Agreement

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Concerning Cooperation in the Man- § 300.212, supplementary to a valid high agement of Fisheries of Common Inter- seas fishing permit and expressed as an est, as specified on the Web site of the endorsement to such permit, for a fish- Parties to the Nauru Agreement at ing vessel used for commercial fishing www.pnatuna.com. for highly migratory species on the Person means any individual (wheth- high seas in the Convention Area. er or not a citizen or national of the WCPF Convention means the Conven- United States), any corporation, part- tion on the Conservation and Manage- nership, association, or other entity ment of Highly Migratory Fish Stocks (whether or not organized or existing in the Western and Central Pacific under the laws of any State), and any Ocean (including any annexes, amend- Federal, State, local, or foreign gov- ments, or protocols that are in force, ernment or any entity of any such gov- or have come into force, for the United ernment. States) that was adopted at Honolulu, Purse seine means a floated and Hawaii, on September 5, 2000, by the weighted encircling net that is closed Multilateral High-Level Conference on by means of a drawstring threaded Highly Migratory Fish Stocks in the through rings attached to the bottom Western and Central Pacific Ocean. of the net. WCPFC inspection vessel means any Special Agent-In-Charge (or SAC) vessel that is: means the Special-Agent-In-Charge, (1) Authorized by a member of the NOAA Office of Law Enforcement, Pa- Commission to be used to undertake cific Islands Division, 1845 Wasp Blvd., boarding and inspection of fishing ves- Bldg. 176, Honolulu, HI 96818; tel: 808– sels on the high seas pursuant to, and 725–6100; facsimile: 808–725–6199; email: in accordance with, Article 26 of the [email protected], or a designee. WCPF Convention and procedures es- State means each of the several tablished by the Commission pursuant States of the United States, the Dis- thereto; trict of Columbia, the Commonwealth (2) Included in the Commission’s reg- of the Northern Mariana Islands, ister of authorized inspection vessels American Samoa, Guam, and any other and authorities or inspectors, estab- commonwealth, territory, or posses- lished by the Commission in procedures sion of the United States. pursuant to Article 26 of the WCPF Transshipment means the unloading Convention; and of fish from on board one fishing vessel (3) Flying the WCPFC inspection flag and its direct transfer to, and loading established by the Commission. on board, another fishing vessel, either WCPFC inspector means a person that at sea or in port. Fish shall be consid- is authorized by a member of the Com- ered to be on board a fishing vessel mission to undertake boarding and in- once they are on a deck or in a hold, or spection of fishing vessels on the high once they are first lifted out of the seas pursuant to, and in accordance water by the vessel. Net sharing is not with, the boarding and inspection pro- a transshipment. cedures adopted by the Commission Vessel monitoring system (or VMS) under Article 26 of the WCPF Conven- means an automated, remote system tion, and referred to therein as a ‘‘duly that provides information about a ves- authorized inspector’’ or ‘‘authorized sel’s identity, location and activity, for inspector.’’ the purposes of routine monitoring, WCPFC Interim Register of Non-Mem- control, surveillance and enforcement ber Carrier and Bunker Vessels means, of area and time restrictions and other for the purposes of this subpart, the fishery management measures. WCPFC Interim Register of non-Mem- VMS unit, sometimes known as a ber Carrier and Bunker Vessels as es- ‘‘mobile transmitting unit,’’ means a tablished in the decisions of the transceiver or communications device, WCPFC and maintained on the including all hardware and software, WCPFC’s Web site at http:// that is carried and operated on a vessel www.wcpfc.int/. as part of a VMS. WCPFC observer means a person au- WCPFC Area Endorsement means the thorized by the Commission in accord- authorization issued by NMFS under ance with any procedures established

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by the Commission to undertake vessel from the Pacific Islands Regional Ad- observer duties as part of the Commis- ministrator, and submitting the com- sion’s Regional Observer Programme, plete and accurate application, signed including an observer deployed as part by the applicant, to the Pacific Islands of a NMFS-administered observer pro- Regional Administrator, along with gram or as part of another national or the required fees. sub-regional observer program, pro- (3) The application must be accom- vided that such program is authorized panied by a bow-to-stern side-view pho- by the Commission to be part of the tograph of the vessel in its current Commission’s Regional Observer Pro- form and appearance. The photograph gramme. must meet the specifications pre- WCPFC Record of Fishing Vessels scribed on the application form and means, for the purposes of this subpart, clearly show that the vessel is marked the WCPFC Record of Fishing Vessels in accordance with the vessel identi- as established in the decisions of the fication requirements of § 300.217. WCPFC and maintained on the (d) Fees. NMFS will charge a fee to WCPFC’s Web site at http:// recover the administrative expenses of www.wcpfc.int/. issuance of a WCPFC Area Endorse- WCPFC transshipment monitor means, ment. The amount of the fee will be de- with respect to transshipments that termined in accordance with the proce- take place on the high seas, a person dures of the NOAA Finance Handbook, authorized by the Commission to con- available from the Pacific Islands Re- duct transshipment monitoring on the gional Administrator, for determining high seas, and with respect to trans- administrative costs of each special shipments that take place in areas product or service. The fee is specified under the jurisdiction of a member of in the application form. The appro- the Commission other than the United priate fee must accompany each appli- States, a person authorized by such cation. Failure to pay the fee will pre- member of the Commission to conduct clude issuance of the WCPFC Area En- transshipment monitoring. dorsement. Payment by a commercial [72 FR 18405, Apr. 12, 2007, as amended at 74 instrument later determined to be in- FR 64010, Dec. 7, 2009; 75 FR 3347, Jan. 21, sufficiently funded is grounds for in- 2010; 77 FR 71509, Dec. 3, 2012; 78 FR 30778, validating the WCPFC Area Endorse- May 23, 2013; 79 FR 64110, Oct. 28, 2014; 80 FR ment. 8815, Feb. 19, 2015; 80 FR 59047, Oct. 1, 2015; 83 FR 33869, July 18, 2018; 85 FR 37388, June 22, (e) Issuance. (1) The Pacific Islands 2020] Regional Administrator will issue a WCPFC Area Endorsement within 30 § 300.212 Vessel permit endorsements. days of receipt of a complete applica- (a) Any fishing vessel of the United tion that meets the requirements of States used for commercial fishing for this section and upon payment of the HMS on the high seas in the Conven- appropriate fee. tion Area must have on board a valid (2) If an incomplete or improperly high seas fishing permit, or a copy completed application is submitted, thereof, that has a valid WCPFC Area the Pacific Islands Regional Adminis- Endorsement, or a copy thereof. trator will notify the applicant of such (b) Eligibility. Only a fishing vessel deficiency within 30 days of the date of that has a valid high seas fishing per- receipt of the application. If the appli- mit is eligible to receive a WCPFC cant fails to correct the deficiency and Area Endorsement. send a complete and accurate applica- (c) Application. (1) A WCPFC Area En- tion to the Pacific Islands Regional Ad- dorsement may be applied for at the ministrator within 30 days of the date same time the underlying high seas of the notification of deficiency, the permit is applied for, or at any time application will be considered with- thereafter. drawn and no further action will be (2) The owner or operator of a high taken to process the application. Fol- seas fishing vessel may apply for a lowing withdrawal, the applicant may WCPFC Area Endorsement by com- at any time submit a new application pleting an application form, available for consideration.

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(f) Validity. A WCPFC Area Endorse- tograph of the vessel in its current ment issued under this subpart expires form and appearance, and the photo- upon the expiration of the underlying graph must meet the specifications high seas fishing permit, and shall be prescribed on the application form. If void whenever the underlying high seas any of the submitted information fishing permit is void, suspended, sanc- changes, the vessel owner or operator tioned or revoked. A WCPFC Area En- must report the updated information dorsement is also subject to suspension to the Pacific Islands Regional Admin- or revocation independent of the high istrator in writing within 15 days of the seas fishing permit. Renewal of a change. WCPFC Area Endorsement prior to its (b) If any of the information or the expiration is the responsibility of the vessel photograph required under para- WCPFC Area Endorsement holder. graph (a) of this section has been sub- (g) Change in application information. mitted for the subject vessel on an ap- Any change in the required informa- plication for a high seas fishing permit tion provided in an approved or pend- or an application for a WCPFC Area ing application for a WCPFC Area En- Endorsement, then the requirements of dorsement must be reported by the ves- paragraph (a) of this section will be sel owner or operator to the Pacific Is- deemed satisfied. However, in order to lands Regional Administrator in writ- satisfy this requirement, the high seas ing within 15 days of such change. fishing permit or WCPFC Area En- (h) Transfer. A WCPFC Area Endorse- dorsement must be valid, the informa- ment issued under this subpart is valid tion provided must be true, accurate only for the vessel, owner, and high and complete, and in the case of a ves- seas fishing permit to which it is issued sel photograph, it must meet the speci- and is not transferable or assignable to fications prescribed on the form used another high seas fishing permit or to for the purpose of submitting the pho- another vessel. tograph under this section. (i) Display. A valid WCPFC Area En- [75 FR 3349, Jan. 21, 2010] dorsement, or a photocopy or facsimile copy thereof, issued under this subpart § 300.214 Compliance with laws of must be on board the vessel and avail- other nations. able for inspection by any authorized (a) The owner and operator of a fish- officer while the vessel is at sea and ing vessel of the United States with a must be available for inspection by any WCPFC Area Endorsement or for which WCPFC inspector while the vessel is on a WCPFC Area Endorsement is re- the high seas in the Convention Area. quired: [75 FR 3349, Jan. 21, 2010] (1) May not use the vessel for fishing, retaining fish on board, or landing fish § 300.213 Vessel information. in areas under the jurisdiction of a na- (a) The owner or operator of any fish- tion other than the United States un- ing vessel of the United States that is less any license, permit, or other au- used for fishing for HMS in the Conven- thorization that may be required by tion Area in waters under the jurisdic- such other nation for such activity has tion of any nation other than the been issued with respect to the vessel. United States must, prior to the com- (2) Shall, when the vessel is in the mencement of such fishing, submit to Convention Area in areas under the ju- the Pacific Islands Regional Adminis- risdiction of a member of the Commis- trator information about the vessel sion other than the United States, op- and its ownership and operation, and erate the vessel in compliance with, the authorized fishing activities, in- and ensure its crew complies with, the cluding copies of any permits, licenses, applicable national laws of such mem- or authorizations issued for such ac- ber. tivities, as specified on forms available (b) The owner and operator of a fish- from the Pacific Islands Regional Ad- ing vessel of the United States shall ministrator. The owner or operator of ensure that: such a fishing vessel must also submit (1) The vessel is not used for fishing to the Pacific Islands Regional Admin- for HMS, retaining HMS on board, or istrator a bow-to-stern side-view pho- landing HMS in the Convention Area in

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areas under the jurisdiction of a nation during the business day (8 a.m. to 5 other than the United States unless p.m. Hawaii Standard Time). If appli- any license, permit, or other authoriza- cable, notice may be provided in con- tion that may be required by such junction with the notice required under other nation for such activity has been § 665.803(a) of this title. issued with respect to the vessel. (c) Accommodating observers. (1) Fish- (2) If the vessel is used for commer- ing vessels specified in paragraphs cial fishing for HMS, including trans- (a)(1) and (2) of this section must carry, shipment of HMS, in the Convention when directed to do so by NMFS, a Area in areas under the jurisdiction of WCPFC observer on fishing trips dur- a member of the Commission other ing which the vessel at any time enters than the United States, the vessel is or is within any part of the Convention operated in compliance with, and the Area other than the Overlap Area. The vessel crew complies with, the applica- operator and each member of the crew ble laws of such member, including any of the fishing vessel shall act in accord- laws related to carrying vessel observ- ance with paragraphs (c)(3), (4), and (5) ers or the operation of VMS units. of this section with respect to any (c) For the purpose of this section, WCPFC observer. the meaning of transshipment does not include transfers that exclusively in- (2) Fishing vessels specified in para- volve fish that have been previously graph (a)(3) of this section must carry landed and processed. an observer when required to do so under paragraph (d) of this section, ex- [75 FR 3349, Jan. 21, 2010] cept for within the Overlap Area. The operator and each member of the crew § 300.215 Observers. of the fishing vessel shall act in accord- (a) Applicability. This section applies ance with paragraphs (c)(3), (4), and (5) to the following categories of fishing of this section, as applicable, with re- vessels: spect to any WCPFC observer. (1) Any fishing vessel of the United (3) The operator and crew shall allow States with a WCPFC Area Endorse- and assist WCPFC observers to: ment. (i) Embark at a place and time deter- (2) Any fishing vessel of the United mined by NMFS or otherwise agreed to States for which a WCPFC Area En- by NMFS and the vessel operator; dorsement is required. (ii) Have access to and use of all fa- (3) Any fishing vessel of the United States used for commercial fishing cilities and equipment as necessary to that receives or offloads in the Conven- conduct observer duties, including, but tion Area a transshipment of HMS at not limited to: Full access to the sea. bridge, the fish on board, and areas (b) Notifications. The owner or oper- which may be used to hold, process, ator of a vessel required to carry a weigh and store fish; full access to the WCPFC observer under paragraph (d) of vessel’s records, including its logs and this section during a given fishing trip documentation, for the purpose of in- must ensure the provision of notice to spection and copying; access to, and the Pacific Islands Regional Adminis- use of, navigational equipment, charts trator at least 72 hours (exclusive of and radios; and access to other infor- weekends and Federal holidays) before mation relating to fishing; the vessel leaves port on the fishing (iii) Remove samples; trip, indicating the need for an ob- (iv) Disembark at a place and time server. The notice must be provided to determined by NMFS or otherwise the office or telephone number des- agreed to by NMFS and the vessel oper- ignated by the Pacific Islands Regional ator; and Administrator and must include the of- (v) Carry out all duties safely. ficial number of the vessel, the name of (4) The operator shall provide the the vessel, the intended departure date, WCPFC observer, while on board the time, and location, the name of the op- vessel, with food, accommodation and erator of the vessel, and a telephone medical facilities of a reasonable number at which the owner, operator, standard equivalent to those normally or a designated agent may be contacted available to an officer on board the

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vessel, at no expense to the WCPFC ob- in the Overlap Area, and only includes server. fish caught in such waters; or (5) The operator and crew shall not (vi) The transshipment is an emer- assault, obstruct, resist, delay, refuse gency, as specified under § 300.216(b)(4). boarding to, intimidate, harass or (e) Related observer requirements. Ob- interfere with WCPFC observers in the servers deployed by NMFS pursuant to performance of their duties, or attempt regulations issued under other statu- to do any of the same. tory authorities on vessels used for (d) Transshipment observer coverage— fishing for HMS in the Convention (1) Receiving vessels. Any fishing vessel Area will be deemed by NMFS to have of the United States used for commer- been deployed pursuant to this section. cial fishing that receives in the Con- vention Area a transshipment of HMS [77 FR 71509, Dec. 3, 2012, as amended at 85 at sea must have a WCPFC observer on FR 37388, June 22, 2020] board during such transshipment un- § 300.216 Transshipping, bunkering less at least one of the following sets of and net sharing. conditions applies: (i) The vessel is less than or equal to (a) Transshipment monitoring. [Re- 33 meters in registered length, the served] transshipment does not include any (b) Restrictions on transshipping and fish caught by purse seine gear, the bunkering—(1) Restrictions on trans- transshipment does not include any shipments involving purse seine fishing frozen fish caught by longline gear, vessels. (i) Fish may not be trans- and, during the transshipment, there is shipped from a fishing vessel of the a WCPFC observer on board the vessel United States equipped with purse that offloads the transshipment; seine gear at sea in the Convention (ii) The transshipment takes place Area, and a fishing vessel of the United entirely within the territorial seas or States may not be used to receive a archipelagic waters of any nation, as transshipment of fish from a fishing defined by the domestic laws and regu- vessel equipped with purse seine gear lations of that nation and recognized at sea in the Convention Area. by the United States, or entirely with- (ii) Fish caught in the Convention in the Overlap Area, and only includes Area may not be transshipped from a fish caught in such waters; or fishing vessel of the United States (iii) The transshipment is an emer- equipped with purse seine gear at sea, gency, as specified under § 300.216(b)(4). and a fishing vessel of the United (2) Offloading vessels. Any fishing ves- States may not be used to receive a sel of the United States used for com- transshipment of fish caught in the mercial fishing that offloads a trans- Convention Area from a fishing vessel shipment of HMS at sea in the Conven- equipped with purse seine gear at sea. tion Area must have a WCPFC observer (2) Restrictions on at-sea trans- on board, unless one or more of the fol- shipments. If a transshipment takes lowing conditions apply: place entirely within the territorial (i) The vessel that receives the trans- seas or archipelagic waters of any na- shipment has a WCPFC observer on tion, as defined by the domestic laws board; and regulations of that nation and rec- (ii) The vessel that receives the ognized by the United States, or en- transshipment is greater than 33 me- tirely within the Overlap Area, and ters in registered length; only includes fish caught within such (iii) The transshipment includes fish waters, this paragraph does not apply. caught by purse seine gear; (i) The owner and operator of a fish- (iv) The transshipment includes fro- ing vessel of the United States used for zen fish caught by longline gear; commercial fishing that offloads or re- (v) The transshipment takes place ceives a transshipment of HMS at sea entirely within the territorial seas or in the Convention Area must ensure archipelagic waters of any nation, as that a WCPFC observer is on board at defined by the domestic laws and regu- least one of the vessels involved in the lations of that nation and recognized transshipment for the duration of the by the United States, or entirely with- transshipment.

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(ii) A fishing vessel of the United provisions is on the WCPFC Record of States used for commercial fishing Fishing Vessels; or that receives transshipments of HMS (C) The other vessel involved in the at sea in the Convention Area shall not bunkering or exchange of supplies or receive such transshipments from more provisions is on the WCPFC Interim than one vessel at a time unless there Register of Non-Member Carrier and is a separate WCPFC observer available Bunker Vessels. on either the offloading or receiving (4) Emergency transshipments. The re- vessel to monitor each additional strictions in paragraphs (b)(1), (b)(2), transshipment. and (b)(3)(i) of this section shall not (3) General restrictions on transshipping apply to a transshipment conducted and bunkering—(i) Transshipment. Only under circumstances of force majeure fishing vessels that are authorized to or other serious mechanical breakdown be used for fishing in the EEZ may en- that could reasonably be expected to gage in transshipment in the EEZ. Any threaten the health or safety of the fishing vessel of the United States used vessel or crew or cause a significant fi- for commercial fishing shall not be nancial loss through fish spoilage. used to offload or receive a trans- (c) Net sharing restrictions. (1) The shipment of HMS in the Convention owner and operator of a fishing vessel Area unless one or more of the fol- of the United States shall not conduct lowing is satisfied: net sharing in the Convention Area, ex- (A) The other vessel involved in the cept for within the Overlap Area, un- transshipment is flagged to a Member less all of the following conditions are or Cooperating Non-Member of the met: Commission; (i) The vessel transferring the fish is (B) The other vessel involved in the a fishing vessel of the United States transshipment is on the WCPFC Record equipped with purse seine gear; of Fishing Vessels; (ii) The vessel transferring the fish (C) The other vessel involved in the has insufficient well space for the fish; transshipment is on the WCPFC In- (iii) The vessel transferring the fish terim Register of Non-Member Carrier engages in no additional purse seine and Bunker Vessels; or sets during the remainder of the fish- (D) The transshipment takes place ing trip; and entirely within the territorial seas or (iv) The vessel accepting the fish is a archipelagic waters of any nation, as fishing vessel of the United States defined by the domestic laws and regu- equipped with purse seine gear. lations of that nation and recognized (2) Only fishing vessels of the United by the United States, or entirely with- States that are authorized to be used in the Overlap Area, and only includes for fishing in the EEZ may engage in fish caught within such waters. net sharing in the EEZ, subject to the (ii) Bunkering, supplying and provi- provisions of paragraph (c)(1) of this sioning. Only fishing vessels that are section. authorized to be used for fishing in the [77 FR 71510, Dec. 3, 2012, as amended at 85 EEZ may engage in bunkering in the FR 37389, June 22, 2020] EEZ. A fishing vessel of the United States used for commercial fishing for § 300.217 Vessel identification. HMS shall not be used to provide bun- (a) General. (1) A fishing vessel must kering, to receive bunkering, or to ex- be marked in accordance with the re- change supplies or provisions with an- quirements of this section in order for other vessel in the Convention Area, a WCPFC Area Endorsement to be except for the Overlap Area, unless one issued for the fishing vessel. or more of the following is satisfied: (2) Any fishing vessel of the United (A) The other vessel involved in the States with a WCPFC Area Endorse- bunkering or exchange of supplies or ment or for which a WCPFC Area En- provisions is flagged to a Member or a dorsement is required shall be marked Cooperating Non-Member of the Com- for identification purposes in accord- mission; ance with this section, and all parts of (B) The other vessel involved in the such markings shall be clear, distinct, bunkering or exchange of supplies or uncovered, and unobstructed.

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(3) Any boat, skiff, or other identification number scheme, is un- watercraft carried on board the fishing able to obtain an IMO number for the vessel shall be marked with the same fishing vessel, the fishing vessel owner identification markings as required may request an exemption from the re- under this section for the fishing vessel quirement from the Pacific Islands Re- and shall be marked in accordance with gional Administrator. The request this section. must be sent by mail to the Pacific Is- (b) Marking. (1) Vessels shall be lands Regional Administrator or by marked in accordance with the identi- email to [email protected] and must fication requirements of § 300.336(b)(2), include the vessel’s name, the vessel’s and if an IRCS has not been assigned to official number, a description of the the vessel, then the Federal, State, or steps taken to request an IMO number, other documentation number used in and a description of any responses from lieu of the IRCS must be preceded by the administrator of the IMO ship iden- the characters ‘‘USA’’ and a hyphen tification number scheme. (that is, ‘‘USA-’’). (4) Upon receipt of a request for an (2) With the exception of the vessel’s exemption under paragraph (c)(3) of name and hailing port, the marking re- this section, the Pacific Islands Re- quired in this section shall be the only gional Administrator will, to the ex- vessel identification mark consisting tent he or she determines appropriate, of letters and numbers to be displayed assist the fishing vessel owner in re- on the hull and superstructure. questing an IMO number. If the Pacific (c) IMO numbers. (1) For the purpose Islands Regional Administrator deter- of this section, an IMO number is the mines that it is infeasible or imprac- unique number issued for a vessel tical for the fishing vessel owner to ob- under the ship identification number tain an IMO number for the fishing ves- scheme established by the Inter- sel, he or she will issue an exemption national Maritime Organization or, for from the requirements of paragraph vessels that are not strictly subject to (c)(2) of this section for the subject that scheme, the unique number issued fishing vessel and its owner and notify by the administrator of that scheme the fishing vessel owner of the exemp- using the scheme’s numbering format, tion. The Pacific Islands Regional Ad- sometimes known as a Lloyd’s Register ministrator may limit the duration of number or LR number. the exemption. The Pacific Islands Re- (2) The owner of a fishing vessel of gional Administrator may rescind an the United States used for commercial exemption at any time. If an exemp- fishing for HMS in the Convention tion is rescinded, the fishing vessel Area, either on the high seas or in wa- owner must comply with the require- ters under the jurisdiction of any na- ments of paragraph (c)(2) of this section other than the United States, tion within 30 days of being notified of shall request and obtain an IMO num- the rescission. If the ownership of a ber for the vessel if the gross tonnage fishing vessel changes, an exemption of the vessel, as indicated on the ves- issued to the former fishing vessel sel’s current Certificate of Documenta- owner becomes void. tion issued under 46 CFR part 67, is at [75 FR 3350, Jan. 21, 2010, as amended at 76 least 100 GRT or 100 GT ITC. An IMO FR 73520, Nov. 29, 2011; 80 FR 59047, Oct. 1, number may be requested for a vessel 2015; 83 FR 33869, July 18, 2018] by following the instructions given by the administrator of the IMO ship iden- § 300.218 Reporting and recordkeeping tification number scheme; those in- requirements. structions are currently available on (a) Fishing reports—(1) General. The the Web site of IHS Maritime, at: owner or operator of any fishing vessel www.imonumbers.lrfairplay. com/de- of the United States used for commer- fault.aspx. cial fishing for HMS in the Pacific (3) In the event that the owner of a Ocean must maintain and report to fishing vessel subject to the require- NMFS catch and effort and other oper- ment of paragraph (c)(2) of this section, ational information for all such fishing after following the instructions given activities. The reports must include at by the administrator of the IMO ship a minimum: identification information

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for the vessel; description of fishing cies and amounts of fish retained and gear used; dates, times and locations of discarded. All information specified by fishing; and species and amounts of fish the Pacific Islands Regional Adminis- retained and discarded. trator on such forms must be recorded (2) Reporting options. Vessel owners on paper or electronically within 24 and operators shall be deemed to meet hours of the completion of each fishing the recordkeeping and reporting re- day. The information recorded must, quirements of paragraph (a)(1) of this for each fishing day, include a dated section by satisfying all applicable signature of the vessel operator or catch and effort reporting require- other type of authentication as speci- ments as listed below: fied by the Pacific Islands Regional Ad- (i) Western Pacific pelagic fisheries. ministrator. The vessel operator must, Fishing activities subject to the re- unless otherwise specified by the Pa- porting requirements of § 665.14 of this cific Islands Regional Administrator, title must be maintained and reported submit the information for each fishing in the manner specified in that section. day to the Pacific Islands Regional Ad- (ii) West Coast HMS fisheries. Fishing ministrator within 72 hours of the first activities subject to the reporting re- landing or port call after the fishing quirements of § 660.708(a) of this title day, and must submit the information must be maintained and reported in in the manner specified by the Pacific the manner specified in that section. Islands Regional Administrator. (iii) Pacific tuna fisheries. Fishing ac- (3) Exceptions. (i) Catch and effort in- tivities subject to the reporting re- formation for fishing activities that quirements of § 300.22 must be main- take place in waters under State juris- tained and reported in the manner diction must be maintained and re- specified in that section. ported only in cases where the report- (iv) South Pacific tuna fisheries. Fish- ing of such activity is required under ing activities subject to the reporting State law or under Federal regulations requirements of § 300.34(c)(1) must be at §§ 300.22 and 300.34, and §§ 660.708 and maintained and reported in the manner 665.14 of this title. specified in that section. (ii) Catch and effort information for (v) High seas fisheries. Fishing activi- fishing activities that take place in wa- ties subject to the reporting require- ters under Federal jurisdiction around ments of § 300.341 must be maintained American Samoa, Guam and the North- and reported in the manner specified in ern Mariana Islands need not be re- § 300.341(a). ported under this section unless report- (vi) Canada albacore fisheries. Fishing ing of such activity is required under activities subject to the reporting re- regulations in chapter VI of this title. quirements of § 300.174 must be main- (b) Transshipment reports. The owner tained and reported in the manner and operator of any fishing vessel of specified in that section. the United States used for commercial (vii) State-regulated fisheries. Catch fishing that offloads or receives a and effort information for fishing ac- transshipment of HMS in the Conven- tivities for which reporting of effort, tion Area, or a transshipment any- catch, and/or landings is required under where of HMS caught in the Conven- State law must be maintained and re- tion Area, must ensure that a transported in the manner specified under shipment report for the transshipment such State law. is completed, using a form that is (viii) Other fisheries. All other fishing available from the Pacific Islands Re- activities subject to the requirement of gional Administrator, and recording all paragraph (a)(1) of this section must be the information specified on the form. recorded on paper or electronic forms The owner and operator of the vessel specified or provided by the Pacific Is- must ensure that the transshipment re- lands Regional Administrator. Such port is completed and signed within 24 forms will specify the information re- hours of the completion of the trans- quired, which may include: Identifica- shipment, and must ensure that the re- tion information for the vessel; de- port is submitted as follows: scription of fishing gear used; dates, (1) For vessels licensed under § 300.32, times and locations of fishing; and spe- the original transshipment report is

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submitted to the address specified by trator no later than 72 hours after com- the Pacific Islands Regional Adminis- pletion of the transshipment. trator by the due date specified at (c) Exceptions to transshipment report- § 300.34(c)(2) for submitting the trans- ing requirements. Paragraph (b) of this shipment logsheet form to the Admin- section shall not apply to a trans- istrator as defined at § 300.31. shipment that takes place entirely (2) For vessels registered for use within the territorial seas or under § 660.707 of this title, the original archipelagic waters of any nation, as transshipment report is submitted to defined by the domestic laws and regu- the address specified by the Pacific Is- lations of that nation and recognized lands Regional Administrator by the by the United States, and only includes due date specified for the logbook form fish caught within such waters. at § 660.708 of this title. (d) Transshipment notices—(1) High (3) For vessels subject to the require- seas transshipments. The owner and op- ments of § 665.14(c) and § 665.801(e) of erator of a fishing vessel of the United this title, and not subject to the re- States used for commercial fishing quirements of paragraphs (b)(1) or that offloads or receives a trans- (b)(2) of this section, the original transshipment of HMS on the high seas in shipment report is submitted to the ad- the Convention Area, or a trans- dress specified by the Pacific Islands shipment of HMS caught in the Con- Regional Administrator by the due vention Area anywhere on the high date specified at § 665.14(c) of this title seas, and not subject to the require- for submitting transshipment logbooks ments of paragraph (d)(2) of this sec- to the Pacific Islands Regional Admin- tion, must ensure that a notice is sub- istrator for landings of western Pacific mitted to the Commission by fax or pelagic management unit species. email at least 36 hours prior to the start of such transshipment at the ad- (4) For all transshipments on the dress specified by the Pacific Islands high seas and emergency trans- Regional Administrator, and that a shipments that meet the conditions de- copy of that notice is submitted to scribed in § 300.216(b)(4), including NMFS at the address specified by the transshipments involving the cat- Pacific Islands Regional Administrator egories of vessels specified in para- at least 36 hours prior to the start of graphs (b)(1), (b)(2), and (b)(3) of this the transshipment. The notice must be section, the report is submitted by fax reported in the format provided by the or email to the address specified by the Pacific Islands Regional Administrator Pacific Islands Regional Administrator and must contain the following infor- no later than 10 calendar days after mation: completion of the transshipment. The (i) The name of the offloading vessel. report may be submitted with or with- (ii) The vessel identification mark- out signatures so long as the original ings located on the hull or super- transshipment report with signatures structure of the offloading vessel. is submitted to the address specified by (iii) The name of the receiving vessel. the Pacific Islands Regional Adminis- (iv) The vessel identification mark- trator no later than 15 calendar days ings located on the hull or super- after the vessel first enters into port or structure of the receiving vessel. 15 calendar days after completion of (v) The expected amount, in metric the transshipment for emergency tons, of fish product to be trans- transshipments in port. shipped, broken down by species and (5) For all other transshipments at processed state. sea, the original transshipment report (vi) The expected date or dates of the is submitted to the address specified by transshipment. the Pacific Islands Regional Adminis- (vii) The expected location of the trator no later than 72 hours after the transshipment, including latitude and vessel first enters into port. longitude to the nearest tenth of a de- (6) For all other transshipments in gree. port, the original transshipment report (viii) An indication of which one of is submitted to the address specified by the following areas the expected trans- the Pacific Islands Regional Adminis- shipment location is situated: high

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seas inside the Convention Area; high tual transshipment location is situ- seas outside the Convention Area; or ated: High seas inside the Convention an area under the jurisdiction of a par- Area; high seas outside the Convention ticular nation, in which case the na- Area; or an area under the jurisdiction tion must be specified. of a particular nation, in which case (ix) The expected amount of HMS to the nation must be specified. be transshipped, in metric tons, that (ix) The amount of HMS to be trans- was caught in each of the following shipped, in metric tons, that was areas: inside the Convention Area, on caught in each of the following areas: the high seas; outside the Convention inside the Convention Area, on the Area, on the high seas; and within high seas; outside the Convention Area, areas under the jurisdiction of par- on the high seas; and within areas ticular nations, with each such nation under the jurisdiction of particular na- and the associated amount specified. tions, with each such nation and the This information is not required if the associated amount specified. This in- reporting vessel is the receiving vessel. formation is not required if the report- (2) Emergency transshipments. The ing vessel is the receiving vessel. owner and operator of a fishing vessel (x) The reason or reasons for the of the United States used for commer- emergency transshipment (i.e., a trans- cial fishing for HMS that offloads or re- shipment conducted under cir- ceives a transshipment of HMS in the cumstances of force majeure or other Convention Area, or a transshipment of serious mechanical breakdown that HMS caught in the Convention Area could reasonably be expected to threat- anywhere, that is allowed under en the health or safety of the vessel or § 300.216(b)(4) but would otherwise be crew or cause a significant financial prohibited under the regulations in loss through fish spoilage). this subpart, must ensure that a notice (3) Location of high seas and emergency is submitted by fax or email to the transshipments. A high seas or emer- Commission at the address specified by gency transshipment in the Convention the Pacific Islands Regional Adminis- Area or of HMS caught in the Conven- trator, and a copy is submitted to tion Area anywhere subject to the noti- NMFS at the address specified by the fication requirements of paragraph Pacific Islands Regional Administrator (d)(1) or (d)(2) must take place within within twelve hours of the completion 24 nautical miles of the location for the of the transshipment. The notice must transshipment indicated in the notice be reported in the format provided by submitted under paragraph (d)(1)(vii) the Pacific Islands Regional Adminis- or (d)(2)(vii) of this section. trator and must contain the following (e) Purse seine discard reports. The information: owner and operator of any fishing ves- (i) The name of the offloading vessel. sel of the United States equipped with (ii) The vessel identification mark- purse seine gear must ensure that a re- ings located on the hull or super- port of any at-sea discards of any big- structure of the offloading vessel. eye tuna (Thunnus obesus), yellowfin (iii) The name of the receiving vessel. tuna (Thunnus albacares), or skipjack (iv) The vessel identification mark- tuna (Katsuwonus pelamis) caught in ings located on the hull or super- the Convention Area is completed, structure of the receiving vessel. using a form that is available from the (v) The expected or actual amount, in Pacific Islands Regional Adminis- metric tons, of fish product trans- trator, and recording all the informa- shipped, broken down by species and tion specified on the form. The report processed state. must be submitted within 48 hours (vi) The expected or actual date or after any discard to the Commission by dates of the transshipment. fax or email at the address specified by (vii) The expected or actual location the Pacific Islands Regional Adminis- of the transshipment, including lati- trator. A copy of the report must be tude and longitude to the nearest tenth submitted to NMFS at the address of a degree. specified by the Pacific Islands Re- (viii) An indication of which one of gional Administrator by fax or email the following areas the expected or ac- within 48 hours after any such discard.

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A hard copy of the report must be pro- laws and regulations of that nation and vided to the observer on board the ves- recognized by the United States. sel, if any. [75 FR 3350, Jan. 21, 2010, as amended at 77 (f) Net sharing reports—(1) Transferring FR 71511, Dec. 3, 2012; 79 FR 77943, Dec. 29, vessels. The owner and operator of a 2014; 80 FR 8815, Feb. 19, 2015; 80 FR 59048, fishing vessel of the United States Oct. 1, 2015; 83 FR 33869, July 18, 2018] equipped with purse seine gear that EFFECTIVE DATE NOTE: At 85 FR 37389, June transfers fish to another fishing vessel 22, 2020, § 300.218 was amended by revising equipped with purse seine gear under paragraphs (c), (d)(1) introductory text, (d)(2) § 300.216(c) shall ensure that the introductory text, and (e); adding introductory text to paragraph (f); and revising para- amount, by species, of fish transferred, graphs (g) and (h). These amendments are de- as well as the net sharing activity, is layed indefinitely. For the convenience of recorded on the catch report forms the user, the added and revised text is set maintained pursuant to § 300.34(c)(1), in forth as follows: the format specified by the Pacific Is- § 300.218 Reporting and recordkeeping re- lands Regional Administrator. quirements. (2) Accepting vessels. The owner and operator of a fishing vessel of the * * * * * United States equipped with purse (c) Exceptions to transshipment reporting re- seine gear that accepts fish from an- quirements. Paragraph (b) of this section other purse seine fishing vessel under shall not apply to a transshipment that § 300.216(c) shall ensure that the net takes place entirely within the Overlap Area sharing activity is recorded on the or within the territorial seas or archipelagic waters of any nation, as defined by the do- catch report forms maintained pursu- mestic laws and regulations of that nation ant to § 300.34(c)(1), in the format speci- and recognized by the United States, and fied by the Pacific Islands Regional Ad- only includes fish caught within such waters. ministrator. (d) * * * (g) Daily purse seine fishing effort re- (1) High seas transshipments. This section shall not apply to a transshipment that ports. If directed by NMFS, the owner takes place entirely within the Overlap Area or operator of any fishing vessel of the and only includes fish caught within such United States equipped with purse waters. The owner and operator of a fishing seine gear must report to NMFS, for vessel of the United States used for commer- the period and in the format and man- cial fishing that offloads or receives a transshipment of HMS on the high seas in the ner directed by the Pacific Islands Re- Convention Area or a transshipment of HMS gional Administrator, within 24 hours caught in the Convention Area anywhere on of the end of each day that the vessel the high seas and not subject to the require- is at sea in the Convention Area, the ments of paragraph (d)(2) of this section, activity of the vessel (e.g., setting, must ensure that a notice is submitted to transiting, searching), location and the Commission by fax or email at least 36 hours prior to the start of such trans- type of set, if a set was made during shipment at the address specified by the Pa- that day. cific Islands Regional Administrator, and (h) Whale shark encirclement reports. that a copy of that notice is submitted to The owner and operator of a fishing NMFS at the address specified by the Pacific vessel of the United States used for Islands Regional Administrator at least 36 hours prior to the start of the trans- commercial fishing in the Convention shipment. The notice must be reported in the Area that encircles a whale shark format provided by the Pacific Islands Re- (Rhincodon typus) with a purse seine in gional Administrator and must contain the the Convention Area shall ensure that following information: the incident is recorded by the end of the day on the catch report forms * * * * * maintained pursuant to § 300.34(c)(1), in (2) Emergency transshipments. This section the format specified by the Pacific Is- shall not apply to a transshipment that lands Regional Administrator. This takes place entirely within the Overlap Area paragraph does not apply to the terri- and only includes fish caught within such torial seas or archipelagic waters of waters. The owner and operator of a fishing vessel of the United States used for commer- any nation, as defined by the domestic cial fishing for HMS that offloads or receives

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a transshipment of HMS in the Convention the catch report forms maintained pursuant Area or a transshipment of HMS caught in to § 300.34(c)(1), in the format specified by the the Convention Area anywhere that is al- Pacific Islands Regional Administrator. This lowed under § 300.216(b)(4) but would other- paragraph (h) does not apply in the terri- wise be prohibited under the regulations in torial seas or archipelagic waters of any na- this subpart, must ensure that a notice is tion, as defined by the domestic laws and submitted by fax or email to the Commission regulations of that nation and recognized by at the address specified by the Pacific Is- the United States, or in the Overlap Area. lands Regional Administrator, and a copy is submitted to NMFS at the address specified § 300.219 Vessel monitoring system. by the Pacific Islands Regional Adminis- (a) SAC and VMS Helpdesk contact in- trator within 12 hours of the completion of the transshipment. The notice must be re- formation and business hours. For the ported in the format provided by the Pacific purpose of this section, the following Islands Regional Administrator and must contact information applies: contain the following information: (1) SAC. Address: 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818; telephone: * * * * * 808–725–6100; facsimile: 808–725–6199; email: [email protected]; business (e) Purse seine discard reports. The owner and operator of any fishing vessel of the hours: Monday through Friday, except United States equipped with purse seine gear Federal holidays, 8 a.m. to 4:30 p.m., must ensure that a report of any at-sea dis- Hawaii Standard Time. cards of any bigeye tuna (Thunnus obesus), (2) VMS Helpdesk. Telephone: 888–219– yellowfin tuna (Thunnus albacares), or skip- 9228; email: [email protected]; busi- jack tuna (Katsuwonus pelamis) caught in the ness hours: Monday through Friday, Convention Area, except for within the Over- except Federal holidays, 7 a.m. to 11 lap Area, is completed, using a form that is available from the Pacific Islands Regional p.m., Eastern Time. Administrator, and recording all the infor- (b) Applicability. This section applies mation specified on the form. The report to any fishing vessel of the United must be submitted within 48 hours after any States with a WCPFC Area Endorse- discard to the Commission by fax or email at ment or for which a WCPFC Area En- the address specified by the Pacific Islands dorsement is required. Regional Administrator. A copy of the report (c) Provision of vessel position informa- must be submitted to NMFS at the address tion—(1) VMS unit. The vessel owner specified by the Pacific Islands Regional Ad- ministrator by fax or email within 48 hours and operator shall install and maintain after any such discard. A hard copy of the re- on the fishing vessel, in accordance port must be provided to the observer on with instructions provided by the SAC board the vessel, if any. and the VMS unit manufacturer, a (f) Net sharing reports. This paragraph (f) VMS unit that is type-approved by does not apply to net sharing activity within NMFS for fisheries governed under the the Overlap Area. Act. The vessel owner and operator shall arrange for a NMFS-approved mo- * * * * * bile communications service provider (g) Daily purse seine fishing effort reports. If to receive and relay transmissions directed by NMFS, the owner or operator of from the VMS unit to NMFS. NMFS any fishing vessel of the United States makes available lists of type-approved equipped with purse seine gear must report VMS units and approved mobile com- to NMFS, for the period and in the format munications service providers. NMFS and manner directed by the Pacific Islands and the Commission are authorized to Regional Administrator, within 24 hours of the end of each day that the vessel is at sea receive and relay transmissions from in the Convention Area, except for within the VMS unit. the Overlap Area, the activity of the vessel (2) VMS unit activation. If the VMS (e.g., setting, transiting, searching), location unit has not yet been activated as de- and type of set, if a set was made during that scribed in this paragraph, or if the day. VMS unit has been newly installed or (h) Whale shark encirclement reports. The reinstalled, or if the mobile commu- owner and operator of a fishing vessel of the nications service provider has changed United States used for commercial fishing in the Convention Area that encircles a whale since the previous activation, or if di- shark (Rhincodon typus) with a purse seine in rected by the SAC, the vessel owner the Convention Area shall ensure that the and operator shall, prior to the vessel incident is recorded by the end of the day on leaving port:

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(i) Turn on the VMS unit to make it (i) If the vessel is at port: The vessel operational; owner or operator shall repair or re- (ii) Submit a written activation replace the VMS unit and ensure it is op- port, via mail, facsimile or e-mail, to erable before the vessel leaves port. the SAC, that includes: the vessel’s (ii) If the vessel is at sea: The vessel name; the vessel’s official number; the owner, operator, or designee shall con- VMS unit manufacturer and identifica- tact the SAC by telephone, facsimile, tion number; and telephone, facsimile or e-mail at the earliest opportunity or e-mail contact information for the during the SAC’s business hours and vessel owner or operator; and identify the caller and vessel. The ves- (iii) Receive verbal or written con- sel operator shall follow the instruc- firmation from the SAC that proper tions provided by the SAC, which could transmissions are being received from include, but are not limited to: ceasing the VMS unit. fishing, stowing fishing gear, returning (3) VMS unit operation. The vessel to port, and/or submitting periodic po- owner and operator shall continuously sition reports at specified intervals by operate the VMS unit at all times, ex- other means; and, repair or replace the cept that the VMS unit may be shut VMS unit and ensure it is operable be- down while the vessel is at port or oth- fore starting the next trip. erwise not at sea, provided that the (5) Related VMS requirements. Install- owner and operator: ing, carrying and operating a VMS unit (i) Prior to shutting down the VMS in compliance with the requirements in unit, report to the SAC or the NOAA part 300 of this title, part 660 of this Office of Law Enforcement’s VMS title, or part 665 of this title relating to Helpdesk via facsimile or e-mail, the the installation, carrying, and oper- following information: the intent to ation of VMS units shall be deemed to shut down the VMS unit; the vessel’s satisfy the requirements of paragraph name; the vessel’s official number; and (c) of this section, provided that the telephone, facsimile or e-mail contact VMS unit is operated continuously and information for the vessel owner or op- at all times while the vessel is at sea, erator; and the VMS unit is type-approved by (ii) When turning the VMS unit back NMFS for fisheries governed under the on, report to the SAC or the NOAA Of- Act, and the specific requirements of fice of Law Enforcement’s VMS paragraph (c)(4) of this section are Helpdesk, via mail, facsimile or e-mail, complied with. If the VMS unit is the following information: that the owned by NMFS, the requirement VMS unit has been turned on; the ves- under paragraph (c)(4) of this section to sel’s name; the vessel’s official number; repair or replace the VMS unit will be and telephone, facsimile or e-mail con- the responsibility of NMFS, but the tact information for the vessel owner vessel owner and operator shall be re- or operator; and sponsible for ensuring that the VMS (iii) Prior to leaving port, receive unit is operable before leaving port or verbal or written confirmation from starting the next trip. the SAC that proper transmissions are (d) Costs. The vessel owner and oper- being received from the VMS unit. ator shall be responsible for all costs (4) Failure of VMS unit. If the vessel associated with the purchase, installa- owner or operator becomes aware that tion and maintenance of the VMS unit, the VMS unit has become inoperable or and for all charges levied by the mobile that transmission of automatic posi- communications service provider as tion reports from the VMS unit has necessary to ensure the transmission of been interrupted, or if notified by automatic position reports to NMFS as NMFS or the USCG that automatic po- required in paragraph (c) of this sec- sition reports are not being received tion. However, if the VMS unit is being from the VMS unit or that an inspec- carried and operated in compliance tion of the VMS unit has revealed a with the requirements in part 300 of problem with the performance of the this title, part 660 of this title, or part VMS unit, the vessel owner and oper- 665 of this title relating to the installa- ator shall comply with the following tion, carrying, and operation of VMS requirements: units, the vessel owner and operator

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shall not be responsible for costs that the Convention Area, communications are the responsibility of NMFS under by telephone, facsimile, e-mail, or those regulations. radio to the Commission, in Pohnpei, (e) Tampering. The vessel owner and Micronesia. The VMS unit used to ful- operator shall ensure that the VMS fill the requirements of paragraph (c) unit is not tampered with, disabled, de- of this section may not be used to sat- stroyed, damaged or operated improp- isfy this requirement. The same com- erly, and that its operation is not im- munication device may be able to sat- peded or interfered with. isfy the requirements of both this para- (f) Inspection. The vessel owner and graph and paragraph (h)(1) of this sec- operator shall make the VMS unit, in- tion. cluding its antenna, connectors and an- [75 FR 3351, Jan. 21, 2010, as amended at 79 tenna cable, available for inspection by FR 64110, Oct. 28, 2014; 80 FR 59048, Oct. 1, authorized officers, by employees of 2015] the Commission, by persons appointed by the Executive Director of the Com- § 300.220 Confidentiality of informa- mission for this purpose, and, when the tion. vessel is on the high seas in the Con- (a) Types of information covered. vention Area, by WCPFC inspectors. NOAA is authorized under the Act and (g) Access to data. The vessel owner other statutes to collect and maintain and operator shall make the vessel’s information. This section applies to position data obtained from the VMS confidential information collected unit or other means immediately and under authority of the Act. always available for inspection by (b) Collection and maintenance of infor- NOAA personnel, USCG personnel, and mation—(1) General. (i) Any information authorized officers, and shall make the required to be submitted to the Sec- vessel’s position data for positions on retary, a State fishery management the high seas in the Convention Area agency, or a Marine Fisheries Commis- immediately and always available to sion under the Act shall be provided to WCPFC inspectors and the Commis- the Assistant Administrator. sion. (ii) Any observer information col- (h) Communication devices. (1) To fa- lected under the Act shall be provided cilitate communication with manage- to the Assistant Administrator. ment and enforcement authorities re- (iii) Appropriate safeguards as speci- garding the functioning of the VMS fied by NOAA Administrative Order unit and other purposes, the vessel op- (NAO) 216–100 or other NOAA/NMFS in- erator shall, while the vessel is at sea, ternal procedures, apply to the collec- carry on board and continuously mon- tion and maintenance of any informa- itor a two-way communication device tion collected pursuant to paragraphs that is capable of real-time commu- (b)(1) or (b)(2) of this section, whether nication with the SAC. The VMS unit separated from identifying particulars used to fulfill the requirements of or not, so as to ensure their confiden- paragraph (c) of this section may not tiality. Information submitted to the be used to satisfy this requirement. If Secretary in compliance with this sub- the device is anything other than a part shall not be disclosed except as radio, the contact number for the de- authorized herein or by other law or vice must be provided to the Pacific Is- regulation. lands Regional Administrator on the (2) Collection agreements with States or application form for the WCPFC Area Marine Fisheries Commissions. (i) The Endorsement in accordance with the Assistant Administrator may enter requirements of § 300.212. into an agreement with a State or a (2) For the purpose of submitting the Marine Fisheries Commission author- position reports that might be required izing the State or Marine Fisheries in cases of VMS unit failure under Commission to collect information on paragraph (c)(4)(ii) of this section, the behalf of the Secretary. vessel operator shall, while the vessel (ii) To enter into a cooperative col- is at sea, carry on board a communica- lection agreement with a State or a tion device capable of transmitting, Marine Fisheries Commission, NMFS while the vessel is on the high seas in must ensure that:

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(A) The State has authority to pro- (iii) The duration of time that access tect the information from disclosure in will be required: continuous, infre- a manner at least as protective as quent, or one-time; and these regulations. (iv) An explanation of why the avail- (B) The Marine Fisheries Commission ability of information in aggregate or has enacted policies and procedures to summary form from other sources protect the information from public would not satisfy the requested needs. disclosure. (2) Federal employees. Confidential in- (3) Collection services by observer em- formation will only be accessible to the ployer/observer provider. The Assistant following: Administrator shall make the fol- (i) Federal employees who are re- lowing determinations before issuing a sponsible for administering, imple- permit or letting a contract or grant to menting, or enforcing the Act. Such an organization that provides observer persons are exempt from the provisions services: of paragraph (c)(1) of this section. (i) That the observer employer/ob- (ii) NMFS employees responsible for server provider has enacted policies the collection, processing, and storage and procedures to protect the informa- of the information or performing re- tion from public disclosure; search that requires access to confidential information. Such persons are ex- (ii) That the observer employer/ob- empt from the provisions of paragraph server provider has entered into an (c)(1) of this section. agreement with the Assistant Adminis- (iii) Other NOAA employees on a de- trator that prohibits public disclosure monstrable need-to-know basis. and specifies penalties for such disclo- (iv) Persons that need access to con- sure; and fidential information to perform func- (iii) That the observer employer/ob- tions authorized under a Federal con- server provider requires each observer tract, cooperative agreement, or grant to sign an agreement with NOAA/ awarded by NOAA/NMFS. NMFS that prohibits public disclosure (3) Commission. (i) Confidential infor- of observer information and specifies mation will be subject to disclosure to penalties for such disclosure. the Commission, but only if: (c) Access to information—(1) General. (A) The information is required to be This section establishes procedures in- submitted to the Commission under tended to manage, preserve, and pro- the requirements of the WCPF Conven- tect the confidentiality of information tion or the decisions of the Commis- submitted in compliance with the Act sion; and its implementing regulations. This (B) The provision of such information section applies to those persons and or- is in accord with the requirements of ganizations deemed eligible to access the Act, the WCPF Convention, and the confidential information subject to the decisions of the Commission, including terms and conditions described in this any procedures, policies, or practices section and the Act. All other persons adopted by the Commission relating to requesting access to confidential infor- the receipt, maintenance, protection or mation should follow the procedures dissemination of information by the set forth in the Freedom of Informa- Commission; and tion Act, 5 U.S.C. 552, 15 CFR parts 15 (C) The provision of such information and 903, NAO 205–14, and Department of is in accord with any agreement be- Commerce Administrative Orders 205– tween the United States and the Com- 12 and 205–14, as applicable. Persons eli- mission that includes provisions to pre- gible to access confidential informa- vent public disclosure of the identity tion under this section shall submit to or business of any person. NMFS a written request with the fol- (ii) The provisions of paragraph (c)(1) lowing information: of this section do not apply to the re- (i) The specific types of information lease of confidential information to the requested; Commission. (ii) The relevance of the information (4) State employees. Confidential infor- to requirements of the Act; mation may be made accessible to a

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State employee only by written re- curity Act of 2002 (6 U.S.C. 468(a)(2)); quest and only upon the determination and by NMFS that at least one of the fol- (ii) The requesting agency has en- lowing conditions is met: tered into a written agreement with (i) The employee has a need for con- the Assistant Administrator. The fidential information to further the De- agreement shall contain a finding by partment of Commerce’s mission, and the Assistant Administrator that the the State has entered into a written requesting agency has confidentiality agreement between the Assistant Ad- policies and procedures to protect the ministrator and the head of the State’s information from public disclosure. agency that manages marine and/or (7) Observer and observer employer/ob- anadromous fisheries. The agreement server provider. Confidential informa- shall contain a finding by the Assistant tion used for purposes other than those Administrator that the State has con- contained in this subpart or in part 600 fidentiality protection authority com- of this title may only be used by ob- parable to the Act and that the State servers and observer employers/ob- will exercise this authority to prohibit server providers in order: public disclosure of the identity or (i) To adjudicate observer certifi- business of any person. cations; (ii) The employee enforces the Act or (ii) To allow the sharing of observer fishery management plans prepared information among the observers and under the authority of the Magnuson- between observers and observer em- Stevens Conservation and Management ployers/observer providers as necessary Act, and the State for which the em- to train and prepare observers for de- ployee works has entered into a fishery ployments on specific vessels; or enforcement agreement with the Sec- (iii) To validate the accuracy of the retary and the agreement is in effect. observer information collected. (5) Marine Fisheries Commission em- (8) Persons having access to confiden- ployees. Confidential information may tial information may be subject to be made accessible to Marine Fisheries criminal and civil penalties for unau- Commission employees only upon writ- thorized use or disclosure of confiden- ten request of the Marine Fisheries tial information. See 18 U.S.C. 1905, 16 Commission and only if the request U.S.C. 1857, and NOAA/NMFS internal demonstrates a need for confidential procedures, including NAO 216–100. information to further the Department (d) Control system. (1) The Assistant of Commerce’s mission, and the execu- Administrator maintains a control sys- tive director of the Marine Fisheries tem to protect the identity or business Commission has entered into a written of any person who submits information agreement with the Assistant Adminis- in compliance with any requirement or trator. The agreement shall contain a regulation under the Act. The control finding by the Assistant Administrator system: that the Marine Fisheries Commission (i) Identifies those persons who have has confidentiality protection policies access to the information; and procedures to protect from public (ii) Contains procedures to limit ac- disclosure information that would recess to confidential information to au- veal the identity or business of any thorized users; and person. (iii) Provides handling and physical (6) Homeland and national security ac- storage protocols for safeguarding of tivities. Confidential information may the information. be made accessible to Federal employ- (2) This system requires that all per- ees for purposes of promoting home- sons who have authorized access to the land security or national security at information be informed of the con- the request of another Federal agency fidentiality of the information. These only if: persons, with the exception of employ- (i) Providing the information pro- ees and contractors of the Commission, motes homeland security or national are required to sign a statement that security purposes including the USCG’s they: homeland security missions as defined (i) Have been informed that the infor- in section 888(a)(2) of the Homeland Se- mation is confidential; and

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(ii) Have reviewed and are familiar agement Councils established under with the procedures to protect con- the Magnuson-Stevens Fishery Con- fidential information. servation and Management Act, except (e) Release of information. (1) The As- as provided by law. sistant Administrator will not disclose to the public any confidential informa- [75 FR 3352, Jan. 21, 2010] tion, except: § 300.221 Facilitation of enforcement (i) When the Secretary has obtained and inspection. from the person who submitted the information an authorization to release In addition to the facilitation of en- the information to persons for reasons forcement provisions of § 300.5, the fol- not otherwise provided for in this sub- lowing requirements apply to this subpart. In situations where a person pro- part. vides information through a second (a) A fishing vessel of the United party, both parties are considered joint States with a WCPFC Area Endorse- submitters of information and either ment or for which a WCPFC Area En- party may request a release. The au- dorsement is required, including the thorization to release such information vessel’s operator and each member of will require: the vessel’s crew shall, when in the (A) A written statement from the Convention Area, be subject to the fol- person(s) who submitted the informa- lowing requirements: tion authorizing the release of the sub- (1) The Federal Certificate of Docu- mitted information; and mentation or State or other docu- (B) A finding by the Secretary that mentation for the vessel, or a copy such release does not violate other re- thereof, shall be carried on board the quirements of the Act or other applica- vessel. Any license, permit or other au- ble laws. thorization to use the vessel to fish, re- (ii) Observer information as author- tain fish, transship fish, or land fish ized by a fishery management plan issued by a nation or political entity (prepared under the authority of the other than the United States, or a copy Magnuson-Stevens Fishery Conserva- thereof, shall be carried on board the tion and Management Act) or regula- vessel. These documents shall be made tions under the authority of the North available for inspection by any author- Pacific Council to allow disclosure of ized officer. If the vessel is on the high observer information to the public of seas, the above-mentioned licenses, weekly summary bycatch information permits, and authorizations shall also identified by vessel or for haul-specific be made available for inspection by bycatch information without vessel any WCPFC inspector. If the vessel is identification. in an area under the jurisdiction of a (iii) When such information is re- member of the Commission other than quired to be submitted for any deter- the United States, they shall be made mination under a limited access pro- available for inspection by any author- gram. ized enforcement official of that mem- (iv) When required by a court order. ber. (2) All requests from the public for (2) For the purpose of facilitating confidential information will be proc- communication with the fisheries man- essed in accordance with the require- agement, surveillance and enforcement ments of 5 U.S.C. 552a, 15 CFR parts 4 authorities of the members of the Com- and 903, NAO 205–14, and Department of mission, the operator shall ensure the Commerce Administrative Orders DAO continuous monitoring of the inter- 205–12 and DAO 205–14. Nothing in this national safety and calling radio fre- section is intended to confer any right, quency 156.8 MHz (Channel 16, VHF– claim, or entitlement to obtain access FM) and, if the vessel is equipped to do to confidential information not already so, the international distress and call- established by law. ing radio frequency 2.182 MHz (HF). (3) NMFS does not release or allow (3) The operator shall ensure that an access to confidential information in up-to-date copy of the International its possession to members of advisory Code of Signals (INTERCO) is on board groups of the Regional Fishery Man- and accessible at all times.

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(4) When engaged in transshipment (i) Provided information identifying on the high seas or in an area under the his or her vessel as a WCPFC inspec- jurisdiction of a member of the Com- tion vessel, including its name, reg- mission other than the United States, istration number, IRCS and contact the operator and crew shall: frequency; and (i) Provide any WCPFC trans- (ii) Communicated to the vessel oper- shipment monitor with full access to, ator an intention to board and inspect and use of, facilities and equipment the vessel under the authority of the which such authorized person may de- Commission and pursuant to the board- termine is necessary to carry out his or ing and inspection procedures adopted her duties to monitor transshipment by the Commission. activities, including full access to the (3) Provided that the WCPFC inspec- bridge, fish on board, and all areas tor has presented to the vessel operator which may be used to hold, process, his or her identity card identifying him weigh and store fish, and full access to the vessel’s records, including its log or her as an inspector authorized to and documentation for the purpose of carry out boarding and inspection pro- inspection and photocopying; cedures under the auspices of the Com- (ii) Allow and assist any WCPFC mission, and a copy of the text of the transshipment monitor to collect and relevant conservation and management remove samples and gather any other measures in force pursuant to the information required to fully monitor WCPF Convention in the relevant area transshipment activities. of the high seas, the operator and crew (iii) Not assault, obstruct, resist, shall: delay, refuse boarding to, intimidate, (i) Cooperate with and assist any harass, interfere with, unduly obstruct WCPFC inspector in the inspection of or delay any WCPFC transshipment the vessel, including its authorizations monitor in the performance of such to fish, gear, equipment, records, facili- person’s duties, or attempt to do any of ties, fish and fish products and any rel- the same. evant documents necessary to verify (b) The operator and crew of a fishing compliance with the conservation and vessel of the United States, when on management measures in force pursu- the high seas in the Convention Area, ant to the WCPF Convention; shall be subject to the following re- (ii) Allow any WCPFC inspector to quirements: communicate with the crew of the (1) The operator and crew shall im- WCPFC inspection vessel, the authori- mediately comply with instructions ties of the WCPFC inspection vessel given by an officer on board a WCPFC and the authorities of the vessel being inspection vessel to move the vessel to inspected; a safe location and/or to stop the ves- (iii) Provide any WCPFC inspector sel, provided that the officer has, prior with reasonable facilities, including, to the issuance of such instructions: where appropriate, food and accommo- (i) Provided information identifying dation; and his or her vessel as a WCPFC inspection vessel, including its name, reg- (iv) Facilitate safe disembarkation istration number, IRCS and contact by any WCPFC inspector. frequency; and (4) If the operator or crew refuses to (ii) Communicated to the vessel oper- allow a WCPFC inspector to board and ator his or her intention to board and inspect the vessel in the manner de- inspect the vessel under the authority scribed in this paragraph, they shall of the Commission and pursuant to the offer to the WCPFC inspector an expla- boarding and inspection procedures nation of the reason for such refusal. adopted by the Commission. (5) The operator and crew shall not (2) The operator and crew shall ac- assault, obstruct, resist, delay, refuse cept and facilitate prompt and safe boarding to, intimidate, harass, inter- boarding by any WCPFC inspector, pro- fere with, unduly obstruct or delay any vided that an officer on board the WCPFC inspector in the performance WCPFC inspection vessel has, prior to of such person’s duties, or attempt to such boarding: do any of the same.

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(c) When a fishing vessel of the § 300.222 Prohibitions. United States that is used for commer- In addition to the prohibitions in cial fishing for HMS is in the Conven- § 300.4, it is unlawful for any person to: tion Area and is either on the high seas (a) Fail to obtain and have on board without a valid WCPFC Area Endorse- a fishing vessel a valid WCPFC Area ment or is in an area under the juris- Endorsement as required in § 300.212. diction of a nation other than the United States without an authoriza- (b) Fail to report a change in the in- tion by that nation to fish in that area, formation required in an application all the fishing gear and fishing equip- for a WCPFC Area Endorsement as re- ment on the fishing vessel shall be quired in § 300.212(g). stowed in a manner so as not to be (c) Fail to provide information on readily available for fishing, specifi- vessels and fishing authorizations or cally: fail to report changes in such information as required in § 300.213. (1) If the fishing vessel is used for purse seining and equipped with purse (d) Fish for, retain on board, or land seine gear, the boom must be lowered fish, including HMS, in areas under the as far as possible so that the vessel jurisdiction of a nation other than the cannot be used for fishing but so that United States without authorization the skiff is accessible for use in emer- by such nation to do so, as provided in gency situations; the helicopter, if any, § 300.214(a)(1) and (b)(1). must be tied down; and the launches (e) Operate a fishing vessel in viola- must be secured. tion of, or fail to ensure the vessel crew complies with, the applicable national (2) If the fishing vessel is used for laws of a member of the Commission longlining and equipped with longline other than the United States, including gear, the branch or dropper lines and any laws related to carrying vessel ob- floats used to buoy the mainline must servers or the operation of VMS units, be stowed and not available for imme- as provided in § 300.214(a)(2) and (b)(2). diate use, and any power-operated mainline hauler on deck must be cov- (f) Fail to carry, allow on board, or ered in such a manner that it is not assist a WCPFC observer as required in readily available for use. § 300.215. (g) Assault, obstruct, resist, delay, (3) If the fishing vessel is used for refuse boarding to, intimidate, harass, trolling and equipped with troll gear, or interfere with a WCPFC observer, or no lines or hooks may be placed in the attempt to do any of the same, or fail water; if outriggers are present on the to provide a WCPFC observer with vessel, they must be secured in a food, accommodation or medical facili- vertical position; if any power-operated ties, as required in § 300.215. haulers are located on deck they must be covered in such a manner that they (h) Offload, receive, or load fish from are not readily available for use. a purse seine vessel at sea in the Con- vention Area, in contravention of (4) If the fishing vessel is used for § 300.216. pole-and-line fishing and equipped with pole-and-line gear, any poles rigged (i) Fail to mark a fishing vessel or a with lines and hooks must be stowed in boat, skiff, or other watercraft on such a manner that they are not read- board the fishing vessel as required in ily available for use. § 300.217, or remove, obscure, or obstruct such markings, or attempt to do (5) For any other type of fishing ves- so. sel, all the fishing gear and equipment (j) Fail to maintain and report catch on the vessel must be stowed in a man- and effort information or trans- ner so as not to be readily available for shipment information as required in use. § 300.218. (d) For the purpose of this section, (k) Fail to install, activate, or oper- the meaning of transshipment does not ate a VMS unit as required in include transfers that exclusively in- § 300.219(c). volve fish that have been previously (l) In the event of VMS unit failure landed and processed. or interruption, fail to repair or re- [75 FR 3354, Jan. 21, 2010] place a VMS unit, fail to notify the

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SAC and follow the instructions pro- captured by longline gear in the Con- vided, or otherwise fail to act as pro- vention Area or to fish in contraven- vided in § 300.219(c)(4). tion of § 300.224(f)(1) or (f)(2). (m) Disable, destroy, damage or oper- (aa) Use a fishing vessel to fish in the ate improperly a VMS unit installed Pacific Ocean using longline gear both under § 300.219, or attempt to do any of inside and outside the Convention Area the same, or fail to ensure that its op- on the same fishing trip in contraven- eration is not impeded or interfered tion of § 300.224(f)(3). with, as provided in § 300.219(e). (bb) Fail to stow longline gear as re- (n) Fail to make a VMS unit in- quired in § 300.224(f)(4). stalled under § 300.219 or the position (cc) Fail to carry on board a WCPFC data obtained from it available for in- observer during a transshipment at spection, as provided in § 300.219(f) and sea, as required in § 300.215(d). (g). (dd) Offload, receive, or load fish (o) Fail to carry on board and monitor communication devices as required caught in the Convention Area from a in § 300.219(h). purse seine vessel at sea in contraven- (p) Fail to carry on board and make tion of § 300.216. available the required vessel docu- (ee) Fail to ensure that a WCPFC ob- mentation and authorizations as re- server is on board at least one of the quired in § 300.221(a)(1). vessels involved in the transshipment (q) Fail to continuously monitor the for the duration of the transshipment specified radio frequencies as required in contravention of § 300.216(b)(2)(i), ex- in § 300.221(a)(2). cept as specified at § 300.216(b)(4). (r) Fail to carry on board, and keep (ff) Receive transshipments from accessible, an up-to-date copy of the more than one fishing vessel at a time International Code of Signals as rein contravention of § 300.216(b)(2)(ii), quired in § 300.221(a)(3). except as specified at § 300.216(b)(4). (s) Fail to provide access to, or fail to (gg) Transship to or from another allow and assist, a WCPFC trans- vessel, in contravention of shipment monitor as required in § 300.216(b)(3)(i), except as specified at § 300.221(a)(4). § 300.216(b)(4). (t) Fail to comply with the instruc- (hh) Provide bunkering, receive bun- tions of, or fail to accept and facilitate kering, or exchange supplies or provi- prompt and safe boarding by, a WCPFC sions with another vessel, in con- inspector, or fail to cooperate and as- travention of § 300.216(b)(3)(ii). sist a WCPFC inspector in the inspec- (ii) Engage in net sharing except as tion of a fishing vessel, as provided in specified under § 300.216(c). § 300.221(b). (jj) Fail to submit, or ensure submis- (u) Fail to stow fishing gear or fish- sion of, a transshipment report as re- ing equipment as required in quired in § 300.218(b), except as specified § 300.221(c). under § 300.218(c). (v) Use a fishing vessel equipped with (kk) Fail to submit, or ensure sub- purse seine gear to fish in an area mission of, a transshipment notice as closed to purse seine fishing under required in § 300.218(d). § 300.223(a). (w) Set a purse seine around, near or (ll) Transship more than 24 nautical in association with a FAD or a vessel, miles from the location indicated in deploy, activate, or service a FAD, or the transshipment notice, in con- use lights in contravention of travention of § 300.218(d)(3). § 300.223(b). (mm) Fail to submit, or ensure sub- (x) Discard fish at sea in the Conven- mission of, a discard report as required tion Area in contravention of in § 300.218(e). § 300.223(d). (nn) Fail to submit, or ensure sub- (y) Fail to comply with the sea turtle mission of, a net sharing report as re- mitigation gear and handling require- quired in § 300.218(f). ments of § 300.223(f). (oo) Transship in the Eastern High (z) Use a fishing vessel to retain on Seas Special Management Area in con- board, transship, or land bigeye tuna travention of § 300.225.

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(pp) Fail to submit, or ensure submis- tion Area in the area between 20° N sion of, a daily purse seine fishing ef- latitude and 20° S latitude in a cal- fort report as required in § 300.218(g). endar year. (qq) Fail to submit, or ensure submis- (1) For calendar year 2019, there is a sion of, a whale shark encirclement re- limit of 1,616 fishing days in the port as required in § 300.218(h). ELAPS. (rr) Set or attempt to set a purse (2) Beginning in 2020, there is a limit seine on or around a whale shark of 1,828 fishing days in the ELAPS per (Rhincodon typus) in contravention of calendar year. § 300.223(g). (3) NMFS will determine the number (ss) Fail to release a whale shark en- of fishing days spent in the ELAPS in circled in a purse seine net of a fishing each calendar year using data sub- vessel as required in § 300.223(h). mitted in logbooks and other available (tt) Use a fishing vessel to retain on information. After NMFS determines board, transship, store, or land any that a limit in a calendar year is ex- part or whole carcass of an oceanic pected to be reached by a specific fu- whitetip shark (Carcharhinus ture date, and at least seven calendar longimanus) or silky shark days in advance of the closure date, (Carcharhinus falciformis) in contraven- NMFS will publish a document in the tion of § 300.226(a). FEDERAL REGISTER announcing that (uu) Fail to release an oceanic the purse seine fishery in the area whitetip shark or silky shark as re- where the limit is expected to be quired in § 300.226(b). reached will be closed starting on that (vv) Fail to obtain an IMO number specific future date and will remain for a fishing vessel as required in closed until the end of the calendar § 300.217(c). year. (ww) Fail to carry an observer as re- (4) Once a fishery closure is an- quired in § 300.223(e). nounced pursuant to paragraph (a)(3) of (xx) Fail to comply with any of the this section, fishing vessels of the limits, restrictions, prohibitions, or re- United States equipped with purse quirements specified under § 300.227. seine gear may not be used to fish in [74 FR 38554, Aug. 4, 2009, as amended at 74 the closed area during the period speci- FR 64010, Dec. 7, 2009; 75 FR 3355, Jan. 21, fied in the FEDERAL REGISTER docu- 2010; 77 FR 51714, Aug. 27, 2012; 77 FR 71512, ment, except that such vessels are not Dec. 3, 2012; 79 FR 71331, Dec. 2, 2014; 80 FR prohibited from bunkering during a 8815, Feb. 19, 2015; 80 FR 59048, Oct. 1, 2015; 81 FR 41250, June 24, 2016; 83 FR 33869, July 18, fishery closure. 2018] (b) Use of fish aggregating devices. (1) During the periods and in the areas § 300.223 Purse seine fishing restric- specified in paragraph (b)(2) of this sections. tion, owners, operators, and crew of None of the requirements of this sec- fishing vessels of the United States tion apply in the territorial seas or equipped with purse seine gear shall archipelagic waters of the United not do any of the activities described States or any other nation, as defined below in the Convention Area in the by the domestic laws and regulations area between 20° N latitude and 20° S of that nation and recognized by the latitude: United States, or within the Overlap (i) Set a purse seine around a FAD or Area. All dates used in this section are within one nautical mile of a FAD. in Universal Coordinated Time, also (ii) Set a purse seine in a manner in- known as UTC; for example: The year tended to capture fish that have aggre- 2013 starts at 00:00 on January 1, 2013 gated in association with a FAD or a UTC and ends at 24:00 on December 31, vessel, such as by setting the purse 2013 UTC; and July 1, 2013, begins at seine in an area from which a FAD or 00:00 UTC and ends at 24:00 UTC. a vessel has been moved or removed (a) Fishing effort limits. This para- within the previous eight hours, or set- graph establishes limits on the number ting the purse seine in an area in which of fishing days that fishing vessels of a FAD has been inspected or handled the United States equipped with purse within the previous eight hours, or set- seine gear may operate in the Conven- ting the purse seine in an area into

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which fish were drawn by a vessel from drifting active FADs per vessel in the the vicinity of a FAD or a vessel. Convention Area at any one time. (iii) Deploy a FAD into the water. (c) [Reserved] (iv) Repair, clean, maintain, or other- (d) Catch retention. An owner and op- wise service a FAD, including any elec- erator of a fishing vessel of the United tronic equipment used in association States equipped with purse seine gear with a FAD, in the water or on a vessel must ensure the retention on board at while at sea, except that: all times while at sea within the Con- (A) A FAD may be inspected and han- vention Area any bigeye tuna (Thunnus dled as needed to identify the FAD, obesus), yellowfin tuna (Thunnus identify and release incidentally cap- albacares), or skipjack tuna tured animals, un-foul fishing gear, or (Katsuwonus pelamis), except in the fol- prevent damage to property or risk to lowing circumstances and with the fol- human safety; and lowing conditions: (B) A FAD may be removed from the (1) Fish that are unfit for human con- water and if removed may be repaired, sumption, including but not limited to cleaned, maintained, or otherwise serv- fish that are spoiled, pulverized, sev- iced, provided that it is not returned to ered, or partially consumed at the time the water. they are brought on board, may be dis- (v) From a purse seine vessel or any carded. associated skiffs, other watercraft or (2) If at the end of a fishing trip there equipment, do any of the following, ex- is insufficient well space to accommo- cept in emergencies as needed to pre- date all the fish captured in a given vent human injury or the loss of purse seine set, fish captured in that human life, the loss of the purse seine set may be discarded, provided that no vessel, skiffs, watercraft or aircraft, or additional purse seine sets are made environmental damage: during the fishing trip. (A) Submerge lights under water; (3) If a serious malfunction of equip- (B) Suspend or hang lights over the ment occurs that necessitates that fish side of the purse seine vessel, skiff, be discarded. watercraft or equipment, or; (e) Observer coverage. (1) A fishing (C) Direct or use lights in a manner vessel of the United States may not be other than as needed to illuminate the used to fish with purse seine gear in deck of the purse seine vessel or associ- the Convention Area without a WCPFC ated skiffs, watercraft or equipment, to observer on board. This requirement comply with navigational require- does not apply to fishing trips that ments, and to ensure the health and meet either of the following condi- safety of the crew. tions: (2) The requirements of paragraph (i) The portion of the fishing trip (b)(1) of this section shall apply: within the Convention Area takes (i) From July 1 through September place entirely within areas under the 30, in each calendar year; jurisdiction of a single nation other (ii) In any area of high seas, from No- than the United States; or, vember 1 through December 31, in each (ii) No fishing takes place during the calendar year. fishing trip in the Convention Area in (3)(i) Activating FADs for purse seine the area between 20 °N. latitude and 20 vessels. A vessel owner, operator, or °S. latitude. crew of a fishing vessel of the United (2) Owners, operators, and crew of States equipped with purse seine gear fishing vessels subject to paragraph shall turn on the tracking equipment (e)(1) of this section must accommo- of an active FAD while the FAD is on- date WCPFC observers in accordance board the vessel and before it is de- with the provisions of § 300.215(c). ployed in the water. (3) Meeting either of the conditions (ii) Restrictions on Active FADs for in paragraphs (e)(1)(i) and (ii) of this purse seine vessels. U.S. vessel owners section does not exempt a fishing ves- and operators of a fishing vessel of the sel from having to carry and accommo- United States equipped with purse date a WCPFC observer pursuant to seine gear shall not have more than 350 § 300.215 or other applicable regulations.

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(f) Sea turtle take mitigation measures. may be no more than 3 inches × 3 (1) Possession and use of required miti- inches (7.62 cm × 7.62 cm) in size. gation gear. Any owner or operator of a (B) Lines. Lines used to lower and fishing vessel of the United States raise the frame and net must be se- equipped with purse seine gear that is curely attached to the frame in mul- used to fish in the Convention Area tiple places such that the frame re- must carry aboard the vessel the fol- mains stable when lowered and raised. lowing gear: (2) Handling requirements. Any owner (i) Dip net. A dip net is intended to or operator of a fishing vessel of the facilitate safe handling of sea turtles United States equipped with purse and access to sea turtles for purposes seine gear that is used to fish in the of removing sea turtles from fishing Convention Area must, if a sea turtle is gear, bringing sea turtles aboard the observed to be enclosed or entangled in vessel when appropriate, and releasing a purse seine, a FAD, or other fishing sea turtles from the vessel. The min- gear, comply with these handling re- imum design standards for dip nets quirements, including using the re- that meet the requirements of this sec- quired mitigation gear specified in tion are: paragraph (f)(1) of this section as pre- (A) An extended reach handle. The dip scribed in these handling requirements. net must have an extended reach han- Any captured or entangled sea turtle dle with a minimum length of 150 per- must be handled in a manner to mini- cent of the freeboard height. The ex- mize injury and promote survival. tended reach handle must be made of (i) Sea turtles enclosed in purse seines. wood or other rigid material able to If the sea turtle is observed enclosed in support a minimum of 100 lb (34.1 kg) a purse seine but not entangled, it without breaking or significant bend- must be released immediately from the ing or distortion. purse seine with the dip net or turtle (B) Size of dip net. The dip net must hoist. have a net hoop of at least 31 inches (78.74 cm) inside diameter and a bag (ii) Sea turtles entangled in purse depth of at least 38 inches (96.52 cm). seines. If the sea turtle is observed en- The bag mesh openings may be no more tangled in a purse seine, the net roll than 3 inches 3 inches (7.62 cm 7.62 cm) must be stopped as soon as the sea tur- in size. tle comes out of the water, and must (ii) Optional turtle hoist. A turtle not start again until the turtle has hoist is used for the same purpose as a been disentangled and released. The sea dip net. It is not a required piece of turtle must be handled and released in gear, but a turtle hoist may be carried accordance with paragraphs (f)(2)(iv), on board and used instead of the dip (f)(2)(v), (f)(2)(vi), and (f)(2)(vii) of this net to handle sea turtles as required in section. paragraph (f)(2) of this section. The (iii) Sea turtles entangled in FADs. If minimum design standards for turtle the sea turtle is observed entangled in hoists that are used instead of dip nets a FAD, it must be disentangled or the to meet the requirements of this sec- FAD must be cut immediately so as to tion are: remove the sea turtle. The sea turtle (A) Frame and net. The turtle hoist must be handled and released in ac- must consist of one or more rigid cordance with paragraphs (f)(2)(iv), frames to which a bag of mesh netting (f)(2)(v), (f)(2)(vi), and (f)(2)(vii) of this is securely attached. The frame or section. smallest of the frames must have a (iv) Disentangled sea turtles that can- minimum opening (e.g., inside diame- not be brought aboard. After ter, if circular in shape) of 31 inches disentanglement, if the sea turtle is (78.74 cm) and be capable of supporting not already on board the vessel and it a minimum of 100 lb (34.1 kg). The is too large to be brought aboard or frame or frames may be hinged or oth- cannot be brought aboard without sus- erwise designed so they can be folded taining further injury, it shall be left for ease of storage, provided that they where it is in the water, or gently have no sharp edges and can be quickly moved, using the dip net or turtle hoist reassembled. The bag mesh openings if necessary, to an area away from the

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fishing gear and away from the pro- quirements of paragraphs (f)(2)(v) and peller. (f)(2)(vi) of this section, the sea turtle (v) Disentangled sea turtles that can be must be returned to the ocean after brought aboard. After disentanglement, identification unless NMFS requests if the sea turtle is not too large to be the retention of a dead sea turtle for brought aboard and can be brought research. In releasing a sea turtle the aboard without sustaining further in- vessel owner or operator must: jury, the following actions shall be (A) Place the vessel engine in neutral taken: gear so that the propeller is disengaged (A) Using the dip net or a turtle and the vessel is stopped; hoist, the sea turtle must be brought aboard immediately; and (B) Using the dip net or a turtle hoist (B) The sea turtle must be handled in to release the sea turtle with little im- accordance with the procedures in pact, gently release the sea turtle away paragraphs (f)(2)(vi) and (f)(2)(vii) of from any deployed gear; and this section. (C) Observe that the turtle is safely (vi) Sea turtle resuscitation. If a sea away from the vessel before engaging turtle brought aboard appears dead or the propeller and continuing oper- comatose, the following actions must ations. be taken: (viii) Other sea turtle requirements. No (A) The sea turtle must be placed on sea turtle, including a dead turtle, may its belly (on the bottom shell or plas- be consumed or sold. A sea turtle may tron) so that it is right side up and its be landed, offloaded, transshipped or hindquarters elevated at least 6 inches kept below deck only if NMFS requests (15.24 cm) for a period of no less than 4 the retention of a dead sea turtle or a hours and no more than 24 hours. The part thereof for research. amount of the elevation varies with the size of the sea turtle; greater ele- (g) Owners, operators, and crew of vations are needed for larger sea tur- fishing vessels of the United States tles; used for commercial fishing for HMS in (B) A reflex test must be adminis- the Convention Area shall not set or tered at least once every 3 hours. The attempt to set a purse seine in the Con- test is to be performed by gently vention Area on or around a whale touching the eye and pinching the tail shark (Rhincodon typus) if the animal is of a sea turtle to determine if the sea sighted at any time prior to the com- turtle is responsive; mencement of the set or the attempted (C) The sea turtle must be kept set. This paragraph does not apply to shaded and damp or moist (but under the territorial seas or archipelagic wa- no circumstances place the sea turtle ters of any nation, as defined by the into a container holding water). A domestic laws and regulations of that water-soaked towel placed over the nation and recognized by the United eyes (not covering the nostrils), cara- States, or to areas under the national pace and flippers is the most effective jurisdiction of the Parties to the Nauru method of keeping a sea turtle moist; Agreement. and (h) The crew, operator, and owner of (D) If the sea turtle revives and be- a fishing vessel of the United States comes active, it must be returned to the sea in the manner described in used for commercial fishing for HMS in paragraph (f)(2)(vii) of this section. Sea the Convention Area must release any turtles that fail to revive within the whale shark that is encircled in a purse 24–hour period must also be returned to seine net in the Convention Area, and the sea in the manner described in take reasonable steps for its safe re- paragraph (f)(2)(vii) of this section, un- lease, without compromising the safety less NMFS requests that the turtle or of any persons. This paragraph does not part thereof be kept on board and de- apply to the territorial seas or livered to NMFS for research purposes. archipelagic waters of any nation, as (vii) Sea turtle release. After handling a sea turtle in accordance with the re-

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defined by the domestic laws and regu- with a valid permit issued under lations of that nation and recognized § 660.707 or § 665.801 of this title. by the United States. (d) Exception for bigeye tuna caught by vessels included in specified fishing agree- [74 FR 38554, Aug. 4, 2009, as amended at 76 FR 82183, Dec. 30, 2011; 77 FR 71513, Dec. 3, ments under § 665.819(c) of this title. Big- 2012; 78 FR 30778, May 23, 2013; 80 FR 8815, eye tuna caught by a vessel that is in- Feb. 19, 2015; 80 FR 29223, May 21, 2015; 80 FR cluded in a specified fishing agreement 51480, Aug. 25, 2015; 80 FR 59048, Oct. 1, 2015; under § 665.819(c) of this title will be at- 81 FR 41250, June 24, 2016; 83 FR 33869, July tributed to the longline fishery of 18, 2018; 84 FR 37148, July 31, 2019; 85 FR 37390, American Samoa, Guam, or the North- June 22, 2020] ern Mariana Islands, according to the terms of the agreement to the extent § 300.224 Longline fishing restrictions. the agreement is consistent with None of the requirements of this sec- § 665.819(c) of this title and other appli- tion apply in the Overlap Area. cable laws, and will not be counted (a) Establishment of bigeye tuna catch against the limit, provided that: limits. (1) There is a limit of 3,554 met- (1) The start date specified in ric tons of bigeye tuna per calendar § 665.819(c)(9)(i) of this title has oc- year that may be captured in the Con- curred or passed; and vention Area by longline gear and re- (2) NMFS has not made a determina- tained on board by fishing vessels of tion under § 665.819(c)(9)(iii) of this title the United States. that the catch of bigeye tuna exceeds (2) [Reserved] the limit allocated to the territory (b) Exception for bigeye tuna landed in that is a party to the agreement. territories. Except as provided in para- (e) Announcement of catch limit being graphs (c) and (d), bigeye tuna landed reached and fishing prohibitions. NMFS in American Samoa, Guam, or the will monitor retained catches of bigeye Commonwealth of the Northern Mar- tuna with respect to the limit estab- iana Islands will be attributed to the lished under paragraph (a) of this sec- longline fishery of the territory in tion using data submitted in logbooks which it is landed and will not be and other available information. After counted against the limit established NMFS determines that the limit is ex- under paragraph (a) of this section, pected to be reached by a specific fu- provided that: ture date, and at least seven calendar (1) The bigeye tuna were not caught days in advance of that specific future in the portion of the EEZ surrounding date, NMFS will publish a notice in the the Hawaiian Archipelago; and FEDERAL REGISTER announcing that (2) The bigeye tuna were landed by a specific prohibitions will be in effect fishing vessel operated in compliance starting on that specific future date with a valid permit issued under and ending December 31 of that cal- § 660.707 or § 665.801 of this title. endar year. (c) Exception for bigeye tuna caught by (f) Prohibitions after catch limit is vessels with American Samoa Longline reached. Once an announcement is Limited Access Permits. Except as pro- made pursuant to paragraph (e) of this vided in paragraph (d), bigeye tuna section, the following restrictions will caught by a vessel registered for use apply during the period specified in the under a valid American Samoa announcement: Longline Limited Access Permit issued (1) A fishing vessel of the United under § 665.801(c) of this title will be at- States may not be used to retain on tributed to the longline fishery of board, transship, or land bigeye tuna American Samoa and will not be count- captured by longline gear in the Con- ed against the limit established under vention Area, except as follows: paragraph (a) of this section, provided (i) Any bigeye tuna already on board that: a fishing vessel upon the effective date (1) The bigeye tuna were not caught of the prohibitions may be retained on in the portion of the EEZ surrounding board, transshipped, and/or landed, to the Hawaiian Archipelago; and the extent authorized by applicable (2) The bigeye tuna were landed by a laws and regulations, provided that fishing vessel operated in compliance they are landed within 14 days after

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the prohibitions become effective. The (2) Bigeye tuna caught by longline 14-day landing requirement does not gear in the Convention Area may not apply to a vessel that has declared to be transshipped to a fishing vessel un- NMFS, pursuant to § 665.803(a) of this less that fishing vessel is operated in title, that the current trip type is shal- compliance with a valid permit issued low-setting. under § 660.707 or § 665.801 of this title. (ii) Bigeye tuna captured by longline (3) A fishing vessel of the United gear may be retained on board, trans- States may not be used to fish in the shipped, and/or landed if they are land- Pacific Ocean using longline gear both ed in American Samoa, Guam, or the inside and outside the Convention Area Commonwealth of the Northern Mar- during the same fishing trip, with the iana Islands, provided that: exception of a fishing trip during which (A) The bigeye tuna were not caught the prohibitions were put into effect as in the portion of the EEZ surrounding announced under paragraph (e) of this the Hawaiian Archipelago; section, in which case the bigeye tuna (B) Such retention, transshipment, on board the vessel may be retained on and/or landing is in compliance with board, transshipped, and/or landed, to applicable laws and regulations; and the extent authorized by applicable (C) The bigeye tuna are landed by a laws and regulations, provided that fishing vessel operated in compliance they are landed within 14 days after with a valid permit issued under the prohibitions become effective. This § 660.707 or § 665.801 of this title. prohibition does not apply to a vessel (iii) Bigeye tuna captured by longline that catches bigeye tuna that is to be gear may be retained on board, trans- attributed to the longline fishery of shipped, and/or landed if they are American Samoa, Guam, or the Com- caught by a vessel registered for use monwealth of the Northern Mariana Is- under a valid American Samoa lands in accordance with paragraphs Longline Limited Access Permit issued (b), (c), or (d) of this section, or to a under § 665.801(c) of this title, provided vessel for which a declaration has been that: made to NMFS, pursuant to § 665.803(a) (A) The bigeye tuna were not caught of this title, that the current trip type in the portion of the EEZ surrounding the Hawaiian Archipelago; is shallow-setting. (B) Such retention, transshipment, (4) If a fishing vessel of the United and/or landing is in compliance with States, other than a vessel that applicable laws and regulations; and catches bigeye tuna that is to be at- (C) The bigeye tuna are landed by a tributed to the longline fishery of fishing vessel operated in compliance American Samoa, Guam, or the Com- with a valid permit issued under monwealth of the Northern Mariana Is- § 660.707 or § 665.801 of this title. lands, in accordance with paragraphs (iv) Bigeye tuna caught by longline (b), (c), and (d) of this section, or a ves- gear may be retained on board, trans- sel for which a declaration has been shipped, and/or landed if they were made to NMFS, pursuant to § 665.803(a) caught by a vessel that is included in a of this title, that the current trip type specified fishing agreement under is shallow-setting, is used to fish in the § 665.819(c) of this title, if the agree- Pacific Ocean using longline gear out- ment provides for bigeye tuna to be at- side the Convention Area and the ves- tributed to the longline fishery of sel enters the Convention Area at any American Samoa, Guam, or the North- time during the same fishing trip, the ern Mariana Islands, provided that: longline gear on the fishing vessel (A) The start date specified in must, while it is in the Convention § 665.819(c)(9)(i) of this title has oc- Area, be stowed in a manner so as not curred or passed; and to be readily available for fishing; spe- (B) NMFS has not made a determina- cifically, the hooks, branch or dropper tion under § 665.819(c)(9)(iii) of this title lines, and floats used to buoy the main- that the catch of bigeye tuna exceeds line must be stowed and not available the limit allocated to the territory for immediate use, and any power-oper- that is a party to the agreement. ated mainline hauler on deck must be

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covered in such a manner that it is not requested to do so by the WCPFC ob- readily available for use. server. [78 FR 58246, Sept. 23, 2013, as amended at 79 [80 FR 8816, Feb. 19, 2015, as amended at 85 FR 64111, Oct. 28, 2014; 80 FR 43636, July 23, FR 37390, June 22, 2020] 2015; 81 FR 41251, June 24, 2016; 83 FR 33870, July 18, 2018; 85 FR 37390, June 22, 2020] § 300.227 Framework for catch and fishing effort limits. § 300.225 Eastern High Seas Special (a) General. To implement conserva- Management Area. tion and management measures adopt- The owner and operator of a fishing ed by the Commission, the Pacific Is- vessel of the United States used for lands Regional Administrator may commercial fishing for HMS is prohib- specify limits on catch or fishing effort ited from engaging in transshipment in by fishing vessels of the United States the Eastern High Seas Special Manage- in the Convention Area, and other fish- ment Area. ing-related restrictions and require- [83 FR 33870, July 18, 2018] ments (collectively called ‘‘limits’’). The limits will be specified as may be § 300.226 Oceanic whitetip shark and necessary to carry out the inter- silky shark. national obligations of the United None of the requirements of this sec- States under the WCPF Convention tion apply in the Overlap Area. and the Act, and will be designed to (a) The crew, operator, and owner of implement particular provisions of a fishing vessel of the United States Commission-adopted conservation and used for commercial fishing for HMS management measures. For each speci- cannot retain on board, transship, fied limit, the Pacific Islands Regional store, or land any part or whole carcass Administrator will specify the area and of an oceanic whitetip shark period in which it applies, and as ap- (Carcharhinus longimanus) or silky propriate, the vessel types, gear types, shark (Carcharhinus falciformis) that is species, fish sizes, and any other rel- caught in the Convention Area, unless evant attributes to which it applies. In subject to the provisions of paragraph addition to quantitative limits on (c) of this section. catches and fishing effort, the Pacific (b) The crew, operator, and owner of Islands Regional Administrator may a fishing vessel of the United States specify areas or periods in which par- used for commercial fishing for HMS ticular fishing activities are restricted must release any oceanic whitetip or prohibited, and other fishing-related shark or silky shark caught in the Con- requirements. For each specified quan- vention Area as soon as possible after titative limit, the Pacific Islands Re- the shark is caught and brought along- gional Administrator will also specify side the vessel, and take reasonable the prohibitions and requirements that steps for its safe release, without com- would go into effect after the limit is promising the safety of any persons, reached and the applicable dates of unless subject to the provisions of those prohibitions. paragraph (c) of this section. (b) Application in territorial seas and (c) Paragraphs (a) and (b) of this sec- archipelagic waters. Unless stated other- tion do not apply in the event that a wise in particular specifications, the WCPFC observer collects, or requests limits specified under the framework the assistance of the vessel crew, oper- shall not apply in the territorial seas ator, or owner in the observer’s collec- or archipelagic waters of the United tion of, samples of oceanic whitetip States or any other nation, as defined shark or silky shark in the Convention by the domestic laws and regulations Area. of that nation and recognized by the (d) The crew, operator, and owner of United States. a fishing vessel of the United States (c) Types of limits. The types of limits used for commercial fishing for HMS in that may be specified under this sec- the Convention Area must allow and tion include, but are not limited to: assist a WCPFC observer to collect (1) Limits on the weight or number of samples of oceanic whitetip shark or fish or other living marine resources of silky shark in the Convention Area, if specific types and/or sizes that may be

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caught, retained, transshipped, landed, fication, unless exempted under the and/or sold; Administrative Procedure Act, 5 U.S.C. (2) Limits on the amount of fishing 553. The specification will include the effort that may be expended, such as characteristics of the limit and the re- the amount of time vessels spend at sea strictions that will go into effect if the (e.g., days at sea) or engaged in fishing limit is reached. (e.g., fishing days), the amount of time (2) For each specified limit that is vessels spend engaged in particular subject to prior notice and public com- fishing activities (e.g., trolling hours), ment, the Pacific Islands Regional Ad- and the quantity of specific fishing ac- ministrator will consider any public tivities (e.g., number of hooks set; comment received on the proposed number of longline sets or purse seine specification, and publish in the FED- sets; number of purse seine sets made ERAL REGISTER a notice of the final on FADs; number of FADs deployed); catch or fishing effort limit specifica- and tion, if appropriate. (3) Areas or periods in which par- (g) Notification of limits being reached. ticular activities are restricted or pro- For quantitative limits, NMFS will hibited, such as periods during which it monitor catch or fishing effort with re- is prohibited to set purse seines on FADs or to use FADs in specific other spect to the specified limit using data ways. submitted in vessel logbooks and other (d) [Reserved] available information. When NMFS es- (e) Allocation of limits among sectors or timates or projects that the specified vessels. (1) The Pacific Islands Regional limit has or will be reached, the Pacific Administrator may allocate a Commis- Islands Regional Administrator will sion-adopted limit among particular publish notification to that effect in sectors or groups of fishing vessels of the FEDERAL REGISTER. the United States, such as for vessels (h) Prohibitions after limit is reached. that use different types of fishing gear. For quantitative limits, the FEDERAL In other words, the Pacific Islands Re- REGISTER notice published under para- gional Administrator may specify sepa- graph (g) of this section will include an rate limits for different sectors or advisement that specific activities will groups of fishing vessels even when not be prohibited during a specific period. required to do so under the Commis- The notice will specify the prohibitions sion’s conservation and management and their start and end dates. The start measures. date of the prohibitions may not be (2) The Pacific Islands Regional Ad- earlier than 7 days after the date of fil- ministrator may not, under this frame- ing for public inspection at the Office work, allocate a Commission-adopted of the Federal Register the notice to be limit among individual fishing vessels published under paragraph (g) of this of the United States. In other words, section. The prohibited activities may the Pacific Islands Regional Adminis- include, but are not limited to, pos- trator may not, under this framework, sessing, retaining on board, trans- specify limits for individual fishing shipping, landing, or selling specific vessels of the United States, except in types and/or sizes of fish or other living the case where there is only one fishing marine resources, and fishing with vessel in a sector or group of fishing specified gear types or methods in vessels that is subject to the limit. specified areas. The Pacific Islands Re- This does not preclude NMFS from al- gional Administrator may, based on re- locating Commission-adopted limits vised estimates or projections of catch among individual fishing vessels or fishing effort with respect to speci- through other regulations. fied limits, rescind or modify the pro- (f) Procedures for specifying limits. (1) hibitions specified under this section. For each specified limit, the Pacific Is- The Pacific Islands Regional Adminis- lands Regional Administrator will pub- trator will publish notice of any such lish in the FEDERAL REGISTER a notice rescissions or modifications in the of the proposed catch or fishing effort FEDERAL REGISTER. limit specification and a request for public comment on the proposed speci- [80 FR 59048, Oct. 1, 2015]

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Subpart P—Vessels on IUU Vessel Transshipping means the offloading, Lists unloading, or transferring of fish or fish products from one vessel to another. SOURCE: 75 FR 59142, Sept. 27, 2010, unless otherwise noted. § 300.302 Port entry by foreign, listed § 300.300 Purpose and scope. IUU vessels. (a) This subpart implements inter- The Assistant Administrator may, in nationally-adopted measures per- accordance with applicable provisions taining to foreign vessels determined of RFMO conservation and manage- to have engaged in illegal, unreported, ment measures, deny a foreign, listed and unregulated (IUU) fishing and IUU vessel entry to any port or place placed on IUU vessel lists of the: subject to the jurisdiction of the (1) International Commission for the United States, except in cases of force Conservation of Atlantic Tunas majeure. (ICCAT), (2) Commission for the Conservation § 300.303 Port access by foreign, listed of Antarctic Marine Living Resources IUU vessels. (CCAMLR), If a foreign, listed IUU vessel is al- (3) Northwest Atlantic Fisheries Or- lowed to enter a port or place subject ganization (NAFO), to the jurisdiction of the United (4) Western and Central Pacific Fish- States, the Assistant Administrator eries Commission (WCPFC), may, in accordance with applicable (5) Inter-American Tropical Tuna provisions of RFMO conservation and Commission (IATTC), and management measures, take one or (6) Parties to the Agreement on the International Dolphin Conservation more of the following actions: Program (AIDCP). (a) Inspect the vessel; (b) For purposes of this subpart, the (b) Deny the vessel access to port above organizations are referred to as services, including but not limited to regional fishery management organiza- refueling, resupplying, or disembarking tions (RFMOs). Each of these RFMOs or embarking of crew; or adopts or approves an IUU vessel list in (c) Prohibit the vessel from engaging accordance with their respective rules in commercial transactions including, and procedures. The lists are publicly but not limited to, transshipping or available at each RFMO’s Web site. landing product. The regulations in this subpart apply to all persons subject to the jurisdic- § 300.304 Prohibitions. tion of the United States, wherever (a) It is unlawful for a foreign, listed they are. IUU vessel denied entry under § 300.302 § 300.301 Definitions. to enter any port or place subject to the jurisdiction of the United States. In addition to the terms defined in (b) It is unlawful for any foreign, list- § 300.2, the terms used in this subpart have the following meanings. ed IUU vessel to obtain port services or Landing means to begin to offload engage in commercial transactions, or fish, or to offload fish from any vessel. attempt to obtain such services or en- Listed IUU Vessel means a vessel that gage in such transactions, if such ac- is included on a final IUU vessel list tivities have been denied or prohibited adopted or approved by an RFMO to under § 300.303(b) and/or § 300.303(c), or if which the United States is a party. the vessel has been denied entry under Processing means the preparation or § 300.302. packaging of fish to render it suitable (c) It is unlawful for any person, for human consumption, retail sale, in- without prior authorization from the dustrial uses or long-term storage, in- Assistant Administrator, to engage in cluding, but not limited to, cooking, commercial transactions with listed canning, smoking, salting, drying, IUU vessels. Such transactions include, filleting, freezing, or rendering into but are not limited to: meal or oil. (1) Transshipment;

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(2) Processing fish harvested or land- Accountability for Every Port Act of ed by a listed IUU vessel or processing 2006. The requirements in this subpart fish using a listed IUU vessel; may be incorporated by reference in (3) Joint fishing operations; other regulations under this title. (4) Providing supplies, fuel, crew, or otherwise supporting a listed IUU ves- § 300.321 Definitions. sel; or ACE Implementation Guide for NMFS (5) Chartering or entering in a char- means the data set and document im- tering arrangement with a listed IUU aging requirements set forth in the Ap- vessel. pendices to the Customs and Trade (d) The prohibitions listed in Automated Interface Requirements § 300.304(c) shall not apply when the As- issued by Customs and Border Protec- sistant Administrator has authorized a tion. listed IUU vessel to access such port Aggregated Harvest Report means a services or engage in such commercial record made at a single collection transactions, in accordance with appli- point on a single calendar day for ag- cable provisions of RFMO conservation gregated catches by multiple small- and management measures, including scale fishing vessels (20 measured gross in cases of force majeure and where the tons or less or 12 meters length overall Assistant Administrator has deter- or less) offloaded at that collection mined that such services are essential point on that day, or for a landing by to the safety, health, and welfare of the a vessel to which the catches of one or crew. more small-scale vessels were transferred at sea. An Aggregated Harvest Subpart Q—International Trade Report also means a record made at a Documentation and Tracking single collection point or processing fa- Programs cility on a single calendar day for aggregated deliveries from multiple SOURCE: 81 FR 51137, Aug. 3, 2016, unless small-scale aquaculture facilities, otherwise noted. where each aquaculture facility deliv- ers 1,000 kg or less to that collection § 300.320 Purpose and scope. point or processing facility on that The regulations in this subpart are day. An Aggregated Harvest Report issued under the authority of the At- may not be used for information for lantic Tunas Convention Act of 1975 catches from vessels greater than 20 (ATCA), the Magnuson-Stevens Fishery measured gross tons or 12 meters Conservation and Management Act, the length overall, and deliveries of more Tuna Conventions Act of 1950, and the than 1000 kg from aquaculture facili- Antarctic Marine Living Resources ties. Convention Act of 1984. These regula- AMLR trade program means the pro- tions implement the applicable rec- gram for monitoring trade in Antarctic ommendations of the International marine living resources including, Commission for the Conservation of inter alia, Dissostichus species as set Atlantic Tunas (ICCAT) for the con- forth in subpart G of this part. servation and management of tuna and Automated Commercial Environment tuna-like species in the Atlantic (ACE) means, for purposes of this sub- Ocean, the Inter-American Tropical part, the central point through which Tuna Commission (IATTC) for the con- import shipment data required by mul- servation and management of highly tiple agencies is filed electronically to migratory fish resources in the eastern Customs and Border Protection (CBP). Pacific Ocean, and the Commission for Automated Export System (AES) the Conservation of Antarctic Marine means, for purposes of this subpart, the Living Resources so far as they affect central point through which export vessels and persons subject to the juris- shipment data required by multiple diction of the United States. These reg- agencies is filed electronically to Cus- ulations are also issued under the Ma- toms and Border Protection (CBP). rine Mammal Protection Act of 1972, Catch and Statistical Document/Docu- the Dolphin Protection Consumer In- mentation means a document or docu- formation Act and the Security and mentation, in paper or electronic form,

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accompanying regulated seafood im- sumption, withdrawal from customs ports and exports that is submitted by bonded warehouse for consumption, or importers and exporters to document entry for consumption from a foreign compliance with TTVP, AMLR trade trade zone. program, and HMS ITP trade docu- International Fisheries Trade Permit (or mentation programs or the Seafood IFTP) means the permit issued by Traceability Program as described in NMFS under § 300.222. this subpart. Seafood Traceability Program means CBP means U.S. Customs and Border the data reporting and recordkeeping Protection, Department of Homeland requirements established under § 300.324 Security. and includes the permitting require- Documentation and data sets required ments of § 300.322, and the requirements under this subpart refers to documenta- under § 300.323 as they pertain to spe- tion and data that must be submitted cies or species group subject to the by an importer or exporter to NMFS at Seafood Traceability Program. the time of, or in advance of, import, TTVP means the Tuna Tracking and export, or re-export, as applicable for Verification Program, which regulates those seafood products regulated under trade in certain fishery products as set the TTVP, AMLR trade program, and forth in § 216.24(f)(2) of this title. HMS ITP or the Seafood Traceability Program as described in this subpart. [81 FR 51137, Aug. 3, 2016, as amended at 81 The required data sets and document FR 88996, Dec. 9, 2016] images to be submitted for specific programs and transactions are posted by § 300.322 International Fisheries Trade Permit. CBP as indicated in § 300.323. Fish or fish products regulated under (a) General. Any person, including a this subpart means species and products resident agent for a nonresident cor- containing species regulated under this poration (see 19 CFR 141.18), who im- subpart, and the AMLR trade program, ports as defined in § 300.321, exports, or the HMS ITP, the TTVP, or the Sea- re-exports fish or fish products regu- food Traceability Program. lated under this sub-part from any Harvest Event means, for wild-capture ocean area, must possess a valid Inter- fisheries, the landing of fish in port or national Fisheries Trade Permit offloading of fish from a fishing vessel (IFTP) issued under this section. Fish that caught the fish to a carrier vessel or fish products regulated under this at sea or in port, and for aquaculture subpart may not be imported into, or production, the delivery of fish from exported or re-exported from, the the facility to a consolidator or a proc- United States unless the IFTP holder essor. For wild-capture fisheries, the files electronically the documentation harvest event is considered to occur at and the data sets required under this the fishing trip level, such that the subpart with U.S. Customs and Border harvest event concludes at the time Protection (CBP) via ACE at the time catch is landed or offloaded from the of, or in advance of, importation, ex- catching vessel. For fishing trips oc- portation or re-exportation. If author- curring in more than one area, each ized under other regulations under this area fished during the trip must be title or other applicable laws and regu- identified in the report on the harvest lations, a representative or agent of event. the IFTP holder may make the elec- HMS ITP means the Highly Migra- tronic filings. Only persons resident in tory Species International Trade Pro- the United States are eligible to apply gram which includes trade monitoring for the IFTP. and/or reporting and consignment doc- (b) Application. A person must apply umentation for trade of bluefin tuna, for an IFTP electronically via a Web southern bluefin tuna, frozen bigeye site designated by NMFS. The applica- tuna, swordfish, and shark fins as de- tion must be submitted electronically scribed in subpart M of this part. with the required permit fee payment, Import has the same meaning as 16 at least 30 days before the date upon U.S.C. 1802(22). Import includes, but is which the applicant wishes the permit not limited to, customs entry for con- to be made effective.

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(c) Issuance. Except as provided in by a commercial instrument later de- subpart D of 15 CFR part 904, NMFS termined to be insufficiently funded will issue an IFTP within 30 days of re- shall invalidate any permit. ceipt of a completed application. (k) Change in application information. NMFS will notify the applicant of any Within 15 days after any change in the deficiency in the application, including information contained in an applica- failure to provide information, docu- tion submitted under this section, the mentation or reports required under permit holder must report the change this subpart. If the applicant fails to to NMFS via a Web site designated by correct the deficiency within 30 days NMFS. If a change in permit informa- following the date of notification, the tion is not reported within 30 days, the application will be considered aban- permit is void as of the 30th day after doned. such change. (d) Duration. An IFTP issued under (l) Renewal. Persons must apply an- this section is valid for a period of one nually for an IFTP issued under this year from the permit effective date. section. A renewal application must be (e) Alteration. Any IFTP that is sub- submitted via a Web site designated by stantially altered, erased, or mutilated NMFS, at least 15 days before the per- is invalid. mit expiration date to avoid a lapse in (f) Replacement. NMFS may issue re- permitted status. NMFS will renew a placement permits. An application for permit provided that: The application a replacement permit is not considered for the requested permit renewal is a new application. An appropriate fee, complete; all documentation and re- consistent with paragraph (j) of this ports required under this subpart and section, may be charged for issuance of the Magnuson-Stevens Act, Atlantic a replacement permit. Tuna Conventions Act, the Tuna Con- (g) Transfer. An IFTP issued under ventions Act, the Marine Mammal Pro- this section is not transferable or as- tection Act, the Dolphin Consumer signable; it is valid only for the permit Protection Information Act, and the holder to whom it is issued. Antarctic Marine Living Resources Act (h) Inspection. The permit holder must keep the IFTP issued under this have been submitted, including those section at his/her principal place of required under §§ 216.24, 216.93, 300.114, business. The IFTP must be displayed 300.183, 300.185, 300.186, 300.187 and 635.5 for inspection upon request of any au- of this title; and the applicant is not thorized officer, or any employee of subject to a permit sanction or denial NMFS designated by NMFS for such under paragraph (i) of this section. purpose. § 300.323 Reporting and recordkeeping (i) Sanctions. The Assistant Adminis- requirements. trator may suspend, revoke, modify, or deny a permit issued or sought under (a) Reporting. Any person, including a this section. Procedures governing per- resident agent for a nonresident entity mit sanctions and denials are found at (see 19 CFR 141.18), who imports as de- subpart D of 15 CFR part 904. fined in § 300.321, exports, or re-exports (j) Fees. NMFS will charge a fee to re- fish or fish products regulated under cover the administrative expenses of this subpart must file all data sets, re- permit issuance. The amount of the fee ports, and documentation as required is calculated, at least annually, in ac- under the AMLR program, HMS ITP, cordance with the procedures of the TTVP and Seafood Traceability Pro- NOAA Finance Handbook, available gram, and under other regulations that from NMFS, for determining the ad- incorporate by reference the require- ministrative costs of each special prod- ments of this subpart. For imports, uct or service. The fee may not exceed specific instructions for electronic fil- such costs and is specified on each ap- ing are found in Customs and Trade plication form. The appropriate fee Automated Interface Requirements must be submitted via a Web site des- (CATAIR) Appendix PGA (https:// ignated by NMFS at the time of appli- www.cbp.gov/document /guidance/appen- cation. Failure to pay the fee will pre- dix-pga). For exports, specific instruc- clude issuance of the permit. Payment tions for electronic filing are found in

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Automated Export System Trade Inter- to be reported or retained under this face Requirements (AESTIR) Appendix program for fish oil, slurry, sauces, Q (https://www.cbp.gov/document /guid- sticks, balls, cakes, pudding and other ance/aestir-draft- appendix-q-pga-record- similar fish products for which it is not formats). For fish and fish products reg- technically or economically feasible to ulated under this subpart, an ACE identify the species of fish comprising entry filing or AES export filing, as ap- the product or the harvesting event(s) plicable, is required, except in cases contributing to the product in the ship- where CBP provides alternate means of ment. collecting NMFS-required data and/or (2) The following species or species document images. groups are subject to this Seafood (b) Recordkeeping. A paper or elec- Traceability Program: Atlantic Cod; tronic copy of all documentation and Pacific Cod; Blue Crab; Red King Crab; data sets required under this subpart, Dolphinfish (Mahi Mahi); Grouper; Red and all supporting records upon which Snapper; Sea Cucumber; Sharks; an entry filing or export declaration is Swordfish; Tunas (Albacore, Bigeye, made, must be maintained by the im- Skipjack, Yellowfin, and Bluefin). The porter of record or the exporting prin- harmonized tariff schedule (HTS) num- cipal party in interest as applicable, bers applicable to these species or spe- and made available for inspection, at cies groups are listed in the documents the importer’s/exporter’s place of busi- referenced in paragraph (c) of this sec- ness for a period of two years from the tion. Compliance with the require- date of the import, export or re-export. ments of the Seafood Traceability Pro- [81 FR 88997, Dec. 9, 2016] gram for these species or groups of species is mandatory beginning January 1, § 300.324 Seafood Traceability Pro- 2018. gram. (3) The following species or species This section establishes a Seafood groups are also subject to this Seafood Traceability Program which has data Traceability Program: Abalone and reporting requirements at the time of Shrimp. The harmonized tariff sched- entry for imported fish or fish products ule (HTS) numbers applicable to these and recordkeeping requirements for species or species groups are listed in fish or fish products entered into U.S. the documents referenced in paragraph commerce. The data reported and re- (c) of this section. The Seafood tained will facilitate enforcement of Traceability Program for these species section 307(1)(Q) of the Magnuson-Ste- or species groups consists of two com- vens Act and the exclusion of products ponents: from entry into U.S. commerce that (i) The data reporting requirements are misrepresented or the product of il- of paragraphs (b)(1) through (3) and (c) legal or unreported fishing. The data of this section in conjunction with reporting and recordkeeping require- § 300.323(a); and ments under the program enable (ii) The permit requirements of verification of the supply chain of the § 300.322, the IFTP number reporting re- product offered for entry back to the quirement in paragraph (b)(4) of this harvesting event(s). In addition, the section in conjunction with § 300.323(a), permitting requirements of § 300.322 and the recordkeeping requirements of pertain to importers of products within § 300.323(b) which includes the record- the scope of the program. keeping of all information specified in (a)(1) For species or species groups paragraphs (b) and (e) of this section. subject to this Seafood Traceability (b) In addition to data reporting re- Program, data is required to be requirements applicable, pursuant to ported and retained under this program other authorities and requirements set for all fish and fish products, whether out elsewhere in U.S. law and regula- fresh, frozen, canned, pouched, or oth- tion (e.g., under other NMFS programs erwise prepared in a manner that al- or U.S. Customs and Border Protection lows, including through label or dec- (CBP) requirements), to the particular laration, the identification of the spe- commodity offered for entry, the im- cies contained in the product and the porter of record is required to provide harvesting event. Data is not required the following data set in ACE at the

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time of entry for each entry containing quired to submit the data under para- the species or species groups listed graph (b) of this section through ACE under paragraph (a) of this section: as a message set and/or image files in (1) Information on the entity(ies) conformance with the procedures and harvesting or producing the fish: Name formats prescribed by the NMFS Im- and flag state of harvesting vessel(s) plementation Guide and CBP and made and evidence of fishing authorization; available at: http://www.cbp.gov/trade Unique vessel identifier(s) (if avail- /ace/catair. All harvest events contrib- able); Type(s) of fishing gear used to uting to the inbound shipment must be harvest the fish; Name(s) of farm or reported, but links between portions of aquaculture facility. Vessel-, farm-, or the shipment and particular harvest aquaculture facility-specific informa- events are not required. tion is not required if the importer of (d) Import shipments of fish or fish record provides information from an products subject to this program may Aggregated Harvest Report, unless the be selected for inspection and/or the in- product offered for entry is subject to formation or records supporting entry another NMFS program that requires may be selected for audit, on a pre- or data reporting or documentation at an post-release basis, in order to verify individual vessel, farm, or aquaculture the information submitted at entry. To facility level. support such audits, the importer must (2) Information on the fish that was retain records of the information re- harvested and processed: Species of fish ported at entry under paragraph (b) of (Aquatic Sciences Fishery Information this section in electronic or paper for- System 3-alpha code as listed at http:// www.fao.org/); Product form(s) at the mat, and make them available for in- point of first landing whether unproc- spection, at the importer’s place of essed or processed prior to landing/de- business for a period of two years from livery; Quantity and/or weight of the the date of the import. product(s) as landed/delivered. When an (e) In addition to the entry record- Aggregated Harvest Report is used, the keeping requirements specified at 19 importer must provide all of the infor- CFR part 163 and § 300.323(b), the im- mation under this paragraph (b)(2), but porter of record is required to maintain may provide the total quantity and/or records containing information on the weight of the product(s) as landed/de- chain of custody of the fish or fish livered on the date of the report. products sufficient to trace the fish or (3) Information on where and when fish product from point of entry into the fish were harvested and landed: U.S. commerce back to the point of Area(s) of wild-capture or aquaculture harvest, including individual or Aggre- location; Location of aquaculture facil- gated Harvest Reports, if any, and in- ity; Point(s) of first landing; Date(s) of formation that identifies each custo- first landing, transshipment or deliv- dian of the fish or fish product (such as ery; Name of entity(ies) (processor, any transshipper, processor, storage fa- dealer, vessel) to which fish was landed cility or distributor). The latter may or delivered. When an Aggregated Har- include widely used commercial docu- vest Report is used, the importer must ments such as declarations by the har- provide all of the information under vesting/carrier vessels or bills of lad- this paragraph (b)(3). Some product of- ing. The importer must retain such fered for entry may be comprised of chain-of-custody records in electronic products from more than one harvest or paper format, and make them avail- event and each such harvest event rel- able for inspection, at the importer’s/ evant to the contents of the shipment exporter’s place of business for a period must be documented; however, specific of two years from the date of the im- links between portions of the shipment port. and a particular harvest event are not required. [81 FR 88997, Dec. 9, 2016] (4) The NMFS-issued IFTP number for the importer of record. § 300.325 Prohibitions. (c) The importer of record, either di- In addition to the prohibitions speci- rectly or through an entry filer, is re- fied in §§ 300.4, 300.117, and 300.189 and

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600.725 and 635.71 of this title, it is un- the Agreement, the definition in this lawful for any person subject to the ju- section shall apply. risdiction of the United States to: Bottom fishing means fishing using (a) Violate any provision of this sub- gear that is likely to contact the part, or the conditions of any IFTP seafloor during the normal course of issued under this subpart; fishing operations. (b) Import, export or re-export fish or Enhanced mobile transceiver unit fish products regulated under this sub- (EMTU) is defined in 50 CFR 600.1500. part, including imports or exports oth- High seas means the waters beyond erwise eligible for informal filing pro- the territorial sea or exclusive eco- cedures or the de minimis value exemp- nomic zone (or the equivalent) of any tion from filing requirements under Nation, to the extent that such terri- CBP procedures, without a valid IFTP torial sea or exclusive economic zone as required under § 300.322 or without (or the equivalent) is recognized by the submitting complete and accurate in- United States. formation as required under § 300.323; and High seas fishing permit means a permit issued under this subpart. (c) Import species listed in § 300.324(a) without a valid IFTP or without sub- High seas fishing vessel means any ves- mitting complete and accurate infor- sel of the United States used or in- mation as required under § 300.324(b) tended for use on the high seas for the and (c) or without maintaining for in- purpose of the commercial exploitation spection records as required under of living marine resources and as a har- § 300.324(d) and (e). vesting vessel, mothership, or any other support vessel directly engaged [81 FR 88998, Dec. 9, 2016] in a fishing operation. Support vessels include vessels that process or trans- Subpart R—High Seas Fisheries ship fish on the high seas; provide supplies, personnel or fuel on the high seas AUTHORITY: 16 U.S.C. 5501 et seq. to other fishing vessels; or conduct other activities in support of, or in SOURCE: 80 FR 62495, Oct. 16, 2015, unless preparation for fishing. otherwise noted. Redesignated at 81 FR 51137, Aug. 3, 2016. International conservation and management measures means measures to con- § 300.330 Purpose. serve or manage one or more species of This subpart implements the High living marine resources that are adopt- Seas Fishing Compliance Act of 1995 ed and applied in accordance with the (Act), which requires the Secretary to relevant rules of international law, as license U.S. vessels fishing on the high reflected in the 1982 United Nations seas and to ensure that such vessels do Convention on the Law of the Sea, and not operate in contravention of inter- that are recognized by the United national conservation and management States. Such measures may be adopted measures recognized by the United by global, regional, or sub-regional States. fisheries organizations, subject to the rights and obligations of their mem- § 300.331 Definitions. bers, or by treaties or other international agreements. In addition to the terms defined in section 300.2 and those in the Act and Observer means any person serving in the Agreement to Promote Compliance the capacity of an observer employed with International Conservation and by NMFS, either directly or under con- Management Measures by Fishing Ves- tract with a third party, or certified as sels on the High Seas, adopted by the an observer by NMFS. Conference of the Food and Agriculture Office Director means the director of Organization of the United Nations on the NMFS Office for International Af- November 24, 1993 (Agreement), the fairs and Seafood Inspection. terms used in this subpart have the fol- Regional Administrator means any one lowing meanings. If a term is defined of the Directors of a NMFS regional of- differently in section 300.2, the Act, or fice, defined under § 300.2.

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Transship or transshipment means off- cient evidence to the Regional Admin- loading or receiving or otherwise trans- istrator or Office Director dem- ferring fish or fish products from one onstrating that the owner and operator fishing vessel to another. Excluded at the time the vessel undermined the from this definition is net sharing, effectiveness of such measures have no which means the transfer of fish that further legal, beneficial, or financial have not yet been loaded on board any interest in, or control of, the vessel. fishing vessel from the purse seine net (3) The restrictions in paragraphs of one vessel to another fishing vessel. (a)(1)(i) and (ii) of this section do not Fish shall be considered to be on board apply if it is determined by the Re- a fishing vessel once they are on a deck gional Administrator or Office Director or in a hold, or once they are first lift- that issuing a permit would not sub- ed out of the water by the vessel. vert the purposes of the Agreement. Vessel monitoring system (VMS) is de- (b) Applicability. Any high seas fish- fined in 50 CFR 600.1500. ing vessel used for fishing, as defined under § 300.2, on the high seas must § 300.332 Issuing offices. have on board a valid permit issued Any Regional Administrator or the under this subpart. Office Director may issue permits re- (c) Application. Permit application quired under this subpart. While appli- forms are available from the NMFS cants for permits may submit an appli- Web site or from any Regional Admin- cation to any Regional Administrator istrator or the Office Director. Failure or the Office Director, applicants are to submit a complete and accurate ap- encouraged to submit their applica- plication, along with all other required tions (with envelopes marked ‘‘Attn: documentation and the specified fee HSFCA Permits’’) to the Regional Ad- will preclude issuance of a permit. To ministrator or the Office Director with apply for a permit under this subpart, whom they normally interact on fish- the owner or operator of a high seas eries matters. fishing vessel must submit the following to a Regional Administrator or § 300.333 Vessel permits. Office Director: (a) Eligibility. (1) Any vessel owner or (1) A complete, accurate application operator of a high seas fishing vessel is form signed by the vessel owner or op- eligible to receive a permit for a fish- erator. ery authorized on the high seas under (2) Information required under this this subpart, unless the vessel was pre- section and § 300.334(a). viously authorized to be used for fish- (3) A color photograph showing an ing on the high seas by a foreign na- entire bow-to-stern side-view of the tion, and— vessel in its current form and appear- (i) The foreign nation suspended such ance. The photograph must clearly and authorization, because the vessel un- legibly display the vessel name and dermined the effectiveness of inter- identification markings. If the vessel’s national conservation and management form or appearance materially changes measures, and the suspension has not (such as the vessel is painted another expired; or color, the vessel’s identification mark- (ii) The foreign nation, within the 3 ings change, or the vessel undergoes a years preceding application for a per- structural modification) the vessel mit under this section, withdrew such owner and operator must submit a new authorization, because the vessel un- photograph of the vessel within 15 days dermined the effectiveness of inter- of the change. national conservation and management (4) For vessels with state registration measures. instead of U.S. Coast Guard docu- (2) The restrictions in paragraphs mentation, the applicant must supply (a)(1)(i) and (ii) of this section do not additional vessel information that apply if ownership of the vessel has NMFS may request. changed since the vessel undermined (5) The fee specified in the applica- the effectiveness of international con- tion form. Payment by a commercial servation and management measures, instrument later determined to be in- and the new owner has provided suffi- sufficiently funded will invalidate any

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permit. NMFS charges this fee to re- fice Director who issued the permit cover the administrative expenses of within 15 days of such changes. permit issuance, and the amount of the (g) Renewal. Application for renewal fee is determined in accordance with of a permit prior to its expiration is the procedures of the NOAA Finance the responsibility of the permit holder Handbook. and may be completed per § 300.333(c). (d) Permit issuance and validity. (1) Ex- The Regional Administrator or Office cept as provided for in subpart D of 15 Director will not consider a permit re- CFR part 904, and subject to para- newal application to be complete until graphs (a), (c), and (d)(2) and (3) of this the permit holder satisfies all required section, the Regional Administrator or fishing activity report requirements Office Director will issue a permit, under the permit and § 300.341. The Re- which will include applicable condi- gional Administrator or Office Director tions or restrictions, within 15 days of will not issue a renewed permit unless receipt of a completed application and an EMTU has been activated on the payment of the appropriate fee. vessel in accordance with § 300.337(c)(2) (2) The Regional Administrator or Of- and the applicant holds a valid permit fice Director will not issue a permit for the subject vessel for any U.S. do- unless an EMTU has been installed and mestic fisheries related to the author- activated on the vessel in accordance ized high seas fishery. with § 300.337(c)(2). (h) Marine mammals and ESA-listed (3) The Regional Administrator or Of- species. Permits issued under this sec- fice Director will not issue a permit unless the applicant holds a valid per- tion do not authorize vessels or persons mit for the subject vessel for any U.S. subject to the jurisdiction of the domestic fisheries related to the au- United States to take marine mam- thorized high seas fishery. mals or ESA-listed species. No marine (4) Except as otherwise provided, per- mammals or ESA-listed species may be mits issued under this subpart are taken in the course of fishing oper- valid for 5 years from the date of ations unless the taking is allowed issuance. For a permit to remain valid under the Marine Mammal Protection to its expiration date, the vessel’s U.S. Act or the Endangered Species Act Coast Guard documentation or state (ESA), pursuant to regulations, an au- registration must be kept current. A thorization, or permit granted by permit issued under this subpart is NMFS or the U.S. Fish and Wildlife void when the vessel owner or the Service. name of the vessel changes, or in the (i) Permit Status Changes. NMFS may event the vessel is no longer eligible modify, suspend, or revoke a permit for U.S. documentation, such docu- issued under this subpart if permitted mentation is revoked or denied, or the activities may impact living marine re- vessel is removed from such docu- sources in ways that were not consid- mentation. ered at the time of permit issuance; are (5) A permit issued under this sub- in contravention of an international part is not transferable or assignable conservation and management meas- to another vessel or owner; it is valid ure; or violate any applicable law. only for the vessel and owner to which NMFS will notify an affected permit it is issued. holder of any potential change in per- (e) Display. A valid permit, or a copy mit status by contacting the permit thereof, issued under this subpart must holder at the address of record provided be on board any high seas fishing vessel on the permit application or as updated while operating on the high seas and pursuant to paragraph (f) of this sub- available for inspection by an author- section and will provide an opportunity ized officer. to respond, consistent with the Admin- (f) Change in application information. istrative Procedure Act and other ap- Any changes in vessel documentation plicable law. status or other permit application information must be reported in writing to the Regional Administrator or Of-

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§ 300.334 Fisheries authorized on the which will expire 5 years from the high seas. original effective date. (a) General. When applying for a per- (d) Revision of authorized fisheries list. mit under § 300.333, the owner or oper- Through rulemaking, NMFS will add a ator of a high seas fishing vessel must fishery to, or delete a fishery from, the identify in the application the author- list in paragraph (a) of this section. ized fisheries in which he or she in- NMFS may add or delete fisheries from tends to fish. More than one authorized the list after completing any analyses fishery may be selected. The following required under the Endangered Species fisheries are authorized on the high Act, Marine Mammal Protection Act, seas: National Environmental Policy Act, (1) 50 CFR part 300, subpart C—East- and other applicable laws. In taking ern Pacific Tuna Fisheries. such action, NMFS, in consultation (2) 50 CFR part 300, subpart D—South with the relevant Regional Fishery Pacific Tuna Fisheries. Management Council(s) where appro- (3) 50 CFR part 300, subpart G—Ant- priate, will consider, among other arctic Marine Living Resources. things, whether: (4) 50 CFR part 635—Atlantic Highly (1) The proposed fishing activities Migratory Species Fisheries. would detrimentally affect the well- (5) 50 CFR part 660, subpart K—U.S. being of the stock of any regulated spe- West Coast Fisheries for Highly Migra- cies of fish, marine mammal, or species tory Species. listed as threatened or endangered (6) 50 CFR part 665, subpart F—West- under the Endangered Species Act; ern Pacific Pelagic Fisheries. (2) The proposed fishing activities (7) South Pacific Albacore Troll Fish- would be inconsistent with relevant ery. fishery management plans and their (8) Northwest Atlantic Fishery. implementing regulations or other ap- (b) Requirements for authorized fish- plicable law; eries. For each of the authorized fish- (3) Insufficient mechanisms exist to eries specified on the high seas fishing effectively monitor the activities of permit, the owner or operator of the high seas fishing vessel must: vessels engaged in the proposed fishing (1) Abide by the regulations, set forth activities; or in other parts of this chapter and Chap- (4) The proposed fishing activities ter VI, governing those authorized fish- would contravene international con- eries while operating on the high seas; servation and management measures (2) Obtain and renew any appropriate recognized by the United States. permits or authorizations; and (e) Request for revision of authorized (3) Notify the Regional Adminis- fisheries list. A person may submit a trator or Office Director who issued the written request to the Office Director permit immediately in the event that a to add a fishery to or delete a fishery species listed as threatened or endan- from the list. A request to delete a gered under the ESA is taken inci- fishery from the list of authorized fish- dental to the fishing activities without eries must include the name of the authorization under a relevant inci- fishery; information that addresses dental take statement. considerations under paragraph (d) of (c) Change in authorized fisheries. If a this section; and, if requested by high seas fishing permit holder elects NMFS, any additional information nec- to change the authorized fisheries spec- essary for NMFS to conduct analyses ified on the permit, he or she shall no- required under applicable laws. A re- tify the Regional Administrator or Of- quest to add a fishery to the list of au- fice Director who issued the permit of thorized fisheries must include the fol- the change(s) and shall obtain the un- lowing information: derlying permits for the authorized (1) The species (target and inci- fisheries prior to engaging in the fish- dental) expected to be harvested and ery on the high seas. Per the process the anticipated amounts of such har- under § 300.333(d), the Regional Admin- vest and bycatch; istrator or Office Director will then (2) The approximate times and places issue a revised high seas fishing permit when fishing is expected to take place,

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the number and type of vessels ex- and, if necessary, secures any under- pected to participate, and the type, lying permits necessary for participa- size, and amount of gear expected to be tion in another authorized high seas used; fishery, the Regional Administrator or (3) A description of the specific area Office Director will then issue a revised that may be affected by the fishing ac- high seas fishing permit per the process tivities; under § 300.333(d). The revised permit (4) A description of any anticipated will expire 5 years from the original ef- impacts on the environment, including fective date. impacts on fisheries, marine mammals, and species listed as threatened or en- § 300.335 Bottom fishing. dangered under the ESA or their crit- (a) Bottom fishing may be permitted ical habitat; on the high seas when authorized by (5) Other information that addresses international conservation and man- considerations under paragraph (d) of agement measures recognized by the this section; and United States. For bottom fishing ac- (6) If requested by NMFS, any addi- tivity not subject to international con- tional information necessary for NMFS servation measures recognized by the to conduct analyses required under ap- United States, a person who seeks to plicable laws. engage in such fishing must request au- (7) Once all required information is thorization of a new high seas fishery received to proceed with consideration as described in § 300.334(e) and then, if of a request, NMFS will publish in the the fishery is authorized, must obtain FEDERAL REGISTER a proposed rule, all applicable permits including a high noting receipt of the request to add an seas fishing permit issued under authorized fishery, and inviting infor- § 300.333. NMFS may specify conditions mation and comments. Relevant infor- and restrictions in the permit to miti- mation received during the comment gate adverse impacts on VMEs, which period may be considered by NMFS may include the types of conditions and, where appropriate, the relevant that have been adopted in relevant Regional Fishery Management Coun- RFMO measures recognized by the cil(s), in analyzing potential environ- United States. mental impacts of the fisheries and de- (b) Permit. To be permitted under this veloping any conditions or restrictions. section, the owner or operator of a high Based on its analysis, considerations seas fishing vessel must follow the pro- under paragraph (d) of this section, and cedures under § 300.334(e) or, if he or she other relevant considerations, NMFS seeks to change an existing permit, will publish its decision on the request must follow the procedures under in the FEDERAL REGISTER. § 300.334(c). (f) Deletion of a fishery from the authorized fisheries list. NMFS will delete § 300.336 Vessel identification. (i.e., deauthorize) a fishery under para- (a) General. A vessel permitted under graph (d) or (e) of this section through this subpart must be marked for identi- publication of a final rule. NMFS will fication purposes in accordance with also provide notice to affected permit this section. holders by email and by Registered (b) Marking. Vessels must be marked Mail at the addresses provided to either: NMFS in the high seas permit applica- (1) In accordance with vessel identi- tion. When a fishery is deleted from the fication requirements specified in Fed- list, any activities on the high seas re- eral fishery regulations issued under lated to that fishery are prohibited as the Magnuson-Stevens Act or under of the effective date of the final rule. other Federal fishery management In addition, the high seas permit will statutes; or be voided unless the permit holder no- (2) In accordance with the following tifies NMFS that he or she elects to identification requirements: change to another authorized high seas (i) A vessel must be marked with its fishery or continue in any other au- international radio call sign (IRCS) or, thorized fisheries noted on the permit. if not assigned an IRCS, must be Once the applicant so notifies NMFS marked (in order of priority) with its

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Federal, state, or other documentation (xi) The marks must be white on a number appearing on its high seas fish- black background, or black on a white ing permit and, if a WCPFC Area En- background; dorsement has been issued for the ves- (xii) The background must extend to sel under § 300.212, that documentation provide a border around the mark of no number must be preceded by the char- less than h/6; and acters ‘‘USA’’ and a hyphen (that is, (xiii) The marks and the background ‘‘USA-’’); must be maintained in good condition (ii) The markings must be displayed at all times. at all times on the vessel’s side or superstructure, port and starboard, as § 300.337 Requirements for Enhanced well as on a deck; Mobile Transceiver Units (EMTUs). (iii) The markings must be placed so (a) Vessel position information. The that they do not extend below the wa- owner or operator of a vessel issued a terline, are not obscured by fishing permit under this subpart, or for which gear, whether stowed or in use, and are such permit is required, must have in- clear of flow from scuppers or over- stalled on board the vessel a NMFS board discharges that might damage or type-approved enhanced mobile trans- discolor the markings; ceiver unit (EMTU). The operator or (iv) Block lettering and numbering owner of the vessel must ensure that must be used; the EMTU is operational and properly (v) The height of the letters and reporting positions to NMFS as re- numbers must be in proportion to the quired by this section, except when ex- size of the vessel as follows: for vessels empt under paragraph (d)(1) or (2) of 25 meters (m) and over in length over- this section. If the vessel is also sub- all, the height of letters and numbers ject to EMTU requirements in other must be no less than 1.0 m; for vessels parts of this title, the more restrictive 20 m but less than 25 m in length over- requirements apply. all, the height of letters and numbers (b) Contact information and business must be no less than 0.8 m; for vessels hours. With respect to the require- 15 m but less than 20 m in length over- ments in this section, vessel owners all, the height of letters and numbers and operators should consult with the must be no less than 0.6 m; for vessels divisional office of the NOAA Office of 12 m but less than 15 m in length over- Law Enforcement (OLE) in, or nearest, all, the height of letters and numbers the Region issuing the permit under must be no less than 0.4 m; for vessels this subpart. The OLE VMS Helpdesk 5 m but less than 12 m in length over- in OLE headquarters office may also be contacted. all, the height of letters and numbers must be no less than 0.3 m; and for ves- (c) EMTU installation and activation— sels under 5 m in length overall, the (1) EMTU installation. The vessel owner height of letters and numbers must be or operator shall obtain and have in- no less than 0.1 m; stalled on the fishing vessel, by a qualified marine electrician and in accord- (vi) The height of the letters and ance with any instructions provided by numbers to be placed on decks must be the VMS Helpdesk or OLE divisional no less than 0.3 m; office, a NMFS type-approved EMTU. (vii) The length of the hyphen(s), if OLE is authorized to receive and relay any, must be half the height (h) of the transmissions from the EMTU. The letters and numbers; vessel owner and operator shall ar- (viii) The width of the stroke for all range for a type-approved mobile com- letters, numbers, and hyphens must be munications service to receive and h/6; transmit position reports and email (ix) The space between letters and/or communications from the EMTU to numbers must not exceed h/4 nor be OLE. NMFS makes available lists of less than h/6; type-approved EMTUs and mobile com- (x) The space between adjacent let- munications service providers. Vessel ters having sloping sides must not ex- owners must ensure that the EMTU ceed h/8 nor be less than h/10; and communications service hardware

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purchased is type-approved for all fish- means as directed by OLE: the vessel’s eries and regions in which their vessel name; the vessel’s official number; the will be operating. intent to power down the EMTU; the (2) EMTU activation. When an EMTU reason for power-down; the port where is installed or reinstalled or the mobile the vessel is docked or area where it communications service provider will be operating; and the full name, changes, or if directed by OLE, the ves- telephone, and email contact informa- sel owner and operator shall, prior to tion for the vessel owner or operator. leaving port: (4) When powering up the EMTU, the (i) Turn on the EMTU to make it vessel owner or operator must report operational; to the OLE divisional office in, or near- (ii) Submit a VMS Installation and est, the Region issuing the permit Activation Certification form, or an under this subpart during business activation report as directed by OLE, hours, via email or other means as di- to the OLE divisional office within or rected by OLE: The fact that the nearest to the region issuing the per- EMTU has been powered up; the ves- mit under this subpart; and sel’s name; the vessel’s official number; (iii) Receive confirmation from OLE port name; intended fishery; and full that transmissions are being received name, telephone, and email contact in- properly from the EMTU. formation for the vessel owner or oper- (d) EMTU operation. Unless otherwise ator. provided below, and subject to more re- (5) If the EMTU is powered up after a strictive requirements where applica- long-term or in-port exemption, the ble, the vessel owner or operator shall vessel owner must receive confirma- continuously operate the EMTU so tion from the OLE divisional office in, that it automatically transmits posi- or nearest, the Region issuing the per- tion information to OLE, once every mit under this subpart that EMTU hour or as directed by OLE. transmissions are being received prop- (1) In-port exemption: The EMTU erly before leaving port, entering the may be powered down when the vessel high seas, or entering a fishery that re- will remain at a dock or permanent quires EMTU operation. mooring for more than 72 consecutive hours and after the notice required in (e) Failure of EMTU. If the vessel paragraph (d)(3) of this section is sub- owner or operator becomes aware that mitted to OLE. When powering up the the EMTU has become inoperable or EMTU after the in-port exemption, the that transmission of automatic posi- vessel owner or operator must submit tion reports from the EMTU has been the report required in paragraph (d)(4) interrupted, or if notified by OLE or of this section at least 2 hours before the U.S. Coast Guard that automatic leaving port or mooring. position reports are not being received (2) Long-term exemption: The EMTU from the EMTU or that an inspection may be powered down if the vessel will of the EMTU has revealed a problem not operate on the high seas, or in any with the performance of the EMTU, the fishery that requires EMTU operation, vessel owner or operator shall comply for more than 30 consecutive days and with the following requirements: after the notice required in paragraph (1) If the vessel is in port, the vessel (d)(3) of this section is submitted. owner or operator shall repair or re- When powering up the EMTU from the place the EMTU and comply with the long-term exemption, the vessel owner requirements in paragraph (c)(2) of this or operator must submit the report re- section before the vessel leaves port. quired in paragraph (d)(4) of this sec- (2) If the vessel is at sea, the vessel tion. owner, operator, or designee shall con- (3) Prior to each power-down of the tact the OLE divisional office in, or EMTU, under paragraph (d)(1) or (2) of nearest, the Region issuing the permit this section, the vessel owner or oper- under this subpart by telephone or ator must report to the OLE divisional email at the earliest opportunity dur- office in, or nearest, the Region issuing ing business hours and identify the the permit under this subpart during caller, vessel name, vessel location, business hours, via email or other and the type of fishing permit(s). The

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vessel operator shall follow the in- sibility of NMFS under those regula- structions provided by the OLE divi- tions. sional office, which could include: (h) Tampering. The vessel owner and Ceasing fishing, stowing fishing gear, operator shall ensure that the EMTU is returning to port, or submitting peri- not tampered with, disabled, destroyed, odic position reports at specified inter- damaged or operated improperly, and vals by other means. The vessel owner that its operation is not impeded or or operator must repair or replace the interfered with. EMTU and comply with the require- (i) Inspection. The vessel owner and ments in paragraph (c)(2) of this sec- operator shall make the EMTU, includ- tion within 30 days or before the vessel ing its antenna, connectors and an- leaves port, whichever is sooner. tenna cable, available for inspection by (f) Related VMS requirements. Unless authorized officers or by officers con- specified otherwise in the high seas ducting boarding and inspection under fishing permit, a vessel owner’s and op- a scheme adopted by an RFMO of erator’s compliance with requirements which the United States is a member. in part 300, 635, 660, or 665 of this title (j) Access to data. As required under relating to the installation, carrying, fishery-specific regulations in other and operation of EMTUs will satisfy parts of this title, the vessel owner and the requirements of this section, if the operator shall make the vessel’s posi- requirements are the same or more re- tion data, obtained from the EMTU or strictive than those in this section and other means, available to authorized provided that: officers and to any inspector con- (1) On the high seas, the EMTU is op- ducting a high seas boarding and in- erated continuously and position infor- spection pursuant to a scheme adopted mation is automatically transmitted a by an RFMO of which the United minimum of once every hour; States is a member. (2) The EMTU is type-approved by (k) Communication devices. In cases of NMFS; EMTU failure as specified under para- (3) OLE is authorized to receive and graph (e) of this section, and to facili- relay transmissions from the EMTU; tate communication with management and and enforcement authorities regarding (4) The requirements of paragraph (d) the functioning of the EMTU and other of this section are complied with. If the purposes, the vessel operator shall, EMTU is owned by NMFS, the require- while the vessel is at sea, carry on ment under paragraph (e) of this sec- board and continuously monitor a two- tion to repair or replace the EMTU will way communication device, in addition be the responsibility of NMFS, but the to the EMTU, that is capable of real- vessel owner and operator shall be re- time communication with the OLE di- sponsible for ensuring that the EMTU visional office in, or nearest, the Re- complies with the requirements speci- gion issuing the permit under this sub- fied in paragraph (c)(2) of this section part. before the vessel leaves port. (g) Costs. The vessel owner and oper- § 300.338 Observers. ator shall be responsible for all costs (a) Where observer coverage is not associated with the purchase, installa- otherwise required by other regulation, operation, and maintenance of tions or relevant RFMO conservation the EMTU and for all charges levied by and management measures, NMFS may vendors as necessary to ensure the select for at-sea observer coverage any transmission of automatic position re- vessel that has been issued a high seas ports to OLE as required in paragraph fishing permit. A vessel so selected by (c) of this section. However, if the NMFS must carry an observer when di- EMTU is being carried and operated in rected to do so. compliance with the requirements in (b) NMFS will contact a vessel part 300, 635, 660, or 665 of this title re- owner, in writing, when his or her ves- lating to the installation, carrying, sel is selected for observer coverage and operation of EMTUs, the vessel under this section. owner and operator shall not be respon- (c) A vessel shall not fish on the high sible for any costs that are the respon- seas without taking an observer if

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NMFS contacted the vessel owner (8) Provide access to sea turtle, ma- under paragraph (b) of this section, or rine mammal, sea bird, or other speci- if so required as a condition of a permit mens as requested by the observer. issued under this subpart or pursuant (9) Notify the observer in a timely to other legal authorities, unless the fashion when commercial fishing activ- requirement to carry an observer has ity is to begin and end. been waived under paragraph (d) of this (f) The permit holder, vessel oper- section. ator, and crew must cooperate with the (d) The vessel owner that NMFS con- observer in the performance of the ob- tacts under paragraph (b) of this sec- server’s duties. tion must notify NMFS of his or her (g) The permit holder, vessel oper- next fishing trip that may take place ator, and crew must comply with other on the high seas before commencing terms and conditions to ensure the ef- the fishing trip. NMFS will specify the fective deployment and use of observ- notification procedures and informa- ers that the Regional Administrator or tion requirements, such as expected Office Director imposes by written no- gear deployment, trip duration and tice. fishing area, in its selection letter. § 300.339 Transshipment on the high Once notified of a trip by the vessel seas. owner, NMFS will assign an observer for that trip or notify the vessel owner (a) In addition to any other applica- that coverage pursuant to this subpart ble restrictions on transshipment, in- is not required, given the existing re- cluding those under parts 300 and 635 of quirement for observer coverage under this title, the following requirements other legal authorities. apply to transshipments, when author- (e) The owner, operator, and crew of ized, taking place on the high seas: a vessel on which a NMFS-approved ob- (1) The owner or operator of a U.S. server is assigned must comply with vessel receiving or offloading fish on safety regulations at §§ 600.725 and the high seas shall provide a notice by 600.746 of this title and— fax or email to the Regional Adminis- trator or the Office Director at least 36 (1) Facilitate the safe embarkation hours prior to any intended trans- and debarkation of the observer. shipment on the high seas with the fol- (2) Provide the observer with accom- lowing information: the vessels off- modations, food, and amenities that loading and receiving the trans- are equivalent of those provided to ves- shipment (names, official numbers, and sel officers. vessel types); the location (latitude and (3) Allow the observer access to all longitude to the nearest tenth of a de- areas of the vessel necessary to con- gree) of transshipment; date and time duct observer duties. that transshipment is expected to (4) Allow the observer free and unob- occur; and species, processed state, and structed access to the vessel’s bridge, quantities (in metric tons) expected to working decks, holding bins, weight be transshipped. If another require- scales, holds, and any other space used ment for prior notice applies, the more to hold, process, weigh, or store fish. restrictive requirement (i.e., a require- (5) Allow the observer access to ment for greater advance notice and/or EMTUs, communications equipment, more specific information regarding and navigation equipment to verify op- vessels, location etc.) must be followed. eration, obtain data, and use the com- (2) U.S. high seas fishing vessels shall munication capabilities of the units for report transshipments on the high seas official purposes. to the Regional Administrator or Of- (6) Allow the observer to inspect and fice Director within 15 calendar days copy the vessel’s log, communications after the vessel first enters into port, logs, and any records associated with using the form obtained from the Re- the catch and disposition of fish for gional Administrator or Office Direc- that trip. tor. If there are applicable trans- (7) Provide accurate vessel locations shipment reporting requirements in by latitude and longitude upon request other parts of this title, the more re- by the observer. strictive requirement (e.g., a reporting

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requirement of fewer than 15 calendar any item described at § 300.338 or days) must be followed. § 600.746 of this title; (b) [Reserved] (2) Fish without an observer when the vessel is required to carry an observer § 300.340 Prohibitions. pursuant to § 300.338(c); In addition to the prohibitions in (3) Assault, oppose, harass, impede, § 300.4, it is unlawful for any person to: intimidate, or interfere with an ob- (a) Use a high seas fishing vessel on server; the high seas in contravention of inter- (4) Prohibit or bar by command, im- national conservation and management pediment, threat, coercion, inter- measures. ference, or refusal of reasonable assist- (b) Fish on the high seas unless the ance, an observer from conducting his vessel has been issued, and has on or her duties as an observer; or board, a valid permit issued under (5) Tamper with or destroy samples § 300.333(d). or equipment. (c) Fish on the high seas unless the (g) Fail to submit a prior notice or a vessel has been issued, and has on report of a transshipment as provided board, valid permits related to the au- in § 300.339(b) of this title. thorized fisheries noted on the high (h) Fail to comply with reporting re- seas fishing permit, as required under quirements as provided in § 300.341. § 300.334(b). (d) Operate a high seas fishing vessel § 300.341 Reporting. on the high seas that is not marked in accordance with § 300.336. (a) General. The operator of any ves- (e) With respect to the EMTU, sel permitted under this subpart must (1) Fail to install, activate, or con- accurately maintain on board the ves- tinuously operate a properly func- sel a complete record of fishing activi- tioning and type-approved EMTU as re- ties, such as catch, effort, and other quired in § 300.337; data and report high seas catch and ef- (2) Power-down or power-up the fort information to NMFS in a manner EMTU without following the proce- consistent with the reporting require- dures required in § 300.337; ments of the authorized fishery(ies) (3) In the event of EMTU failure or noted on the high seas permit. Reports interruption, fail to repair or replace must include: identification informa- an EMTU, fail to notify the appro- tion for vessel and operator; operator priate OLE divisional office and follow signature; crew size; whether an ob- the instructions provided, or otherwise server is aboard; target species; gear fail to act as required in § 300.337; used; dates, times, locations, and con- (4) Disable, destroy, damage or oper- ditions under which fishing was con- ate improperly an EMTU installed ducted; species and amounts of fish re- under § 300.337, attempt to do any of the tained and discarded; and details of any same, or fail to ensure that its oper- interactions with sea turtles, marine ation is not impeded or interfered with, mammals, or birds. as provided in § 300.337; (1) The vessel owner and operator are (5) Fail to make an EMTU installed responsible for obtaining and com- under § 300.337 or the position data ob- pleting the reporting forms from the tained from it available for inspection, Regional Administrator or Office Di- as provided in § 300.337; or rector who issued the permit holder’s (6) Fail to carry on board and mon- high seas fishing permit. The com- itor communication devices as required pleted forms must be submitted to the in § 300.337(l); same Regional Administrator or Office (f) With respect to observers, Director or, if directed by NMFS, to a (1) Fail to provide to an observer, a Science Center. NMFS employee, or a designated ob- (2) Reports must be submitted within server provider, information that has the deadline provided for in the author- been requested pursuant to § 300.338 or ized fishery or within 15 days following § 600.746 of this title, or fail to allow an the end of a fishing trip, whichever is observer, a NMFS employee, or a des- sooner. Contact information for the ignated observer provider to inspect Regional Administrators and Science

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Center Directors can be found on the PARTS 301–399 [RESERVED] NMFS Web site. (b) [Reserved]

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SUBCHAPTER A

Part Page 400 [Reserved] 401 Anadromous fisheries conservation, development and enhancement ...... 339 402 Interagency cooperation—Endangered Species Act of 1973, as amended ...... 342 403 Transfer of marine mammal management authority to States ...... 363 404 Papaha¯ naumokua¯ kea Marine National Monument 371 424 Listing endangered and threatened species and designating critical habitat ...... 392

SUBCHAPTER B [RESERVED]

SUBCHAPTER C—ENDANGERED SPECIES EXEMPTION PROCESS 450 General provisions...... 404 451 Application procedure...... 405 452 Consideration of application by the Secretary ...... 407 453 Endangered Species Committee ...... 410 454–499 [Reserved]

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PART 400 [RESERVED] Great Lakes. The area within the Co- lumbia River basin is excluded. PART 401—ANADROMOUS FISH- (d) State fishery agency. Any department(s), division(s), commission(s), or ERIES CONSERVATION, DEVELOP- official(s) of a State empowered under MENT AND ENHANCEMENT its laws to regulate a commercial or sport fishery. Sec. (e) Non-Federal interest. Any organiza- 401.1 Administration. tion, association, institution, business, 401.2 Definitions. 401.3 Submission of documents. school, individual, or group of individ- 401.4 Activities prohibited. uals, municipality and others outside 401.5 Coordination with States. the Federal Government, in addition to 401.6 Prosecution of work. State fishery agencies, which desire to 401.7 General information for the Secretary. cooperate within the terms of the Act. 401.8 Availability of funds. (f) Cooperator. One or more States 401.9 Payments to cooperators. acting jointly or severally or other 401.10 Request for payment. non-Federal interests, participating in 401.11 Property as matching funds. a project agreement or grant-in-aid 401.12 Ownership of property. award with the Secretary. 401.13 Personnel. 401.14 Inspection. (g) Anadromous fish. Aquatic, gill 401.15 Record retention. breathing, vertebrate animals bearing 401.16 Records and reporting. paired fins which migrate to and spawn 401.17 Safety and accident prevention. in fresh water, but which spend part of 401.18 Contracts. their life in an oceanic environment; 401.19 Statements and payrolls. also fish in the Great Lakes that as- 401.20 Officials not to benefit. cend streams to spawn. 401.21 Patents and inventions. (h) Application for Federal assistance. 401.22 Civil rights. A description of work to be accom- 401.23 Audits. plished, including objectives and needs, AUTHORITY: Anadromous Fish Conserva- expected results and benefits, ap- tion Act (79 Stat. 1125, as amended, 84 Stat. proach, cost, location and time re- 214, 88 Stat. 398), 16 U.S.C. 757a–757f. quired for completion. SOURCE: 40 FR 26678, June 25, 1975, unless (i) Project agreement. The formal doc- otherwise noted. ument executed between the Secretary of the Interior and the Cooperator, § 401.1 Administration. committing the Cooperator to the per- The Director of the U.S. Fish and formance of described activities and Wildlife Service and the Director of the the Federal Government to participa- National Marine Fisheries Service tion in the financing of those activi- shall jointly administer the Anad- ties. romous Fish Conservation Act for the (j) Grant-in-Aid award. The formal Secretaries. document executed between the Sec- retary of Commerce and the Coop- § 401.2 Definitions. erator, committing the Cooperator to As used in this part, terms shall have the performance of described activities the meanings ascribed in this section. and the Federal Government to partici- (a) Secretary. The Secretary of Com- pation in the financing of those activi- merce, the Secretary of the Interior, or ties. their authorized representatives. (b) Act. The Anadromous Fish Con- § 401.3 Submission of documents. servation Act, 16 U.S.C. 757a through Applications for Federal assistance 757f. and other documents for projects relat- (c) Eligible states. Any coastal State ing generally to recreational fisheries of the United States, the State of shall be submitted to the concerned Vermont, and the States bordering the Regional Office of the U.S. Fish and

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Wildlife Service, or for projects relat- § 401.7 General information for the ing generally to commercial fisheries Secretary. of the concerned Regional Office of the Before any Federal funds may be ob- National Marine Fisheries Service. ligated for any project an applicant shall furnish to the Secretary, upon his § 401.4 Activities prohibited. request, information regarding the Law enforcement, public relations, laws affecting anadromous fish and the harvesting, marketing and processing authority of the applicant to partici- activities, construction of fisherman pate in the benefits of the Act. use facilities, and activities concerned (a) Document signature. Individuals with landlocked anadromous fish popu- authorized to sign project documents lations (except fish in the Great Lakes under the Commercial Fisheries Re- that ascend streams to spawn) may not search and Development Act of 1964 (78 be financed under the Act. Stat. 197, as amended), 16 U.S.C. 779 through 779f, or the Federal Aid in § 401.5 Coordination with States. Sport Fish Restoration Act (64 Stat. 430, as amended), 16 U.S.C. 777 through The Secretary will approve an Appli- 777f, may likewise sign project docu- cation For Federal Assistance only ments contemplated in this part. after he has coordinated the applica- (b) Program information. The Sec- tion with the State office established retary may, from time to time, re- to review applications under Executive quest, and the Cooperators shall fur- Order 12372 (if the State has established nish, information relating to the ad- such an office and wishes to review ministration and maintenance of any these applications) and other non-Fed- project established under the Act. eral entities which have management authority over the resource to be af- § 401.8 Availability of funds. fected. The period of availability of funds to [48 FR 29137, June 24, 1983] the States or other non-Federal interests for obligation shall be established § 401.6 Prosecution of work. by the administering Federal agency. (a) Project work shall be carried § 401.9 Payments to cooperators. through to a state of completion ac- Payments shall be made to Coopera- ceptable to the Secretary with reason- tors in accordance with provisions of able promptness. Failure to render sat- grant-in-aid awards or project agree- isfactory performance reports or fail- ments. ure to complete the project to the satisfaction of the Secretary shall be § 401.10 Request for payment. cause for suspension of Federal assist- Request for payment shall be on ance for the project until the project forms provided by the Secretary, cer- provisions are satisfactorily met. Fed- tified as therein prescribed, and sub- eral assistance may be terminated mitted to the Regional Director by the upon determination by the Secretary Cooperator. that satisfactory progress has not been maintained. The Secretary shall have § 401.11 Property as matching funds. the right to inspect and review work at The non-Federal share of the cost of any time. projects may be in the form of real or (b) Research and development work personal property. Specific procedures shall be continuously coordinated by to be used by grantees in placing the the Cooperator with studies conducted value on real or personal property for by others to avoid unnecessary duplica- matching funds are set forth in Attach- tion. ment F of Federal Management Cir- (c) All work shall be performed in ac- cular 74–7. cordance with applicable local laws, except when in conflict with Federal laws § 401.12 Ownership of property. or regulations, in which case Federal When real property is acquired pursu- laws or regulations shall prevail. ant to the provisions of the Act, title

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to such property, or interests therein, States, and copies thereof shall be fur- shall be vested in the United States, nished when requested. and the conveying instrument shall re- (Approved by the Office of Management and cite the United States of America as Budget under control number 0648–0102) the grantee. However, if the Secretary [40 FR 26678, June 25, 1975, as amended at 48 determines that under the terms of the FR 57302, Dec. 29, 1983] application for Federal assistance and grant-in-aid award or project agree- § 401.17 Safety and accident preven- ment, the intent and purpose of the tion. Act may be better served by other own- In the performance of each project, ership of such property, an appropriate the Cooperator shall comply with all transfer may be made. When real or applicable Federal, State, and local personal property is utilized as match- laws governing safety, health and sani- ing funds, title to such property shall tation. be in the Cooperator unless otherwise specified in the grant-in-aid award or § 401.18 Contracts. project agreement. A Cooperator may use its own regulations or guidelines in obtaining serv- § 401.13 Personnel. ices by contract or otherwise, provided The Cooperator shall maintain an that they adhere to applicable Federal adequate and competent force of em- laws, regulations, policies, guidelines, ployees to initiate and carry approved and requirements, as set forth in At- work to satisfactory completion. tachment 0 of Federal Management Circular 74–7. However, the Cooperator § 401.14 Inspection. is the responsible authority, without recourse to the Federal agency, regard- Cooperator supervision of each ing the settlement of such contractual project shall include adequate and con- issues. tinuous inspection. The project will be subject at all times to Federal inspec- § 401.19 Statements and payrolls. tion. The regulations of the Secretary of Labor applicable to contractors and § 401.15 Record retention. subcontractors (29 CFR part 3), made All records of accounts and reports pursuant to the Copeland ‘‘Anti-Kick- with supporting documentation there- back’’ Act (18 U.S.C. 874), as amended, to, as set forth in Attachment C of are made a part of the regulations in Federal Management Circular 74–7, will this part by reference. The Cooperator be retained by the Cooperator for a pe- will comply with the regulations in riod of 3 years after submission of the this part and any amendments or modi- final expenditure report on the project. fications thereof, and the Cooperator’s Record retention for a period longer prime contractor will be responsible than 3 years is required if audit find- for the submission of statements re- ings have not been resolved. quired of subcontractors thereunder. The foregoing shall apply except as the § 401.16 Records and reporting. Secretary of Labor may specifically provide for reasonable limitation, vari- Performance reports and other re- ations, tolerances, and exemptions. ports shall be furnished as requested by the Secretary. Cost records shall be § 401.20 Officials not to benefit. maintained separately for each project. No Member of, or Delegate to, Con- The accounts and records maintained gress, or resident Commissioner, shall by the Cooperator, together with all be admitted to any share or any part of supporting documents, shall be open at any project agreement made under the all times to the inspection of author- Act, or to any benefit that may arise ized representatives of the United therefrom. This provision shall not be construed to extend to this agreement if made with a corporation for its general benefit.

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§ 401.21 Patents and inventions. Subpart B—Consultation Procedures Determination of the patent rights in 402.10 Conference on proposed species or any inventions or discoveries resulting proposed critical habitat. from work under project agreements 402.11 Early consultation. entered into pursuant to the Act shall 402.12 Biological assessments. 402.13 Informal consultation. be consistent with the ‘‘Government 402.14 Formal consultation. Patent Policy’’ (President’s memo- 402.15 Responsibilities of Federal agency randum for Heads of Executive Depart- following issuance of a biological opin- ments and Agencies, August 23, 1971, ion. and statement of Government Patent 402.16 Reinitiation of consultation. Policy as printed in 36 FR 16889). 402.17 Other provisions. Subpart C—Counterpart Regulations For § 401.22 Civil rights. Implementing the National Fire Plan Each application for Federal assistance, grant-in-aid award, or project 402.30 Definitions. 402.31 Purpose. agreement shall be supported by a 402.32 Scope. statement of assurances executed by 402.33 Procedures. the Cooperator providing that the 402.34 Oversight. project will be carried out in accordance with title VI, Nondiscrimination Subpart D—Counterpart Regulations Gov- in federally Assisted Programs of the erning Actions by the U.S. Environ- Civil Rights Act of 1964 and with the mental Protection Agency Under the Secretary’s regulations promulgated Federal Insecticide, Fungicide and thereunder. Rodenticide Act 402.40 Definitions. § 401.23 Audits. 402.41 Purpose. The State is required to conduct an 402.42 Scope and applicability 402.43 Interagency exchanges of informa- audit at least every two years in action. cordance with the provisions of Attach- 402.44 Advance coordination for FIFRA ac- ment P OMB Circular A–102. Failure to tions. conduct audits as required may result 402.45 Alternative consultation on FIFRA in withholding of grant payments or actions that are not likely to adversely such other sanctions as the Secretary affect listed species or critical habitat. 402.46 Optional formal consultation proce- may deem appropriate. dure for FIFRA actions. [49 FR 30074, July 26, 1984] 402.47 Special consultation procedures for complex FIFRA actions. 402.48 Conference on proposed species or PART 402—INTERAGENCY CO- proposed critical habitat. OPERATION—ENDANGERED SPE- AUTHORITY: 16 U.S.C. 1531 et seq.

CIES ACT OF 1973, AS AMEND- SOURCE: 51 FR 19957, June 3, 1986, unless ED otherwise noted.

Subpart A—General Subpart A—General Sec. § 402.01 Scope. 402.01 Scope. 402.02 Definitions. (a) This part interprets and imple- 402.03 Applicability. ments sections 7(a)–(d) [16 U.S.C. 402.04 Counterpart regulations. 1536(a)–(d)] of the Endangered Species 402.05 Emergencies. Act of 1973, as amended (‘‘Act’’). Sec- 402.06 Coordination with other environ- tion 7(a) grants authority to and im- mental reviews. poses requirements upon Federal agen- 402.07 Designation of lead agency. cies regarding endangered or threat- 402.08 Designation of non-Federal represent- ened species of fish, wildlife, or plants ative. (‘‘listed species’’) and habitat of such 402.09 Irreversible or irretrievable commit- species that has been designated as ment of resources. critical (‘‘critical habitat’’). Section

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7(a)(1) of the Act directs Federal agen- the destruction or adverse modifica- cies, in consultation with and with the tion of critical habitat. Section 7(e)– assistance of the Secretary of the Inte- (o)(1) of the Act provide procedures for rior or of Commerce, as appropriate, to granting exemptions from the require- utilize their authorities to further the ments of section 7(a)(2). Regulations purposes of the Act by carrying out governing the submission of exemption conservation programs for listed spe- applications are found at 50 CFR part cies. Such affirmative conservation 451, and regulations governing the ex- programs must comply with applicable emption process are found at 50 CFR permit requirements (50 CFR parts 17, parts 450, 452, and 453. 220, 222, and 227) for listed species and (b) The U.S. Fish and Wildlife Service should be coordinated with the appro- (FWS) and the National Marine Fish- priate Secretary. Section 7(a)(2) of the Act requires every Federal agency, in eries Service (NMFS) share responsibil- consultation with and with the assist- ities for administering the Act. The ance of the Secretary, to insure that Lists of Endangered and Threatened any action it authorizes, funds, or car- Wildlife and Plants are found in 50 CFR ries out, in the United States or upon 17.11 and 17.12 and the designated crit- the high seas, is not likely to jeop- ical habitats are found in 50 CFR 17.95 ardize the continued existence of any and 17.96 and 50 CFR part 226. Endan- listed species or results in the destruc- gered or threatened species under the tion or adverse modification of critical jurisdiction of the NMFS are located in habitat. Section 7(a)(3) of the Act au- 50 CFR 222.23(a) and 227.4. If the subject thorizes a prospective permit or license species is cited in 50 CFR 222.23(a) or applicant to request the issuing Fed- 227.4, the Federal agency shall contact eral agency to enter into early con- the NMFS. For all other listed species sultation with the Service on a pro- the Federal Agency shall contact the posed action to determine whether FWS. such action is likely to jeopardize the continued existence of listed species or § 402.02 Definitions. result in the destruction or adverse Act means the Endangered Species modification of critical habitat. Sec- Act of 1973, as amended, 16 U.S.C. 1531 tion 7(a)(4) of the Act requires Federal agencies to confer with the Secretary et seq. on any action that is likely to jeop- Action means all activities or pro- ardize the continued existence of programs of any kind authorized, funded, posed species or result in the destruc- or carried out, in whole or in part, by tion or adverse modification of pro- Federal agencies in the United States posed critical habitat. Section 7(b) of or upon the high seas. Examples in- the Act requires the Secretary, after clude, but are not limited to: the conclusion of early or formal con- (a) actions intended to conserve list- sultation, to issue a written statement ed species or their habitat; setting forth the Secretary’s opinion (b) the promulgation of regulations; detailing how the agency action affects (c) the granting of licenses, con- listed species or critical habitat Bio- tracts, leases, easements, rights-of- logical assessments are required under way, permits, or grants-in-aid; or section 7(c) of the Act if listed species (d) actions directly or indirectly or critical habitat may be present in causing modifications to the land, the area affected by any major con- water, or air. struction activity as defined in § 404.02. means all areas to be af- Section 7(d) of the Act prohibits Fed- Action area eral agencies and applicants from mak- fected directly or indirectly by the ing any irreversible or irretrievable Federal action and not merely the im- commitment of resources which has mediate area involved in the action. the effect of foreclosing the formula- Applicant refers to any person, as de- tion or implementation of reasonable fined in section 3(13) of the Act, who re- and prudent alternatives which would quires formal approval or authoriza- avoid jeopardizing the continued exist- tion from a Federal agency as a pre- ence of listed species or resulting in requisite to conducting the action.

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Biological assessment refers to the in- of a prospective applicant under sec- formation prepared by or under the dition 7(a)(3) of the Act. rection of the Federal agency con- Effects of the action are all concerning listed and proposed species and sequences to listed species or critical designated and proposed critical habi- habitat that are caused by the pro- tat that may be present in the action posed action, including the con- area and the evaluation potential ef- sequences of other activities that are fects of the action on such species and caused by the proposed action. A con- habitat. sequence is caused by the proposed ac- Biological opinion is the document tion if it would not occur but for the that states the opinion of the Service proposed action and it is reasonably as to whether or not the Federal action certain to occur. Effects of the action is likely to jeopardize the continued may occur later in time and may in- existence of listed species or result in clude consequences occurring outside the destruction or adverse modifica- the immediate area involved in the action of critical habitat. tion. (See § 402.17). Conference is a process which involves Environmental baseline refers to the informal discussions between a Federal condition of the listed species or its agency and the Service under section designated critical habitat in the ac- 7(a)(4) of the Act regarding the impact tion area, without the consequences to of an action on proposed species or pro- the listed species or designated critical posed critical habitat and rec- habitat caused by the proposed action. ommendations to minimize or avoid The environmental baseline includes the adverse effects. the past and present impacts of all Conservation recommendations are sug- Federal, State, or private actions and gestions of the Service regarding dis- other human activities in the action cretionary measures to minimize or area, the anticipated impacts of all avoid adverse effects of a proposed ac- proposed Federal projects in the action tion on listed species or critical habi- area that have already undergone for- tat or regarding the development of in- mal or early section 7 consultation, formation. and the impact of State or private ac- Critical habitat refers to an area designated as critical habitat listed in 50 tions which are contemporaneous with CFR parts 17 or 226. the consultation in process. The con- Cumulative effects are those effects of sequences to listed species or des- future State or private activities, not ignated critical habitat from ongoing involving Federal activities, that are agency activities or existing agency fa- reasonably certain to occur within the cilities that are not within the agen- action area of the Federal action sub- cy’s discretion to modify are part of ject to consultation. the environmental baseline. Designated non-Federal representative Formal consultation is a process be- refers to a person designated by the tween the Service and the Federal Federal agency as its representative to agency that commences with the Fed- conduct informal consultation and/or eral agency’s written request for con- to prepare any biological assessment. sultation under section 7(a)(2) of the Destruction or adverse modification Act and concludes with the Service’s means a direct or indirect alteration issuance of the biological opinion that appreciably diminishes the value under section 7(b)(3) of the Act. of critical habitat as a whole for the Framework programmatic action conservation of a listed species. Direc- means, for purposes of an incidental tor refers to the Assistant Adminis- take statement, a Federal action that trator for Fisheries for the National approves a framework for the develop- Marine Fisheries Service, or his or her ment of future action(s) that are au- authorized representative; or the Di- thorized, funded, or carried out at a rector of the U.S. Fish and Wildlife later time, and any take of a listed spe- Service, or his or her authorized rep- cies would not occur unless and until resentative. those future action(s) are authorized, Early consultation is a process refunded, or carried out and subject to quested by a Federal agency on behalf further section 7 consultation.

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Incidental take refers to takings that be implemented in particular geo- result from, but are not the purpose of, graphic areas; and carrying out an otherwise lawful activ- (2) A proposed program, plan, policy, ity conducted by the Federal agency or or regulation providing a framework applicant. for future proposed actions. Informal consultation is an optional Proposed critical habitat means habi- process that includes all discussions, tat proposed in the FEDERAL REGISTER correspondence, etc., between the Serv- to be designated or revised as critical ice and the Federal agency or the des- habitat under section 4 of the Act for ignated non-Federal representative any listed or proposed species. prior to formal consultation, if re- Proposed species means any species of quired. fish, wildlife, or plant that is proposed Jeopardize the continued existence of in the FEDERAL REGISTER to be listed means to engage in an action that rea- under section 4 of the Act. sonably would be expected, directly or Reasonable and prudent alternatives indirectly, to reduce appreciably the refer to alternative actions identified likelihood of both the survival and re- during formal consultation that can be covery of a listed species in the wild by implemented in a manner consistent reducing the reproduction, numbers, or with the intended purpose of the ac- distribution of that species. tion, that can be implemented con- Listed species means any species of sistent with the scope of the Federal fish, wildlife, or plant which has been agency’s legal authority and jurisdic- determined to be endangered or threat- tion, that is economically and techno- ened under section 4 of the Act. Listed logically feasible, and that the Direc- species are found in 50 CFR 17.11–17.12. tor believes would avoid the likelihood of jeopardizing the continued existence Major construction activity is a con- of listed species or resulting in the destruction project (or other undertaking struction or adverse modification of having similar physical impacts) which critical habitat. is a major Federal action significantly Reasonable and prudent measures refer affecting the quality of the human en- to those actions the Director believes vironment as referred to in the Na- necessary or appropriate to minimize tional Environmental Policy Act the impacts, i.e., amount or extent, of [NEPA, 42 U.S.C. 4332(2)(C)]. incidental take. Mixed programmatic action means, for Recovery means improvement in the purposes of an incidental take state- status of listed species to the point at ment, a Federal action that approves which listing is no longer appropriate action(s) that will not be subject to under the criteria set out in section further section 7 consultation, and also 4(a)(1) of the Act. approves a framework for the develop- Service means the U.S. Fish and Wild- ment of future action(s) that are au- life Service or the National Marine thorized, funded, or carried out at a Fisheries Service, as appropriate. later time and any take of a listed species would not occur unless and until [51 FR 19957, June 3, 1986, as amended at 73 those future action(s) are authorized, FR 76286, Dec. 16, 2008; 74 FR 20422, May 4, funded, or carried out and subject to 2009; 80 FR 26844, May 11, 2015; 81 FR 7225, further section 7 consultation. Feb. 11, 2016; 84 FR 45016, Aug. 27, 2019] Preliminary biological opinion refers to § 402.03 Applicability. an opinion issued as a result of early consultation. Section 7 and the requirements of this part apply to all actions in which Programmatic consultation is a con- there is discretionary Federal involve- sultation addressing an agency’s mul- ment or control. tiple actions on a program, region, or other basis. Programmatic consulta- [74 FR 20423, May 4, 2009] tions allow the Services to consult on the effects of programmatic actions § 402.04 Counterpart regulations. such as: The consultation procedures set forth (1) Multiple similar, frequently oc- in this part may be superseded for a curring, or routine actions expected to particular Federal agency by joint

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counterpart regulations among that quired by other statutes such as NEPA agency, the Fish and Wildlife Service, or FWCA, the results should be in- and the National Marine Fisheries cluded in the documents required by Service. Such counterpart regulations those statutes. shall be published in the FEDERAL REG- ISTER in proposed form and shall be § 402.07 Designation of lead agency. subject to public comment for at least When a particular action involves 60 days before final rules are published. more than one Federal agency, the consultation and conference responsibil- § 402.05 Emergencies. ities may be fulfilled through a lead (a) Where emergency circumstances agency. Factors relevant in deter- mandate the need to consult in an ex- mining an appropriate lead agency in- pedited manner, consultation may be clude the time sequence in which the conducted informally through alter- agencies would become involved, the native procedures that the Director de- magnitude of their respective involve- termines to be consistent with the re- ment, and their relative expertise with quirements of sections 7(a)–(d) of the respect to the environmental effects of Act. This provision applies to situa- the action. The Director shall be noti- tions involving acts of God, disasters, fied of the designation in writing by casualties, national defense or security the lead agency. emergencies, etc. (b) Formal consultation shall be ini- § 402.08 Designation of non-Federal tiated as soon as practicable after the representative. emergency is under control. The Fed- eral agency shall submit information A Federal agency may designate a on the nature of the emergency ac- non-Federal representative to conduct tion(s), the justification for the expe- informal consultation or prepare a bio- dited consultation, and the impacts to logical assessment by giving written endangered or threatened species and notice to the Director of such designa- their habitats. The Service will evalu- tion. If a permit or license applicant is ate such information and issue a bio- involved and is not the designated non- logical opinion including the informa- Federal representative, then the appli- tion and recommendations given dur- cant and Federal agency must agree on ing the emergency consultation. the choice of the designated non-Fed- eral representative. If a biological as- § 402.06 Coordination with other envi- sessment is prepared by the designated ronmental reviews. non-Federal representative, the Fed- (a) Consultation, conference, and bio- eral agency shall furnish guidance and logical assessment procedures under supervision and shall independently re- section 7 may be consolidated with view and evaluate the scope and con- interagency cooperation procedures re- tents of the biological assessment. The quired by other statutes, such as the ultimate responsibility for compliance National Environmental Policy Act with section 7 remains with the Fed- (NEPA) (42 U.S.C. 4321 et seq., imple- eral agency. mented at 40 CFR parts 1500–1508) or the Fish and Wildlife Coordination Act § 402.09 Irreversible or irretrievable (FWCA) (16 U.S.C. 661 et seq.). Satis- commitment of resources. fying the requirements of these other After initiation or reinitiation of statutes, however, does not in itself re- consultation required under section lieve a Federal agency of its obliga- 7(a)(2) of the Act, the Federal agency tions to comply with the procedures and any applicant shall make no irre- set forth in this part or the substantive versible or irretrievable commitment requirements of section 7. The Service of resources with respect to the agency will attempt to provide a coordinated action which has the effect of fore- review and analysis of all environ- closing the formulation or implemen- mental requirements. tation of any reasonable and prudent (b) Where the consultation or con- alternatives which would avoid vio- ference has been consolidated with the lating section 7(a)(2). This prohibition interagency cooperation procedures re- is in force during the consultation

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process and continues until the re- veloped (including that developed dur- quirements of section 7(a)(2) are satis- ing the rulemaking process on the pro- fied. This provision does not apply to posed listing or critical habitat des- the conference requirement for pro- ignation) and no significant changes to posed species or proposed critical habi- the Federal action are made that would tat under section 7(a)(4) of the Act. alter the content of the opinion. An incidental take statement provided with Subpart B—Consultation a conference opinion does not become Procedures effective unless the Service adopts the opinion once the listing is final. § 402.10 Conference on proposed spe- (e) The conclusions reached during a cies or proposed critical habitat. conference and any recommendations (a) Each Federal agency shall confer shall be documented by the Service and with the Service on any action which is provided to the Federal agency and to likely to jeopardize the continued ex- any applicant. The style and mag- istence of any proposed species or re- nitude of this document will vary with sult in the destruction or adverse the complexity of the conference. If modification of proposed critical habi- formal consultation also is required for tat. The conference is designed to as- a particular action, then the Service sist the Federal agency and any appli- will provide the results of the con- cant in identifying and resolving po- ference with the biological opinion. tential conflicts at an early stage in the planning process. § 402.11 Early consultation. (b) The Federal agency shall initiate (a) Purpose. Early consultation is de- the conference with the Director. The signed to reduce the likelihood of con- Service may request a conference if, flicts between listed species or critical after a review of available information, habitat and proposed actions and oc- it determines that a conference is re- curs prior to the filing of an applica- quired for a particular action. tion for a Federal permit or license. Al- (c) A conference between a Federal though early consultation is conducted agency and the Service shall consist of between the Service and the Federal informal discussions concerning an ac- agency, the prospective applicant tion that is likely to jeopardize the should be involved throughout the con- continued existence of the proposed sultation process. species or result in the destruction or (b) Request by prospective applicant. If adverse modification of the proposed a prospective applicant has reason to critical habitat at issue. Applicants believe that the prospective action may be involved in these informal dis- may affect listed species or critical cussions to the greatest extent prac- habitat, it may request the Federal ticable. During the conference, the agency to enter into early consultation Service will make advisory rec- with the Service. The prospective ap- ommendations, if any, on ways to min- plicant must certify in writing to the imize or avoid adverse effects. If the Federal agency that (1) it has a defini- proposed species is subsequently listed tive proposal outlining the action and or the proposed critical habitat is des- its effects and (2) it intends to imple- ignated prior to completion of the ac- ment its proposal, if authorized. tion, the Federal agency must review (c) Initiation of early consultation. If the action to determine whether for- the Federal agency receives the pro- mal consultation is required. spective applicant’s certification in (d) If requested by the Federal agen- paragraph (b) of this section, then the cy and deemed appropriate by the Serv- Federal agency shall initiate early con- ice, the conference may be conducted sultation with the Service. This rein accordance with the procedures for quest shall be in writing and contain formal consultation in § 402.14. An opin- the information outlined in § 402.14(c) ion issued at the conclusion of the con- and, if the action is a major construc- ference may be adopted as the biologi- tion activity, the biological assessment cal opinion when the species is listed or as outlined in § 402.12. critical habitat is designated, but only (d) Procedures and responsibilities. The if no significant new information is de- procedures and responsibilities for

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early consultation are the same as out- a contract for construction was not en- lined in § 402.14(c)–(j) for formal con- tered into or actual construction was sultation, except that all references to not begun on or before November 10, the ‘‘applicant’’ shall be treated as the 1978. Any person, including those who ‘‘prospective applicant’’ and all ref- may wish to apply for an exemption erences to the ‘‘biological opinion’’ or from section 7(a)(2) of the Act, may the ‘‘opinion’’ shall be treated as the prepare a biological assessment under ‘‘preliminary biological opinion’’ for the supervision of the Federal agency the purpose of this section. and in cooperation with the Service (e) Preliminary biological opinion. The consistent with the procedures and re- contents and conclusions of a prelimi- quirements of this section. An exemp- nary biological opinion are the same as tion from the requirements of section for a biological opinion issued after 7(a)(2) is not permanent unless a bio- formal consultation except that the in- logical assessment has been prepared. cidental take statement provided with (2) The biological assessment shall be a preliminary biological opinion does completed before any contract for con- not constitute authority to take listed struction is entered into and before species. construction is begun. (f) Confirmation of preliminary biologi- (c) Request for information. The Fed- cal opinion as final biological opinion. A eral agency or the designated non-Fed- preliminary biological opinion may be eral representative shall convey to the confirmed as a biological opinion Director either (1) a written request for issued after formal consultation if the a list of any listed or proposed species Service reviews the proposed action or designated or proposed critical habi- and finds that there have been no sig- tat that may be present in the action nificant changes in the action as area; or (2) a written notification of the planned or in the information used dur- species and critical habitat that are ing the early consultation. A written request for confirmation of the pre- being included in the biological assess- liminary biological opinion should be ment. submitted after the prospective appli- (d) Director’s response. Within 30 days cant applies to the Federal agency for of receipt of the notification of, or the a permit or license but prior to the request for, a species list, the Director issuance of such permit or license. shall either concur with or revise the Within 45 days of receipt of the Federal list or, in those cases where no list has agency’s request, the Service shall ei- been provided, advise the Federal agen- ther: cy or the designated non-Federal rep- (1) Confirm that the preliminary bio- resentative in writing whether, based logical opinion stands as a final bio- on the best scientific and commercial logical opinion; or data available, any listed or proposed (2) If the findings noted above cannot species or designated or proposed crit- be made, request that the Federal ical habitat may be present in the ac- agency initiate formal consultation. tion area. In addition to listed and proposed species, the Director will provide § 402.12 Biological assessments. a list of candidate species that may be (a) Purpose. A biological assessment present in the action area. Candidate shall evaluate the potential effects of species refers to any species being con- the action on listed and proposed spe- sidered by the Service for listing as en- cies and designated and proposed crit- dangered or threatened species but not ical habitat and determine whether yet the subject of a proposed rule. Al- any such species or habitat are likely though candidate species have no legal to be adversely affected by the action status and are accorded no protection and is used in determining whether for- under the Act, their inclusion will mal consultation or a conference is alert the Federal agency of potential necessary. proposals or listings. (b) Preparation requirement. (1) The (1) If the Director advises that no procedures of this section are required listed species or critical habitat may for Federal actions that are ‘‘major be present, the Federal agency need construction activities’’; provided that not prepare a biological assessment

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and further consultation is not re- (5) An analysis of alternate actions quired. If only proposed species or pro- considered by the Federal agency for posed critical habitat may be present the proposed action. in the action area, then the Federal (g) Incorporation by reference. If a pro- agency must confer with the Service if posed action requiring the preparation required under § 402.10, but preparation of a biological assessment is identical, of a biological assessment is not re- or very similar, to a previous action for quired unless the proposed listing and/ which a biological assessment was pre- or designation becomes final. pared, the Federal agency may fulfill (2) If a listed species or critical habi- the biological assessment requirement tat may be present in the action area, for the proposed action by incor- the Director will provide a species list porating by reference the earlier biological assessment, plus any supporting or concur with the species list pro- data from other documents that are vided. The Director also will provide pertinent to the consultation, into a available information (or references written certification that: thereto) regarding these species and (1) The proposed action involves critical habitat, and may recommend similar impacts to the same species in discretionary studies or surveys that the same geographic area; may provide a better information base (2) No new species have been listed or for the preparation of an assessment. proposed or no new critical habitat des- Any recommendation for studies or ignated or proposed for the action area; surveys is not to be construed as the and Service’s opinion that the Federal (3) The biological assessment has agency has failed to satisfy the infor- been supplemented with any relevant mation standard of section 7(a)(2) of changes in information. the Act. (h) Permit requirements. If conducting (e) Verification of current accuracy of a biological assessment will involve species list. If the Federal agency or the the taking of a listed species, a permit designated non-Federal representative under section 10 of the Act (16 U.S.C. does not begin preparation of the bio- 1539) and part 17 of this title (with re- logical assessment within 90 days of respect to species under the jurisdiction ceipt of (or concurrence with) the spe- of the FWS) or parts 220, 222, and 227 of cies list, the Federal agency or the des- this title (with respect to species under ignated non-Federal representative the jurisdiction of the NMFS) is re- must verify (formally or informally) quired. with the Service the current accuracy (i) Completion time. The Federal agen- of the species list at the time the prep- cy or the designated non- Federal rep- aration of the assessment is begun. resentative shall complete the biologi- (f) Contents. The contents of a bio- cal assessment within 180 days after its logical assessment are at the discretion initiation (receipt of or concurrence of the Federal agency and will depend with the species list) unless a different on the nature of the Federal action. period of time is agreed to by the Di- The following may be considered for in- rector and the Federal agency. If a permit or license applicant is involved, clusion: the 180-day period may not be extended (1) The results of an on-site inspec- unless the agency provides the appli- tion of the area affected by the action cant, before the close of the 180-day pe- to determine if listed or proposed spe- riod, with a written statement setting cies are present or occur seasonally. forth the estimated length of the pro- (2) The views of recognized experts on posed extension and the reasons why the species at issue. such an extension is necessary. (3) A review of the literature and (j) Submission of biological assessment. other information. The Federal agency shall submit the (4) An analysis of the effects of the completed biological assessment to the action on the species and habitat, in- Director for review. The Director will cluding consideration of cumulative ef- respond in writing within 30 days as to fects, and the results of any related whether or not he concurs with the studies. findings of the biological assessment.

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At the option of the Federal agency, adversely affect determination shall formal consultation may be initiated include information similar to the under § 402.14(c) concurrently with the types of information described for for- submission of the assessment. mal consultation at § 402.14(c)(1) suffi- (k) Use of the biological assessment. (1) cient for the Service to determine if it The Federal agency shall use the bio- concurs. logical assessment in determining (2) Upon receipt of a written request whether formal consultation or a con- consistent with paragraph (c)(1) of this ference is required under § 402.14 or section, the Service shall provide writ- § 402.10, respectively. If the biological ten concurrence or non-concurrence assessment indicates that there are no with the Federal agency’s determina- listed species or critical habitat tion within 60 days. The 60-day time- present that are likely to be adversely frame may be extended upon mutual affected by the action and the Director consent of the Service, the Federal concurs as specified in paragraph (j) of agency, and the applicant (if involved), this section, then formal consultation but shall not exceed 120 days total from is not required. If the biological assess- the date of receipt of the Federal agen- ment indicates that the action is not cy’s written request consistent with likely to jeopardize the continued ex- paragraph (c)(1) of this section. istence of proposed species or result in the destruction or adverse modifica- [74 FR 20423, May 4, 2009, as amended at 84 tion of proposed critical habitat, and FR 45016, Aug. 27, 2019] the Director concurs, then a conference § 402.14 Formal consultation. is not required. (2) The Director may use the results (a) Requirement for formal consultation. of the biological assessment in (i) de- Each Federal agency shall review its termining whether to request the Fed- actions at the earliest possible time to eral agency to initiate formal con- determine whether any action may af- sultation or a conference, (ii) formu- fect listed species or critical habitat. If lating a biological opinion, or (iii) for- such a determination is made, formal mulating a preliminary biological consultation is required, except as opinion. noted in paragraph (b) of this section. The Director may request a Federal § 402.13 Informal consultation. agency to enter into consultation if he (a) Informal consultation is an op- identifies any action of that agency tional process that includes all discus- that may affect listed species or crit- sions, correspondence, etc., between ical habitat and for which there has the Service and the Federal agency or been no consultation. When such a re- the designated non-Federal representa- quest is made, the Director shall for- tive, designed to assist the Federal ward to the Federal agency a written agency in determining whether formal explanation of the basis for the re- consultation or a conference is request. quired. (b) Exceptions. (1) A Federal agency (b) During informal consultation, the need not initiate formal consultation Service may suggest modifications to if, as a result of the preparation of a bi- the action that the Federal agency and ological assessment under § 402.12 or as any applicant could implement to a result of informal consultation with avoid the likelihood of adverse effects the Service under § 402.13, the Federal to listed species or critical habitat. agency determines, with the written (c) If during informal consultation it concurrence of the Director, that the is determined by the Federal agency, proposed action is not likely to ad- with the written concurrence of the versely affect any listed species or crit- Service, that the action is not likely to ical habitat. adversely affect listed species or crit- (2) A Federal agency need not ini- ical habitat, the consultation process tiate formal consultation if a prelimi- is terminated, and no further action is nary biological opinion, issued after necessary. early consultation under § 402.11, is (1) A written request for concurrence confirmed as the final biological opin- with a Federal agency’s not likely to ion.

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(c) Initiation of formal consultation. (1) posed action such as NEPA analyses or A written request to initiate formal other reports in substitution for the consultation shall be submitted to the initiation package outlined in this Director and shall include: paragraph (c). However, any such sub- (i) A description of the proposed ac- stitution shall be accompanied by a tion, including any measures intended written summary specifying the loca- to avoid, minimize, or offset effects of tion of the information that satisfies the action. Consistent with the nature the elements above in the submitted and scope of the proposed action, the document(s). description shall provide sufficient de- (3) Formal consultation shall not be tail to assess the effects of the action initiated by the Federal agency until on listed species and critical habitat, any required biological assessment has including: been completed and submitted to the (A) The purpose of the action; Director in accordance with § 402.12. (B) The duration and timing of the (4) Any request for formal consulta- action; tion may encompass, subject to the ap- (C) The location of the action; proval of the Director, a number of (D) The specific components of the similar individual actions within a action and how they will be carried given geographical area, a pro- out; grammatic consultation, or a segment (E) Maps, drawings, blueprints, or of a comprehensive plan. The provision similar schematics of the action; and in this paragraph (c)(4) does not relieve (F) Any other available information the Federal agency of the requirements related to the nature and scope of the for considering the effects of the action proposed action relevant to its effects or actions as a whole. on listed species or designated critical (d) Responsibility to provide best sci- habitat. entific and commercial data available. (ii) A map or description of all areas The Federal agency requesting formal to be affected directly or indirectly by consultation shall provide the Service the Federal action, and not merely the with the best scientific and commer- immediate area involved in the action cial data available or which can be ob- (i.e., the action area as defined at tained during the consultation for an § 402.02). adequate review of the effects that an (iii) Information obtained by or in action may have upon listed species or the possession of the Federal agency critical habitat. This information may and any applicant on the listed species include the results of studies or sur- and designated critical habitat in the veys conducted by the Federal agency action area (as required by paragraph or the designated non-Federal rep- (c)(1)(ii) of this section), including resentative. The Federal agency shall available information such as the pres- provide any applicant with the oppor- ence, abundance, density, or periodic tunity to submit information for con- occurrence of listed species and the sideration during the consultation. condition and location of the species’ (e) Duration and extension of formal habitat, including any critical habitat. consultation. Formal consultation con- (iv) A description of the effects of the cludes within 90 days after its initi- action and an analysis of any cumu- ation unless extended as provided lative effects. below. If an applicant is not involved, (v) A summary of any relevant infor- the Service and the Federal agency mation provided by the applicant, if may mutually agree to extend the con- available. sultation for a specific time period. If (vi) Any other relevant available in- an applicant is involved, the Service formation on the effects of the pro- and the Federal agency may mutually posed action on listed species or des- agree to extend the consultation pro- ignated critical habitat, including any vided that the Service submits to the relevant reports such as environmental applicant, before the close of the 90 impact statements and environmental days, a written statement setting assessments. forth: (2) A Federal agency may submit ex- (1) The reasons why a longer period is isting documents prepared for the pro- required,

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(2) The information that is required whether the action is likely to jeop- to complete the consultation, and ardize the continued existence of listed (3) The estimated date on which the species or result in the destruction or consultation will be completed. A con- adverse modification of critical habi- sultation involving an applicant can- tat. not be extended for more than 60 days (5) Discuss with the Federal agency without the consent of the applicant. and any applicant the Service’s review Within 45 days after concluding formal and evaluation conducted under para- consultation, the Service shall deliver graphs (g)(1) through (3) of this section, a biological opinion to the Federal the basis for any finding in the biologi- agency and any applicant. cal opinion, and the availability of rea- (f) Additional data. When the Service sonable and prudent alternatives (if a determines that additional data would jeopardy opinion is to be issued) that provide a better information base from the agency and the applicant can take which to formulate a biological opin- to avoid violation of section 7(a)(2). ion, the Director may request an exten- The Service will utilize the expertise of sion of formal consultation and request the Federal agency and any applicant that the Federal agency obtain addi- in identifying these alternatives. If re- tional data to determine how or to quested, the Service shall make avail- what extent the action may affect list- able to the Federal agency the draft bi- ed species or critical habitat. If formal ological opinion for the purpose of ana- consultation is extended by mutual lyzing the reasonable and prudent al- agreement according to § 402.14(e), the ternatives. The 45-day period in which Federal agency shall obtain, to the ex- the biological opinion must be deliv- tent practicable, that data which can ered will not be suspended unless the be developed within the scope of the Federal agency secures the written extension. The responsibility for con- consent of the applicant to an exten- ducting and funding any studies be- sion to a specific date. The applicant longs to the Federal agency and the ap- may request a copy of the draft opinion plicant, not the Service. The Service’s from the Federal agency. All com- request for additional data is not to be ments on the draft biological opinion construed as the Service’s opinion that must be submitted to the Service the Federal agency has failed to satisfy through the Federal agency, although the information standard of section the applicant may send a copy of its 7(a)(2) of the Act. If no extension of for- comments directly to the Service. The mal consultation is agreed to, the Di- Service will not issue its biological rector will issue a biological opinion opinion prior to the 45-day or extended using the best scientific and commer- deadline while the draft is under review cial data available. by the Federal agency. However, if the (g) Service responsibilities. Service re- Federal agency submits comments to sponsibilities during formal consulta- the Service regarding the draft biologi- tion are as follows: cal opinion within 10 days of the dead- (1) Review all relevant information line for issuing the opinion, the Service provided by the Federal agency or oth- is entitled to an automatic 10-day ex- erwise available. Such review may in- tension on the deadline. clude an on-site inspection of the ac- (6) Formulate discretionary con- tion area with representatives of the servation recommendations, if any, Federal agency and the applicant. which will assist the Federal agency in (2) Evaluate the current status and reducing or eliminating the impacts environmental baseline of the listed that its proposed action may have on species or critical habitat. listed species or critical habitat. (3) Evaluate the effects of the action (7) Formulate a statement con- and cumulative effects on the listed cerning incidental take, if such take is species or critical habitat. reasonably certain to occur. (4) Add the effects of the action and (8) In formulating its biological opin- cumulative effects to the environ- ion, any reasonable and prudent alter- mental baseline and in light of the sta- natives, and any reasonable and pru- tus of the species and critical habitat, dent measures, the Service will use the formulate the Service’s opinion as to best scientific and commercial data

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available and will give appropriate con- and the Service shall consider the na- sideration to any beneficial actions as ture, size, and scope of the action or its proposed or taken by the Federal agen- anticipated effects on listed species or cy or applicant, including any actions critical habitat, and other relevant fac- taken prior to the initiation of con- tors to determine whether an action or sultation. Measures included in the a class of actions is appropriate for this proposed action or a reasonable and process. The Federal agency and the prudent alternative that are intended Service may develop coordination pro- to avoid, minimize, or offset the effects cedures that would facilitate adoption of an action are considered like other of the initiation package with any nec- portions of the action and do not re- essary supplementary analyses and in- quire any additional demonstration of cidental take statement to be added by binding plans. the Service, if appropriate, as the Serv- (h) Biological opinions. (1) The biologi- ice’s biological opinion in fulfillment cal opinion shall include: of section 7(b) of the Act. (i) A summary of the information on (i) Incidental take. (1) In those cases which the opinion is based; where the Service concludes that an (ii) A detailed discussion of the envi- action (or the implementation of any ronmental baseline of the listed species reasonable and prudent alternatives) and critical habitat; and the resultant incidental take of (iii) A detailed discussion of the ef- listed species will not violate section fects of the action on listed species or 7(a)(2), and, in the case of marine mam- critical habitat; and mals, where the taking is authorized (iv) The Service’s opinion on whether pursuant to section 101(a)(5) of the Ma- the action is: rine Mammal Protection Act of 1972, (A) Likely to jeopardize the contin- the Service will provide with the bio- ued existence of a listed species or re- logical opinion a statement concerning sult in the destruction or adverse incidental take that: modification of critical habitat (a (i) Specifies the impact, i.e., the ‘‘jeopardy’’ biological opinion); or amount or extent, of such incidental (B) Not likely to jeopardize the con- taking on the species (A surrogate (e.g., tinued existence of a listed species or similarly affected species or habitat or result in the destruction or adverse ecological conditions) may be used to modification of critical habitat (a ‘‘no express the amount or extent of antici- jeopardy’’ biological opinion). pated take provided that the biological (2) A ‘‘jeopardy’’ biological opinion opinion or incidental take statement: shall include reasonable and prudent Describes the causal link between the alternatives, if any. If the Service is surrogate and take of the listed spe- unable to develop such alternatives, cies, explains why it is not practical to the Service will indicate that to the express the amount or extent of antici- best of its knowledge there are no rea- pated take or to monitor take-related sonable and prudent alternatives. impacts in terms of individuals of the (3) The Service may adopt all or part listed species, and sets a clear standard of: for determining when the level of an- (i) A Federal agency’s initiation ticipated take has been exceeded.); package; or (ii) Specifies those reasonable and (ii) The Service’s analysis required to prudent measures that the Director issue a permit under section 10(a) of considers necessary or appropriate to the Act in its biological opinion. minimize such impact; (4) A Federal agency and the Service (iii) In the case of marine mammals, may agree to follow an optional col- specifies those measures that are nec- laborative process that would further essary to comply with section 101(a)(5) the ability of the Service to adopt the of the Marine Mammal Protection Act information and analysis provided by of 1972 and applicable regulations with the Federal agency during consultation regard to such taking; in the development of the Service’s bi- (iv) Sets forth the terms and condi- ological opinion to improve efficiency tions (including, but not limited to, rein the consultation process and reduce porting requirements) that must be duplicative efforts. The Federal agency complied with by the Federal agency or

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any applicant to implement the meas- (k) Incremental steps. When the action ures specified under paragraphs is authorized by a statute that allows (i)(1)(ii) and (i)(1)(iii) of this section; the agency to take incremental steps and toward the completion of the action, (v) Specifies the procedures to be the Service shall, if requested by the used to handle or dispose of any indi- Federal agency, issue a biological opin- viduals of a species actually taken. ion on the incremental step being con- (2) Reasonable and prudent measures, sidered, including its views on the en- along with the terms and conditions tire action. Upon the issuance of such a that implement them, cannot alter the biological opinion, the Federal agency basic design, location, scope, duration, may proceed with or authorize the in- or timing of the action and may incremental steps of the action if: volve only minor changes. (1) The biological opinion does not (3) In order to monitor the impacts of conclude that the incremental step incidental take, the Federal agency or would violate section 7(a)(2); any applicant must report the progress (2) The Federal agency continues of the action and its impact on the spe- consultation with respect to the entire cies to the Service as specified in the action and obtains biological opinions, incidental take statement. The report- as required, for each incremental step; ing requirements will be established in (3) The Federal agency fulfills its accordance with 50 CFR 13.45 and 18.27 continuing obligation to obtain suffi- for FWS and 50 CFR 216.105 and cient data upon which to base the final 222.301(h) for NMFS. biological opinion on the entire action; (4) If during the course of the action (4) The incremental step does not vio- the amount or extent of incidental tak- late section 7(d) of the Act concerning ing, as specified under paragraph irreversible or irretrievable commit- (i)(1)(i) of this Section, is exceeded, the ment of resources; and Federal agency must reinitiate con- (5) There is a reasonable likelihood sultation immediately. that the entire action will not violate (5) Any taking which is subject to a section 7(a)(2) of the Act. statement as specified in paragraph (l) Expedited consultations. Expedited (i)(1) of this section and which is in consultation is an optional formal con- compliance with the terms and condi- sultation process that a Federal agency tions of that statement is not a prohib- and the Service may enter into upon ited taking under the Act, and no other mutual agreement. To determine authorization or permit under the Act whether an action or a class of actions is required. is appropriate for this type of consulta- (6) For a framework programmatic tion, the Federal agency and the Serv- action, an incidental take statement is ice shall consider the nature, size, and not required at the programmatic scope of the action or its anticipated level; any incidental take resulting effects on listed species or critical from any action subsequently author- habitat and other relevant factors. ized, funded, or carried out under the Conservation actions whose primary program will be addressed in subse- purpose is to have beneficial effects on quent section 7 consultation, as appro- listed species will likely be considered priate. For a mixed programmatic ac- appropriate for expedited consultation. tion, an incidental take statement is (1) Expedited timelines. Upon agree- required at the programmatic level ment to use this expedited consulta- only for those program actions that are tion process, the Federal agency and reasonably certain to cause take and the Service shall establish the expe- are not subject to further section 7 dited timelines for the completion of consultation. this consultation process. (j) Conservation recommendations. The (2) Federal agency responsibilities. To Service may provide with the biologi- request initiation of expedited con- cal opinion a statement containing dis- sultation, the Federal agency shall pro- cretionary conservation recommenda- vide all the information required to tions. Conservation recommendations initiate consultation under paragraph are advisory and are not intended to (c) of this section. To maximize effi- carry any binding legal force. ciency and ensure that it develops the

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appropriate level of information, the § 402.16 Reinitiation of consultation. Federal agency is encouraged to de- (a) Reinitiation of consultation is re- velop its initiation package in coordi- quired and shall be requested by the nation with the Service. Federal agency or by the Service, (3) Service responsibilities. In addition where discretionary Federal involve- to the Service’s responsibilities under ment or control over the action has the provisions of this section, the Serv- been retained or is authorized by law ice will: and: (i) Provide relevant species informa- (1) If the amount or extent of taking tion to the Federal agency and guid- specified in the incidental take state- ance to assist the Federal agency in ment is exceeded; completing its effects analysis in the (2) If new information reveals effects initiation package; and of the action that may affect listed (ii) Conclude the consultation and species or critical habitat in a manner issue a biological opinion within the or to an extent not previously consid- agreed-upon timeframes. ered; (m) Termination of consultation. (1) (3) If the identified action is subse- Formal consultation is terminated quently modified in a manner that with the issuance of the biological causes an effect to the listed species or opinion. critical habitat that was not consid- (2) If during any stage of consulta- ered in the biological opinion or writ- tion a Federal agency determines that ten concurrence; or its proposed action is not likely to (4) If a new species is listed or crit- occur, the consultation may be termi- ical habitat designated that may be af- nated by written notice to the Service. fected by the identified action. (b) An agency shall not be required to (3) If during any stage of consulta- reinitiate consultation after the ap- tion a Federal agency determines, with proval of a land management plan pre- the concurrence of the Director, that pared pursuant to 43 U.S.C. 1712 or 16 its proposed action is not likely to ad- U.S.C. 1604 upon listing of a new spe- versely affect any listed species or crit- cies or designation of new critical habi- ical habitat, the consultation is termi- tat if the land management plan has nated. been adopted by the agency as of the [51 FR 19957, June 3, 1986, as amended at 54 date of listing or designation, provided FR 40350, Sept. 29, 1989; 73 FR 76287, Dec. 16, that any authorized actions that may 2008; 74 FR 20423, May 4, 2009; 80 FR 26844, affect the newly listed species or des- May 11, 2015; 84 FR 45016, Aug. 27, 2019] ignated critical habitat will be addressed through a separate action-spe- § 402.15 Responsibilities of Federal cific consultation. This exception to agency following issuance of a bio- reinitiation of consultation shall not logical opinion. apply to those land management plans (a) Following the issuance of a bio- prepared pursuant to 16 U.S.C. 1604 if: logical opinion, the Federal agency (1) Fifteen years have passed since shall determine whether and in what the date the agency adopted the land manner to proceed with the action in management plan prepared pursuant to light of its section 7 obligations and 16 U.S.C. 1604; and the Service’s biological opinion. (2) Five years have passed since the (b) If a jeopardy biological opinion is enactment of Public Law 115–141 issued, the Federal agency shall notify [March 23, 2018] or the date of the list- the Service of its final decision on the ing of a species or the designation of action. critical habitat, whichever is later. (c) If the Federal agency determines [51 FR 19957, June 3, 1986, as amended at 84 that it cannot comply with the require- FR 45017, Aug. 27, 2019] ments of section 7(a)(2) after consultation with the Service, it may apply for § 402.17 Other provisions. an exemption. Procedures for exemp- (a) Activities that are reasonably cer- tion applications by Federal agencies tain to occur. A conclusion of reason- and others are found in 50 CFR part 451. ably certain to occur must be based on

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clear and substantial information, § 402.30 Definitions. using the best scientific and commer- The definitions in § 402.02 are applica- cial data available. Factors to consider ble to this subpart. In addition, the fol- when evaluating whether activities lowing definitions are applicable only caused by the proposed action (but not to this subpart. part of the proposed action) or activi- Action Agency refers to the Depart- ties reviewed under cumulative effects ment of Agriculture Forest Service are reasonably certain to occur in- (FS) or the Department of the Interior clude, but are not limited to: Bureau of Indian Affairs (BIA), Bureau (1) Past experiences with activities of Land Management (BLM), Fish and that have resulted from actions that Wildlife Service (FWS), or National are similar in scope, nature, and mag- Park Service (NPS). nitude to the proposed action; Alternative Consultation Agreement (2) Existing plans for the activity; (ACA) is the agreement described in and § 402.33 of this subpart. (3) Any remaining economic, admin- Fire Plan Project is an action deter- istrative, and legal requirements nec- mined by the Action Agency to be essary for the activity to go forward. within the scope of the NFP as defined (b) Consequences caused by the pro- in this section. posed action. To be considered an effect National Fire Plan (NFP) is the Sep- of a proposed action, a consequence tember 8, 2000, report to the President must be caused by the proposed action from the Departments of the Interior (i.e., the consequence would not occur and Agriculture entitled ‘‘Managing but for the proposed action and is rea- the Impact of Wildfire on Communities sonably certain to occur). A conclusion and the Environment’’ outlining a new of reasonably certain to occur must be approach to managing fires, together based on clear and substantial informa- with the accompanying budget re- tion, using the best scientific and com- quests, strategies, plans, and direction, mercial data available. Considerations or any amendments thereto. for determining that a consequence to Service Director refers to the FWS Di- the species or critical habitat is not rector or the Assistant Administrator caused by the proposed action include, for Fisheries for the National Oceanic but are not limited to: and Atmospheric Administration. (1) The consequence is so remote in time from the action under consulta- § 402.31 Purpose. tion that it is not reasonably certain The purpose of these counterpart reg- to occur; or ulations is to enhance the efficiency (2) The consequence is so geographi- and effectiveness of the consultation cally remote from the immediate area process under section 7 of the ESA for involved in the action that it is not Fire Plan Projects by providing an op- reasonably certain to occur; or tional alternative to the procedures (3) The consequence is only reached found in §§ 402.13 and 402.14(b) of this through a lengthy causal chain that in- part. These regulations permit an Ac- volves so many steps as to make the tion Agency to enter into an Alter- consequence not reasonably certain to native Consultation Agreement (ACA) occur. with the Service, as described in (c) Required consideration. The provi- § 402.33, which will allow the Action sions in paragraphs (a) and (b) of this Agency to determine that a Fire Plan section must be considered by the ac- Project is ‘‘not likely to adversely af- tion agency and the Services. fect’’ (NLAA) a listed species or designated critical habitat without formal [84 FR 45018, Aug. 27, 2019] or informal consultation with the Serv- ice or written concurrence from the Subpart C—Counterpart Regula- Service. An NLAA determination for a tions for Implementing the Fire Plan Project made under an ACA, National Fire Plan as described in § 402.33, completes the Action Agency’s statutory obligation SOURCE: 68 FR 68264, Dec. 8, 2003, unless to consult with the Service for that otherwise noted. Project. In situations where the Action

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Agency does not make an NLAA deter- ice Director of its intent to enter into mination under the ACA, the Action an ACA. Agency would still be required to con- (2) Development and Adoption of the duct formal consultation with the Alternative Consultation Agreement: The Service when required by § 402.14. This Action Agency enters into an ACA with process will be as protective to listed the Service Director. The ACA will, at species and designated critical habitat a minimum, include the following com- as the process established in subpart B ponents: of this part. The standards and require- (i) A list or description of the staff ments for formal consultation under positions within the Action Agency subpart B for Fire Plan Projects that that will have authority to make do not receive an NLAA determination NLAA determinations under this sub- are unchanged. part C. § 402.32 Scope. (ii) Procedures for developing and (a) Section 402.33 establishes a proc- maintaining the skills necessary with- ess by which an Action Agency may de- in the Action Agency to make NLAA termine that a proposed Fire Plan determinations, including a jointly de- Project is not likely to adversely affect veloped training program based on the any listed species or designated critical needs of the Action Agency. habitat without conducting formal or (iii) A description of the standards informal consultation or obtaining the Action Agency will apply in assess- written concurrence from the Service. ing the effects of the action, including (b) Section 402.34 establishes the direct and indirect effects of the action Service’s oversight responsibility and and effects of any actions that are the standard for review under this sub- interrelated or interdependent with the part. proposed action. (c) Nothing in this subpart C pre- (iv) Provisions for incorporating new cludes an Action Agency at its discre- information and newly listed species or tion from initiating early, informal, or designated critical habitat into the Ac- formal consultation as described in tion Agency’s effects analysis of pro- §§ 402.11, 402.13, and 402.14, respectively. posed actions. (d) The authority granted in this sub- (v) A mutually agreed upon program part is applicable to an Action Agency for monitoring and periodic program only where the Action Agency has en- evaluation to occur at the end of the tered into an ACA with the Service. An first year following signature of the ACA entered into with one Service is ACA and periodically thereafter. valid with regard to listed species and (vi) Provisions for the Action Agency designated critical habitat under the to maintain a list of Fire Plan Projects jurisdiction of that Service whether or for which the Action Agency has made not the Action Agency has entered into NLAA determinations. The Action an ACA with the other Service. Agency will also maintain the nec- § 402.33 Procedures. essary records to allow the Service to complete the periodic program evalua- (a) The Action Agency may make an NLAA determination for a Fire Plan tions. Project without informal consultation (3) Training: Upon completion of the or written concurrence from the Direc- ACA, the Action Agency and the Serv- tor if the Action Agency has entered ice will implement the training pro- into and implemented an ACA. The Ac- gram outlined in the ACA to the mu- tion Agency need not initiate formal tual satisfaction of the Action Agency consultation on a Fire Plan Project if and the Service. the Action Agency has made an NLAA (b) The Action Agency may, at its determination for the Project under discretion, allow any subunit of the Ac- this subpart. The Action Agency and tion Agency to implement this subpart the Service will use the following pro- as soon as the subunit has fulfilled the cedures in establishing an ACA. training requirements of the ACA, (1) Initiation: The Action Agency sub- upon written notification to the Serv- mits a written notification to the Serv- ice. The Action Agency shall at all

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times have responsibility for the ade- dressing the effects of a FIFRA action quacy of all NLAA determinations it on listed species or critical habitat. makes under this subpart. The contents of an effects determina- (c) The ACA and any related over- tion will depend on the nature of the sight or monitoring reports shall be action. An effects determination sub- made available to the public through a mitted under § 402.46 or § 402.47 shall notice of availability in the FEDERAL contain the information described in REGISTER. § 402.14(c) and a summary of the information on which the determination is § 402.34 Oversight. based, detailing how the FIFRA action (a) Through the periodic program affects the listed species or critical evaluation set forth in the ACA, the habitat. EPA may consider the fol- Service will determine whether the im- lowing additional sections for inclusion plementation of this subpart by the Ac- in an effects determination: tion Agency is consistent with the best (1) A conclusion whether or not the available scientific and commercial in- FIFRA action is likely to jeopardize formation, the ESA, and section 7 regu- the continued existence of any listed lations. (b) The Service Director may use the species or result in the destruction or results of the periodic program evalua- adverse modification of critical habitat tion described in the ACA to rec- and a description of any reasonable and ommend changes to the Action Agen- prudent alternatives that may be avail- cy’s implementation of the ACA. If and able; as appropriate, the Service Director (2) A description of the impact of any may suspend any subunit participating anticipated incidental taking of such in the ACA or exclude any subunit listed species resulting from the from the ACA. FIFRA action, reasonable and prudent (c) The Service Director retains dis- measures considered necessary or ap- cretion to terminate the ACA if the Ac- propriate to minimize such impact, and tion Agency fails to comply with the terms and conditions necessary to im- requirements of this subpart, section 7 plement such measures; and of the ESA, or the terms of the ACA. (3) A summary of any information or Termination, suspension, or modifica- recommendations from an applicant. tion of an ACA does not affect the va- An effects determination shall be based lidity of any NLAA determinations on the best scientific and commercial made previously under the authority of data available. this subpart. (c) FIFRA action is an action by EPA to approve, permit or authorize the Subpart D—Counterpart Regula- sale, distribution or use of a pesticide tions Governing Actions by under sections 136–136y of the Federal the U.S. Environmental Protec- Insecticide, Fungicide and Rodenticide tion Agency Under the Fed- Act, 7 U.S.C. 136 et seq. (FIFRA). In any eral Insecticide, Fungicide consultation under this subpart, EPA and Rodenticide Act shall determine the nature and scope of a FIFRA action. (d) Listed species is a species listed as SOURCE: 69 FR 47759, Aug. 5, 2004, unless otherwise noted. endangered or threatened under section 4 of the Act. § 402.40 Definitions. (e) Partial biological opinion is the The definitions in § 402.02 are applica- document provided under § 402.47(a), ble to this subpart. In addition, the fol- pending the conclusion of consultation lowing definitions are applicable only under § 402.47(b), stating the opinion of to this subpart. the Service as to whether or not a (a) Alternative consultation agreement FIFRA action is likely to jeopardize is the agreement described in § 402.45. the continued existence of one or more (b) Effects determination is a written listed species or result in the destruc- determination by the U.S. Environ- tion or adverse modification of one or mental Protection Agency (EPA) ad- more critical habitats, and describing

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the impact of any anticipated inci- FIFRA action. The procedures in this dental taking of such listed species re- subpart may be employed for FIFRA sulting from the FIFRA action, reason- actions as follows: able and prudent measures considered (1) Interagency exchanges of informa- necessary or appropriate to minimize tion under § 402.43 and advance coordi- such impact, and terms and conditions nation under § 402.44 are available for necessary to implement such measures. any FIFRA action. (f) Service Director refers to the Direc- (2) Alternative consultation under tor of the U.S. Fish and Wildlife Serv- § 402.45 is available for a listed species ice or the Assistant Administrator for or critical habitat if EPA determines Fisheries for the National Oceanic and the FIFRA action is not likely to ad- Atmospheric Administration. versely affect the listed species or crit- (g) Service Representative is the person ical habitat. or persons designated to participate in (3) Optional formal consultation advance coordination as provided in this subpart. under § 402.46 is available for any FIFRA action with respect to any list- [69 FR 47759, Aug. 5, 2004, as amended at 84 ed species or critical habitat. FR 45018, Aug. 27, 2019] (4) The special procedures in § 402.47 § 402.41 Purpose. are available for consultations on FIFRA actions that will be unusually The purpose of these counterpart reg- complex due to factors such as the geo- ulations is to enhance the efficiency graphic area or number of species that and effectiveness of the existing con- may be affected by the action. sultation process under section 7 of the (5) EPA shall engage in consultation Endangered Species Act (Act), 16 U.S.C. as to all listed species and critical 1531 et seq., by providing Fish and Wild- habitat that may be affected by a life Service and the National Marine FIFRA action, and may in its discre- Fisheries Service (referred to jointly as ‘‘Services’’ and individually as ‘‘Serv- tion employ more than one of the ice’’) and EPA with additional means available consultation procedures for a to satisfy the requirements of section FIFRA action that may affect more 7(a)(2) of the Act for certain regulatory than one listed species or critical habi- actions under FIFRA. These additional tat. means will permit the Services and (6) EPA shall engage in consultation EPA to more effectively use the sci- on actions involving requests for emer- entific and commercial data generated gency exemptions under section 18 of through the FIFRA regulatory process FIFRA that may affect listed species as part of the best scientific and com- or critical habitat, and may choose to mercial data available to protect listed do so under § 402.05 or other provisions species and critical habitat. The proce- of this subpart or subpart B of this dures authorized by these counterpart part. Any required formal consultation regulations will be as protective of list- shall be initiated as soon as practicable ed species and critical habitat as the after the emergency is under control. process established in subpart B of this For the purposes of § 402.05(b) the defi- part. nition of formal consultation in § 402.02 includes the procedures in § 402.46. § 402.42 Scope and applicability. (7) EPA must prepare a biological as- (a) Available consultation procedures. sessment for a FIFRA action to the ex- This subpart describes consultation tent required by § 402.12. procedures available to EPA to satisfy (8) EPA must comply with § 402.15 for the obligations of section 7(a)(2) of the all FIFRA actions. Act in addition to those in subpart B of (9) After a consultation under this this part for FIFRA actions authorized, subpart has been concluded, EPA shall funded, or carried out by EPA in which reinitiate consultation as required by EPA has discretionary Federal involve- § 402.16 as soon as practicable after a ment or control. EPA retains discre- circumstance requiring reinitiation oc- tion to initiate early, informal, or for- curs, and may employ the procedures mal consultation as described in in this subpart or subpart B of this part §§ 402.11, 402.13, and 402.14 for any in any reinitiated consultation.

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(b) Exchanges of scientific information. (b) Participation of Service Representa- As part of any of the additional con- tive in preparation of effects determina- sultation procedures provided in this tion. The Service Representative des- subpart, EPA and the Services shall es- ignated under paragraph (a) of this sec- tablish mutually-agreeable procedures tion shall participate with EPA staff in for regular and timely exchanges of the preparation of the effects deter- scientific information to achieve accu- mination identified under paragraph rate and informed decision-making (a) of this section. EPA shall use its under this subpart and to ensure that best efforts to include the designated the FIFRA process considers the best Service Representative in all relevant scientific and commercial data avail- discussions on the effects determina- able on listed species and critical habi- tion, to provide the designated Service tat in a manner consistent with the re- Representative with access to all docu- quirements of FIFRA and ESA. mentation used to prepare the effects determination, and to provide the des- § 402.43 Interagency exchanges of in- ignated Service Representative office formation. and staff support sufficient to allow EPA may convey to the Service a the Service Representative to partici- written request for a list of any listed pate meaningfully in the preparation of species or critical habitat that may be the effects determination. EPA shall present in any area that may be af- consider all information timely identified by the designated Service Rep- fected by a FIFRA action. Within 30 resentative during the preparation of days of receipt of such a request the the effects determination. Service shall advise EPA in writing whether, based on the best scientific § 402.45 Alternative consultation on and commercial data available, any FIFRA actions that are not likely to listed species or critical habitat may adversely affect listed species or be present in any such area. EPA may critical habitat. thereafter request the Service to pro- (a) Consultation obligations for FIFRA vide available information (or ref- actions that are not likely to adversely af- erences thereto) describing the applica- fect listed species or critical habitat when ble environmental baseline for each alternative consultation agreement is in species or habitat that EPA determines effect. If EPA and the Service have en- may be affected by a FIFRA action, tered into an alternative consultation and the Service shall provide such in- agreement as provided below, EPA may formation within 30 days of the re- make a determination that a FIFRA quest. action is not likely to adversely affect a listed species or critical habitat § 402.44 Advance coordination for without informal consultation or writ- FIFRA actions. ten concurrence from the Director, and (a) Advance coordination. EPA may upon making such a determination for request the Service to designate a a listed species or critical habitat, EPA Service Representative to work with need not initiate any additional con- EPA in the development of an effects sultation on that FIFRA action as to determination for one or more listed that listed species or critical habitat. species or critical habitat. EPA shall As part of any subsequent request for make such a request in writing and formal consultation on that FIFRA ac- shall provide sufficient detail as to a tion under this subpart or subpart B of FIFRA action planned for consultation this part, EPA shall include a list of all to enable the Service to designate a listed species and critical habitat for representative with appropriate train- which EPA has concluded consultation ing and experience who shall normally under this section. be available to complete advance co- (b) Procedures for adopting and imple- ordination with EPA within 60 days of menting an alternative consultation the date of designation. Within 14 days agreement. EPA and the Service may of receiving such a request, the Service enter into an alternative consultation shall advise EPA of the designated agreement using the following proce- Service Representative. dures:

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(1) Initiation. EPA submits a written ice’s oversight will be based on periodic notification to the Service Director of evaluation of EPA’s program for mak- its intent to enter into an alternative ing effects determinations under this consultation agreement. subpart. Periodic program evaluation (2) Required contents of the alternative will occur at the end of the first year consultation agreement. The alternative following signature of the alternative consultation agreement will, at a min- consultation agreement and should imum, include the following compo- normally occur at least every five nents: years thereafter. (i) Adequacy of EPA Determinations (vi) Records. The alternative con- under the ESA. The alternative consultation agreement shall include a sultation agreement shall describe ac- provision for EPA to maintain a list of tions that EPA and the Service have FIFRA actions for which EPA has taken to ensure that EPA’s determina- made determinations under this sections regarding the effects of its action and to provide the list to the Serv- tions on listed species or critical habi- ices on request. EPA will also maintain tat are consistent with the ESA and the necessary records to allow the applicable implementing regulations. Service to complete program evalua- (ii) Training. The alternative con- tions. sultation agreement shall describe ac- (vii) Review of Alternative Consultation tions that EPA and the Service intend Agreement. The alternative consulta- to take to ensure that EPA and Service tion agreement shall include provisions personnel are adequately trained to for regular review and, as appropriate, carry out their respective roles under modification of the agreement by EPA the alternative consultation agree- and the Service, and for departure from ment. The alternative consultation its terms in a particular case to the ex- agreement shall provide that all effects tent deemed necessary by both EPA determinations made by EPA under and the Service. this subpart have been reviewed and (3) Training. After EPA and the Serv- concurred on by an EPA staff member ice enter into the alternative consulta- who holds a current certification as tion agreement, EPA and the Service having received appropriate training will implement the training program under the alternative consultation outlined in the alternative consulta- agreement. tion agreement to the mutual satisfac- (iii) Incorporation of new information. tion of EPA and the Service. The alternative consultation agree- (4) Public availability. The alternative ment shall describe processes that EPA consultation agreement and any re- and the Service intend to use to ensure lated oversight or monitoring reports that new information relevant to shall be made available to the public to EPA’s effects determinations is timely the extent provided by law. and appropriately considered. (c) Oversight of alternative consultation (iv) Incorporation of scientific ad- agreement implementation. Through the vances. The alternative consultation program evaluations set forth in the agreement shall describe processes that alternative consultation agreement, EPA and the Service intend to use to the Service will determine whether the ensure that the ecological risk assess- implementation of this section by EPA ment methodologies supporting EPA’s is consistent with the best scientific effects determinations incorporate rel- and commercial information available, evant scientific advances. the ESA, and applicable implementing (v) Oversight. The alternative con- regulations. The Service Director may sultation agreement shall describe the use the results of the program evalua- program and associated record keeping tions described in the alternative con- procedures that the Service and EPA sultation agreement to recommend intend to use to evaluate EPA’s proc- changes to EPA’s implementation of esses for making effects determina- the alternative consultation agree- tions consistent with these regulations ment. The Service Director retains dis- and the alternative consultation agree- cretion to terminate or suspend the al- ment. The alternative consultation ternative consultation agreement if, in agreement shall provide that the Serv- using the procedures in this subpart,

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EPA fails to comply with the require- will not resubmit a revised effects de- ments of this subpart, section 7 of the termination to the Service, its initi- ESA, or the terms of the alternative ation of consultation on the effects de- consultation agreement. Termination, termination is deemed withdrawn. suspension, or modification of an alter- (c) Service responsibilities. (1) Within native consultation agreement does the later of 90 days of the date the not affect the validity of any NLAA de- Service receives EPA’s written request terminations made previously under for consultation or 45 days of the date the authority of this subpart. the Service receives an effects determination resubmitted under paragraph § 402.46 Optional formal consultation (b) of this section, and consistent with procedure for FIFRA actions. section 7(b)(1) of the Act, the Service (a) Initiation of consultation. EPA may shall take one of the following actions: initiate consultation on a FIFRA ac- (i) If the Service finds that the ef- tion under this section by delivering to fects determination contains the infor- the Service a written request for con- mation required by § 402.40(b) and satis- sultation. The written request shall be fies the requirements of section 7(b)(4) accompanied by an effects determina- of the Act, and the Service concludes tion as defined in § 402.40(b) and a list that the FIFRA action that is the sub- or summary of all references and data ject of the consultation complies with relied upon in the determination. All section 7(a)(2) of the Act, the Service such references and data shall be made will issue a written statement adopting available to the Service on request and the effects determination; or shall constitute part of the Service’s (ii) The Service will provide EPA a administrative record for the consulta- draft of a written statement modifying tion. The time for conclusion of the the effects determination, which shall consultation under section 7(b)(1) of meet the requirements of § 402.14(i), and the Act is calculated from the date the as modified adopting the effects deter- Service receives the written request mination, and shall provide a detailed from EPA. Any subsequent inter- explanation of the scientific and com- changes regarding EPA’s submission, mercial data and rationale supporting including interchanges about the com- any modification it makes; or pleteness of the effects determination, (iii) The Service will provide EPA a shall occur during consultation and do draft of a biological opinion finding not extend the time for conclusion of that the FIFRA action is likely to the consultation unless EPA withdraws jeopardize the continued existence of a the request for consultation. listed species or result in the destruc- (b) Additional information determination or adverse modification of critical tion. For an effects determination pre- habitat, and describing any reasonable pared without advance coordination and prudent alternatives if available. under § 402.44, the Service may deter- (2) If the Service acts under para- mine that additional available infor- graphs (c)(1)(ii) or (c)(1)(iii) of this sec- mation would provide a better information, EPA shall, on request from an ap- tion base for the effects determination, plicant, provide the applicant a copy of in which case the Service Director the draft written statement or draft bi- shall notify the EPA Administrator ological opinion received from the within 45 days of the date the Service Service. The Service shall at the re- receives the effects determination. The quest of EPA or an applicant discuss notification shall describe such addi- with EPA and the applicant the Serv- tional information in detail, and shall ice’s review and evaluation under this identify a means for obtaining that in- section, and the basis for its findings. formation within the time period avail- EPA and any applicant may submit able for consultation. EPA shall pro- written comments to the Service with- vide a copy of the Service Director’s in 30 days after EPA receives the draft notification to any applicant. EPA written statement or opinion from the may thereafter revise its effects deter- Service unless the Service, EPA and mination, and may resubmit the re- any applicant agree to an extended vised effects determination to the deadline consistent with section 7(b)(1) Service. If EPA advises the Service it of the Act.

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(3) The Service will issue a final writ- opinions issued under paragraph (a) of ten statement or final biological opin- this section shall then collectively con- ion within 45 days after EPA receives stitute the opinion of the Secretary the draft statement or opinion from and the incidental take statement, rea- the Service unless the deadline is ex- sonable and prudent measures, and tended under section 7(b)(1) of the Act. terms and conditions under section 7(b) (d) Opinion of the Secretary. The writ- of the Act except to the extent a par- ten statement or opinion by the Serv- tial biological opinion is modified by ice under paragraphs (c)(1) or (c)(3) of the Service in accordance with the pro- this section shall constitute the opin- cedures in § 402.46(c). The Service shall ion of the Secretary and the incidental so advise EPA in writing upon issuance take statement, reasonable and pru- of the last partial biological opinion dent measures, and terms and condi- for the consultation. tions under section 7(b) of the Act. (e) Delegation of Authority for Service § 402.48 Conference on proposed spe- decisions. Any written statement modi- cies or proposed critical habitat. fying an effects determination or any EPA may employ the procedures de- biological opinion issued under this scribed in § 402.10 to confer on any spe- section shall be signed by the Service cies proposed for listing or any habitat Director and such authority may not proposed for designation as critical be delegated below the level of Assist- habitat. For the purposes of § 402.10(d), ant Director for Endangered Species the procedures in § 402.46 are a permis- (FWS) or Director of Office of Pro- sible form of formal consultation. tected Resources (NOAA Fisheries). PART 403—TRANSFER OF MARINE § 402.47 Special consultation procedures for complex FIFRA actions. MAMMAL MANAGEMENT AU- THORITY TO STATES (a) Successive effects determinations. If EPA determines after conferring with Sec. the Service that consultation on a 403.01 Purpose and scope of regulations. FIFRA action will be unusually com- 403.02 Definitions. plex due to factors such as the geo- 403.03 Review and approval of State request graphic area or number of species that for management authority. may be affected by the action, EPA 403.04 Determinations and hearings under may address the effects of the action section 109(c) of the MMPA. 403.05 State and Federal responsibilities through successive effects determina- after transfer of management authority. tions under this subpart addressing 403.06 Monitoring and review of State man- groupings or categories of species or agement program. habitats as established by EPA. EPA 403.07 Revocation and return of State man- may initiate consultation based upon agement authority. each such effects determination using 403.08 List of States to which management the procedure in § 402.46(a), and the pro- has been transferred. visions of § 402.46(b) and (c) shall apply AUTHORITY: 16 U.S.C. 1361 et seq., as amend- to any such consultation. When con- ed by Pub. L. 97–58. sultation is conducted under this sec- SOURCE: 48 FR 22456, May 18, 1983, unless tion, the written statement or opinion otherwise noted. provided by the Service under § 402.46(c) constitutes a partial biological opinion § 403.01 Purpose and scope of regula- as to the species or habitats that are tions. the subject of the consultation. While The regulations contained in this not constituting completion of con- part implement section 109 of the Act sultation under section 7(a)(2), EPA re- which, upon a finding by the Secretary tains authority to use such a partial of compliance with certain require- biological opinion along with other ments, provides for the transfer of ma- available information in making a rine mammal management authority finding under section 7(d) of the Act. to the states. (b) Opinion of the Secretary. After con- (a) The regulations of this part apply clusion of all consultation on the the procedures for the transfer of ma- FIFRA action, the partial biological rine mammal management authority

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to a state, the form and minimum rein accordance with established proce- quirements of a state application for dure. the transfer of management authority, (e) The Act means the Marine Mam- the relationship between Federal and mal Protection Act (MMPA) of 1972, 16 state wildlife agencies both prior and U.S.C. 1361 et seq., as amended by Pub. subsequent to the transfer of manage- L. 97–58. ment authority, and the revocation (f) The Secretary means the Secretary and return of management authority of the Interior or the Secretary of to the Federal Government. Commerce, depending on the species (b) Nothing in this part shall prevent: involved. Under section 3(11) of the (1) The taking of a marine mammal Act, the Secretary of Commerce has ju- by or on behalf of a Federal, state or risdiction over members of the order local government official, in accord- Cetacea and members, other than wal- ance with § 18.22 or § 216.22 of this Title and section 109(h) of the Act, or (2) the ruses, of the order Pinnipedia; the Sec- adoption or enforcement of any state retary of the Interior has jurdisdiction law or regulation relating to any ma- over all other mammals. These secre- rine mammal taken before December tarial authorities have been delegated 21, 1972. to the National Marine Fisheries Serv- (c) The information collection re- ice and the Fish and Wildlife Service, quirements contained in §§ 403.03, 403.06, respectively. and 403.07 of this part do not require (g) The Service or Services means the approval by the Office of Management Fish and Wildlife Service (FWS) and and Budget under 44 U.S.C. 3501 et seq., the National Marine Fisheries Service because there are fewer than 10 re- (NMFS), as appropriate depending on spondents annually. the species involved. Any determination or finding required by this part to § 403.02 Definitions. be made by the ‘‘Service’’ must be The following definitions apply to made by the Director of the FWS or by this part: the Assistant Administrator of the (a) The term species includes any pop- NMFS, or their delegees, as appro- ulation stock. priate. (b) Optimum Sustainable Population or OSP means a population size which § 403.03 Review and approval of State falls within a range from the popu- request for management authority. lation level of a given species or stock (a) Any state may request the trans- which is the largest supportable within fer of management authority for a spe- the ecosystem to the population level cies of marine mammals by submitting that results in maximum net produc- a written request to the Director of the tivity. Maximum net productivity is Fish and Wildlife Service (‘‘Director’’) the greatest net annual increment in for species of marine mammals under population numbers or biomass result- the jurisdiction of the FWS, or to the ing from additions to the population Assistant Administrator for Fisheries due to reproduction and/or growth less of the National Marine Fisheries Serv- losses due to natural mortality. (c) State management program means ice (‘‘Assistant Administrator’’) for existing and proposed state statutes, species of marine mammals under the regulations, policies and other authori- jurisdiction of the NMFS. The request ties which form the framework for the must include: conservation of a species of marine (1) Copies of existing and proposed mammals. statutes, regulations, policies and (d) State regulation means the whole other authorities of state law which or part of a state agency statement of comprise those aspects of the state general or particular applicability and management program outlined in para- future effect designed to implement, graph (b) of this section, and, in the interpret, or prescribe law or policy or case of Alaska, paragraphs (d) (1) describing the organization, procedure, through (3) of this section; or practice requirements of a state (2) A narrative discussion of the stat- agency and which is duly promulgated utes, regulations, policies and other

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authorities which comprise those as- eral permit issued under § 18.31 or pects of the state management pro- § 216.31 of this title; and gram outlined in paragraph (b) of this (v) Regulate the incidental taking of section, and, in the case of Alaska, the species in a manner consistent with paragraph (d) of this section, which ex- section 101(a) (2), (4) and (5) of the Act. plains the program in terms of the re- (3) Provisions for annually acquiring quirements of the Act and the regula- and evaluating data and other new evi- tions of this part; and dence relating to OSP of the species (3) Supplementary information as re- and the maximum allowable take, and quired by paragraph (c) of this section. if warranted on the basis of such eval- (b) A request for transfer of marine uation, for requiring reevaluations of mammal management authority will OSP and maximum allowable take de- not be approved unless it contains the terminations pursuant to § 403.04. following: (4) Procedures for the resolution of (1) The scientific and common names differences between the state and the and estimated range of the species of appropriate Service that might arise marine mammals subject to the state during the development of a coopera- management program. tive allocation agreement pursuant to (2) Provisions of state law concerning § 403.05(a) of this part. the take of marine mammals that— (5) Procedures for the submission of (i) Require that the taking of marine an annual report meeting the require- mammals be humane as defined by sec- ments of § 403.06(b) of this part to the tion 3(4) of the Act; appropriate Service regarding the ad- (ii) Do not permit the taking of ma- ministration of the state management rine mammals until the following have program during the reporting period. occurred: (6) A description of— (A) The state, pursuant to the re- (i) The organization of state offices quirements of § 403.04 of this part, has involved in the administration and en- determined that the species is at its forcement of the state management Optimum Sustainable Population program; (OSP) and determined the maximum (ii) Any permit system relating to number of animals that may be taken the marine mammals, the laws that without reducing the species below its apply to such permits, and the proce- OSP, and, in the case of Alaska, when dures to be used in granting or with- a species is below OSP, the maximum holding such permits; numbers that can be taken for subsist- (iii) State laws relating to judicial ence uses while allowing the species to review of administrative decisions as increase toward its OSP; they relate to the state management (B) The determination as to OSP and program; maximum take are final and imple- (iv) State laws relating to adminis- mented under state law; and trative rulemaking as they relate to (C) A cooperative allocation agree- the state management program; ment, if required under § 403.05(a) of (c) In addition to the aspects of the this part, is implemented; state management program required to (iii) Do not permit take in excess of be submitted by paragraph (b) of this the maximum number of animals that section, the state shall submit infor- may be taken as determined pursuant mation, in summary form, relating to: to § 403.04 of this part; provided that for (1) The anticipated staffing and fund- Alaska, subsistence take may be al- ing of state offices involved in the ad- lowed in accordance with paragraph (d) ministration and enforcement of the of this section, and if the species is state management program; below OSP, any level of take allowed (2) Anticipated research and enforce- for subsistence use shall permit the ment activities relating to conserva- species to increase toward OSP; tion of the species for which manage- (iv) Do not permit take that is for ment authority is sought; and scientific research or public display (3) Such other materials and informa- purposes except such take by or on be- tion as the Service may request or half of the state, or pursuant to a Fed- which the state may deem necessary or

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advisable to demonstrate the compat- explain how the State’s program satis- ibility of the state management pro- fies the requirements of section 109(f) gram with the policy and purposes of of the Act, namely that the regulation the Act and the rules and regulations of nonsubsistence consumptive uses of issued under the Act. marine mammals provides, to the max- (d) In addition to the requirements imum extent praticable, economic op- contained in paragraphs (b) and (c) of portunities for the residents of rural this section, a request for the transfer coastal villages of Alaska who engage of marine mammal management au- in subsistence uses of the species. thority by the State of Alaska must (e) To assist states in preparing the contain the following concerning sub- state management program for submis- sistence use of the species— sion, the Service will also, at the writ- (1) A statute and regulations con- ten request of any state, make a pre- cerning the take of marine mammals liminary review of any aspects of the that ensure that state management program. This re- (i) The taking of marine mammals view will be advisory in nature and species for subsistence uses will be the shall not be binding upon the Services. priority consumptive uses of the spe- Notwithstanding preliminary review by cies; the Service, once any proposed aspect (ii) If restrictions on subsistence uses of the state management program has of the species are required, such re- been prepared and submitted in final strictions shall be based upon the cus- form, it shall be subject to final review tomary and direct dependence upon the and approval under paragraphs (f) species as the mainstay of livelihood, through (h) of this section. local residency, and the availability of (f)(1) After receiving the state’s re- alternative resources; and quest, for management authority, the (iii) The taking of marine mammal Service shall make an initial deter- species for subsistence uses is accom- mination on whether the state’s man- plished in a non-wasteful manner; agement program meets the require- (2) Statutes or regulations that en- ments of the Act and these regulations. sure that the appropriate state agency (2) Within 45 days after receiving the will— state’s request, unless the state and (i) Authorize nonsubsistence con- the Service agree to another time pe- sumptive uses of a marine mammal riod, the Service shall publish a gen- species only if such uses will have no eral notice of its initial determination significant adverse impact on subsist- in the FEDERAL REGISTER together ence uses of the species; with, in the case of a positive deter- (ii) Regulate nonsubsistence con- mination, the text of a proposed rule to sumptive uses in a manner which, to transfer management authority to the the maximum extent practicable, pro- state. The general notice shall contain vides economic opportunities, includ- a summary of the major components of ing, but not limited to, licensing of ma- the state’s management program and rine mammal hunting guides and the shall indicate where the full text of the assignment of guiding areas, for resi- management program may be in- dents of rural coastal villages of Alas- spected or copied. The public shall be ka who engage in subsistence uses of allowed to submit written comments the species; and and to request an informal public hear- (iii) Make written findings sup- ing on the Service’s initial determina- porting the authorizations and regulation and the state’s management pro- tions described in this paragraph based gram within 60 days of publication of solely on the administrative record be- the general notice. fore the agency; (g) If requested, the Service may con- (3) A narrative discussion of the stat- duct an informal public hearing after utes or regulations required under publishing 30 days’ advance notice of paragraph (d)(2) of this section, and the date, location, and time of such any additional policies or procedures hearing in the FEDERAL REGISTER. concerning the regulation of non- (h) After considering all comments subsistence consumptive uses of ma- and other relevant information, the rine mammals. This discussion must Service shall publish in the FEDERAL

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REGISTER its final determination on maximum biologically permissible whether the state has developed and take pursuant to its other rulemaking will implement a management program criteria, authority, and procedures. that meets the requirement of the Act Compliance with the process set forth and these regulations. In the case of a in this section would not be required positive final determination, the Serv- again unless the state proposes to mod- ice shall publish with the notice a final ify its determinations of the status of regulation transferring management the species with respect to its OSP or authority for the species to the state the maximum permissible take from after the following requirements are that species. satisfied: (c) Initial determination by the State. (1) The state’s determinations pursu- The state agency with responsibility ant to § 403.04 of this part are final and for managing the species in the event implemented under state law; management authority is transferred (2) Any cooperative allocation agree- to the state shall make initial deter- ment required under § 403.05(a) of this minations on the basis of the best sci- part is implemented; and entific evidence available of: (3) The state has enacted and sub- (1) Whether or not it is at its OSP; (2) mitted to the Service laws and policies if so, the maximum number of that spe- that are substantially the same as cies that nay be taken without reduc- those provided pursuant to § 403.03(a) in ing it below its OSP; and (3) if not, in proposed form in the state’s manage- the case of Alaska, the maximum num- ment program. ber of animals that may be taken, if § 403.04 Determinations and hearings any, for subsistence uses without pre- under section 109(c) of the MMPA. venting the species from increasing toward its OSP. (a) Introduction. In order to gain approval of its marine mammal manage- (d) Notice and review of initial deter- ment program the state must provide minations and request for hearing. The for a process, consistent with section state agency shall provide notice of its 109(c) of the Act, to determine the opti- initial determinations to the Service mum sustainable population of the spe- and the public and shall provide access cies and the maximum number of ani- to or copies of the documentation sup- mals that may be taken from popu- porting its determinations to the Serv- lations it manages without reducing ice and the public. The state agency the species below OSP. The state proc- shall indicate, in the notice of its ini- ess must be completed before the state tial determinations, the location(s) and may exercise any management author- hours during which such documenta- ity over the subject marine mammals, tion may be inspected, and the costs, if and it must include the elements set any of copies of such documentation. forth below. The state agency shall also indicate in (b) Basis, purpose, and scope. The the notice that any interested person process set forth in this section is ap- may request a hearing regarding the plicable to and required for only the initial determinations, and the state determination of the OSP of the spe- shall provide a reasonable time, not cies and maximum number that may be less than 30 days, for making the re- taken without reducing it below its quest, taking into account the time re- OSP and, in the case of Alaska if the quired to advise the public of the ini- species is below OSP, the maximum tial determinations and to make the number of animals that may be taken, supporting documentation readily if any, for subsistence uses without available to interested persons for preventing the species from increasing their consideration. If a request for a toward its OSP. The state need not hearing is not made within the pre- allow the maximum take, as deter- scribed time period, the initial determined in accordance with this process, minations shall be treated as final. that is biologically permissible. The (e) Notice of hearing. If a request for a state may change regulations estab- hearing is made within the prescribed lishing bag limits, quotas, seasons, time period by any interested person, areas, manner of take, etc. within the the state agency shall provide notice of

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the hearing to the Service and the pub- appropriate for the expeditious and ef- lic not less than 30 days in advance of fective determination of the issues. the scheduled date(s) of the hearing(s). The presiding officer(s) may provide for The notice shall include the date(s), lo- oral argument and/or written briefs at cation(s), and purpose of the hearing, a the end of the hearing. recitation of the initial determina- (5) Final determinations on the tions, the name(s) of the person(s) who issues specified in paragraph (c) of this will preside at the hearing, and the section must be supported by the best manner and date by which interested available scientific information so as persons must notify the state agency to insure that any taking will be con- or presiding officer(s) of their desire to sistent with the maintenance of OSP. participate in the hearing. The state (g) Review of the hearing record and shall also make available and dis- final determinations. (1) The state agen- tribute upon request a list of witnesses cy shall provide for either: and description of the documentation and other evidence that will be relied (i) Review and evaluation of the hear- upon by the state’s witnesses in sup- ing record by the presiding officer(s) port of its initial determinations suffi- and transmittal by the presiding offi- ciently in advance of the hearing date cer(s) of recommended final determina- so as to allow interested persons to tions to the decision-maker(s) in the prepare questions and supporting or re- state agency; or buttal testimony for the hearing. (ii) Review and evaluation of the (f) Conduct of the hearing. (1) The hearing record and final determina- hearing shall be publicly conducted and tions by the state agency without ben- reported verbatim by an official re- efit of any recommendations by the porter. presiding officer(s). In any event, the (2) The state shall sponsor all written final determinations by the state agen- documentation in support of its deter- cy must be made solely on the basis of minations with witnesses who are able, the record developed at the hearing. by virtue of training and experience, to The state agency in making its final respond fully to cross-examination re- determinations, and/or presiding offi- garding the facts and conclusions con- cer(s) in making his (their) rec- tained therein provided that, except by ommended determinations, may not agreement of the parties, the state rely on oral or written evidence which agency may not call any witnesses or was not presented at the hearing and introduce any documentation into the made available to the parties for cross- record unless the advance notice re- examination and rebuttal testimony. quirements of paragraph (e) of this sec- Any such oral or written information tion are met with respect to such wit- transmitted to the presiding officer(s) nesses or documentation. or other members of the state agency (3) Any interested person who has responsible for the final determina- notificed the state agency of his desire tions shall be treated as ex parte com- to participate in the hearing pursuant munications and may not be considered to paragraph (e) of this section may part of the record for decision. participate in the hearing by presenting oral or written testimony or (2) The state agency shall make final cross-examining the witnesses or other determinations of the issues set forth parties with respect to matters rel- in paragraph (c) of this section and evant to the state’s initial determina- shall include in its statement of final tions, provided that any such written determinations a statement of findings documentation must be sponsored by a and conclusions and the reasons or witness who is able, by virtue of train- basis therefor. ing and experience, to respond fully to (3) The state agency shall advise the cross-examination regarding the facts Service and the public of its final de- and conclusions contained therein. terminations and shall provide access (4) The presiding officer(s) shall con- to or copies of its decision document duct the hearing in accordance with and Hearing Record. such other rules of evidence, criteria, (h) Judicial review. The state agency’s and procedures as are necessary and final determinations after a hearing

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must be supported by substantial evi- mit would not be consistent with its dence in the record of the hearing. Op- management program for the species: portunity for judicial review of the (1) The state shall so inform the state agency’s final determinations Service, together with the reasons for must be available under state law. The such finding, within 30 days of its re- scope of judicial review shall be equiva- ceipt of the application, and the Serv- lent to that provided for in 5 U.S.C. ice shall not issue the permit; and 706(2) (A) through (E). (2) The Service shall provide to the permit applicant and the state an op- § 403.05 State and Federal responsibil- portunity to adjust the permit applica- ities after transfer of management tion or otherwise reconcile it with the authority. state management program for the spe- (a) After determinations required by cies. section 403.04 of this part have been (d) After management of a species made in respect to a species whose has been transferred to the state, state range extends beyond the territorial and Federal authorities shall cooperate waters of the state, the state shall not to the maximum extent practicable in exercise management authority until a conserving the species of marine mam- cooperative allocation agreement with mals. the Secretary has been signed and the Service has transferred management § 403.06 Monitoring and review of authority pursuant to § 403.03(h). The State management program. cooperative allocation agreement shall (a) The Service has responsibility to provide procedures for allocating, on a monitor and review implementation of timely basis, the maximum amount of all state management programs ap- take as determined by the state pursu- proved pursuant to this part. ant to § 403.04 of this part. Such alloca- (b) In order to facilitate such review, tion shall give first priority to inci- each state to which management au- dental take within the zone described thority has been transferred shall sub- in section 3(14)(B) of the Act as pro- mit an annual report, not later than vided for under section 101(a) of the 120 days after the close of such state’s Act, except that in the case of Alaska, first full fiscal or calendar year fol- first priority shall be given to subsist- lowing the effective date of the Serv- ence use. ice’s approval of the State manage- (b) For those species to which para- ment program, and at the same time graph (a) of this section applies, the each following year, or at such other state may request the Service to regu- time as may be agreed upon. The repot late the taking of the species within shall contain the following information the zone described in section 3(14)(B) of current for each reporting period: the Act for subsistence uses and/or (1) Any changes in the state laws hunting in a manner consistent with which comprise those aspects of the the regulation by the state of such tak- state management program submitted ing within the state. If such a request pursuant to § 403.03(b), and, in the case is made, the Service shall adopt and of Alaska, § 403.03(d), of this part; enforce within such zone, such of the (2) Pertinent new data on the marine state’s regulatory provisions as the mammal species or the marine eco- Service considers to be consistent with systems in question including a sum- the administration within such zone of mary of the status, trend and general section 101(a) of the Act. health of the species; (c) If management authority for a (3) A summary of available informa- species has been transferred to a state tion relating to takings under the state pursuant to this subpart, the Service management program; shall provide to the state an oppor- (4) A summary of state actions to tunity to review all requests for per- protect species’ habitat; mits to remove live animals from habi- (5) A summary of all state research tat within the state for scientific re- activity on the species; search or public display purposes. If (6) Any significant changes in the in- the state finds that issuance of the per- formation provided with the original

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request for transfer of management au- determine whether or not the imple- thority; mentation of the state management (7) A summary of enforcement activ- program continues to comply with the ity; requirements of the Act, this part and (8) A summary of budget and staffing the state’s approved management pro- levels for the marine mammal activi- gram. ties in the categories of research, man- (1) Upon receipt of any substantial agement and enforcement; factual information suggesting that (9) Any other information which the the state management program is not Service may request, consistent with being implemented or is being imple- the Act as amended, or which the state mented in a manner inconsistent with deems necessary or advisable to facili- the Act, this part, or the state’s ap- tate review by the Service of state proved management program, the management of the species. Service shall, as soon as practicable (c) Each state having an approved but not later than 30 days after receipt, management program shall file a re- determine whether or not the state port, in a timely manner, not to exceed continues to comply with the require- 45 days from the occurrence of any of ments of the Act, this part and the the following: state’s approved management program. (1) Any change in a relevant state (2) Whenever pursuant to a review as law (amendments, repealers, or new specified in paragraph (a)(1) of this sec- legislation or regulations or judicial tion, the Service determines that any precedent) as submitted pursuant to substantial aspect of the state manage- paragraphs (b)(2) through (b)(5), and in ment program is not in compliance the case of Alaska, paragraph (d), of § 403.03 of this part that may impair the with the requirements of the Act, this State’s ability to implement the pro- part or the state’s approved manage- gram; ment program, it shall provide written (2) Any significant natural or man- notice to the state of its intent to re- made occurrence or any new scientific voke management authority, together information that may warrant recon- with a statement, in detail, of those ac- sideration of the determinations made tions or failures to act upon which pursuant to § 403.04 of this part. such intent to revoke is based. The (d) All components of the state re- Service shall publish notice of such in- quest for transfer of management au- tent to revoke in the FEDERAL REG- thority, as well as annual reports sub- ISTER and invite public comment there- mitted under paragraph (b) of this sec- on, and shall conduct an informal pub- tion and any reports submitted under lic hearing on the matter if requested paragraph (c) of this section, shall be by the state or if the Service otherwise available for inspection and copying at determines it to be necessary. The the Office of the Chief, Division of Service shall provide to the state an Wildlife Management, U.S. Fish and opportunity for consultation between Wildlife Service, Department of the In- the Service and the state concerning terior, Washington, DC 20240, or, as ap- such actions or failures and necessary propriate, at the Office of Protected remedial actions to be taken by the Species and Habitat Conservation, Na- state. tional Marine Fisheries Service, Na- (3) If within 90 days after notice is tional Oceanic and Atmospheric Ad- provided under paragraph (a)(2) of this ministration, Department of Com- section, the state has not taken such merce, Washington, DC 20235, and at remedial measures as are necessary, in the appropriate Service’s regional of- the judgment of the Service, to bring fice. the state management program into compliance with the provision of the § 403.07 Revocation and return of Act, this part and the state’s approved State management authority. management program, the Service (a) Revocation of management. The shall revoke the transfer of manage- Service shall have responsibility to re- ment authority by written notice to view management of a species trans- the state and publication in the FED- ferred to a state under this part and to ERAL REGISTER.

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(b) Voluntary return of management suant to paragraph (b) of this section, authority to the Service. (1) If a state de- the Service shall resume such manage- sires to return management of a spe- ment authority and provide for the cies of marine mammals to the Serv- conservation of the species within the ice, it shall provide the Service notice state in accordance with the provisions of intent to return management. The of the Act. Service shall accept the return of management, and such return shall become § 403.08 List of States to which man- effective, upon publication of a notice agement has been transferred. in the FEDERAL REGISTER to this effect The following states have received no sooner than 30 days (except in an management authority pursuant to emergency as determined by the Serv- this part for the species listed and, ice) nor longer than 60 days after the where appropriate, cooperative alloca- state has provided notice of its intent tion agreements pursuant to § 403.05(c) to return management or unless other- are in force: [Reserved] wise agreed upon. (2) If implementation of any aspect of PART 404— the state management program is en- ¯ ¯ joined by court order, the state shall PAPAHANAUMOKUAKEA MA- advise the Service of such injunction RINE NATIONAL MONUMENT and its effect on the state management program. If the state determines that Sec. the effect of the injunction is to pre- 404.1 Scope and purpose. clude effective conservation and man- 404.2 Boundary. agement of the species under the terms 404.3 Definitions. of the state management program, it 404.4 Access to the Monument. shall so notify the Service and such no- 404.5 Requirements for a vessel monitoring system. tification shall be treated as a notice of 404.6 Prohibited activities. intent to return management as pro- 404.7 Regulated activities. vided in paragraph (b)(1) of this sec- 404.8 Emergencies and law enforcement action. If the state determines that the tivities. injunction does not preclude effective 404.9 Armed Forces actions. conservation and management of ma- 404.10 Commercial fishing. rine mammals under the terms of the 404.11 Permitting procedures and criteria. state management program, it shall so 404.12 International law. notify the Service together with the APPENDIX A TO PART 404—MAP OF THE MONU- basis for the state’s determination and MENT OUTER BOUNDARY AND ECOLOGICAL such notice shall be treated as a report RESERVES, SPECIAL PRESERVATION AREAS, submitted pursuant to the terms of AND MIDWAY ATOLL SPECIAL MANAGE- § 403.06(c)(1) of this part. In either case, MENT AREA the state shall provide notice to the APPENDIX B TO PART 404—APPROVED VESSEL Service as soon as practicable but not MONITORING SYSTEMS more than 30 days after issuance of the APPENDIX C TO PART 404—BOUNDARY COORDI- ¯ ¯ injunction. Management authority re- NATED FOR PAPAHANAUMOKUAKEA MARINE NATIONAL MONUMENT AREAS TO BE turned to the Service pursuant to this AVOIDED paragraph may be re-transferred to the APPENDIX D TO PART 404—BOUNDARY COORDI- state, notwithstanding the require- NATES FOR PAPAHA¯ NAUMOKUA¯ KEA MARINE ments of § 403.03, when, in the judgment NATIONAL MONUMENT SHIP REPORTING of the Service, the cause for return of AREA management authority to the Service APPENDIX E TO PART 404—CONTENT AND SYN- has been alleviated in such a way as to TAX FOR PAPAHA¯ NAUMOKUA¯ KEA SHIP RE- allow effective conservation and man- PORTING SYSTEM agement of the species consistent with AUTHORITY: 16 U.S.C. 431 et seq.; 16 U.S.C. the requirements of the Act and this 460k–3; 16 U.S.C. 1801 et seq.; 16 U.S.C. 742f, 16 part. U.S.C. 742l, and 16 U.S.C. 668dd–ee; 16 U.S.C. (c) When revocation of a manage- 1361 et seq.; 16 U.S.C. 1531 et seq., Pub. L. No. ment authority pursuant to paragraph 106–513, § 6(g) (2000). (a) of this section becomes final, or SOURCE: 71 FR 51135, Aug. 29, 2006, unless when a state returns management pur- otherwise noted.

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§ 404.1 Scope and purpose. fined in MARPOL Annex I; noxious liq- The regulations in this part codify uid substances as defined in MARPOL the provisions of Presidential Procla- Annex II; harmful substances as de- mation 8031, and govern the adminis- fined in MARPOL Annex III; and radio- tration of the Northwestern Hawaiian active materials specified in the Code Islands Marine National Monument. for the Safe Carriage of the Irradiated These regulations are jointly imple- Nuclear Fuel, Plutonium and High- mented by the Secretaries of the Inte- Level Radioactive Wastes in Flasks on rior, through the U.S. Fish and Wildlife Board Ships (INF Code). Service (USFWS), and Commerce, Commercial Bottomfishing means com- through the National Oceanic and At- mercial fishing for bottomfish species. mospheric Administration (NOAA). Commercial passenger vessel means a Nothing in these regulations shall be vessel that carries individuals who deemed to diminish or enlarge the ju- have paid for such carriage. risdiction of the State of Hawaii. Commercial pelagic trolling means commercial fishing for pelagic species. § 404.2 Boundary. Deserting a vessel means: The Northwestern Hawaiian Islands (1) Leaving a vessel aground or Marine National Monument consists of adrift: all lands and interest in lands owned or (i) Without notifying the Secretaries controlled by the Government of the of the vessel going aground or adrift United States within the boundaries of within 12 hours of its discovery and de- the Monument, including emergent and veloping and presenting to the Secre- submerged lands and waters of the taries a preliminary salvage plan with- Northwestern Hawaiian Islands. The in 24 hours of such notification; map in appendix A to this part 404 de- (ii) After expressing or manifesting picts the outer boundary of the Monu- intention to not undertake or to cease ment, which consists of the geodetic salvage efforts; or lines connecting the coordinates speci- (iii) When the Secretaries are unable, fied in the Proclamation. after reasonable efforts, to reach the owner/operator within 12 hours of the § 404.3 Definitions. vessel’s condition being reported to au- The following definitions are applica- thorities. ble only to this part. (2) Leaving a vessel at anchor when Areas to be avoided means the four its condition creates potential for a designated areas that should be avoid- grounding, discharge, or deposit and ed by vessels that are conducting pas- the owner/operator fails to secure the sage through the Monument without vessel in a timely manner. interruption. Appendix C sets forth the Ecological Reserve means the areas of coordinates of these areas. the Monument, identified in the Proc- Attract or Attracting means luring or lamation, consisting of contiguous, di- attempting to lure a living resource by verse habitats that provide natural any means, except the mere presence of spawning, nursery, and permanent resi- human beings (e.g., swimmers, divers, dence areas for the replenishment and boaters). genetic protection of marine life, and Bottomfish Species means Bottomfish also to protect and preserve natural as- management unit species as defined at semblages of habitats and species with- 50 CFR 665.12. in areas representing a broad diversity Categories of hazardous cargoes means of resources and habitats found within goods classified in the International the Monument. Specific coordinates for Maritime Dangerous Goods (IMDG) Ecological Reserves within the Monu- Code; substances classified in chapter ment are found in the Proclamation, 17 of the International Code for the and the Ecological Reserves consist of Construction and Equipment of Ships the areas within the geodetic lines con- Carrying Dangerous Chemicals in Bulk necting these coordinates. The Ecologi- (IBC Code) and chapter 19 of the Inter- cal Reserves are depicted on the map in national Code for the Construction and appendix A to part 404. Equipment of Ships Carrying Liquefied Ecological integrity means a condition Gases in Bulk (IGC Code); oils as de- determined to be characteristic of an

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ecosystem that has the ability to include, but is not limited to, the non- maintain the function, structure, and commercial use of Monument resources abundance of natural biological com- for direct personal consumption while munities, including rates of change in in the Monument. response to natural environmental var- Ocean-based ecotourism means a class iation. of fee-for-service activities that in- Fishing year means the year begin- volves visiting the Monument for ning at 0001 local time on January 1 study, enjoyment, or volunteer assist- and ending at 2400 local time on De- ance for purposes of conservation and cember 31. management. IMO means the International Mari- Office for Law Enforcement (OLE) re- time Organization. fers to NOAA, National Marine Fish- Introduced Species means: eries Service, Office for Law Enforce- (1) A species (including, but not lim- ment. ited to, any of its biological matter ca- Pelagic Species means Pacific Pelagic pable of propagation) that is non-na- Management Unit Species as defined at tive to the ecosystem(s) protected by 50 CFR 665.12. the Monument; or Pono means appropriate, correct, and (2) Any organism into which genetic deemed necessary by traditional stand- matter from another species has been ards in the Hawaiian culture. transferred in order that the host orga- Proclamation means Presidential nism acquires the genetic traits of the Proclamation 8031, dated June 15, 2006 transferred genes. (71 FR 36443). Landing means offloading fish from a Recreational activity means an activ- fishing vessel or causing fish to be ity conducted for personal enjoyment offloaded from a fishing vessel. that does not result in the extraction Midway Atoll Special Management Area of Monument resources and that does means the area of the Monument sur- not involve a fee-for-service trans- rounding Midway Atoll out to a dis- action. This includes, but is not lim- tance of 12 nautical miles, established ited to, wildlife viewing, SCUBA div- for the enhanced management, protec- ing, snorkeling, and boating. tion, and preservation of Monument Reporting area means the area within wildlife and historical resources. The the coordinates set forth in appendix geographic coordinates of this area, D. which consists of the area within the Secretaries means the Secretary of geodetic lines connecting these coordi- Commerce and the Secretary of the In- nates, are found in the Proclamation. terior or their designees. The Midway Atoll Special Management Special Preservation Area (SPA) means Area is depicted on the map in appen- discrete, biologically important areas dix A to part 404. of the Monument, identified in the Mobile transceiver unit means a vessel Proclamation, within which uses are monitoring system or VMS device, as subject to conditions, restrictions, and described in appendix E to this part, in- prohibitions, including but not limited stalled on board a vessel that is used to access restrictions. SPAs are used to for vessel monitoring and transmitting avoid concentrations of uses that could the vessel’s position as required by this result in declines in species popu- part. lations or habitat, to reduce conflicts Monument means the Northwestern between uses, to protect areas that are Hawaiian Islands Marine National critical for sustaining important ma- Monument. rine species or habitats, or to provide Native Hawaiian Practices means cul- opportunities for scientific research. tural activities conducted for the pur- Specific coordinates for Special Preser- poses of perpetuating traditional vation Areas within the Monument are knowledge, caring for and protecting found in the Proclamation, and the the environment and strengthening Special Preservation Areas consist of cultural and spiritual connections to the areas within the geodetic lines con- the Northwestern Hawaiian Islands necting these coordinates. The Special that have demonstrable benefits to the Preservation Areas are depicted on the Native Hawaiian community. This may map in appendix A to part 404.

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Special ocean use means an activity or (1) Vessels of the United States, ex- use of the Monument that is engaged in cept as provided in paragraph (f) of this to generate revenue or profits for one section; or more of the persons associated with (2) All other ships 300 gross tonnage the activity or use, and does not de- or greater, entering or departing a stroy, cause the loss of, or injure United States port or place; and Monument resources. This includes (3) All other ships in the event of an ocean-based ecotourism and other ac- emergency, entering or departing a tivities such as educational and re- United States port or place. search activities that are engaged in to (d) Immediately upon entering the generate revenue, but does not include reporting area, the vessels described in commercial fishing for bottomfish or paragraph (c) of this section must pro- pelagic species conducted pursuant to a vide the following information by e- valid permit issued by NOAA. mail sent to Stowed and not available for immediate [email protected] in the IMO use means not readily accessible for standard reporting format and data immediate use, e.g., by being securely syntax shown in appendix E: covered and lashed to a deck or bulk- (1) Vessel name, call sign or ship sta- head, tied down, unbaited, unloaded, or tion identity, flag, and IMO identifica- partially disassembled (such as spear tion number if applicable, and either shafts being kept separate from spear Federal documentation or State reg- guns). istration number if applicable. Sustenance fishing means fishing for (2) Date, time (UTC) and month of bottomfish or pelagic species in which entry. all catch is consumed within the Monu- (3) Position. ment, and that is incidental to an ac- (4) True course. tivity permitted under this part. (5) Speed in knots and tenths. Vessel monitoring system or VMS (6) Destination and estimated time of means a vessel monitoring system or arrival. mobile transceiver unit as described in (7) Intended route through the Monu- § 404.5 and approved by Office for Law ment and the reporting area. Enforcement for use on vessels per- (8) Vessel draft (in meters). mitted to access the Monument, as re- (9) Categories of hazardous cargoes quired by this part. on board. (10) Any vessel defects or deficiencies [71 FR 51135, Aug. 29, 2006, as amended at 73 FR 73598, Dec. 3, 2008] that restrict maneuverability or impair normal navigation. § 404.4 Access to Monument. (11) Any pollution incident or goods lost overboard within the Monument, (a) Entering the Monument is prohib- the reporting area, or the U.S. EEZ. ited and thus unlawful except: (12) Contact information for the ves- (1) As provided in §§ 404.8 and 404.9; sel’s agent or owner. (2) Pursuant to a permit issued under (13) Vessel size (length overall, gross § 404.10 or § 404.11; or tonnage) and type. (3) When conducting passage without (14) Total number of persons on interruption in accordance with para- board. graphs (b) through (f) of this section. (e) Immediately upon leaving the re- (b) Any person passing through the porting area, the vessels described in Monument without interruption is subparagraph (c) must provide the fol- ject to the prohibitions in §§ 404.5, 404.6, lowing information by e-mail sent to and 404.7. [email protected] in the IMO (c) The following vessels, except ves- standard reporting format and data sels entitled to sovereign immunity syntax shown in appendix E: under international law, passing (1) Vessel name, call sign or ship sta- through the Monument without inter- tion identity, flag, and IMO identifica- ruption must participate in the ship re- tion number if applicable, and either porting system as provided in para- Federal documentation or State reg- graphs (d) and (e) of this section: istration number if applicable.

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(2) Date, time (UTC) and month of when reinstalling and reactivating exit. such VMS, the vessel owner or operator (3) Position. must: (4) Any pollution incident or goods (1) Follow procedures indicated on an lost overboard within the Monument, installation and activation checklist, the reporting area, or the U.S. EEZ. which is available from OLE; and (f)(1) Vessels of the United States less (2) Submit to OLE a statement certi- than 300 gross tonnage that are not fying compliance with the checklist, as equipped with onboard e-mail capa- prescribed on the checklist. bility must provide notification of (c) Interference with the VMS. No per- entry and the information described in son may interfere with, tamper with, paragraphs (d)(1), (2), (3) as applicable, alter, damage, disable, or impede the (6), (7), (8), (9) as applicable, (10), (12), operation of the VMS, or attempt any (13), and (14) of this section at least 72 of the same. hours, but no longer than 1 month, prior to the entry date. Notification of (d) Interruption of operation of the departure from the Monument and the VMS. When a vessel’s VMS is not oper- information described in paragraph (e) ating properly, the owner or operator of this section must be provided within must immediately contact OLE, and 12 hours of leaving. Notification under follow instructions from that office. If this paragraph may be made by e-mail, notified by OLE that a vessel’s VMS is telephone, or fax, by contacting: (i) E- not operating properly, the owner and mail: [email protected]; operator must follow instructions from (ii) Telephone: 1–866–478–NWHI (6944); that office. In either event, such in- (iii) Fax: 1–808–455–3093. structions may include, but are not (2) The information must be provided limited to, manually communicating in the IMO standard reporting format to a location designated by OLE the and data syntax shown in appendix E. vessel’s positions or returning to port (g) All vessels passing through the until the VMS is operable. Monument without interruption other (e) Access to position data. As a condi- than those described in paragraphs tion of authorized access to the Monu- (c)(1) through (3) of this section should ment, a vessel owner or operator sub- participate in the ship reporting sys- ject to the requirements for a VMS in tem set forth in paragraphs (d) and (e) this section must allow OLE, the of this section. USCG, and their authorized officers and designees access to the vessel’s po- [73 FR 73598, Dec. 3, 2008, as amended at 79 FR 44317, July 31, 2014] sition data obtained from the VMS. Consistent with other applicable laws, § 404.5 Requirements for a vessel mon- including the limitations on access to, itoring system. and use of, VMS data collected under (a) Requirement for use. Effective Au- the Magnuson-Stevens Fishery Con- gust 28, 2006, an owner or operator of a servation and Management Act, the vessel that has been issued a permit for Secretaries may have access to, and accessing the Monument must ensure use of, collected data for scientific, sta- that such vessel has an OLE-approved, tistical, and management purposes. operating VMS on board when (f) Authority for installation and oper- voyaging within the Monument. An op- ation. OLE has authority over the in- erating VMS includes an operating mo- stallation and operation of the VMS bile transmitting unit on the vessel unit. OLE may authorize the connec- and a functioning communication link tion or order the disconnection of addi- between the unit and OLE as provided tional equipment, including a com- by an OLE-approved communication puter, to any VMS unit when deemed service provider. Appendix B to this appropriate by OLE. part 404 provides information regarding (g) Activities Regarding Vessel Moni- OLE-approved transmitting units. toring Systems. Effective August 28, (b) Installing and activating the VMS. 2006, the following activities regarding Only a VMS that has been approved by vessel monitoring systems are prohib- OLE may be used. When installing and ited and thus unlawful for any person activating the OLE-approved VMS, or to conduct or cause to be conducted:

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(1) Operating any vessel within the prohibited and thus unlawful for any Monument without an OLE type-ap- person to conduct or cause to be con- proved mobile transceiver unit de- ducted within the Monument without a scribed in this section; valid permit as provided for in § 404.11: (2) Failing to install, activate, repair, (a) Removing, moving, taking, har- or replace a mobile transceiver unit vesting, possessing, injuring, dis- prior to leaving port; turbing, or damaging; or attempting to (3) Failing to operate and maintain a remove, move, take, harvest, possess, mobile transceiver unit on board the injure, disturb, or damage any living or vessel at all times as specified in this nonliving Monument resource; section; (b) Drilling into, dredging, or other- (4) Tampering with, damaging, de- wise altering the submerged lands stroying, altering, or in any way dis- other than by anchoring a vessel; or torting, rendering useless, inoperative, constructing, placing, or abandoning ineffective, or inaccurate the VMS, any structure, material, or other mat- mobile transceiver unit, or VMS signal ter on the submerged lands; required to be installed on or trans- (c) Anchoring a vessel; mitted by a vessel as specified in this (d) Deserting a vessel aground, at an- section; chor, or adrift; (5) Failing to contact OLE or follow (e) Discharging or depositing any ma- OLE instructions when automatic posi- terial or other matter into Special tion reporting has been interrupted as Preservation Areas or the Midway specified in this section; Atoll Special Management Area except (6) Registering a VMS or mobile vessel engine cooling water, weather transceiver unit to more than one ves- deck runoff, and vessel engine exhaust; sel at the same time; (f) Discharging or depositing any ma- (7) Connecting or leaving connected terial or other matter into the Monu- additional equipment to a VMS unit or ment, or discharging or depositing any mobile transceiver unit without the material or other matter outside the prior approval of OLE; and Monument that subsequently enters (8) Making a false statement, oral or the Monument and injures any re- written, to an authorized officer resources of the Monument, except fish garding the installation, use, oper- parts (i.e., chumming material or bait) ation, or maintenance of a VMS unit or used in and during authorized fishing mobile transceiver unit or communica- operations, or discharges incidental to tion service provider. vessel use such as deck wash, approved marine sanitation device effluent, cool- § 404.6 Prohibited activities. ing water, and engine exhaust; The following activities are prohib- (g) Touching coral, living or dead; ited and thus unlawful for any person (h) Possessing fishing gear except to conduct or cause to be conducted: when stowed and not available for im- (a) Exploring for, developing, or pro- mediate use during passage without ducing oil, gas, or minerals within the interruption through the Monument; Monument; (i) Swimming, snorkeling, or closed (b) Using or attempting to use poi- or open circuit SCUBA diving within sons, electrical charges, or explosives any Special Preservation Area or the in the collection or harvest of a Monu- Midway Atoll Special Management ment resource; Area; and (c) Introducing or otherwise releasing (j) Attracting any living Monument an introduced species from within or resource. into the Monument; and (d) Anchoring on or having a vessel § 404.8 Emergencies and law enforce- anchored on any living or dead coral ment activities. with an anchor, anchor chain, or an- The prohibitions in this part do not chor rope. apply to activities necessary to respond to emergencies threatening life, § 404.7 Regulated activities. property, or the environment, or to ac- Except as provided in §§ 404.8, 404.9 tivities necessary for law enforcement and 404.10, the following activities are purposes.

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§ 404.9 Armed Forces actions. (i) 350,000 pounds for bottomfish species; and (a) The prohibitions in this part do not apply to activities and exercises of (ii) 180,000 pounds for pelagic species. the Armed Forces (including those car- (3) Commercial fishing for bottomfish ried out by the United States Coast and associated pelagic species is pro- Guard) that are consistent with appli- hibited in the Monument after June 15, cable laws. 2011. (b) These regulations shall not limit (c) General requirements. Any commer- agency actions to respond to emer- cial fishing within the Monument shall gencies posing an unacceptable threat be conducted in accordance with the to human health or safety or to the following restrictions and conditions: marine environment and admitting of (1) A valid permit or facsimile of a no other feasible solution. valid permit shall be on board the fish- (c) All activities and exercises of the ing vessel and available for inspection Armed Forces shall be carried out in a by an authorized officer; manner that avoids, to the extent prac- (2) No attempt is made to falsify or ticable and consistent with operational fail to make, keep, maintain, or submit requirements, adverse impacts on any logbook or logbook form or other Monument resources and qualities. required record or report. (d) In the event of threatened or ac- (3) Only gear specifically authorized tual destruction of, loss of, or injury to by the relevant permit issued under the a Monument resource or quality result- Magnuson-Stevens Fishery Conserva- ing from an incident, including but not tion and Management Act is allowed to limited to spills and groundings, be in the possession of a person con- caused by a component of the Depart- ducting commercial fishing under this ment of Defense or the United States section; Coast Guard, the cognizant component (4) Any person conducting commer- shall promptly coordinate with the cial fishing notifies the Secretaries by Secretaries for the purpose of taking telephone, facsimile, or electronic mail appropriate actions to respond to and at least 72 hours before entering the mitigate the harm and, if possible, re- Monument and within 12 hours after store or replace the Monument re- leaving the Monument in accordance source or quality. with § 404.4(b) and (c); (5) All fishing vessels must carry an § 404.10 Commercial fishing. activated and functioning VMS unit on (a) Lobster fishing. Any commercial board at all times whenever the vessel lobster fishing permit is subject to a is in the Monument; zero annual harvest limit condition. (6) All fishing vessels must carry an (b) Fishing and bottomfish and pelagic observer when requested to do so by species. (1) Notwithstanding the prohi- the Secretaries; bitions in § 404.7(a) and (h), commercial (7) The activity does not take place fishing for bottomfish and associated within any Ecological Reserve, any pelagic species may continue within Special Preservation Area, or the Mid- the Monument subject to paragraph (c) way Atoll Special Management Area. of this section, until June 15, 2011, provided that: § 404.11 Permitting procedures and (i) The fishing is conducted in ac- criteria. cordance with a valid commercial (a) Issuance. Subject to such terms bottomfish permit issued by NOAA; and conditions as the Secretaries deem and appropriate, a person may conduct an (ii) Such permit was in effect on June activity prohibited by § 404.7 if such ac- 15, 2006, and is subsequently renewed tivity is specifically authorized by a pursuant to NOAA regulations at 50 permit issued under this section. CFR part 665, subpart E as necessary. (b) Application requirements. Appli- (2) Total landings for each fishing cants for permits under this section year from fishing allowed under para- shall submit applications to: NOAA/ graph (b)(1) of this section may not ex- Inouye Regional Center; NOS/ONMS/ ceed the following amounts: PMNM/Attn: Permit Coordinator; 1845

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Wasp Blvd., Building 176; Honolulu, HI ment resources, qualities, and ecologi- 96818. cal integrity; (c) Permit Types. A permit under this (9) The applicant’s vessel has been subpart may be issued if the Secre- outfitted with a mobile transceiver taries find that the activity: unit approved by OLE and complies (1) Is research designed to further un- with the requirements of § 404.5; and derstanding of Monument resources (10) There are no other factors that and qualities; would make the issuance of a permit (2) Will further the educational value for the activity inappropriate. of the Monument; (e) Additional findings for Native Ha- (3) Will assist in the conservation and waiian practice permits. In addition to management of the Monument; the findings listed in paragraph (d) of (4) Will allow Native Hawaiian prac- this section, a permit to allow Native tices subject to paragraph (e) of this Hawaiian practices under paragraph section; (c)(4) of this section, may not be issued (5) Will allow a special ocean use sub- unless: ject to paragraph (f) of this section; or (1) The activity is non-commercial and will not involve the sale of any or- (6) Will allow recreational activities ganism or material collected; subject to paragraph (g) of this section. (2) The purpose and intent of the ac- (d) Findings. A permit may not be tivity are appropriate and deemed nec- issued under this section unless the essary by traditional standards in the Secretaries find: Native Hawaiian culture (pono), and (1) The activity can be conducted demonstrate an understanding of, and with adequate safeguards for the re- background in, the traditional prac- sources and ecological integrity of the tice, and its associated values and pro- Monument; tocols; (2) The activity will be conducted in (3) The activity benefits the re- a manner compatible with the purposes sources of the Northwestern Hawaiian of the Proclamation, considering the Islands and the Native Hawaiian com- extent to which the conduct of the ac- munity; tivity may diminish or enhance Monu- (4) The activity supports or advances ment resources, qualities, and ecologi- the perpetuation of traditional knowl- cal integrity, any indirect, secondary edge and ancestral connections of Na- or cumulative effects of the activity, tive Hawaiians to the Northwestern and the duration of such effects; Hawaiian Islands; and (3) There is no practicable alter- (5) Any Monument resource har- native to conducting the activity with- vested from the Monument will be con- in the Monument; sumed in the Monument. (4) The end value of the activity out- (f) Additional findings, criteria, and re- weighs its adverse impacts on Monu- quirements for special ocean use permits. ment resources, qualities, and ecologi- (1) In addition to the findings listed in cal integrity; paragraph (d) of this section, the fol- (5) The duration of the activity is no lowing requirements apply to the longer than necessary to achieve its issuance of a permit for a special ocean stated purpose; use under paragraph (c)(5) of this sec- (6) The applicant is qualified to con- tion: duct and complete the activity and (i) Any permit for a special ocean use mitigate any potential impacts result- issued under this section: ing from its conduct; (A) Shall authorize the conduct of an (7) The applicant has adequate finan- activity only if that activity is com- cial resources available to conduct and patible with the purposes for which the complete the activity and mitigate any Monument is designated and with pro- potential impacts resulting from its tection of Monument resources; conduct; (B) Shall not authorize the conduct (8) The methods and procedures proof any activity for a period of more posed by the applicant are appropriate than 5 years unless renewed; to achieve the proposed activity’s goals (C) Shall require that activities car- in relation to their impacts to Monu- ried out under the permit be conducted

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in a manner that does not destroy, (ii) As part of a permit issued pursu- cause the loss of, or injure Monument ant to this paragraph (f)(5), vessels resources; and may be allowed to transit the Monu- (D) Shall require the permittee to ment as necessary to enter the Midway purchase and maintain comprehensive Atoll Special Management Area. general liability insurance, or post an (6) A permit for a special ocean use equivalent bond, against claims arising for activities outside the Midway Atoll out of activities conducted under the Special Management Area may be permit and to agree to hold the United issued provided: States harmless against such claims; (i) The activity will directly benefit (ii) Each person issued a permit for a the conservation and management of special ocean use under this section the Monument; shall submit an annual report to the (ii) The purpose of the activity is for Secretaries not later than December 31 research or education related to the re- of each year which describes activities sources or qualities of the Monument; conducted under that permit and reve- (iii) Public notice of the application nues derived from such activities dur- and an opportunity to provide coming the year. ments is given at least 30 days prior to (2) In addition to the findings listed issuing the permit; and in paragraph (d) of this section, a permit may not be issued for a special (iv) The activity does not involve the ocean use unless the activity has been use of a commercial passenger vessel. determined to be consistent with the (g) Additional findings for recreation findings made pursuant to paragraph permits. A permit for recreational ac- (f) of this section. tivities under paragraph (c)(6) of this (3) Categories of special ocean use section may be issued for activities to being permitted for the first time be conducted within the Midway Atoll under this section will be restricted in Special Management area if, in addi- duration and permitted as a special tion to the findings listed in paragraph ocean use pilot project. Subsequent (d) of this section: permits for any category of special (1) The activity is for the purpose of ocean use may only be issued if a spe- recreation as defined in section 404.3; cial ocean use pilot project for that (2) The activity is not associated category meets the requirements of with any for-hire operation; and this section, and any terms and condi- (3) The activity does not involve any tions placed on the permit for the pilot extractive use. project. (h) Sustenance fishing. Sustenance (4) Public notice shall be provided fishing, as defined in 404.3, may be al- prior to requiring a special ocean use lowed outside of any Special Preserva- permit for any category of activity not tion Area as a term or condition of any previously identified as a special ocean permit issued under this part. Suste- use. nance fishing in the Midway Atoll Spe- (5) The following requirements apply cial Management Area shall not be al- to permits for a special ocean use for lowed unless the activity has been de- an activity within the Midway Atoll termined by the Director of the U.S. Special Management Area. Fish and Wildlife Service or his or her (i) A permit for a special ocean use designee to be compatible with the pur- for activities within the Midway Atoll poses for which the Midway Atoll Na- Special Management Area may be tional Wildlife Refuge was established. issued provided: Sustenance fishing must be conducted (A) The activity furthers the con- in a manner compatible with the Proc- servation and management of the lamation and this part, including con- Monument; and sidering the extent to which the con- (B) The Director of the United States duct of the activity may diminish Fish and Wildlife Service or his or her Monument resources, qualities, and ec- designee has determined that the activ- ological integrity, as well as any indi- ity is compatible with the purposes for rect, secondary, or cumulative effects which the Midway Atoll National Wild- of the activity and the duration of such life Refuge was designated. effects. Sustenance fishing is subject to

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systematic reporting requirements forced against a person who is not a when developed by the Secretaries. citizen, national, or resident alien of the United States (including foreign [71 FR 51135, Aug. 29, 2006, as amended at 72 flag vessels) unless in accordance with FR 5643, Feb. 7, 2007; 79 FR 44317, July 31, international law. 2014] APPENDIX A TO PART 404—MAP OF THE § 404.12 International law. MONUMENT OUTER BOUNDARY AND These regulations shall be applied in ECOLOGICAL RESERVES, SPECIAL accordance with international law. No PRESERVATION AREAS, AND MIDWAY restrictions shall apply to or be en- ATOLL SPECIAL MANAGEMENT AREA

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APPENDIX B TO PART 404—APPROVED reporting and broadcast command identifica- VMS tion numbers into the unit; (3) test the unit to ensure operation when installation has I. VMS MOBILE TRANSCEIVER UNIT been completed on the vessel; and (4) forward the Inmarsat service provider and the trans- Thrane & Thrane Sailor 3026D Gold VMS ceiver identifying information to OLE. The Thrane & Thrane Sailor 3026D Gold VMS (TT–3026D) has been found to meet the II. INMARSAT-C COMMUNICATIONS PROVIDERS minimum technical requirements for vessels issued permits to operate in the North- It is recommended, for vendor warranty western Hawaiian Islands Marine National and customer service purposes, that the ves- Monument. The address for the Thrane & sel owner keep for his or her records and Thrane distributor contact is provided in that Telenor and Xantic have on record the this notice under the heading VMS Provider following identifying information: (1) Signed Address. and dated receipts and contracts; (2) trans- The TT–3026D Gold VMS features an inte- ceiver serial number; (3) Telenor or Xantic grated GPS/Inmarsat-C unit and a marine customer number, user name and password; grade monitor with keyboard and integrated (4) e-mail address of transceiver; (5) mouse. The unit is factory pre-configured for Inmarsat identification number; (6) owner NMFS VMS operations (non-Global Mari- name; (7) vessel name; (8) vessel documenta- time Distress & Safety System (non- tion or registration number; and (9) mobile GMDSS)). Satellite commissioning services earth station license (FCC license). are provided by Thrane & Thrane personnel. The OLE will provide an installation and Automatic GPS position reporting starts activation checklist that the vessel owner after transceiver installation and power activation onboard the vessel. The unit is an in- must follow. The vessel owner must sign a tegrated transceiver/antenna/GPS design statement on the checklist certifying com- using a floating 10 to 32 VDC power supply. pliance with the installation procedures and The unit is configured for automatic reduced return the checklist to OLE. Installation can position transmissions when the vessel is be performed by an experienced crew or by stationary (i.e., in port). It allows for port an electronics specialist, and the installa- stays without power drain or power shut tion cost is paid by the owner. down. The unit restarts normal position The owner may confirm the TT–3026D oper- transmission automatically when the vessel ation and communications service to ensure goes to sea. that position reports are automatically sent The TT–3026D provides operation down to to and received by OLE before leaving on a ± 15 degree angles. The unit has the capa- trip under VMS. The OLE does not regard bility of two-way communications to send the vessel as meeting requirements until po- formatted forms and to receive e-mail and sition reports are automatically received. other messages. A configuration option is For confirmation purposes, contact the available to automatically send position reports to a private address, such as a fleet NOAA Fisheries Office for Law Enforcement, management company. 8484 Georgia Ave., Suite 415, Silver Spring, A vessel owner may purchase this system MD 20910, phone 888–219–9228, fax 301–427–0049. by contacting the entity identified in this notice under the heading ‘‘VMS Provider Ad- Telenor Satellite Services dress’’ The owner should identify himself or Inmarsat-C is a store-and-forward data herself as a vessel owner issued a permit to messaging service. Inmarsat-C allows users operate in the Northwestern Hawaiian Is- to send and receive information virtually lands Marine National Monument, so the anywhere in the world, on land, at sea, and transceiver set can be properly configured. in the air. Inmarsat-C supports a wide vari- To use the TT–3026D the vessel owner will ety of applications including Internet, e- need to establish an Inmarsat-C system use contract with an approved Inmarsat-C com- mail, position and weather reporting, a free munications service provider. The owner will daily news service, and remote equipment be required to complete the Inmarsat-C monitoring and control. Mariners can use ‘‘Registration for Service Activation for Inmarsat-C free of charge to send critical Maritime Mobile Earth Station.’’ The owner safety at sea messages as part of the U.S. should consult with Thrane & Thrane when Coast Guard’s Automated Mutual-Assistance completing this form. Vessel Rescue system and of the NOAA Ship- Thrane & Thrane personnel will perform board Environmental Acquisition System the following services before shipment: (1) programs. Telenor Vessel Monitoring Sys- Configure the transceiver according to OLE tem Services is being sold through Thrane & specifications for vessels issued permits to Thrane, Inc. For the Thrane & Thrane and operate in the Northwestern Hawaiian Is- Telenor addresses, look inside this notice lands Marine National Monument; (2) under the heading ‘‘VMS Provider Address’’ download the predetermined NMFS position

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Xantic APPENDIX C TO PART 404—BOUNDARY Xantic is a provider of Vessel Monitoring COORDINATED FOR Services to the maritime industry. By in- PAPAHA¯ NAUMOKUA¯ KEA MARINE NA- stalling an approved OLE Inmarsat-C trans- TIONAL MONUMENT AREAS TO BE ceiver on the vessel, vessels can send and re- AVOIDED ceive e-mail, to and from land, while the transceiver automatically sends vessel posi- APPENDIX C—GEOGRAPHICAL COORDINATES tion reports to OLE, and is fully compliant Areas To Be Avoided with the International Coast Guard Search and Rescue Centers. Xantic Vessel Moni- Papahanaumokuakea Marine National toring System Services are being sold Monument through Thrane & Thrane, Inc. For the Thrane & Thrane and Xantic addresses, look Reference chart: United States 540, 2008 in this notice under the heading ‘‘VMS Pro- edition; 19016, 2008 edition; 19019, 2008 edition; vider Address’’ 19022, 2008 edition. For Telenor and Xantic, Thrane & Thrane These charts are based on World Geodetic customer service supports the security and System 1984 Datum (WGS–84) and astronomic privacy of vessel accounts and messages with datum. the following: (a) Password authentication for vessel owners or agents and for OLE to TABLE C–1—KURE ATOLL, MIDWAY ATOLL, AND prevent unauthorized changes or inquiries; PEARL AND HERMES ATOLL and (b) separation of private messages from OLE messages. (OLE requires VMS-related Point Latitude (N) Longitude (W) position reports, only.) 1 ...... 27°14′.76 176°29′.87 Billing is separated between accounts for 2 ...... 27°24′.95 177°33′.31 the vessel owner and the OLE. VMS position 3 ...... 27°35′.87 178°29′.90 reports and vessel-initiated messaging are 4 ...... 27°36′.64 178°33′.93 ° ′ ° ′ paid for by the vessel owner. Messaging initi- 5 ...... 27 37 .53 178 37 .32 6 ...... 27°38′.60 178°40′.65 ated from OLE operations center is paid for 7 ...... 27°39′.85 178°43′.90 by NOAA. 8 ...... 27°41′.28 178°47′.05 Thrane & Thrane provides customer serv- 9 ...... 27°42′.89 178°50′.10 ice for Telenor and Xantic users to support 10 ...... 27°44′.66 178°53′.03 ° ′ ° ′ and establish two-way transmission of trans- 11 ...... 27 46 .59 178 55 .83 12 ...... 27°48′.67 178°58′.49 ceiver unit configuration commands between 13 ...... 27°50′.89 179°01′.00 the transceiver and land-based control cen- 14 ...... 27°53′.22 179°03′.39 ters. This supports OLE’s message needs and, 15 ...... 27°55′.69 179°05′.61 optionally, the crew’s private message needs. 16 ...... 27°58′.29 179°07′.61 The vessel owner can configure automatic 17 ...... 28°01′.01 179°09′.47 ° ′ ° ′ position reports to be sent to a private ad- 18 ...... 28 03 .81 179 11 .10 19 ...... 28°06′.71 179°12′.53 dress, such as to a fleet management com- 20 ...... 28°09′.67 179°13′.75 pany. 21 ...... 28°12′.70 179°14′.75 Vessel owners wishing to use Telenor or 22 ...... 28°15′.78 179°15′.54 Xantic services will need to purchase an 23 ...... 28°18′.91 179°16′.11 Inmarsat-C transceiver approved for vessels 24 ...... 28°22′.04 179°16′.45 ° ′ ° ′ issued permits to operate in the North- 25 ...... 28 24 .72 179 16 .56 26 ...... 28°25′.20 179°16′.57 western Hawaiian Islands Marine National 27 ...... 28°25′.81 179°16′.56 Monument. The owner will need to complete 28 ...... 28°28′.35 179°16′.44 an Inmarsat-C system use contract with 29 ...... 28°31′.49 179°16′.10 Telenor or Xantic, including a mobile earth 30 ...... 28°34′.61 179°15′.54 station license (FCC requirement). The 31 ...... 28°37′.69 179°14′.75 ° ′ ° ′ transceiver will need to be commissioned 32 ...... 28 40 .71 179 13 .74 33 ...... 28°43′.68 179°12′.54 with Inmarsat according to Telenor or 34 ...... 28°46′.58 179°11′.13 Xantic’s instructions. The owner should 35 ...... 28°49′.39 179°09′.52 refer to and follow the configuration, instal- 36 ...... 28°52′.11 179°07′.70 lation, and service activation procedures for 37 ...... 28°54′.72 179°05′.70 the specific transceiver purchased. 38 ...... 28°57′.21 179°03′.51 39 ...... 28°59′.58 179°01′.15 ° ′ ° ′ III. VMS PROVIDER ADDRESS 40 ...... 29 01 .81 178 58 .62 41 ...... 29°03′.90 178°55′.93 For TT–3026D, Telenor, or Xantic informa- 42 ...... 29°05′.83 178°53′.10 tion, contact Ronald Lockerby, Marine Prod- 43 ...... 29°07′.60 178°50′.13 ° ′ ° ′ ucts, Thrane & Thrane, Inc., 509 Viking 44 ...... 29 09 .21 178 47 .04 45 ...... 29°10′.64 178°43′.84 Drive, Suite K, L & M, Virginia Beach, VA 46 ...... 29°11′.89 178°40′.54 23452; voice: 757–463–9557; fax: 757–463–9581, e- 47 ...... 29°12′.95 178°37′.16 mail: [email protected]; Web site: http:// 48 ...... 29°13′.82 178°33′.71 www.landseasystems.com. 49 ...... 29°14′.50 178°30′.21

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TABLE C–1—KURE ATOLL, MIDWAY ATOLL, AND TABLE C–2—LISIANSKI ISLAND, LAYSAN ISLAND, PEARL AND HERMES ATOLL—Continued MARO REEF, AND RAITA BANK—Continued

Point Latitude (N) Longitude (W) Point Latitude (N) Longitude (W)

50 ...... 29°14′.99 178°26′.66 19 ...... 25°39′.05 169°09′.93 51 ...... 29°15′.28 178°23′.08 20 ...... 25°34′.37 169°08′.08 52 ...... 29°15′.36 178°19′.49 21 ...... 25°29′.54 169°06′.76 53 ...... 29°15′.25 178°15′.90 22 ...... 25°24′.61 169°05′.93 54 ...... 29°14′.94 178°12′.32 23 ...... 25°19′.63 169°05′.64 55 ...... 29°14′.43 178°08′.78 24 ...... 25°14′.65 169°05′.93 56 ...... 29°03′.47 177°12′.07 25 ...... 25°09′.69 169°06′.66 57 ...... 29°02′.55 177°07′.29 26 ...... 25°04′.85 169°08′.02 58 ...... 28°38′.96 175°35′.47 27 ...... 25°00′.17 169°09′.96 59 ...... 28°38′.67 175°34′.35 28 ...... 24°55′.66 169°12′.35 60 ...... 28°34′.91 175°19′.74 29 ...... 24°51′.35 169°15′.14 61 ...... 28°26′.24 175°10′.65 30 ...... 24°47′.37 169°18′.48 62 ...... 28°24′.61 175°08′.95 31 ...... 24°43′.69 169°22′.22 63 ...... 28°24′.53 175°09′.04 32 ...... 24°40′.34 169°26′.31 64 ...... 28°20′.09 175°04′.91 33 ...... 24°37′.42 169°30′.78 65 ...... 28°16′.05 175°01′.92 34 ...... 24°35′.00 169°35′.64 66 ...... 28°11′.78 174°59′.33 35 ...... 24°33′.02 169°40′.66 67 ...... 28°07′.29 174°57′.23 36 ...... 24°31′.34 169°45′.88 68 ...... 28°02′.63 174°55′.68 37 ...... 24°30′.31 169°51′.08 69 ...... 27°57′.84 174°54′.62 38 ...... 24°29′.68 169°56′.53 70 ...... 27°53′.01 174°54′.05 39 ...... 24°29′.56 170°01′.81 71 ...... 27°48′.12 174°54′.05 40 ...... 24°29′.61 170°04′.57 72 ...... 27°43′.28 174°54′.62 41 ...... 24°35′.77 170°44′.39 73 ...... 27°38′.48 174°55′.71 42 ...... 24°36′.29 170°47′.58 74 ...... 27°33′.81 174°57′.32 43 ...... 24°37′.18 170°50′.37 75 ...... 27°29′.30 174°59′.43 44 ...... 24°37′.76 170°52′.17 76 ...... 27°25′.00 175°02′.03 45 ...... 24°56′.23 171°50′.19 77 ...... 27°20′.93 175°05′.07 46 ...... 25°16′.61 174°24′.84 78 ...... 27°17′.18 175°08′.59 47 ...... 25°29′.56 174°38′.45 79 ...... 27°13′.73 175°12′.47 48 ...... 25°33′.28 174°42′.03 80 ...... 27°10′.59 175°16′.67 49 ...... 25°37′.33 174°45′.20 81 ...... 27°07′.88 175°21′.25 50 ...... 25°41′.68 174°47′.84 82 ...... 27°05′.57 175°26′.09 51 ...... 25°46′.23 174°50′.05 83 ...... 27°03′.66 175°31′.15 52 ...... 25°50′.93 174°51′.77 84 ...... 27°02′.22 175°36′.40 53 ...... 25°55′.80 174°52′.91 85 ...... 27°01′.29 175°41′.78 54 ...... 26°00′.71 174°53′.47 86 ...... 27°00′.73 175°47′.22 55 ...... 26°05′.67 174°53′.61 87 ...... 27°00′.68 175°52′.74 56 ...... 26°10′.59 174°53′.07 88 ...... 27°01′.09 175°58′.16 57 ...... 26°15′.46 174°52′.08 89 ...... 27°01′.99 176°03′.53 58 ...... 26°20′.20 174°50′.57 90 ...... 27°03′.34 176°08′.81 59 ...... 26°24′.75 174°48′.44 91 ...... 27°05′.12 176°13′.91 60 ...... 26°29′.15 174°45′.94 92 ...... 27°07′.37 176°18′.79 61 ...... 26°33′.26 174°42′.96 93 ...... 27°09′.98 176°23′.40 62 ...... 26°37′.11 174°39′.49 94 ...... 27°13′.02 176°27′.74 63 ...... 26°40′.60 174°35′.63 95 ...... 27°13′.77 176°28′.70 64 ...... 26°43′.75 174°31′.43 65 ...... 26°46′.49 174°26′.87 66 ...... 26°48′.90 174°22′.09 TABLE C–2—LISIANSKI ISLAND, LAYSAN ISLAND, 67 ...... 26°50′.79 174°17′.03 MARO REEF, AND RAITA BANK 68 ...... 26°52′.20 174°11′.79 69 ...... 26°53′.21 174°06′.43 ° ′ ° ′ Point Latitude (N) Longitude (W) 70 ...... 26 53 .74 174 00 .98 71 ...... 26°53′.74 173°55′.48 1 ...... 26°50′.89 173°30′.79 72 ...... 26°53′.29 173°50′.02 2 ...... 26°36′.00 171°37′.70 73 ...... 26°52′.56 173°44′.58 3 ...... 26°35′.49 171°33′.84 74 ...... 26°51′.85 173°39′.14 4 ...... 26°35′.10 171°30′.84 75 ...... 26°51′.13 173°33′.69 5 ...... 26°34′.07 171°27′.50 76 ...... 26°50′.75 173°30′.87 6 ...... 26°33′.35 171°25′.16 7 ...... 26°14′.26 170°23′.04 8 ...... 26°08′.69 169°48′.96 TABLE C–3—GARDNER PINNACLES, FRENCH 9 ...... 26°08′.36 169°49′.03 FRIGATE SHOALS, AND NECKER ISLAND 10 ...... 26°07′.62 169°45′.83 11 ...... 26°06′.03 169°40′.57 Point Latitude (N) Longitude (W) 12 ...... 26°03′.97 169°35′.64 13 ...... 26°01′.51 169°30′.91 1 ...... 25°49′.64 167°52′.66 14 ...... 25°58′.65 169°26′.45 2 ...... 25°49′.70 167°52′.65 15 ...... 25°55′.32 169°22′.34 3 ...... 25°48′.99 167°48′.35 16 ...... 25°51′.67 169°18′.60 4 ...... 25°47′.09 167°36′.72 17 ...... 25°47′.78 169°15′.19 5 ...... 25°39′.84 167°26′.48 18 ...... 25°43′.54 169°12′.34 6 ...... 25°35′.10 167°19′.79

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TABLE C–3—GARDNER PINNACLES, FRENCH TABLE C–3—GARDNER PINNACLES, FRENCH FRIGATE SHOALS, AND NECKER ISLAND—Con- FRIGATE SHOALS, AND NECKER ISLAND—Con- tinued tinued

Point Latitude (N) Longitude (W) Point Latitude (N) Longitude (W)

7 ...... 25°10′.43 166°45′.00 77 ...... 25°47′.43 168°17′.76 8 ...... 24°40′.91 166°03′.36 78 ...... 25°48′.79 168°12′.47 9 ...... 24°35′.64 165°34′.99 79 ...... 25°49′.72 168°07′.09 10 ...... 24°23′.78 164°31′.12 80 ...... 25°50′.11 168°01′.62 11 ...... 24°23′.59 164°31′.14 81 ...... 25°50′.18 168°00′.09 12 ...... 24°23′.31 164°29′.74 13 ...... 24°21′.85 164°24′.52 14 ...... 24°20′.10 164°19′.39 TABLE C–4—NIHOA ISLAND 15 ...... 24°17′.75 164°14′.56 16 ...... 24°14′.99 164°09′.97 Point Latitude (N) Longitude (W) 17 ...... 24°11′.86 164°05′.69 18 ...... 24°08′.30 164°01′.80 1 ...... 23°52′.82 161°44′.54 19 ...... 24°04′.48 163°58′.23 2 ...... 23°52′.10 161°41′.20 20 ...... 24°00′.27 163°55′.22 3 ...... 23°51′.18 161°37′.92 21 ...... 23°55′.85 163°52′.59 4 ...... 23°50′.08 161°34′.71 22 ...... 23°51′.17 163°50′.56 5 ...... 23°48′.79 161°31′.58 23 ...... 23°46′.33 163°48′.98 6 ...... 23°47′.33 161°28′.55 24 ...... 23°41′.37 163°47′.99 7 ...... 23°45′.69 161°25′.62 25 ...... 23°36′.34 163°47′.56 8 ...... 23°43′.88 161°22′.81 26 ...... 23°31′.27 163°47′.60 9 ...... 23°41′.92 161°20′.13 27 ...... 23°26′.27 163°48′.28 10 ...... 23°39′.80 161°17′.60 28 ...... 23°21′.34 163°49′.50 11 ...... 23°37′.54 161°15′.21 29 ...... 23°16′.53 163°51′.14 12 ...... 23°35′.14 161°12′.99 30 ...... 23°11′.96 163°53′.47 13 ...... 23°32′.62 161°10′.93 31 ...... 23°07′.54 163°56′.15 14 ...... 23°29′.99 161°09′.05 32 ...... 23°03′.46 163°59′.38 15 ...... 23°27′.25 161°07′.35 33 ...... 22°59′.65 164°03′.01 16 ...... 23°24′.42 161°05′.85 34 ...... 22°56′.27 164°07′.10 17 ...... 23°21′.51 161°04′.54 35 ...... 22°53′.22 164°11′.49 18 ...... 23°18′.52 161°03′.43 36 ...... 22°50′.60 164°16′.18 19 ...... 23°15′.48 161°02′.53 37 ...... 22°48′.48 164°21′.16 20 ...... 23°12′.39 161°01′.84 38 ...... 22°46′.73 164°26′.28 21 ...... 23°09′.27 161°01′.35 39 ...... 22°45′.49 164°31′.60 22 ...... 23°06′.13 161°01′.09 40 ...... 22°44′.83 164°37′.03 23 ...... 23°02′.97 161°01′.03 41 ...... 22°44′.65 164°42′.51 24 ...... 22°59′.82 161°01′.19 42 ...... 22°44′.92 164°47′.99 25 ...... 22°56′.69 161°01′.57 43 ...... 22°45′.11 164°49′.52 26 ...... 22°53′.58 161°02′.15 44 ...... 22°45′.39 164°51′.48 27 ...... 22°50′.51 161°02′.95 45 ...... 22°45′.17 164°51′.53 28 ...... 22°47′.50 161°03′.95 46 ...... 22°50′.26 165°34′.99 29 ...... 22°44′.55 161°05′.15 47 ...... 22°55′.50 166°19′.63 30 ...... 22°41′.67 161°06′.54 48 ...... 22°55′.93 166°23′.32 31 ...... 22°38′.88 161°08′.13 49 ...... 22°57′.41 166°36′.00 32 ...... 22°36′.19 161°09′.90 50 ...... 23°03′.75 166°45′.00 33 ...... 22°33′.61 161°11′.85 51 ...... 23°05′.48 166°47′.45 34 ...... 22°31′.14 161°13′.97 52 ...... 24°12′.70 168°22′.86 35 ...... 22°28′.81 161°16′.25 53 ...... 24°12′.88 168°22′.78 36 ...... 22°26′.61 161°18′.69 54 ...... 24°16′.05 168°27′.28 37 ...... 22°24′.56 161°21′.26 55 ...... 24°19′.15 168°31′.66 38 ...... 22°22′.66 161°23′.97 56 ...... 24°22′.27 168°35′.95 39 ...... 22°20′.92 161°26′.80 57 ...... 24°25′.71 168°39′.94 40 ...... 22°19′.35 161°29′.74 58 ...... 24°29′.51 168°43′.55 41 ...... 22°17′.95 161°32′.78 59 ...... 24°33′.67 168°46′.63 42 ...... 22°16′.73 161°35′.90 60 ...... 24°38′.06 168°49′.29 43 ...... 22°15′.70 161°39′.10 61 ...... 24°42′.68 168°51′.46 44 ...... 22°14′.85 161°42′.37 62 ...... 24°47′.45 168°53′.12 45 ...... 22°14′.20 161°45′.68 63 ...... 24°52′.34 168°54′.28 46 ...... 22°13′.73 161°49′.03 64 ...... 24°57′.32 168°54′.82 47 ...... 22°13′.47 161°52′.41 65 ...... 25°02′.32 168°54′.95 48 ...... 22°13′.40 161°55′.80 66 ...... 25°07′.30 168°54′.43 49 ...... 22°13′.53 161°59′.18 67 ...... 25°12′.19 168°53′.32 50 ...... 22°13′.85 162°02′.55 68 ...... 25°16′.99 168°51′.76 51 ...... 22°14′.31 162°05′.45 69 ...... 25°21′.57 168°49′.60 52 ...... 22°14′.37 162°05′.89 70 ...... 25°25′.94 168°46′.93 53 ...... 22°14′.59 162°06′.88 71 ...... 25°30′.09 168°43′.86 54 ...... 22°15′.87 162°12′.18 72 ...... 25°33′.89 168°40′.42 55 ...... 22°17′.70 162°17′.31 73 ...... 25°37′.37 168°36′.52 56 ...... 22°19′.97 162°22′.20 74 ...... 25°40′.49 168°32′.24 57 ...... 22°22′.73 162°26′.84 75 ...... 25°43′.24 168°27′.68 58 ...... 22°25′.88 162°31′.15 76 ...... 25°45′.57 168°22′.82 59 ...... 22°29′.41 162°35′.09

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TABLE C–4—NIHOA ISLAND—Continued TABLE D–1—OUTER BOUNDARY—Continued

Point Latitude (N) Longitude (W) Point Latitude (N) Longitude (W)

60 ...... 22°33′.28 162°38′.61 17 ...... 23°52′.96 161°17′.92 61 ...... 22°37′.47 162°41′.72 18 ...... 23°50′.12 161°13′.72 62 ...... 22°41′.93 162°44′.34 19 ...... 23°46′.94 161°10′.08 63 ...... 22°46′.63 162°46′.47 20 ...... 23°43′.49 161°06′.47 64 ...... 22°51′.48 162°48′.05 21 ...... 23°39′.71 161°03′.09 65 ...... 22°56′.46 162°49′.09 22 ...... 23°35′.72 161°00′.14 66 ...... 23°01′.50 162°49′.58 23 ...... 23°31′.59 160°57′.46 67 ...... 23°06′.58 162°49′.49 24 ...... 23°27′.32 160°55′.23 68 ...... 23°11′.61 162°48′.89 25 ...... 23°22′.74 160°53′.71 69 ...... 23°16′.57 162°47′.70 26 ...... 23°18′.29 160°52′.17 70 ...... 23°21′.36 162°45′.98 27 ...... 23°13′.57 160°51′.04 71 ...... 23°26′.02 162°43′.75 28 ...... 23°08′.68 160°50′.46 72 ...... 23°30′.40 162°41′.01 29 ...... 23°03′.70 160°50′.17 73 ...... 23°34′.51 162°37′.83 30 ...... 22°58′.67 160°50′.35 74 ...... 23°38′.26 162°34′.18 31 ...... 22°53′.84 160°51′.04 75 ...... 23°41′.69 162°30′.18 32 ...... 22°49′.11 160°52′.20 76 ...... 23°44′.72 162°25′.79 33 ...... 22°44′.46 160°53′.56 77 ...... 23°47′.36 162°21′.11 34 ...... 22°40′.03 160°55′.52 78 ...... 23°49′.55 162°16′.16 35 ...... 22°35′.73 160°57′.68 79 ...... 23°51′.24 162°10′.99 36 ...... 22°31′.54 161°00′.25 80 ...... 23°52′.44 162°05′.63 37 ...... 22°27′.57 161°03′.23 81 ...... 23°53′.14 162°00′.25 38 ...... 22°23′.76 161°06′.64 82 ...... 23°53′.36 161°54′.75 39 ...... 22°20′.24 161°10′.23 83 ...... 23°53′.09 161°49′.28 40 ...... 22°17′.02 161°14′.13 84 ...... 23°52′.82 161°47′.09 41 ...... 22°14′.04 161°18′.34 85 ...... 23°52′.39 161°44′.67 42 ...... 22°11′.35 161°22′.80 43 ...... 22°09′.19 161°27′.45 44 ...... 22°07′.29 161°32′.11 [73 FR 73599, Dec. 3, 2008] 45 ...... 22°05′.87 161°36′.94 46 ...... 22°04′.62 161°41′.89 APPENDIX D TO PART 404—BOUNDARY 47 ...... 22°03′.94 161°47′.09 ° ′ ° ′ COORDINATES FOR 48 ...... 22 03 .41 161 52 .36 49 ...... 22°03′.41 161°57′.51 PAPAHA¯ NAUMOKUA¯ KEA MARINE NA- 50 ...... 22°03′.82 162°02′.83 TIONAL MONUMENT SHIP REPORTING 51 ...... 22°04′.49 162°08′.04 AREA 52 ...... 22°05′.43 162°13′.12 53 ...... 22°05′.97 162°16′.41 ° ′ ° ′ APPENDIX D—GEOGRAPHICAL COORDINATES 54 ...... 22 06 .29 162 16 .85 55 ...... 22°34′.57 164°47′.27 Ship Reporting Area 56 ...... 22°47′.60 166°38′.23 57 ...... 24°03′.82 168°27′.91 Papaha¯ naumokua¯ kea Marine National 58 ...... 24°25′.76 170°45′.39 Monument 59 ...... 24°46′.54 171°53′.03 60 ...... 25°07′.60 174°28′.71 Reference chart: United States 540, 2008 61 ...... 27°05′.82 176°35′.51 edition; 19016, 2008 edition; 19019, 2008 edition; 62 ...... 27°27′.32 178°38′.66 19022, 2008 edition. 63 ...... 27°28′.93 178°43′.56 ° ′ ° ′ These charts are based on World Geodetic 64 ...... 27 30 .64 178 48 .40 65 ...... 27°32′.74 178°52′.96 System 1984 Datum (WGS–84) and astronomic 66 ...... 27°35′.06 178°57′.30 datum. 67 ...... 27°37′.89 179°01′.49 68 ...... 27°40′.90 179°05′.60 TABLE D–1—OUTER BOUNDARY 69 ...... 27°44′.17 179°09′.41 70 ...... 27°47′.74 179°12′.85 Point Latitude (N) Longitude (W) 71 ...... 27°51′.45 179°16′.00 72 ...... 27°55′.32 179°18′.82 1 ...... 29°25′.47 178°16′.97 73 ...... 27°59′.33 179°21′.13 2 ...... 28°43′.73 175°13′.84 74 ...... 28°03′.49 179°23′.15 3 ...... 27°00′.77 173°25′.78 75 ...... 28°07′.82 179°24′.76 4 ...... 26°44′.91 171°28′.07 76 ...... 28°12′.31 179°26′.18 5 ...... 26°24′.23 170°20′.59 77 ...... 28°16′.95 179°27′.05 6 ...... 25°56′.43 167°32′.10 78 ...... 28°21′.61 179°27′.63 7 ...... 24°50′.20 165°58′.69 79 ...... 28°26′.18 179°27′.77 8 ...... 24°05′.52 161°56′.86 80 ...... 28°30′.87 179°27′.48 9 ...... 24°05′.29 161°56′.62 81 ...... 28°35′.61 179°26′.95 10 ...... 24°04′.37 161°51′.53 82 ...... 28°40′.09 179°25′.75 11 ...... 24°03′.44 161°46′.45 83 ...... 28°44′.46 179°24′.31 12 ...... 24°02′.41 161°41′.39 84 ...... 28°48′.70 179°22′.50 13 ...... 24°01′.31 161°36′.35 85 ...... 28°52′.81 179°20′.43 14 ...... 23°59′.68 161°31′.55 86 ...... 28°56′.71 179°17′.77 15 ...... 23°57′.85 161°26′.85 87 ...... 29°00′.58 179°14′.92 16 ...... 23°55′.54 161°22′.31 88 ...... 29°04′.18 179°11′.69

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TABLE D–1—OUTER BOUNDARY—Continued TABLE D–2—INNER BOUNDARY AROUND KURE ATOLL, MIDWAY ATOLL, AND PEARL AND HER- Point Latitude (N) Longitude (W) MES ATOLL—Continued 89 ...... 29°07′.62 179°08′.20 90 ...... 29°10′.86 179°04′.37 Point Latitude (N) Longitude (W) ° ′ ° ′ 91 ...... 29 13 .76 179 00 .21 ° ′ ° ′ 92 ...... 29°16′.24 178°55′.78 53 ...... 29 15 .25 178 15 .90 ° ′ ° ′ 54 ...... 29°14′.94 178°12′.32 93 ...... 29 18 .51 178 51 .26 ° ′ ° ′ 94 ...... 29°20′.45 178°46′.50 55 ...... 29 14 .43 178 08 .78 ° ′ ° ′ 56 ...... 29°03′.47 177°12′.07 95 ...... 29 22 .26 178 41 .67 ° ′ ° ′ 96 ...... 29°23′.52 178°36′.64 57 ...... 29 02 .55 177 07 .29 ° ′ ° ′ 58 ...... 28°38′.96 175°35′.47 97 ...... 29 24 .53 178 31 .54 ° ′ ° ′ 98 ...... 29°25′.16 178°26′.31 59 ...... 28 38 .67 175 34 .35 ° ′ ° ′ 60 ...... 28°34′.91 175°19′.74 99 ...... 29 25 .42 178 20 .92 ° ′ ° ′ 100 ...... 29°25′.29 178°16′.70 61 ...... 28 26 .24 175 10 .65 62 ...... 28°24′.61 175°08′.95 63 ...... 28°24′.53 175°09′.04 ° ′ ° ′ TABLE D–2—INNER BOUNDARY AROUND KURE 64 ...... 28 20 .09 175 04 .91 65 ...... 28°16′.05 175°01′.92 ATOLL, MIDWAY ATOLL, AND PEARL AND HER- 66 ...... 28°11′.78 174°59′.33 MES ATOLL 67 ...... 28°07′.29 174°57′.23 68 ...... 28°02′.63 174°55′.68 Point Latitude (N) Longitude (W) 69 ...... 27°57′.84 174°54′.62 70 ...... 27°53′.01 174°54′.05 1 ...... 27°14′.76 176°29′.87 71 ...... 27°48′.12 174°54′.05 2 ...... 27°24′.95 177°33′.31 72 ...... 27°43′.28 174°54′.62 3 ...... 27°35′.87 178°29′.90 73 ...... 27°38′.48 174°55′.71 4 ...... 27°36′.64 178°33′.93 74 ...... 27°33′.81 174°57′.32 5 ...... 27°37′.53 178°37′.32 75 ...... 27°29′.30 174°59′.43 6 ...... 27°38′.60 178°40′.65 76 ...... 27°25′.00 175°02′.03 7 ...... 27°39′.85 178°43′.90 77 ...... 27°20′.93 175°05′.07 8 ...... 27°41′.28 178°47′.05 78 ...... 27°17′.18 175°08′.59 9 ...... 27°42′.89 178°50′.10 79 ...... 27°13′.73 175°12′.47 10 ...... 27°44′.66 178°53′.03 80 ...... 27°10′.59 175°16′.67 11 ...... 27°46′.59 178°55′.83 81 ...... 27°07′.88 175°21′.25 12 ...... 27°48′.67 178°58′.49 82 ...... 27°05′.57 175°26′.09 13 ...... 27°50′.89 179°01′.00 83 ...... 27°03′.66 175°31′.15 14 ...... 27°53′.22 179°03′.39 84 ...... 27°02′.22 175°36′.40 15 ...... 27°55′.69 179°05′.61 85 ...... 27°01′.29 175°41′.78 16 ...... 27°58′.29 179°07′.61 86 ...... 27°00′.73 175°47′.22 17 ...... 28°01′.01 179°09′.47 87 ...... 27°00′.68 175°52′.74 ° ′ ° ′ 18 ...... 28 03 .81 179 11 .10 88 ...... 27°01′.09 175°58′.16 ° ′ ° ′ 19 ...... 28 06 .71 179 12 .53 89 ...... 27°01′.99 176°03′.53 ° ′ ° ′ 20 ...... 28 09 .67 179 13 .75 90 ...... 27°03′.34 176°08′.81 ° ′ ° ′ 21 ...... 28 12 .70 179 14 .75 91 ...... 27°05′.12 176°13′.91 ° ′ ° ′ 22 ...... 28 15 .78 179 15 .54 92 ...... 27°07′.37 176°18′.79 ° ′ ° ′ 23 ...... 28 18 .91 179 16 .11 93 ...... 27°09′.98 176°23′.40 ° ′ ° ′ 24 ...... 28 22 .04 179 16 .45 94 ...... 27°13′.02 176°27′.74 ° ′ ° ′ 25 ...... 28 24 .72 179 16 .56 95 ...... 27°13′.77 176°28′.70 26 ...... 28°25′.20 179°16′.57 27 ...... 28°25′.81 179°16′.56 28 ...... 28°28′.35 179°16′.44 TABLE D–3—INNER BOUNDARY AROUND 29 ...... 28°31′.49 179°16′.10 30 ...... 28°34′.61 179°15′.54 LISIANSKI ISLAND, LAYSAN ISLAND, MARO 31 ...... 28°37′.69 179°14′.75 REEF, AND RAITA BANK 32 ...... 28°40′.71 179°13′.74 33 ...... 28°43′.68 179°12′.54 Point Latitude (N) Longitude (W) 34 ...... 28°46′.58 179°11′.13 35 ...... 28°49′.39 179°09′.52 1 ...... 26°50′.89 173°30′.79 36 ...... 28°52′.11 179°07′.70 2 ...... 26°36′.00 171°37′.70 37 ...... 28°54′.72 179°05′.70 3 ...... 26°35′.49 171°33′.84 38 ...... 28°57′.21 179°03′.51 4 ...... 26°35′.10 171°30′.84 39 ...... 28°59′.58 179°01′.15 5 ...... 26°34′.07 171°27′.50 40 ...... 29°01′.81 178°58′.62 6 ...... 26°33′.35 171°25′.16 41 ...... 29°03′.90 178°55′.93 7 ...... 26°14′.26 170°23′.04 42 ...... 29°05′.83 178°53′.10 8 ...... 26°08′.69 169°48′.96 43 ...... 29°07′.60 178°50′.13 9 ...... 26°08′.36 169°49′.03 44 ...... 29°09′.21 178°47′.04 10 ...... 26°07′.62 169°45′.83 45 ...... 29°10′.64 178°43′.84 11 ...... 26°06′.03 169°40′.57 46 ...... 29°11′.89 178°40′.54 12 ...... 26°03′.97 169°35′.64 47 ...... 29°12′.95 178°37′.16 13 ...... 26°01′.51 169°30′.91 48 ...... 29°13′.82 178°33′.71 14 ...... 25°58′.65 169°26′.45 49 ...... 29°14′.50 178°30′.21 15 ...... 25°55′.32 169°22′.34 50 ...... 29°14′.99 178°26′.66 16 ...... 25°51′.67 169°18′.60 51 ...... 29°15′.28 178°23′.08 17 ...... 25°47′.78 169°15′.19 52 ...... 29°15′.36 178°19′.49 18 ...... 25°43′.54 169°12′.34

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TABLE D–3—INNER BOUNDARY AROUND TABLE D–4—INNER BOUNDARY AROUND GARD- LISIANSKI ISLAND, LAYSAN ISLAND, MARO NER PINNACLES, FRENCH FRIGATE SHOALS, REEF, AND RAITA BANK—Continued AND NECKER ISLAND—Continued

Point Latitude (N) Longitude (W) Point Latitude (N) Longitude (W)

19 ...... 25°39′.05 169°09′.93 4 ...... 25°47′.09 167°36′.72 20 ...... 25°34′.37 169°08′.08 5 ...... 25°39′.84 167°26′.48 21 ...... 25°29′.54 169°06′.76 6 ...... 25°35′.10 167°19′.79 22 ...... 25°24′.61 169°05′.93 7 ...... 25°10′.43 166°45′.00 23 ...... 25°19′.63 169°05′.64 8 ...... 24°40′.91 166°03′.36 24 ...... 25°14′.65 169°05′.93 9 ...... 24°35′.64 165°34′.99 25 ...... 25°09′.69 169°06′.66 10 ...... 24°23′.78 164°31′.12 26 ...... 25°04′.85 169°08′.02 11 ...... 24°23′.59 164°31′.14 27 ...... 25°00′.17 169°09′.96 12 ...... 24°23′.31 164°29′.74 28 ...... 24°55′.66 169°12′.35 13 ...... 24°21′.85 164°24′.52 29 ...... 24°51′.35 169°15′.14 14 ...... 24°20′.10 164°19′.39 30 ...... 24°47′.37 169°18′.48 15 ...... 24°17′.75 164°14′.56 31 ...... 24°43′.69 169°22′.22 16 ...... 24°14′.99 164°09′.97 32 ...... 24°40′.34 169°26′.31 17 ...... 24°11′.86 164°05′.69 33 ...... 24°37′.42 169°30′.78 18 ...... 24°08′.30 164°01′.80 34 ...... 24°35′.00 169°35′.64 19 ...... 24°04′.48 163°58′.23 35 ...... 24°33′.02 169°40′.66 20 ...... 24°00′.27 163°55′.22 36 ...... 24°31′.34 169°45′.88 21 ...... 23°55′.85 163°52′.59 37 ...... 24°30′.31 169°51′.08 22 ...... 23°51′.17 163°50′.56 38 ...... 24°29′.68 169°56′.53 23 ...... 23°46′.33 163°48′.98 39 ...... 24°29′.56 170°01′.81 24 ...... 23°41′.37 163°47′.99 40 ...... 24°29′.61 170°04′.57 25 ...... 23°36′.34 163°47′.56 41 ...... 24°35′.77 170°44′.39 26 ...... 23°31′.27 163°47′.60 42 ...... 24°36′.29 170°47′.58 27 ...... 23°26′.27 163°48′.28 43 ...... 24°37′.18 170°50′.37 28 ...... 23°21′.34 163°49′.50 44 ...... 24°37′.76 170°52′.17 29 ...... 23°16′.53 163°51′.14 45 ...... 24°56′.23 171°50′.19 30 ...... 23°11′.96 163°53′.47 46 ...... 25°16′.61 174°24′.84 31 ...... 23°07′.54 163°56′.15 47 ...... 25°29′.56 174°38′.45 32 ...... 23°03′.46 163°59′.38 48 ...... 25°33′.28 174°42′.03 33 ...... 22°59′.65 164°03′.01 49 ...... 25°37′.33 174°45′.20 34 ...... 22°56′.27 164°07′.10 50 ...... 25°41′.68 174°47′.84 35 ...... 22°53′.22 164°11′.49 51 ...... 25°46′.23 174°50′.05 36 ...... 22°50′.60 164°16′.18 52 ...... 25°50′.93 174°51′.77 37 ...... 22°48′.48 164°21′.16 53 ...... 25°55′.80 174°52′.91 38 ...... 22°46′.73 164°26′.28 54 ...... 26°00′.71 174°53′.47 39 ...... 22°45′.49 164°31′.60 55 ...... 26°05′.67 174°53′.61 40 ...... 22°44′.83 164°37′.03 56 ...... 26°10′.59 174°53′.07 41 ...... 22°44′.65 164°42′.51 57 ...... 26°15′.46 174°52′.08 42 ...... 22°44′.92 164°47′.99 58 ...... 26°20′.20 174°50′.57 43 ...... 22°45′.11 164°49′.52 59 ...... 26°24′.75 174°48′.44 44 ...... 22°45′.39 164°51′.48 60 ...... 26°29′.15 174°45′.94 45 ...... 22°45′.17 164°51′.53 61 ...... 26°33′.26 174°42′.96 46 ...... 22°50′.26 165°34′.99 62 ...... 26°37′.11 174°39′.49 47 ...... 22°55′.50 166°19′.63 ° ′ ° ′ 63 ...... 26°40′.60 174°35′.63 48 ...... 22 55 .93 166 23 .32 ° ′ ° ′ 64 ...... 26°43′.75 174°31′.43 49 ...... 22 57 .41 166 36 .00 ° ′ ° ′ 65 ...... 26°46′.49 174°26′.87 50 ...... 23 03 .75 166 45 .00 ° ′ ° ′ 66 ...... 26°48′.90 174°22′.09 51 ...... 23 05 .48 166 47 .45 ° ′ ° ′ 67 ...... 26°50′.79 174°17′.03 52 ...... 24 12 .70 168 22 .86 ° ′ ° ′ 68 ...... 26°52′.20 174°11′.79 53 ...... 24 12 .88 168 22 .78 ° ′ ° ′ 69 ...... 26°53′.21 174°06′.43 54 ...... 24 16 .05 168 27 .28 ° ′ ° ′ 70 ...... 26°53′.74 174°00′.98 55 ...... 24 19 .15 168 31 .66 ° ′ ° ′ 71 ...... 26°53′.74 173°55′.48 56 ...... 24 22 .27 168 35 .95 ° ′ ° ′ 57 ...... 24°25′.71 168°39′.94 72 ...... 26 53 .29 173 50 .02 ° ′ ° ′ 73 ...... 26°52′.56 173°44′.58 58 ...... 24 29 .51 168 43 .55 ° ′ ° ′ 59 ...... 24°33′.67 168°46′.63 74 ...... 26 51 .85 173 39 .14 ° ′ ° ′ 75 ...... 26°51′.13 173°33′.69 60 ...... 24 38 .06 168 49 .29 61 ...... 24°42′.68 168°51′.46 76 ...... 26°50′.75 173°30′.87 62 ...... 24°47′.45 168°53′.12 63 ...... 24°52′.34 168°54′.28 ° ′ ° ′ TABLE D–4—INNER BOUNDARY AROUND GARD- 64 ...... 24 57 .32 168 54 .82 65 ...... 25°02′.32 168°54′.95 NER PINNACLES, FRENCH FRIGATE SHOALS, 66 ...... 25°07′.30 168°54′.43 AND NECKER ISLAND 67 ...... 25°12′.19 168°53′.32 68 ...... 25°16′.99 168°51′.76 Point Latitude (N) Longitude (W) 69 ...... 25°21′.57 168°49′.60 70 ...... 25°25′.94 168°46′.93 1 ...... 25°49′.64 167°52′.66 71 ...... 25°30′.09 168°43′.86 2 ...... 25°49′.70 167°52′.65 72 ...... 25°33′.89 168°40′.42 3 ...... 25°48′.99 167°48′.35 73 ...... 25°37′.37 168°36′.52

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TABLE D–4—INNER BOUNDARY AROUND GARD- TABLE D–5—INNER BOUNDARY AROUND NIHOA NER PINNACLES, FRENCH FRIGATE SHOALS, ISLAND—Continued AND NECKER ISLAND—Continued Point Latitude (N) Longitude (W) Point Latitude (N) Longitude (W) 54 ...... 22°15′.87 162°12′.18 74 ...... 25°40′.49 168°32′.24 55 ...... 22°17′.70 162°17′.31 75 ...... 25°43′.24 168°27′.68 56 ...... 22°19′.97 162°22′.20 ° ′ ° ′ 76 ...... 25 45 .57 168 22 .82 57 ...... 22°22′.73 162°26′.84 77 ...... 25°47′.43 168°17′.76 58 ...... 22°25′.88 162°31′.15 78 ...... 25°48′.79 168°12′.47 ° ′ ° ′ 79 ...... 25°49′.72 168°07′.09 59 ...... 22 29 .41 162 35 .09 80 ...... 25°50′.11 168°01′.62 60 ...... 22°33′.28 162°38′.61 81 ...... 25°50′.18 168°00′.09 61 ...... 22°37′.47 162°41′.72 62 ...... 22°41′.93 162°44′.34 63 ...... 22°46′.63 162°46′.47 ABLE NNER OUNDARY ROUND IHOA T D–5—I B A N 64 ...... 22°51′.48 162°48′.05 ISLAND 65 ...... 22°56′.46 162°49′.09 66 ...... 23°01′.50 162°49′.58 Point Latitude (N) Longitude (W) 67 ...... 23°06′.58 162°49′.49 1 ...... 23°52′.82 161°44′.54 68 ...... 23°11′.61 162°48′.89 2 ...... 23°52′.10 161°41′.20 69 ...... 23°16′.57 162°47′.70 3 ...... 23°51′.18 161°37′.92 70 ...... 23°21′.36 162°45′.98 4 ...... 23°50′.08 161°34′.71 71 ...... 23°26′.02 162°43′.75 ° ′ ° ′ 5 ...... 23 48 .79 161 31 .58 72 ...... 23°30′.40 162°41′.01 ° ′ ° ′ 6 ...... 23 47 .33 161 28 .55 ° ′ ° ′ ° ′ ° ′ 73 ...... 23 34 .51 162 37 .83 7 ...... 23 45 .69 161 25 .62 ° ′ ° ′ 8 ...... 23°43′.88 161°22′.81 74 ...... 23 38 .26 162 34 .18 ° ′ ° ′ 9 ...... 23°41′.92 161°20′.13 75 ...... 23 41 .69 162 30 .18 10 ...... 23°39′.80 161°17′.60 76 ...... 23°44′.72 162°25′.79 11 ...... 23°37′.54 161°15′.21 77 ...... 23°47′.36 162°21′.11 12 ...... 23°35′.14 161°12′.99 78 ...... 23°49′.55 162°16′.16 13 ...... 23°32′.62 161°10′.93 79 ...... 23°51′.24 162°10′.99 ° ′ ° ′ 14 ...... 23 29 .99 161 09 .05 80 ...... 23°52′.44 162°05′.63 15 ...... 23°27′.25 161°07′.35 81 ...... 23°53′.14 162°00′.25 16 ...... 23°24′.42 161°05′.85 ° ′ ° ′ 17 ...... 23°21′.51 161°04′.54 82 ...... 23 53 .36 161 54 .75 ° ′ ° ′ 18 ...... 23°18′.52 161°03′.43 83 ...... 23 53 .09 161 49 .28 19 ...... 23°15′.48 161°02′.53 84 ...... 23°52′.82 161°47′.09 20 ...... 23°12′.39 161°01′.84 85 ...... 23°52′.39 161°44′.67 21 ...... 23°09′.27 161°01′.35 22 ...... 23°06′.13 161°01′.09 23 ...... 23°02′.97 161°01′.03 [73 FR 73601, Dec. 3, 2008] 24 ...... 22°59′.82 161°01′.19 ° ′ ° ′ 25 ...... 22 56 .69 161 01 .57 APPENDIX E TO PART 404—CONTENT AND ° ′ ° ′ 26 ...... 22 53 .58 161 02 .15 ¯ ¯ 27 ...... 22°50′.51 161°02′.95 SYNTAX FOR PAPAHANAUMOKUAKEA 28 ...... 22°47′.50 161°03′.95 SHIP REPORTING SYSTEM 29 ...... 22°44′.55 161°05′.15 30 ...... 22°41′.67 161°06′.54 Immediately upon crossing the reporting 31 ...... 22°38′.88 161°08′.13 area boundary, notification should be sent as ° ′ ° ′ 32 ...... 22 36 .19 161 09 .90 a direct e-mail to [email protected] 33 ...... 22°33′.61 161°11′.85 34 ...... 22°31′.14 161°13′.97 in the prescribed format and data syntax 35 ...... 22°28′.81 161°16′.25 shown. Use of batch message routing services 36 ...... 22°26′.61 161°18′.69 which may delay receipt of a report should 37 ...... 22°24′.56 161°21′.26 not be used. Failure to follow the exact for- ° ′ ° ′ 38 ...... 22 22 .66 161 23 .97 mat (e.g., extra information, extraneous 39 ...... 22°20′.92 161°26′.80 40 ...... 22°19′.35 161°29′.74 characters, or double spacing) may cause the 41 ...... 22°17′.95 161°32′.78 automated computer system to reject your 42 ...... 22°16′.73 161°35′.90 report. 43 ...... 22°15′.70 161°39′.10 44 ...... 22°14′.85 161°42′.37 NOTE: Report transmission costs via 45 ...... 22°14′.20 161°45′.68 INMARSAT–C will be assumed by NOAA. 46 ...... 22°13′.73 161°49′.03 47 ...... 22°13′.47 161°52′.41 E.1 ENTRY NOTIFICATION FORMAT 48 ...... 22°13′.40 161°55′.80 49 ...... 22°13′.53 161°59′.18 Immediately upon entering the Reporting 50 ...... 22°13′.85 162°02′.55 Area, vessels required to participate must 51 ...... 22°14′.31 162°05′.45 provide the following information. 52 ...... 22°14′.37 162°05′.89 53 ...... 22°14′.59 162°06′.88

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TABLE E.1—INFORMATION REQUIRED FOR ENTRY NOTIFICATION

Function Information required Example field text Telegraphy System identifier CORAL SHIPREP // CORAL SHIPREP //

A ...... Ship ...... Vessel name/call sign/flag/IMO number/Fed- A/OCEAN VOYAGER/C5FU8/BAHAMAS/IMO eral documentation or State registration 9359165// number if applicable //. B ...... Date, time A 6-digit group giving day of month (first two B/271107Z DEC// (UTC), and digits), hours and minutes (last four digits) in month of coordinated universal time, suffixed by the entry. letter Z (indicating time in UTC), and three letters indicating month //. C ...... Position ...... A 4-digit group giving latitude in degrees and C/2728N/17356W// minutes, suffixed with the letter N (indicating north), followed by a single /, and a five-digit group giving longitude in degrees and minutes, suffixed with the letter W (indicating west) // [Report in the World Geodetic Sys- tem 1984 Datum (WGS–84)]. E ...... True course .... 3-digit number indicating true course // ...... E/180// F ...... Speed in knots 3-digit group indicating knots decimal tenths // F/20.5// and tenths. I ...... Destination and Name of port city/country/estimated arrival I/SEATTLE/USA/311230Z DEC// estimated date and time group expressed as in (B) //. time of arrival. L ...... Intended route Route information should be reported as a di- L/RL/215/20.5// through the rect rhumbline (RL) course through the re- -OR- reporting porting area and intended speed (expressed L/WP/2734N/17352W/20.5// area. as in E and F) or a series of waypoints L/WP/2641N/17413W/20.5// (WP). Each waypoint entry should be re- L/WP/2605N/17530W/20.5// ported as latitude and longitude, expressed as in (C), and intended speed between waypoints (as in F) // (Note: As many ‘‘L’’ lines as needed may be used to describe the vessel’s intended route.). O ...... Vessel draft in Maximum present static draft reported in me- O/11.50// meters. ters decimal centimeters //. P ...... Categories of Classification Code (e.g. IMDG, IBC, IGC, P/IMDG/1.4G,2.1,2.2,2.3,3,4.1,6.1,8,9// Hazardous INF) / and all corresponding Categories of Cargoes*. Hazardous Cargoes (delimited by commas) // Note: If necessary, use a separate ‘‘P’’ line for each type of Classification Code. Q ...... Defects or Brief details of defects, damage, deficiencies Q/Include details as required// deficiencies**. or limitations that restrict maneuverability or impair normal navigation // (If none, enter the number zero.). R ...... Pollution inci- Description of pollution incident or goods lost R/0// dent or overboard within the Monument, the Report- goods lost ing Area, or the U.S. Exclusive Economic overboard**. Zone//(If none, enter the number zero.). T ...... Contact infor- Name/address/and phone number of ship’s T/JOHN DOE/GENERIC SHIPPING COM- mation of agent or owner //. PANY INC, 6101 ACME ROAD, ROOM 123, ship’s agent CITY, STATE, COUNTRY 12345/123–123– or owner. 1234// U ...... Ship size Length overall reported in meters decimal cen- U/294.14/54592/CONTAINER SHIP// (length over- timeters/number of gross tons/type of ship all and gross (e.g. bulk carrier, chemical tanker, oil tanker, tonnage) and gas tanker, container, general cargo, fishing type. vessel, research, passenger, OBO, RORO) //. W ...... Persons ...... Total number of persons on board // ...... W/15//

TABLE E.1 NOTES *Categories of hazardous cargoes means goods classified in the International Maritime Dangerous Goods (IMDG) Code; substances classified in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code); oils as defined in MARPOL Annex I; noxious liquid substances as defined in MARPOL Annex II; harmful substances as defined in MARPOL Annex III; and radioactive materials specified in the Code for the Safe Car- riage of the Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships (INF Code). **In accordance with the provisions of the MARPOL Convention, ships must report information relating to defects, damage, deficiencies or other limitations as well as, if necessary, information relating to pollution incidents or loss of cargo. Safety related reports must be provided to CORAL SHIPREP without delay should a ship suffer damage, failure or breakdown affecting the safety of the ship (Item Q), or if a ship makes a marked deviation from a route, course or speed previously advised (Item L). Pollution or cargo lost overboard must be reported without delay (Item R).

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E.2 PRIOR NOTIFICATION OF ENTRY FORMAT E.3 EXIT NOTIFICATION FORMAT Vessels of the United States less than 300 Immediately upon leaving the Reporting gross tonnage that are not equipped with on- Area, vessels required to participate must board email capability must provide the fol- provide the following information. Vessels of lowing notification of entry at least 72 hrs, the United States less than 300 gross tonnage but no longer than 1 month, prior to entry that are not equipped with onboard email ca- date, utilizing the data syntax described pability must provide the following Exit No- above. Notification may be made via the fol- tification information within 12 hrs of leav- lowing communication methods, listed in ing the Reporting Area. Notification may be order of preference: Email made via the following communication [[email protected]]; fax [1–808–455– methods, listed in order of preference: Email 3093]; telephone [1–866–478–NWHI (6944)]. [[email protected]]; fax [1–808–455– 3093]; telephone [1–866–478–NWHI (6944)]. TABLE E.2—INFORMATION REQUIRED FOR PRIOR NOTIFICATION

System PRIOR NOTICE //. identifier. Items ...... A, B, C (as applicable), I, L, O, P (as applicable), Q, T, U, W.

TABLE E.3—INFORMATION REQUIRED FOR EXIT NOTIFICATION

Function Information required Example field text Telegraphy System identifier CORAL SHIPREP // CORAL SHIPREP//

A ...... Ship ...... Vessel name / call sign / flag / IMO number / A/OCEAN VOYAGER/C5FU8/BAHAMAS/ Federal documentation or State registra- IMO9359165// tion number if applicable //. B ...... Date, time A 6-digit group giving day of month (first two B/271657Z DEC// (UTC), and digits), hours and minutes (last four digits), month of exit. suffixed by the letter Z indicating time in UTC, and three letters indicating month//. C ...... Position ...... A 4-digit group giving latitude in degrees and C/2605N/17530W// minutes, suffixed with the letter N (indicating north), followed by a single //, and a five digit group giving longitude in degrees and minutes, suffixed with the letter W (indicating west) // [Report in the World Geo- detic System 1984 Datum (WGS–84)]. R ...... Pollution inci- Description of pollution incident or goods lost R/0// dent or overboard within the Monument, the Re- goods lost porting Area, or the U.S. Exclusive Eco- overboard. nomic Zone // (If none, enter the number zero).

E.4 EXAMPLE ENTRY REPORT U/199.90/27227/CONTAINER SHIP// CORAL SHIPREP// W/15// A/SEA ROVER/WFSU/USA/IMO 8674208/DOC E.5 EXAMPLE EXIT REPORT 602011// B/010915Z JUN// CORAL SHIPREP// C/2636N/17600W// A/SEA ROVER/WFSU/USA/IMO 8674208/DOC E/050// 602011// F/20.0// B/011515Z JUN// I/LOS ANGELES/USA/081215Z JUN// C/2747N/17416W// L/RL/050/20.0// R/0// O/10.90// P/IMDG/3,4.1,6.1,8,9// [73 FR 73603, Dec. 3, 2008, as amended at 79 Q/0// FR 44317, July 31, 2014] R/0// T/JOHN DOE/CONTAINER SHIPPERS INC, 500 PORT ROAD, ROOM 123, LOS ANGE- LES, CA, USA 90050/213–123–1234//

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PART 424—LISTING ENDANGERED § 424.02 Definitions. AND THREATENED SPECIES AND The definitions contained in the Act DESIGNATING CRITICAL HABITAT and parts 17, 222, and 402 of this title apply to this part, unless specifically Subpart A—General Provisions modified by one of the following definitions. Definitions contained in part 17 Sec. 424.01 Scope and purpose. of this title apply only to species under 424.02 Definitions. the jurisdiction of the U.S. Fish and 424.03 Has the Office of Management and Wildlife Service. Definitions contained Budget approved the collection of infor- in part 222 of this title apply only to mation? species under the jurisdiction of the National Marine Fisheries Service. Subpart B—Revision of the Lists Candidate. Any species being consid- 424.10 General. ered by the Secretary for listing as an 424.11 Factors for listing, delisting, or re- endangered or threatened species, but classifying species. not yet the subject of a proposed rule. 424.12 Criteria for designating critical habi- Conserve, conserving, and conservation. tat. To use and the use of all methods and 424.13 Sources of information and relevant procedures that are necessary to bring data. any endangered or threatened species 424.14 Petitions. 424.15 Notices of review. to the point at which the measures pro- 424.16 Proposed rules. vided pursuant to the Act are no longer 424.17 Time limits and required actions. necessary, i.e., the species is recovered 424.18 Final rules—general. in accordance with § 402.02 of this chap- 424.19 Impact analysis and exclusions from ter. Such methods and procedures in- critical habitat. clude, but are not limited to, all activi- 424.20 Emergency rules. ties associated with scientific re- 424.21 Periodic review. sources management such as research, AUTHORITY: 16 U.S.C. 1531 et seq. census, law enforcement, habitat acquisition and maintenance, propaga- SOURCE: 49 FR 38908, Oct. 1, 1984, unless otherwise noted. tion, live trapping, and transplantation, and, in the extraordinary case Subpart A—General Provisions where population pressures within a given ecosystem cannot be otherwise § 424.01 Scope and purpose. relieved, may include regulated taking. Geographical area occupied by the spe- (a) Part 424 provides regulations for cies. An area that may generally be de- revising the Lists of Endangered and lineated around species’ occurrences, Threatened Wildlife and Plants and as determined by the Secretary ( designating or revising the critical i.e., habitats of listed species. Part 424 pro- range). Such areas may include those vides criteria for determining whether areas used throughout all or part of the species are endangered or threatened species’ life cycle, even if not used on a species and for designating critical regular basis (e.g., migratory corridors, habitats. Part 424 also establishes pro- seasonal habitats, and habitats used cedures for receiving and considering periodically, but not solely by vagrant petitions to revise the lists and for con- individuals). ducting periodic reviews of listed spe- List or lists. The Lists of Endangered cies. and Threatened Wildlife and Plants (b) The purpose of the regulations in found at 50 CFR 17.11(h) or 17.12(h). part 424 is to interpret and implement Physical or biological features essential those portions of the Act that pertain to the conservation of the species. The to the listing of species as threatened features that occur in specific areas or endangered species and the designa- and that are essential to support the tion of critical habitat. [81 FR 7438, Feb. 11, 2016]

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life-history needs of the species, in- the information collection require- cluding but not limited to, water char- ments to the Information Collection acteristics, soil type, geological fea- Clearance Officer, U.S. Fish and Wild- tures, sites, prey, vegetation, sym- life Service, at the address listed at 50 biotic species, or other features. A fea- CFR 2.1(b). ture may be a single habitat characteristic, or a more complex combina- [81 FR 66484, Sept. 27, 2016] tion of habitat characteristics. Fea- tures may include habitat characteris- Subpart B—Revision of the Lists tics that support ephemeral or dynamic habitat conditions. Features § 424.10 General. may also be expressed in terms relating The Secretary may add a species to to principles of conservation biology, the lists or designate critical habitat, such as patch size, distribution dis- delete a species or critical habitat, tances, and connectivity. change the listed status of a species, Public hearing. An informal hearing revise the boundary of an area des- to provide the public with the oppor- ignated as critical habitat, or adopt or tunity to give comments and to permit an exchange of information and opin- modify special rules (see 50 CFR 17.40– ion on a proposed rule. 17.48 and parts 222 and 227) applied to a Special management considerations or threatened species only in accordance protection. Methods or procedures use- with the procedures of this part. ful in protecting the physical or biological features essential to the con- § 424.11 Factors for listing, delisting, or reclassifying species. servation of listed species. Species. Includes any species or sub- (a) Any species or taxonomic group of species of fish, wildlife, or plant, and species (e.g., genus, subgenus) as de- any distinct population segment of any fined in § 424.02(k) is eligible for listing vertebrate species that interbreeds under the Act. A taxon of higher rank when mature. Excluded is any species than species may be listed only if all of the Class Insecta determined by the included species are individually found Secretary to constitute a pest whose to be endangered or threatened. In de- protection under the provisions of the termining whether a particular taxon Act would present an overwhelming or population is a species for the pur- and overriding risk to man. poses of the Act, the Secretary shall Wildlife or fish and wildlife. Any mem- rely on standard taxonomic distinc- ber of the animal kingdom, including tions and the biological expertise of without limitation, any vertebrate, the Department and the scientific com- mollusk, crustacean, arthropod, or munity concerning the relevant taxo- other invertebrate, and includes any nomic group. part, product, egg, or offspring thereof, (b) The Secretary shall make any de- or the dead body or parts thereof. termination required by paragraphs (c), [81 FR 7438, Feb. 11, 2016, as amended at 84 (d), and (e) of this section solely on the FR 45052, Aug. 27, 2019] basis of the best available scientific and commercial information regarding § 424.03 Has the Office of Management and Budget approved the collection a species’ status. of information? (c) A species shall be listed or reclas- The Office of Management and Budg- sified if the Secretary determines, on et reviewed and approved the informa- the basis of the best scientific and com- tion collection requirements contained mercial data available after conducting in subpart B and assigned OMB Control a review of the species’ status, that the No. 1018–0165. We use the information species meets the definition of an en- to evaluate and make decisions on pe- dangered species or a threatened spe- titions. We may not conduct or sponsor cies because of any one or a combina- and you are not required to respond to tion of the following factors: a collection of information unless it (1) The present or threatened de- displays a currently valid OMB control struction, modification, or curtailment number. You may send comments on of its habitat or range;

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(2) Overutilization for commercial, threatened. The weight given such evi- recreational, scientific, or educational dence will vary depending on the inter- purposes; national agreement in question, the (3) Disease or predation; criteria pursuant to which the species (4) The inadequacy of existing regu- is eligible for protection under such au- latory mechanisms; or thorities, and the degree of protection (5) Other natural or manmade factors afforded the species. The Secretary affecting its continued existence. shall give consideration to any species (d) In determining whether a species protected under such an international is a threatened species, the Services agreement, or by any State or foreign must analyze whether the species is nation, to determine whether the spe- likely to become an endangered species cies is endangered or threatened. within the foreseeable future. The term (g) The Secretary shall take into ac- foreseeable future extends only so far count, in making determinations under into the future as the Services can rea- paragraph (c) or (e) of this section, sonably determine that both the future those efforts, if any, being made by any threats and the species’ responses to State or foreign nation, or any polit- those threats are likely. The Services ical subdivision of a State or foreign will describe the foreseeable future on nation, to protect such species, wheth- a case-by-case basis, using the best er by predator control, protection of available data and taking into account habitat and food supply, or other con- considerations such as the species’ life- servation practices, within any area history characteristics, threat-projec- under its jurisdiction, or on the high tion timeframes, and environmental seas. variability. The Services need not iden- [49 FR 38908, Oct. 1, 1984, as amended at 84 FR tify the foreseeable future in terms of a 45052, Aug. 27, 2019] specific period of time. (e) The Secretary shall delist a spe- § 424.12 Criteria for designating crit- cies if the Secretary finds that, after ical habitat. conducting a status review based on (a) To the maximum extent prudent the best scientific and commercial data and determinable, we will propose and available: finalize critical habitat designations (1) The species is extinct; concurrent with issuing proposed and (2) The species does not meet the def- final listing rules, respectively. If des- inition of an endangered species or a ignation of critical habitat is not pru- threatened species. In making such a dent or if critical habitat is not deter- determination, the Secretary shall minable, the Secretary will state the consider the same factors and apply reasons for not designating critical the same standards set forth in para- habitat in the publication of proposed graph (c) of this section regarding list- and final rules listing a species. The ing and reclassification; or Secretary will make a final designa- (3) The listed entity does not meet tion of critical habitat on the basis of the statutory definition of a species. the best scientific data available, after (f) The fact that a species of fish, taking into consideration the probable wildlife, or plant is protected by the economic, national security, and other Convention on International Trade in relevant impacts of making such a des- Endangered Species of Wild Fauna and ignation in accordance with § 424.19. Flora (see part 23 of this title) or a (1) The Secretary may, but is not re- similar international agreement on quired to, determine that a designation such species, or has been identified as would not be prudent in the following requiring protection from unrestricted circumstances: commerce by any foreign nation, or to (i) The species is threatened by tak- be in danger of extinction or likely to ing or other human activity and identi- become so within the foreseeable fu- fication of critical habitat can be ex- ture by any State agency or by any pected to increase the degree of such agency of a foreign nation that is re- threat to the species; sponsible for the conservation of fish, (ii) The present or threatened de- wildlife, or plants, may constitute evi- struction, modification, or curtailment dence that the species is endangered or of a species’ habitat or range is not a

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threat to the species, or threats to the ical or biological features essential to species’ habitat stem solely from the conservation of the species. causes that cannot be addressed (iv) Determine which of these fea- through management actions resulting tures may require special management from consultations under section considerations or protection. 7(a)(2) of the Act; (2) The Secretary will designate as (iii) Areas within the jurisdiction of critical habitat, at a scale determined the United States provide no more by the Secretary to be appropriate, than negligible conservation value, if specific areas outside the geographical any, for a species occurring primarily area occupied by the species only upon outside the jurisdiction of the United a determination that such areas are es- States; sential for the conservation of the spe- (iv) No areas meet the definition of cies. When designating critical habitat, critical habitat; or the Secretary will first evaluate areas (v) The Secretary otherwise deter- occupied by the species. The Secretary mines that designation of critical habi- will only consider unoccupied areas to tat would not be prudent based on the be essential where a critical habitat best scientific data available. designation limited to geographical (2) Designation of critical habitat is areas occupied would be inadequate to not determinable when one or both of ensure the conservation of the species. the following situations exist: In addition, for an unoccupied area to (i) Data sufficient to perform re- be considered essential, the Secretary quired analyses are lacking; or must determine that there is a reason- (ii) The biological needs of the spe- able certainty both that the area will cies are not sufficiently well known to contribute to the conservation of the identify any area that meets the defini- species and that the area contains one tion of ‘‘critical habitat.’’ or more of those physical or biological (b) Where designation of critical features essential to the conservation habitat is prudent and determinable, of the species. the Secretary will identify specific (c) Each critical habitat area will be areas within the geographical area oc- shown on a map, with more-detailed in- cupied by the species at the time of formation discussed in the preamble of listing and any specific areas outside the rulemaking documents published the geographical area occupied by the in the FEDERAL REGISTER and made species to be considered for designation available from the lead field office of as critical habitat. the Service responsible for such des- (1) The Secretary will identify, at a ignation. Textual information may be scale determined by the Secretary to included for purposes of clarifying or be appropriate, specific areas within refining the location and boundaries of the geographical area occupied by the each area or to explain the exclusion of species for consideration as critical sites (e.g., paved roads, buildings) with- habitat. The Secretary will: in the mapped area. Each area will be (i) Identify the geographical area oc- referenced to the State(s), county(ies), cupied by the species at the time of or other local government units within listing. which all or part of the critical habitat (ii) Identify physical and biological is located. Unless otherwise indicated features essential to the conservation within the critical habitat descrip- of the species at an appropriate level of tions, the names of the State(s) and specificity using the best available sci- county(ies) are provided for informa- entific data. This analysis will vary be- tional purposes only and do not con- tween species and may include consid- stitute the boundaries of the area. eration of the appropriate quality, Ephemeral reference points (e.g., trees, quantity, and spatial and temporal ar- sand bars) shall not be used in any tex- rangements of such features in the con- tual description used to clarify or re- text of the life history, status, and con- fine the boundaries of critical habitat. servation needs of the species. (d) When several habitats, each satis- (iii) Determine the specific areas fying the requirements for designation within the geographical area occupied as critical habitat, are located in prox- by the species that contain the phys- imity to one another, the Secretary

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may designate an inclusive area as operation with the Secretary of State, critical habitat. with the country or countries in which (e) The Secretary may designate crit- the species concerned are normally ical habitat for those species listed as found or whose citizens harvest such threatened or endangered but for which species from the high seas. Data re- no critical habitat has been previously viewed by the Secretary may include, designated. For species listed prior to but are not limited to scientific or November 10, 1978, the designation of commercial publications, administra- critical habitat is at the discretion of tive reports, maps or other graphic ma- the Secretary. terials, information received from ex- (f) The Secretary may revise existing perts on the subject, and comments designations of critical habitat accord- from interested parties. ing to procedures in this section as new data become available. § 424.14 Petitions. (g) The Secretary will not designate (a) Ability to petition. Any interested critical habitat within foreign coun- person may submit a written petition tries or in other areas outside of the ju- to the Services requesting that one of risdiction of the United States. the actions described in § 424.10 be (h) The Secretary will not designate taken for a species. as critical habitat land or other geo- (b) Notification of intent to file petition. graphic areas owned or controlled by For a petition to list, delist, or reclas- the Department of Defense, or des- sify a species, or for petitions to revise ignated for its use, that are subject to critical habitat, petitioners must pro- a compliant or operational integrated vide notice to the State agency respon- natural resources management plan sible for the management and con- (INRMP) prepared under section 101 of servation of fish, plant, or wildlife re- the Sikes Act (16 U.S.C. 670a) if the sources in each State where the species Secretary determines in writing that that is the subject of the petition oc- such plan provides a conservation ben- curs. This notification must be made at efit to the species for which critical least 30 days prior to submission of the habitat is being designated. In deter- petition. This notification requirement mining whether such a benefit is pro- shall not apply to any petition sub- vided, the Secretary will consider: mitted pertaining to a species that (1) The extent of the area and fea- does not occur within the United tures present; States. (2) The type and frequency of use of (c) Requirements for petitions. A peti- the area by the species; tion must clearly identify itself as (3) The relevant elements of the such, be dated, and contain the fol- INRMP in terms of management objec- lowing information: tives, activities covered, and best man- (1) The name, signature, address, agement practices, and the certainty telephone number, if any, and the asso- that the relevant elements will be im- ciation, institution, or business affili- plemented; and ation, if any, of the petitioner; (4) The degree to which the relevant (2) The scientific name and any com- elements of the INRMP will protect the mon name of a species of fish or wild- habitat from the types of effects that life or plants that is the subject of the would be addressed through a destruc- petition. Only one species may be the tion-or-adverse-modification analysis. subject of a petition, which may in- [49 FR 38908, Oct. 1, 1984, as amended at 77 FR clude, by hierarchical extension based 25622, May 1, 2012; 81 FR 7439, Feb. 11, 2016; 84 on taxonomy and the Act, any sub- FR 45053, Aug. 27, 2019] species or variety, or (for vertebrates) any potential distinct population seg- § 424.13 Sources of information and ments of that species; relevant data. (3) A clear indication of the adminis- When considering any revision of the trative action the petitioner seeks lists, the Secretary shall consult as ap- (e.g., listing of a species or revision of propriate with affected States, inter- critical habitat); ested persons and organizations, other (4) A detailed narrative justifying the affected Federal agencies, and, in co- recommended administrative action

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that contains an analysis of the infor- bination identified in section 4(a)(1) of mation presented; the Act may cause the species to be an (5) Literature citations that are spe- endangered species or threatened specific enough for the Services to readily cies (i.e., the species is currently in locate the information cited in the pe- danger of extinction or is likely to be- tition, including page numbers or chap- come so within the foreseeable future), ters as applicable; and, if so, how high in magnitude and (6) Electronic or hard copies of sup- how imminent the threats to the spe- porting materials, to the extent per- cies and its habitat are; mitted by U.S. copyright law, or appro- (4) Information on adequacy of regu- priate excerpts or quotations from latory protections and effectiveness of those materials (e.g., publications, conservation activities by States as maps, reports, letters from authorities) well as other parties, that have been cited in the petition; initiated or that are ongoing, that may (7) For a petition to list, delist, or re- protect the species or its habitat; and classify a species, information to es- (5) A complete, balanced representa- tablish whether the subject entity is a tion of the relevant facts, including in- ‘‘species’’ as defined in the Act; formation that may contradict claims (8) For a petition to list a species, or in the petition. for a petition to delist or reclassify a (e) Information to be included in peti- species in cases where the species’ tions to revise critical habitat. The Serv- range has changed since listing, infor- ices’ determinations as to whether the mation on the current and historical petition provides substantial scientific geographic range of the species, includ- information indicating that the peti- ing the States or countries intersected, tioned action may be warranted will in whole or part, by that range; and depend in part on the degree to which (9) For a petition to list, delist or re- the petition includes the following classify a species, or for petitions to re- types of information: vise critical habitat, copies of the noti- (1) A description and map(s) of areas fication letters or electronic commu- that the current designation does not nication which petitioners provided to include that should be included, or in- the State agency or agencies respon- cludes that should no longer be in- sible for the management and concluded, and a description of the bene- servation of fish, plant, or wildlife re- fits of designating or not designating sources in each State where the species these specific areas as critical habitat. that is the subject of the petition cur- Petitioners should include sufficient rently occurs. supporting information to substantiate (d) Information to be included in peti- the requested changes, which may in- tions to add or remove species from the clude GIS data or boundary layers that lists, or change the listed status of a spe- relate to the request, if appropriate; cies. The Service’s determination as to (2) A description of physical or bio- whether the petition provides substan- logical features essential for the con- tial scientific or commercial informa- servation of the species and whether tion indicating that the petitioned ac- they may require special management tion may be warranted will depend in considerations or protection; part on the degree to which the peti- (3) For any areas petitioned to be tion includes the following types of in- added to critical habitat within the formation: geographical area occupied by the spe- (1) Information on current population cies at time it was listed, information status and trends and estimates of cur- indicating that the specific areas con- rent population sizes and distributions, tain one or more of the physical or bio- both in captivity and the wild, if avail- logical features (including characteris- able; tics that support ephemeral or dy- (2) Identification of the factors under namic habitat conditions) that are es- section 4(a)(1) of the Act that may af- sential to the conservation of the spe- fect the species and where these factors cies and may require special manage- are acting upon the species; ment considerations or protection. The (3) Whether and to what extent any petitioner should also indicate which or all of the factors alone or in com- specific areas contain which features;

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(4) For any areas petitioned for re- maximum extent practicable, within 90 moval from currently designated crit- days of receiving a petition to add a ical habitat within the geographical species to the lists, remove a species area occupied by the species at the from the lists, or change the listed sta- time it was listed, information indi- tus of a species, the Services will make cating that the specific areas do not a finding as to whether the petition contain the physical or biological fea- presents substantial scientific or com- tures (including characteristics that mercial information indicating that support ephemeral or dynamic habitat the petitioned action may be war- conditions) that are essential to the ranted. The Services will publish the conservation of the species, or that finding in the FEDERAL REGISTER. these features do not require special (i) For the purposes of this section, management considerations or protec- ‘‘substantial scientific or commercial tion; information’’ refers to credible sci- (5) For areas petitioned to be added entific or commercial information in to or removed from critical habitat support of the petition’s claims such that were outside the geographical that a reasonable person conducting an area occupied by the species at the impartial scientific review would con- time it was listed, information indi- clude that the action proposed in the cating why the petitioned areas are or petition may be warranted. Conclu- are not essential for the conservation sions drawn in the petition without the of the species; and support of credible scientific or com- (6) A complete, balanced representa- mercial information will not be consid- tion of the relevant facts, including in- ered ‘‘substantial information.’’ formation that may contradict claims (ii) In reaching the initial finding on in the petition. (f) Response to petitions. (1) If a re- the petition, the Services will consider quest does not meet the requirements the information referenced at para- set forth at paragraph (c) of this sec- graphs (c), (d), and (g) of this section. tion, the Services will generally reject The Services may also consider infor- the request without making a finding, mation readily available at the time and will, within a reasonable time- the determination is made. The Serv- frame, notify the sender and provide an ices are not required to consider any explanation of the rejection. However, supporting materials cited by the peti- the Services retain discretion to proc- tioner if the cited document is not pro- ess a petition where the Services deter- vided in accordance with paragraph mine there has been substantial com- (c)(6) of this section. pliance with the relevant require- (iii) The ‘‘substantial scientific or ments. commercial information’’ standard (2) If a request does meet the require- must be applied in light of any prior re- ments set forth at paragraph (c) of this views or findings the Services have section, the Services will acknowledge made on the listing status of the spe- receipt of the petition by posting infor- cies that is the subject of the petition. mation on the respective Service’s Web Where the Services have already con- site. ducted a finding on, or review of, the (g) Supplemental information. If the listing status of that species (whether petitioner provides supplemental infor- in response to a petition or on the mation before the initial finding is Services’ own initiative), the Services made and states that it is part of the will evaluate any petition received petition, the new information, along thereafter seeking to list, delist, or re- with the previously submitted informa- classify that species to determine tion, is treated as a new petition that whether a reasonable person con- supersedes the original petition, and ducting an impartial scientific review the statutory timeframes will begin would conclude that the action pro- when such supplemental information is posed in the petition may be warranted received. despite the previous review or finding. (h) Findings on petitions to add or re- Where the prior review resulted in a move a species from the lists, or change final agency action, a petitioned action the listed status of a species. (1) To the generally would not be considered to

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present substantial scientific and com- designation, the Services will make a mercial information indicating that finding as to whether the petition pre- the action may be warranted unless the sents substantial scientific informa- petition provides new information not tion indicating that the revision may previously considered. be warranted. The Services will publish (2) If the Services find that a petition such finding in the FEDERAL REGISTER. presents substantial information indi- (i) For the purposes of this section, cating that the petitioned action may ‘‘substantial scientific information’’ be warranted, the Services will com- refers to credible scientific information mence a review of the status of the spe- in support of the petition’s claims such cies concerned. At the conclusion of that a reasonable person conducting an the status review and within 12 months impartial scientific review would con- of receipt of the petition, the Services clude that the revision proposed in the will make one of the following find- petition may be warranted. Conclu- ings: sions drawn in the petition without the (i) The petitioned action is not war- support of credible scientific informa- ranted, in which case the Service shall tion will not be considered ‘‘substan- publish a finding in the FEDERAL REG- tial information.’’ ISTER. (ii) The Services will consider the in- (ii) The petitioned action is war- formation referenced at paragraphs (c), ranted, in which case the Services shall (e), and (g) of this section. The Services publish in the FEDERAL REGISTER a pro- may also consider other information posed regulation to implement the ac- readily available at the time the deter- tion pursuant to § 424.16; or mination is made in reaching its initial (iii) The petitioned action is war- finding on the petition. The Services ranted, but: are not required to consider any sup- (A) The immediate proposal and porting materials cited by the peti- timely promulgation of a regulation to tioner if the cited documents are not implement the petitioned action is pre- provided in accordance with paragraph cluded because of other pending pro- (b)(6) of this section. posals to list, delist, or change the list- (2) If the Services find that the peti- ed status of species; and tion presents substantial information (B) Expeditious progress is being that the requested revision may be made to list, delist, or change the list- warranted, the Services will determine, ed status of qualified species, in which within 12 months of receiving the peti- case such finding will be published in tion, how to proceed with the requested the FEDERAL REGISTER together with a revision, and will promptly publish no- description and evaluation of the rea- tice of such intention in the FEDERAL sons and data on which the finding is REGISTER. That notice may, but need based. The Secretary will make any de- not, take a form similar to one of the termination of expeditious progress in findings described under paragraph relation to the amount of funds avail- (h)(2) of this section. able after complying with nondis- (j) Petitions to designate critical habitat cretionary duties under section 4 of the or adopt rules under sections 4(d), 4(e), or Act and court orders and court-ap- 10(j) of the Act. The Services will con- proved settlement agreements to take duct a review of petitions to designate actions pursuant to section 4 of the critical habitat or to adopt a rule Act. under section 4(d), 4(e), or 10(j) of the (3) If a finding is made under para- Act in accordance with the Adminis- graph (h)(2)(iii) of this section with re- trative Procedure Act (5 U.S.C. 553) and gard to any petition, the Services will, applicable Departmental regulations, within 12 months of such finding, again and take appropriate action. make one of the findings described in (k) Withdrawal of petition. A peti- paragraph (h)(2) of this section with re- tioner may withdraw the petition at gard to such petition. any time during the petition process by (i) Findings on petitions to revise crit- submitting such request in writing. If a ical habitat. (1) To the maximum extent petition is withdrawn, the Services practicable, within 90 days of receiving may, at their discretion, discontinue a petition to revise a critical habitat action on the petition finding, even if

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the Services have already made a 90- which the proposal is based (including, day finding that there is substantial as appropriate, citation of pertinent in- information indicating that the re- formation sources) and will show the quested action may be warranted. relationship of such data to the rule [81 FR 66484, Sept. 27, 2016] proposed. If such a rule proposes to designate or revise critical habitat, such § 424.15 Notices of review. summary will, to the maximum extent practicable, include a brief description (a) If the Secretary finds that one of and evaluation of those activities the actions described in § 424.10 may be warranted, but that the available evi- (whether public or private) that, in the dence is not sufficiently definitive to opinion of the Secretary, if under- justify proposing the action at that taken, may adversely modify such time, a notice of review may be pub- habitat or may be affected by such designation. For any proposed rule to des- lished in the FEDERAL REGISTER. The notice will describe the measure under ignate or revise critical habitat, the consideration, briefly explain the rea- detailed description of the action will sons for considering the action, and so- include a map of the critical habitat licit comments and additional informa- area, and may also include rule text tion on the action under consideration. that clarifies or modifies the map. Any (b) The Secretary from time to time such notice proposing the listing, also may publish notices of review con- delisting, or reclassification of a spe- taining the names of species that are cies or the designation or revision of considered to be candidates for listing critical habitat will also include a under the Act and indicating whether summary of factors affecting the spe- sufficient scientific or commercial in- cies and/or its designated critical habi- formation is then available to warrant tat. proposing to list such species, the (c) Procedures—(1) Notifications. In the names of species no longer being con- case of any proposed rule to list, delist, sidered for listing, or the names of list- or reclassify a species, or to designate ed species being considered for or revise critical habitat, the Secretary delisting or reclassification. However, shall— none of the substantive or procedural (i) Publish notice of the proposal in provisions of the Act apply to a species the FEDERAL REGISTER; that is designated as a candidate for (ii) Give actual notice of the pro- listing. posed regulation to the State agency in (c) Such notices of review will invite each State in which the species is be- comment from all interested parties lieved to occur and to each county or regarding the status of the species equivalent jurisdiction therein in named. At the time of publication of which the species is believed to occur, such a notice, notification in writing and invite the comment of each such will be sent to State agencies in any af- agency and jurisdiction; fected States, known affected Federal (iii) Give notice of the proposed regu- agencies, and, to the greatest extent lation to any Federal agencies, local practicable, through the Secretary of authorities, or private individuals or State, to the governments of any for- organizations known to be affected by eign countries in which the subject spe- the rule; cies normally occur. (iv) Insofar as practical, and in cooperation with the Secretary of State, § 424.16 Proposed rules. give notice of the proposed regulation (a) General. Based on the information to list, delist, or reclassify a species to received through §§ 424.13, 424.14, 424.15, each foreign nation in which the spe- and 424.21, or through other available cies is believed to occur or whose citi- avenues, the Secretary may propose re- zens harvest the species on the high vising the lists as described in § 424.10. seas, and invite the comment of such (b) Contents. A notice of a proposed nation; rule to carry out one of the actions de- (v) Give notice of the proposed regu- scribed in § 424.10 will contain a de- lation to such professional scientific tailed description of the proposed ac- organizations as the Secretary deems tion and a summary of the data on appropriate; and

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(vi) Publish a summary of the pro- ciency or accuracy of the available posed regulation in a newspaper of gen- data relevant to the determination or eral circulation in each area of the revision concerned. United States in which the species is (2) If an extension is made under believed to occur. paragraph (a)(1)(iv) of this section, the (2) Period of public comments. At least Secretary shall, within the extended 60 days shall be allowed for public com- period, take one of the actions de- ment following publication in the FED- scribed in paragraphs (a)(1) (i), (ii), or ERAL REGISTER of a rule proposing the (iii) of this section. listing, delisting, or reclassification of (3) If a proposed rule is withdrawn a species, or the designation or revision under paragraph (a)(1)(iii) of this sec- of critical habitat. All other proposed tion, the notice of withdrawal shall set rules shall be subject to a comment pe- forth the basis upon which the pro- riod of at least 30 days following publi- posed rule has been found not to be cation in the FEDERAL REGISTER. The supported by available evidence. The Secretary may extend or reopen the pe- Secretary shall not again propose a riod for public comment on a proposed rule withdrawn under such provision rule upon a finding that there is good except on the basis of sufficient new in- cause to do so. A notice of any such ex- formation that warrants a reproposal. tension or reopening shall be published (b) Critical habitat designations. A in the FEDERAL REGISTER, and shall final rule designating critical habitat specify the basis for so doing. of an endangered or a threatened spe- (3) The Secretary Public hearings. cies shall to the extent permissible shall promptly hold at least one public under § 424.12 be published concurrently hearing if any person so requests with- with the final rule listing such species, in 45 days of publication of a proposed unless the Secretary deems that— regulation to list, delist, or reclassify a (1) It is essential to the conservation species, or to designate or revise crit- of such species that it be listed prompt- ical habitat. Notice of the location and ly; or time of any such hearing shall be pub- (2) Critical habitat of such species is lished in the FEDERAL REGISTER not less than 15 days before the hearing is not then determinable, held. in which case, the Secretary, with respect to the proposed regulation to des- [49 FR 38908, Oct. 1, 1984, as amended at 77 FR 25622, May 1, 2012] ignate such habitat, may extend the 1- year period specified in paragraph (a) § 424.17 Time limits and required ac- of this section by not more than one tions. additional year. Not later than the (a) General. (1) Within 1 year of the close of such additional year the Sec- publication of a rule proposing to de- retary must publish a final regulation, termine whether a species is an endan- based on such data as may be available gered or threatened species, or to des- at that time, designating, to the max- ignate or revise critical habitat, the imum extent prudent, such habitat. Secretary shall publish one of the fol- § 424.18 Final rules—general. lowing in the FEDERAL REGISTER: (i) A final rule to implement such de- (a) Contents. A final rule promulgated termination or revision, to carry out the purposes of the Act (ii) A finding that such revision will be published in the FEDERAL REG- should not be made, ISTER. This publication will contain a (iii) A notice withdrawing the pro- detailed description of the action being posed rule upon a finding that avail- finalized, a summary of the comments able evidence does not justify the ac- and recommendations received in re- tion proposed by the rule, or sponse to the proposal (including appli- (iv) A notice extending such 1-year cable public hearings), summaries of period by an additional period of not the data on which the rule is based and more than 6 months because there is the relationship of such data to the substantial disagreement among sci- final rule, and a description of any con- entists knowledgeable about the spe- servation measures available under the cies concerned regarding the suffi- rule. Publication of a final rule to list,

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delist, or reclassify a species or des- (c) Disagreement with State agency. If a ignate or revise critical habitat will State agency, given notice of a pro- also provide a summary of factors af- posed rule in accordance with fecting the species. § 424.16(c)(1)(ii), submits comments dis- (1) For a rule designating or revising agreeing in whole or in part with a pro- critical habitat, the detailed descrip- posed rule, and the Secretary issues a tion of the action will include a map of final rule that is in conflict with such the critical habitat area, and may also comments, or if the Secretary fails to include rule text that clarifies or modi- adopt a regulation for which a State fies the map. The map itself, as modi- agency has made a petition in accord- fied by any rule text, constitutes the ance with § 424.14, the Secretary shall official boundary of the designation. provide such agency with a written jus- (i) The Service responsible for the tification for the failure to adopt a rule designation will include more-detailed consistent with the agency’s comments information in the preamble of the or petition. rulemaking document and will make [49 FR 38908, Oct. 1, 1984, as amended at 77 FR the coordinates and/or plot points on 25622, May 1, 2012] which the map is based available to the public on the Internet site of the Serv- § 424.19 Impact analysis and exclu- ice promulgating the designation, at sions from critical habitat. www.regulations.gov, and at the lead (a) At the time of publication of a field office of the Service responsible proposed rule to designate critical for the designation. habitat, the Secretary will make avail- (ii) In addition, if the Service respon- able for public comment the draft eco- sible for the designation concludes that nomic analysis of the designation. The additional tools or supporting informa- draft economic analysis will be sum- tion would be appropriate and would marized in the FEDERAL REGISTER no- help the public understand the official tice of the proposed designation of crit- boundary map, it will, for the conven- ical habitat. ience of the public, make those addi- (b) Prior to finalizing the designation tional tools and supporting informa- of critical habitat, the Secretary will tion available on our Internet sites and consider the probable economic, na- at the lead field office of the Service tional security, and other relevant im- that is responsible for the critical habi- pacts of the designation upon proposed tat designation (and may also include or ongoing activities. The Secretary it in the preamble and/or at will consider impacts at a scale that www.regulations.gov). the Secretary determines to be appro- (2) The rule will, to the maximum ex- priate, and will compare the impacts tent practicable, include a brief de- with and without the designation. Im- scription and evaluation of those ac- pacts may be qualitatively or quan- tivities (whether public or private) titatively described. that might occur in the area and (c) The Secretary has discretion to which, in the opinion of the Secretary, exclude any particular area from the may adversely modify such habitat or critical habitat upon a determination be affected by such designation. that the benefits of such exclusion out- (b) Effective date. A final rule shall weigh the benefits of specifying the take effect— particular area as part of the critical (1) Not less than 30 days after it is habitat. In identifying those benefits, published in the FEDERAL REGISTER, in addition to the mandatory consider- except as otherwise provided for good ation of impacts conducted pursuant to cause found and published with the paragraph (b) of this section, the Sec- rule; and retary may assign the weight given to (2) Not less than 90 days after (i) pub- any benefits relevant to the designa- lication in the FEDERAL REGISTER of tion of critical habitat. The Secretary, the proposed rule, and (ii) actual noti- however, will not exclude any par- fication of any affected State agencies ticular area if, based on the best sci- and counties or equivalent jurisdic- entific and commercial data available, tions in accordance with the Secretary determines that the fail- § 424.16(c)(1)(ii). ure to designate that area as critical

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habitat will result in the extinction of scribed in §§ 424.16, 424.17, 424.18, and the species concerned. 424.19 (as appropriate) have been complied with during that period. [78 FR 53076, Aug. 28, 2013] (b) If at any time after issuing an emergency rule, the Secretary deter- § 424.20 Emergency rules. mines, on the basis of the best sci- (a) Sections 424.16, 424.17, 424.18, and entific and commercial data available, 424.19 notwithstanding, the Secretary that substantial evidence does not then may at any time issue a regulation im- exist to warrant such rule, it shall be plementing any action described in withdrawn. § 424.10 in regard to any emergency posing a significant risk to the well-being § 424.21 Periodic review. of a species of fish, wildlife, or plant. At least once every 5 years, the Sec- Such rules shall, at the discretion of retary shall conduct a review of each the Secretary, take effect immediately listed species to determine whether it on publication in the FEDERAL REG- should be delisted or reclassified. Each ISTER. In the case of any such action such determination shall be made in that applies to a resident species, the accordance with §§ 424.11, 424.16, and Secretary shall give actual notice of 424.17 of this part, as appropriate. A no- such regulation to the State agency in tice announcing those species under ac- each State in which such species is be- tive review will be published in the lieved to occur. Publication in the FED- FEDERAL REGISTER. Notwithstanding ERAL REGISTER of such an emergency this section’s provisions, the Secretary rule shall provide detailed reasons why may review the status of any species at the rule is necessary. An emergency any time based upon a petition (see rule shall cease to have force and effect § 424.14) or upon other data available to after 240 days unless the procedures de- the Service.

SUBCHAPTER B [RESERVED]

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PART 450—GENERAL PROVISIONS ternatives which would not violate section 7(a)(2) of the Act. Jeopardize the continued existence of is AUTHORITY: Endangered Species Act of defined at 50 CFR 402.02. 1973, 16 U.S.C. 1531, et seq., as amended. Mitigation and enhancement measures § 450.01 Definitions means measures, including live propagation, tranplantation, and habitat ac- The following definitions apply to quisition and improvement, necessary terms used in this subchapter. and appropriate (a) to minimize the ad- Act means the Endangered Species verse effects of a proposed action on Act of 1973, as amended, 16 U.S.C. 1531, listed species or their critical habitats et seq. and/or (b) to improve the conservation Agency action means all actions of status of the species beyond that which any kind authorized, funded or carried would occur without the action. The out, in whole or in part by Federal measures must be likely to protect the agencies, including, in the instance of listed species or the critical habitat, an application for a permit or license, and be reasonable in their cost, the the underlying activity for which the availability of the technology required permit or license is sought. to make them effective, and other con- Alternative courses of action means all siderations deemed relevant by the reasonable and prudent alternatives, Committee. including both no action and alter- Permit or license applicant means any natives extending beyond original person whose application to an agency project objectives and acting agency for a permit or license has been denied jurisidiction. primarily because of the application of Benefits means all benefits of an section 7(a)(2) of the Act, 16 U.S.C. agency action, both tangible and intan- 1536(a)(2). gible, including but not limited to eco- Person means an individual, corpora- nomic, environmental and cultural tion, partnership, trust, association, or benefits. any other private entity, or any public Biological assessment means the report body or officer, employee, agent, de- prepared pursuant to section 7(c) of the partment, or instrumentality of the Act, 16 U.S.C. 1536(c). Federal government, of any State or Biological opinion means the written political subdivision thereof, or of any statement prepared pursuant to section foreign government. 7(b) of the Act, 16 U.S.C. 1536(b). Proposed action means the action pro- Chairman means the Chairman of the posed by the Federal agency or by a Endangered Species Committee, who is permit or license applicant, for which the Secretary of the Interior. exemption is sought. Committee means the Endangered Spe- Secretary means the Secretary of the cies Committee established pursuant to Interior or the Secretary of Commerce, section 7(e) of the Act, 16 U.S.C. 1536(e). or his or her delegate, depending upon Critical habitat refers to those areas which Secretary has responsibility for listed as Critical Habitat in 50 CFR the affected species as determined pur- parts 17 and 226. suant to 50 CFR 402.01. Destruction or adverse modification is Service means the United States Fish defined at 50 CFR 402.02. and Wildlife Service or the National Federal agency means any depart- Marine Fisheries Service, as appro- ment, agency or instrumentality of the priate. United States. To the extent that such information is Irreversible or irretrievable commitment available to the applicant means all per- of resources means any commitment of tinent information the applicant has resources which has the effect of fore- on the subject matter at the time the closing the formulation or implemen- application is submitted, and all other tation of any reasonable or prudent al- pertinent information obtainable from

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the appropriate Federal agency pursu- be submitted after the Federal agency ant to a Freedom of Information Act concerned formally denies the permit request. or license. An applicant denied a per- [50 FR 8126, Feb. 28, 1985] mit or license may not simultaneously seek administrative review within the PART 451—APPLICATION permitting or licensing agency and PROCEDURE apply for an exemption. If administrative review is sought, an application Sec. for an exemption may be submitted if 451.01 Definitions. that review results in a formal denial 451.02 Applications for exemptions. of the permit or license. For an exemp- 451.03 Endangered Species Committee. tion application to be considered, it AUTHORITY: Endangered Species Act of must be submitted within 90 days after 1973, 16 U.S.C. 1531 et seq., as amended. the date of a formal denial of a permit SOURCE: 50 FR 8127, Feb. 28, 1985, unless or license. otherwise noted. (e) Contents of the application when submitted. Exemption applicants must § 451.01 Definitions. provide the following information at All definitions contained in 50 CFR the time the application is submitted. 450.01 are applicable to this part. (1) Name, mailing address, and phone number, including the name and tele- § 451.02 Applications for exemptions. phone number of an individual to be (a) Scope. This section prescribes the contacted regarding the application. application procedures for applying for (2) If the applicant is a Federal agen- an exemption from the requirements of cy: section 7(a)(2) of the Endangered Spe- (i) A comprehensive description of cies Act, as amended. the proposed agency action and if a li- (b) Where to apply. Applications cense or permit denial is involved, a should be made to the appropriate Sec- comprehensive description of the li- retary(ies) by writing: cense or permit applicant’s proposed (1) The Secretary, Attention: Endan- action. gered Species Committee, Department of the Interior, 18th and C Street, NW., (ii) In the case of a denial of a license Washington, DC 20240. or permit, a description of the permit (2) The Secretary, Department of or license sought, including a state- Commerce, 14th Street and Constitu- ment of who in the Federal agency de- tion Avenue NW., Washington, DC nied the permit or license, the grounds 20030. for the denial, and a copy of the permit (c) Who may apply. (1) A Federal or license denial. agency, (2) the Governor of the State in (iii) A description of all permit(s), li- which an agency action will occur, if cense(s) or other legal requirements any, or (3) a permit or license applicant which have been satisfied or obtained, may apply to the Secretary for an ex- or which must still be satisfied or ob- emption for an agency action if, after tained, before the proposed action can consultation under section 7(a)(2) of proceed. the Act, the Secretary’s opinion indi- (iv) A description of the consultation cates that the agency action would vio- process carried out pursuant to section late section 7(a)(2) of the Act. 7(a) of the Act. (d) When to apply. (1) Except in the (v) A copy of the biological assess- case of agency action involving a per- ment, if one was prepared. mit or license application, an application for an exemption must be sub- (vi) A copy of the biological opinion. mitted to the Secretary within 90 days (vii) A description of each alternative following the termination of the con- to the proposed action considered by sultation process. the Federal agency, by the licensing or (2) In the case of agency action in- permitting agency, and by the permit volving a permit or license application, or license applicant, to the extent an application for an exemption may known.

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(viii) A statement describing why the (ii) A description of the permit or li- proposed agency action cannot be al- cense, if any, sought from the Federal tered or modified to avoid violating agency, including a statement of who section 7(a)(2) of the Act. in that agency denied the permit or li- (ix) A description of resources com- cense and the grounds for the denial, to mitted by the Federal agency, or the the extent that such information is permit or license applicant, if any, to available to the Governor. the proposed action subsequent to the (iii) A description of all permit(s), li- initiation of consultation. cense(s) or other legal requirements (3) If the applicant is a permit or li- which have been satisfied or obtained, cense applicant other than a Federal or which must still be satisfied or ob- agency: tained before the agency can proceed (i) A comprehensive description of with the proposed action, to the extent the applicant’s proposed action. that such information is available to (ii) A description of the permit or li- the Governor. cense sought from the Federal agency, (iv) A copy of the biological assess- including a statement of who in that ment, if one was prepared. agency denied the permit or license (v) A copy of the biological opinion. and the grounds for the denial. (vi) A description of the consultation (iii) A description of all permit(s), li- process carried out pursuant to section cense(s) or other legal requirements 7(a) of the Act, to the extent that such which have been satisfied or obtained, information is available to the Gov- or which must still be satisfied or ob- ernor. tained, before it can proceed with the (vii) A description of all alternatives proposed action. considered by the Federal agency, by (iv) A copy of the permit or license the licensing or permitting agency, and denial. by the permit or license applicant, to (v) A copy of the biological assess- the extent that such information is ment, if one was prepared. available to the Governor. (vi) A copy of the biological opinion. (viii) A statement describing why the (vii) A description of the consulta- proposed agency action cannot be al- tion process carried out pursuant to tered or modified to avoid violating section 7(a) of the Act, to the extent section 7(a)(2) of the Act. that such information is available to (ix) A description of resources com- the applicant. mitted to the proposed action subse- (viii) A description of each alter- quent to the initiation of consultation, native to the proposed action consid- to the extent that such information is ered by the applicant, and to the ex- available to the Governor. tent that such information is available to the applicant, a description of each (5) Each applicant, whether a Federal alternative to the proposed action con- agency, a permit or license applicant, sidered by the Federal agency. or a Governor, must also submit the (ix) A statement describing why the following: applicant’s proposed action cannot be (i) A complete statement of the na- altered or modified to avoid violating ture and the extent of the benefits of section 7(a)(2) of the Act. the proposed action. (x) A description of resources com- (ii) A complete discussion of why the mitted to the proposed action by the benefits of the proposed action clearly permit or license applicant subsequent outweigh the benefits of each consid- to the initiation of consultation. ered alternative course of action. (4) If the applicant is the Governor of (iii) A complete discussion of why a State in which the proposed agency none of the considered alternatives are action may occur: reasonable and prudent. (i) A comprehensive description of (iv) A complete statement explaining the proposed agency action and if a li- why the proposed action is in the pub- cense or permit denial is involved, a lic interest. comprehensive description of the li- (v) A complete explanation of why cense or permit applicant’s proposed the action is of regional or national action. significance.

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(vi) A complete discussion of mitiga- require approval by the Office of Man- tion and enhancement measures pro- agement and Budget under 44 U.S.C. posed to be undertaken if an exemption 3501 et seq., because it is anticipated is granted. there will be fewer than ten respond- (6) When the exemption applicant is a ents annually. license or permit applicant or a Gov- ernor, a copy of the application shall § 451.03 Endangered Species Com- be provided by the exemption applicant mittee. at the time the application is filed, to (a) Scope. This section contains provi- the Federal agency which denied the li- sions governing the relationship be- cense or permit. tween the Secretary and the Endan- (f) Review of the application by the Sec- gered Species Committee. retary. (1) Upon receiving the applica- (b) Appointment of State member. (1) tion, the Secretary shall review the Upon receipt of an application for ex- contents thereof and consider whether emption, the Secretary shall promptly the application complies with the re- notify the Governors of each affected quirements set forth in paragraphs (c), State, if any, as determined by the Sec- (d) and (e) of this section. retary, and request the Governors to (2) The Secretary shall reject an ap- recommend individuals to be appointed plication within 10 days of receiving it to the Endangered Species Committee if he determines that it does not com- for consideration of the application. ply with paragraphs (c), (d) and (e) of Written recommendations of these this section. If the Secretary rejects an Governors must be received by the Sec- application because it does not contain retary within 10 days of receipt of noti- the information required by paragraph fication. The Secretary will transmit (e) of this section, the applicant may the Governors’ recommendations to resubmit a revised application so long the President and will request that the as the applicant does so during the 90 President appoint a State resident to day period specified in paragraph (d) of the Endangered Species Committee this section. from each affected State within 30 days (3) If the Secretary finds that the ap- after the application for exemption was plication meets the requirements of submitted. paragraphs (c), (d), and (e) of this sec- (2) When no State is affected, the tion, he will consider the application in Secretary will submit to the President accordance with part 452. a list of individuals with expertise rel- (g) Notification of the Secretary of evant to the application and will re- State. The Secretary will promptly quest the President to appoint, within transmit to the Secretary of State a 30 days after the application for exemp- copy of all applications submitted in tion was submitted, an individual to accordance with § 451.02. the Endangered Species Committee. (h) Public notification. Upon receipt of an application for exemption, the Sec- PART 452—CONSIDERATION OF retary shall promptly publish a notice APPLICATION BY THE SECRETARY in the FEDERAL REGISTER (1) announcing that an application has been filed, Sec. (2) stating the applicant’s name, (3) 452.01 Purpose and scope. briefly describing the proposed agency 452.02 Definitions. action and the result of the consulta- 452.03 Threshold review and determinations. tion process, (4) summarizing the infor- 452.04 Secretary’s report. mation contained in the application, 452.05 Hearings. (5) designating the place where copies 452.06 Parties and intervenors. of the application can be obtained and 452.07 Separation of functions and ex parte (6) specifying the name of the person to communications. contact for further information. The 452.08 Submission of Secretary’s report. Secretary will promptly notify each 452.09 Consolidated and joint proceedings. member of the Committee upon receipt AUTHORITY: Endangered Species Act of of an application for exemption. 1973, 16 U.S.C. 1531, et seq., as amended. (i) The information collection re- SOURCE: 50 FR 8129, Feb. 28, 1985, unless quirements contained in part 451 do not otherwise noted.

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§ 452.01 Purpose and scope. (e) Secretary of State opinion. The Sec- This part prescribes the procedures retary shall terminate the exemption to be used by the Secretary when ex- process immediately if the Secretary of amining applications for exemption State, pursuant to his obligations from section 7(a)(2) of the Endangered under section 7(i) of the Act, certifies Species Act. in writing to the Committee that granting an exemption and carrying § 452.02 Definitions. out the proposed action would violate an international treaty obligation or Definitions applicable to this part are contained in 50 CFR 450.01. other international obligation of the United States. § 452.03 Threshold review and determinations. § 452.04 Secretary’s report. (a) Threshold determinations. Within 20 (a) Contents of the report. If the Sec- days after receiving an exemption ap- retary has made a positive finding on plication, or a longer time agreed upon each of the threshold determinations, between the exemption applicant and he shall proceed to gather information the Secretary, the Secretary shall con- and prepare a report for the Endan- clude his review and determine: gered Species Committee: (1) Whether any required biological (1) Discussing the availability of rea- assessment was conducted; sonable and prudent alternatives to the (2) To the extent determinable within proposed action; the time period provided, whether the (2) Discussing the nature and extent Federal agency and permit or license of the benefits of the proposed action; applicant, if any, have refrained from (3) Discussing the nature and extent making any irreversible or irretriev- of the benefits of alternative courses of able commitment of resources; and action consistent with conserving the (3) Whether the Federal agency and species or the critical habitat; permit or license applicant, if any, (4) Summarizing the evidence con- have carried out consultation respon- cerning whether the proposed action is sibilities in good faith and have made a of national or regional significance; reasonable and responsible effort to de- (5) Summarizing the evidence con- velop and fairly consider modifications cerning whether the proposed action is or reasonable and prudent alternatives in the public interest; to the proposed action which would not (6) Discussing appropriate and rea- violate section 7(a)(2) of the Act. sonable mitigation and enhancement (b) Burden of proof. The exemption measures which should be considered applicant has the burden of proving by the Committee in granting an ex- that the requirements of § 452.03(a) emption; and have been met. (7) Discussing whether the Federal (c) Negative finding. If the Secretary agency and permit or license applicant, makes a negative finding on any if any, have refrained from making any threshold determination, the Secretary irreversible or irretrievable commit- shall deny the application and notify ment of resources. the exemption applicant in writing of (b) Preparation of the report. The re- his finding and grounds therefor. The port shall be prepared in accordance exemption process shall terminate with procedures set out in § 452.05 and when the applicant receives such writ- § 452.09. ten notice. The Secretary’s denial shall constitute final agency action for pur- § 452.05 Hearings. poses of judicial review under chapter 7 (a) Hearings. (1) To develop the record of title 5 of the United States Code. for the report under § 452.04, the Sec- (d) Positive finding. If the Secretary retary, in consultation with the mem- makes a positive finding on each of the bers of the Committee, shall hold a threshold determinations, he shall no- hearing in accordance with 5 U.S.C. 554, tify the exemption applicant in writing 555, and 556. that the application qualifies for con- (2) The Secretary shall designate an sideration by the Endangered Species Administrative Law Judge to conduct Committee. the hearing. The Secretary shall assign

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technical staff to assist the Adminis- may be submitted, and cross-examina- trative Law Judge. tion may be conducted, as required for (3) When the Secretary designates a full and true disclosure of the facts, the Administrative Law Judge, the by parties, witnesses under subpoena, Secretary may establish time periods and their respective counsel. for conducting the hearing and closing (i) Objections. Objections to evidence the record. shall be timely, and the party making (4) The Secretary may require the ap- them may be required to state briefly plicant to submit further discussions of the grounds relied upon. the information required by (ii) Offers of proof. When an objection § 451.02(e)(5). This information will be is sustained, the examining party may made part of the record. (b) Prehearing conferences. (1) The Ad- make a specific offer of proof and the ministrative Law Judge may, on his Administrative Law Judge may receive own motion or the motion of a party or the evidence in full. Such evidence, intervenor, hold a prehearing con- adequately marked for identification, ference to consider: shall be retained in the record for con- (i) The possibility of obtaining stipu- sideration by any reviewing authority. lations, admissions of fact or law and (iii) Motions. Motions and petitions agreement to the introduction of docu- shall state the relief sought, the basis ments; for relief and the authority relied upon. (ii) The limitation of the number of If made before or after the hearing witnesses; itself, these matters shall be in writing (iii) Questions of law which may bear and shall be filed and served on all par- upon the course of the hearings; ties. If made at the hearing, they may (iv) Prehearing motions, including be stated and responded to orally, but motions for discovery; and the Administrative Law Judge may re- (v) Any other matter which may aid quire that they be reduced to writing. in the disposition of the proceedings. Oral argument on motions and dead- (2) If time permits and if necessary to lines by which to file responses to writ- materially clarify the issues raised at ten motions will be at the discretion of the prehearing conference, the Admin- the Administrative Law Judge. istrative Law Judge shall issue a state- (e) In pro- ment of the actions taken at the con- Applicant responsibility. ference and the agreements made. Such ceedings conducted pursuant to this statement shall control the subsequent section, the exemption applicant has course of the hearing unless modified the burden of going forward with evi- for good cause by a subsequent state- dence concerning the criteria for ex- ment. emption. (c) Notice of hearings. Hearings and (f) Open meetings and record. All hear- prehearing conferences will be an- ings and all hearing records shall be nounced by a notice in the FEDERAL open to the public. REGISTER stating: (1) The time, place (g) Requests for information, subpoenas. and nature of the hearing or prehearing (1) The Administrative Law Judge is conference; and (2) the matters of fact authorized to exercise the authority of and law to be considered. Such notices the Committee to request, subject to will ordinarily be published at least 15 the Privacy Act of 1974, that any per- days before the scheduled hearings. son provide information necessary to (d) Conduct of hearings—(1) Admissi- enable the Committee to carry out its bility of evidence. Relevant, material, duties. Any Federal agency or the ex- and reliable evidence shall be admit- emption applicant shall furnish such ted. Immaterial, irrelevant, unreliable, information to the Administrative Law or unduly repetitious parts of an ad- Judge. (2) The Administrative Law missible document may be segregated Judge may exercise the authority of and excluded so far as practicable. (2) Motions, objections, rebuttal and the Committee to issue subpoenas for cross-examination. Motions and objec- the attendance and testimony of wit- tions may be filed with the Adminis- nesses and the production of relevant trative Law Judge, rebuttal evidence papers, books, and documents.

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(h) Information collection. The infor- § 452.08 Submission of Secretary’s re- mation collection requirements con- port. tained in § 452.05 do not require ap- (a) Upon closing of the record, the proval by the Office of Management Administrative Law Judge shall certify and Budget under 44 U.S.C. 3501 et seq., the record and transmit it to the Sec- because it is anticipated there will be retary for preparation of the Sec- fewer than ten respondents annually. retary’s report which shall be based on the record. The Secretary may direct § 452.06 Parties and intervenors. the Administrative Law Judge to re- (a) Parties. The parties shall consist open the record and obtain additional of the exemption applicant, the Fed- information if he determines that such eral agency responsible for the agency action is necessary. action in question, the Service, and in- (b) The Secretary shall submit his re- tervenors whose motions to intervene port and the record of the hearing to have been granted. the Committee within 140 days after making his threshold determinations (b) Intervenors. (1) The Administra- under § 452.03(a) or within such other tive Law Judge shall provide an oppor- period of time as is mutually agreeable tunity for intervention in the hearing. to the applicant and the Secretary. A motion to intervene must state the petitioner’s name and address, identify § 452.09 Consolidated and joint pro- its representative, if any, set forth the ceedings. interest of the petitioner in the pro- (a) When the Secretary is considering ceeding and show that the petitioner’s two or more related exemption applica- participation would assist in the deter- tions, the Secretary may consider mination of the issues in question. them jointly and prepare a joint report (2) The Administrative Law Judge if doing so would expedite or simplify shall grant leave to intervene if he de- consideration of the issues. termines that an intervenor’s partici- (b) When the Secretaries of the Inte- pation would contribute to the fair de- rior and Commerce are considering two termination of issues. In making this or more related exemption applica- determination, the Administrative Law tions, they may consider them jointly Judge may consider whether an inter- and prepare a joint report if doing so venor represents a point of view not would expedite or simplify consider- adequately represented by a party or ation of the issues. another intervenor. PART 453—ENDANGERED SPECIES § 452.07 Separation of functions and ex COMMITTEE parte communications. (a) Separation of functions. (1) The Ad- Sec. ministrative Law Judge and the tech- 453.01 Purpose. nical staff shall not be responsible for 453.02 Definitions. 453.03 Committee review and final deter- or subject to the supervision or direc- minations. tion of any person who participated in 453.04 Committee information gathering. the endangered species consultation at 453.05 Committee meetings. issue; 453.06 Additional Committee powers. (2) The Secretary shall not allow an AUTHORITY: Endangered Species Act of agency employee or agent who partici- 1973, 16 U.S.C. 1531, et seq., as amended. pated in the endangered species con- SOURCE: 50 FR 8130, Feb. 28, 1985, unless sultation at issue or a factually related otherwise noted. matter to participate or advise in a determination under this part except as a § 453.01 Purpose. witness or counsel in public pro- This part prescribes the procedures ceedings. to be used by the Endangered Species (b) Ex parte communications. The pro- Committee when examining applica- visions of 5 U.S.C. 557(d) apply to the tions for exemption from section 7(a)(2) hearing and the preparation of the re- of the Endangered Species Act of 1973, port. as amended.

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§ 453.02 Definitions. (c) Permanent exemptions. Under section 7(h)(2) of the Act, an exemption Definitions applicable to this part granted by the Committee shall con- are contained in 50 CFR 450.01. stitute a permanent exemption with re- § 453.03 Committee review and final spect to all endangered or threatened determinations. species for the purposes of completing such agency action— (a) Final determinations. Within 30 (1) Regardless of whether the species days of receiving the Secretary’s report was identified in the biological assess- and record, the Committee shall grant ment, and an exemption from the requirements of (2) Only if a biological assessment section 7(a)(2) of the Act for an agency has been conducted under section 7(c) action if, by a vote in which at least of the Act with respect to such agency five of its members concur: action. Notwithstanding the foregoing, (1) It determines that based on the an exemption shall not be permanent report to the Secretary, the record of if— the hearing held under § 452.05, and on (i) The Secretary finds, based on the such other testimony or evidence as it best scientific and commercial data may receive: available, that such exemption would (i) There are no reasonable and pru- result in the extinction of a species dent alternatives to the proposed ac- that was not the subject of consultation; tion under section 7(a)(2) of the Act or (ii) The benefits of such action clear- was not identified in any biological as- ly outweigh the benefits of alternative sessment conducted under section 7(c) courses of action consistent with con- of the Act, and serving the species or its critical habi- (ii) The Committee determines with- tat, and such action is in the public in- in 60 days after the date of the Sec- terest; retary’s finding that the exemption (iii) The action is of regional or na- should not be permanent. tional significance; and If the Secretary makes a finding that (iv) Neither the Federal agency con- the exemption would result in the ex- cerned nor the exemption applicant tinction of a species, as specified made any irreversible or irretrievable above, the Committee shall meet with commitment of resources prohibited by respect to the matter within 30 days section 7(d) of the Act; and, after the date of the finding. During (2) It establishes such reasonable the 60 day period following the Sec- mitigation and enhancement measures, retary’s determination, the holder of including, but not limited to, live prop- the exemption shall refrain from any agation, transplantation, and habitat action which would result in extinction acquisition and improvement, as are of the species. necessary and appropriate to minimize (d) Finding by the Secretary of Defense. the adverse effects of the proposed ac- If the Secretary of Defense finds in tion upon the endangered species, writing that an exemption for the threatened species, or critical habitat agency action is necessary for reasons concerned. Any required mitigation of national security, the Committee and enhancement measures shall be shall grant the exemption notwith- carried out and paid for by the exemp- standing any other provision in this tion applicant. part. (b) Decision and order. The Commit- tee’s final determinations shall be doc- § 453.04 Committee information gath- umented in a written decision. If the ering. Committee determines that an exemp- (a) Written submissions. When the tion should be granted, the Committee Chairman or four Committee members shall issue an order granting the ex- decide that written submissions are emption and specifying required miti- necessary to enable the Committee to gation and enhancement measures. The make its final determinations, the Committee shall publish its decision Chairman shall publish a notice in the and order in the FEDERAL REGISTER as FEDERAL REGISTER inviting written soon as practicable. submissions from interested persons.

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The notice shall include: (1) The ad- action of a Committee function which dress to which such submissions are to involves a vote by the Committee on be sent; (2) the deadline for such sub- the Committee’s final determinations. missions; and (3) a statement of the (c) Only members of the Committee type of information needed. may cast votes. In no case shall any (b) Public hearing. (1) When the Chair- representative cast a vote on behalf of man or four Committee members de- a member. cide that oral presentations are nec- (d) Committee members appointed essary to enable the Committee to from the affected States shall collec- make its final determinations, a public tively have one vote. They shall deter- hearing shall be held. mine among themselves how it will be (2) The public hearing shall be con- cast. ducted by (i) the Committee or (ii) a (e) All meetings and records of the member of the Committee or other per- Committee shall be open to the public. son, designated by the Chairman or by (f) The Chairman shall publish a no- four members of the Committee. tice of all Committee meetings in the (3) Notice. The Chairman shall publish FEDERAL REGISTER. The notice will or- in the FEDERAL REGISTER a general no- dinarily be published at least 15 days tice of a public hearing, stating the prior to the meeting. time, place and nature of the public hearing. § 453.06 Additional Committee powers. (4) Procedure. The public hearing shall be open to the public and con- (a) Secure information. Subject to the ducted in an informal manner. All in- Privacy Act, the Committee may se- formation relevant to the Committee’s cure information directly from any final determinations shall be admis- Federal agency when necessary to en- sible, subject to the imposition of rea- able it to carry out its duties. sonable time limitations on oral testi- (b) Subpoenas. For the purpose of ob- mony. taining information necessary for the (5) Transcript. Public hearings will be consideration of an application for an recorded verbatim and a transcript exemption, the Committee may issue thereof will be available for public in- subpoenas for the attendance and testi- spection. mony of witnesses and the production of relevant papers, books, and docu- § 453.05 Committee meetings. ments. (a) The committee shall meet at the (c) Rules and orders. The Committee call of the Chairman or five of its may issue and amend such rules and members. orders as are necessary to carry out its (b) Five members of the Committee duties. or their representatives shall con- (d) Delegate authority. The Committee stitute a quorum for the transaction of may delegate its authority under para- any function of the Committee, except graphs (a) and (b) of this section to any that in no case shall any representa- member. tive be considered in determining the existence of a quorum for the trans- PARTS 454–499 [RESERVED]

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Part Page 500 [Reserved] 501 Implementation of the Privacy Act of 1974 ...... 415 510 Implementation of the Federal Advisory Com- mittee Act ...... 419 520 Public availability of agency materials ...... 421 530 Compliance with the National Environmental Pol- icy Act...... 423 540 Information security...... 424 550 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by Marine Mammal Commission ...... 426 560 Implementation of the Government in the Sun- shine Act ...... 432 561–599 [Reserved]

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§ 501.3 Procedure for responding to re- tograph or signature. For requests quests regarding the existence of made by mail, identification of the in- records pertaining to an individual. dividual shall be adequate if estab- Any individual may submit a request lished by means of submitting a certifi- to be notified whether a system of cate of a notary public, or equivalent records, with respect to which the officer empowered to administer oaths, Commission has published a notice in substantially in accord with the fol- the FEDERAL REGISTER, contains a lowing: record pertaining to him or her. Re- City of llllll County of quests may be made in writing to the lllllll: ss (Name of individual) who Privacy Officer or by appearing in per- affixed (his) (her) signature below in my son at the Commission offices located presence, came before me, a (Title), in the at 1625 I Street, NW., Room 307, Wash- aforesaid County and State, this llllll ington, DC 20006 between the hours of day of llllll, 19ll, and established (his)(her) identity to my satisfaction. 9:00 a.m. and 5:00 p.m. on any working My Commission expires day. Systems of records that are the llllllllllll. subject of a request should be identified by reference to the system name The certificate shall not be required, designated in the Notice of Systems of however, for written requests pertaining to non-sensitive information or Records published in the FEDERAL REG- to information which would be required ISTER. In the event a system name is not known to the individual, a general to be made available under the Free- request will suffice if it indicates rea- dom of Information Act. The Privacy sons for the belief that a record per- Officer shall determine the adequacy of taining to the named individual is any proof of identity offered by an indi- maintained by the Commission. Re- vidual. ceipt of inquiries submitted by mail [41 FR 5, Jan. 2, 1976] will be acknowledged within 10 days of receipt (excluding Saturdays, Sundays, § 501.5 Disclosure of requested infor- and legal public holidays) unless a re- mation. sponse can also be prepared and for- (a) Upon request and satisfactory warded to the individual within that proof of identity, an individual appear- time. ing at the Commission offices shall be given immediate access to and permis- § 501.4 Requests for access—times, sion to review any record, contained in places and requirements for identi- a system of records, pertaining to him fication of individuals. or her, shall be allowed to have a per- Requests for access to a system of son of his/her choosing accompany him/ records pertaining to any individual her, and shall be given a copy of all or may be made by that individual by any portion of the record. The indi- mail addressed to the Privacy Officer, vidual to which access is granted shall or by submitting a written request in be required to sign a written statement person at the Commission offices lo- authorizing the presence of the person cated at 1625 I Street, NW., Room 307, who accompanies him or her, and au- Washington, DC 20006, between the thorizing discussion of his or her hours of 9 a.m. and 5 p.m. on any work- record in the presence of the accom- ing day. Assistance in gaining access panying person. under this section, securing an amend- (b) Requests made by mail to the Pri- ment or correction under § 501.6, or pre- vacy Officer at the Commission offices paring an appeal under §§ 501.5(d) and will be acknowledged within 10 days 501.8 shall be provided by the Privacy from date of receipt (excluding Satur- Officer on request directed to the Com- days, Sundays, and legal public holi- mission office. An individual appearing days). This acknowledgement shall ad- in person at the Commission offices vise the individual whether access to will be granted immediate access to the record will be granted and, if access any records to which that individual is is granted, copies of such records shall entitled under the Act upon satisfac- be enclosed. tory proof of identity by means of a (c) If the Privacy Officer initially de- document bearing the individual’s pho- termines to deny access to all or any

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portion of a record, notice of denial in which the information thought to be shall be given to the individual in writ- improperly maintained or incorrect is ing, within 30 days (excluding Satur- contained, and the precise information days, Sundays and holidays) after ac- that is the subject of the request (for knowledgement is given, and shall in- example, system name, description of clude the following: record, paragraph, sentence, line, (1) The precise record to which access words). Assistance in identifying a is being denied; record, and in otherwise preparing a re- (2) The reason for denial, including a quest, may be obtained by contacting citation to the appropriate provisions the Privacy Officer at the Commission of the Act and of these Rules; offices. (3) A statement that the denial may (b) A request should, in addition to be appealed to the Director; identifying the individual and the (4) A statement of what steps must record sought to be amended or cor- be taken to perfect an appeal to the Di- rected, include: rector; and, (5) A statement that the individual (1) The specific wording or other in- has a right to judicial review under 5 formation to be deleted, if any; U.S.C. 552a(g)(1) of any final denial (2) The specific wording or other in- issued by the Director. formation to be inserted, if any, and (d) Administrative appeal of an ini- the exact place in the record at which tial denial, in whole or in part, of any it is to be inserted, and, request for access to a record, shall be (3) A statement of the basis for the available. An individual may appeal by requested amendment or correction submitting to the Director a written (e.g. that the record is inaccurate, un- request for reconsideration stating necessary, irrelevant, untimely, or in- therein specific reasons for reversal complete), together with supporting which address directly the reasons for documents, if any, which substantiate denial stated in the initial notice of de- the statement. nial. If access is denied on appeal, a final notice of denial shall be sent to § 501.7 Agency review of requests for the individual within 30 days (exclud- amendment or correction of a ing Saturdays, Sundays and holidays), record. and shall state with particularity the (a) Where possible, each request for grounds for rejecting all reasons for re- amendment or correction shall be reversal submitted by the individual. The viewed, and a determination on the re- denial shall then be deemed final for quest made, by the Privacy Officer purposes of obtaining judicial review. within 10 days of receipt (excluding [40 FR 49276, Oct. 21, 1975, as amended at 41 Saturdays, Sundays and holidays). Re- FR 5, Jan. 2, 1976] quests shall be acknowledged within that period where insufficient informa- § 501.6 Requests for correction or tion has been provided to enable action amendment of a record. to be taken. An acknowledgement shall (a) Any individual may request the inform the individual making the re- correction or amendment of a record quest of the estimated time within pertaining to him or her in writing ad- which a disposition of the request is ex- dressed to the Privacy Officer at the pected to be made, and shall prescribe Commission offices. Verification of such further information as may be identity required for such requests necessary to process the request. The shall be the same as that specified in request shall be granted, or an initial § 501.4 of this part with respect to re- decision to deny shall be made, within quests for access. Records sought to be ten days of receipt of all information amended must be identified with as specified in the acknowledgement (ex- much specificity as is practicable cluding Saturdays, Sundays and holi- under the circumstances of the request, days). and at a minimum, should refer to the (b) Within 30 days (excluding Satur- system name designated in the Notice days, Sundays and holidays) after ar- of System Records published in the riving at a decision on a request, the FEDERAL REGISTER, the type of record Privacy Officer shall either:

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(1) Make the requested amendment or § 501.8 Appeal of initial denial of a re- correction, in whole or in part, and ad- quest for amendment or correction. vise the individual in writing of such (a) The initial denial of a request for action; or, amendment or correction may be ap- (2) Advise the individual in writing pealed by submitting to the Director that the request has been initially de- the following appeal papers: nied, in whole or in part, stating, with (1) A copy of the original request for respect to those portions denied; amendment or correction; (i) The date of the denial; (2) A copy of the initial denial; and (ii) The reasons for the denial, in- (3) A precise statement of the reasons cluding a citation to an appropriate for the individual’s belief that the de- section of the Act and these Rules; and, nial is in error, referring specifically to (iii) The right of the individual to the criteria contained in § 501.7(c)(1) prosecute an appeal and to obtain judi- through (8). cial review should a final denial result The appeal must be signed by the indi- from the appeal. vidual. While these papers normally (c) In reviewing a request for amend- will constitute the entire Record on ment or correction of a record, the Pri- Appeal, the Director may add addi- vacy Officer shall consider the fol- tional information, from sources other lowing criteria: than the individual, where necessary to (1) The sufficiency of the evidence facilitate a final determination. Any submitted by the individual; such additional information added to the record shall promptly be disclosed (2) The factual accuracy of the infor- to the individual to the greatest extent mation sought to be amended or cor- possible, and an opportunity for com- rected; ment thereon shall be afforded prior to (3) The relevance and necessity of the the final determination. Appeals information sought to be amended or should be submitted to the Director corrected in terms of the purposes for within 90 days after the date of the ini- which it was collected; tial denial. (4) The timeliness and currency of (b) The Director shall issue a final the information sought to be amended determination on appeal within thirty or corrected in terms of the purposes days (excluding Saturdays, Sundays, for which it was collected; and legal public holidays) from the (5) The completeness of the informa- date on which a completed Record on tion sought to be amended or corrected Appeal (including any additional infor- in terms of the purposes for which it mation deemed necessary) is received. was collected; Review, and final determination by the (6) The degree of possibility that de- Director, shall be based upon the cri- nial of the request could unfairly result teria specified in § 501.7(c)(1) through in determinations adverse to the indi- (8). vidual; (c) If the appeal is resolved favorably (7) The character of the record to the individual, the final determina- sought to be corrected or amended; tion shall specify the amendments or and, corrections to be made. Copies of the final determination shall be trans- (8) The propriety and feasibility of mitted promptly to the individual and complying with the specific means of to the Privacy Officer. The Privacy Of- correction or amendment requested by ficer shall make the requested amend- the individual. If an amendment or cor- ment or correction and advise the indi- rection is otherwise permissible under vidual in writing of such action. the Act and other relevant statutes, a (d) If the appeal is denied, the final request shall be denied only if the indi- determination shall state, with par- vidual has failed to establish, by a pre- ticularity, the reasons for denial, in- ponderance of the evidence, the pro- cluding a citation to an appropriate priety of the amendment or correction section of the Act and of these Rules. in light of these criteria. The final determination shall be for- [40 FR 49276, Oct. 21, 1975, as amended at 41 warded promptly to the individual, to- FR 5, Jan. 2, 1976] gether with a notice which shall inform

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the individual of his or her right to U.S.C. appendix I. Guidelines and con- submit to the Privacy Officer, for in- trols are prescribed for calling of meet- clusion in the record, a concise state- ings, notice of meetings, public partici- ment of grounds for disagreement with pation, closing of meetings, keeping of the final determination. Receipt of any minutes, and compensation of com- such statement shall be acknowledged mittee members, their staff and con- by the Privacy Officer, and all subse- sultants. quent and prior users of the record shall be provided copies of the state- § 510.2 Scope. ment. The notice shall also inform the These regulations shall apply to the individual of his or her right, under 5 operation of advisory committees re- U.S.C. 552a(g)(1), to obtain judicial reporting to the agency. view of the final determination. § 510.3 Definitions. [40 FR 49276, Oct. 21, 1975, as amended at 41 FR 5, Jan. 2, 1976] For the purposes of this part, (a) The term Act means the Federal § 501.9 Fees. Advisory Committee Act, 5 U.S.C. ap- A fee of $0.10 shall be charged for pendix I; (b) The term Chairperson means each each copy of each page of a record person selected to chair an advisory made, by photocopy or similar process, committee established by the Commis- at the request of an individual. No fee sion; shall be charged for copies made at the (c) The term Commission means the initiative of the Commission incident Marine Mammal Commission, estab- to granting access to a record. A total lished by 16 U.S.C. 1401(a); copying fee of $2.00 or less may be (d) The term committee means any ad- waived by the Privacy Officer, but fees visory committee reporting to the for all requests made contempora- Commission; and neously by an individual shall be ag- (e) The term Designee means the gregated to determine the total fee. agency official designated by the [41 FR 5, Jan. 2, 1976] Chairman of the Commission (1) to perform those functions specified by sec- PART 510—IMPLEMENTATION OF tions 10(e) and (f) of the Act, and (2) to THE FEDERAL ADVISORY COM- perform such other responsibilities as MITTEE ACT are required by the Act and applicable regulations to be performed by the ‘‘agency head.’’ Sec. 510.1 Purpose. § 510.4 Calling of meetings. 510.2 Scope. 510.3 Definitions. (a) No committee shall hold any 510.4 Calling of meetings. meeting except with the advance ap- 510.5 Notice of meetings. proval of the Designee. Requests for ap- 510.6 Public participation. proval may be made, and approval to 510.7 Closed meetings. hold meetings may be given orally or 510.8 Minutes. in writing, but if approval is given 510.9 Uniform pay guidelines. orally, the fact that approval has been AUTHORITY: Sec. 8(a), Federal Advisory given shall be stated in the public no- Committee Act, 5 U.S.C. App. I. tice published pursuant to § 510.5 of SOURCE: 41 FR 3306, Jan. 22, 1976, unless these regulations. otherwise noted. (b) An agenda shall be submitted to, and must be approved by, the Designee § 510.1 Purpose. in advance of each committee meeting, The regulations prescribed in this and that meeting shall be conducted in part set forth the administrative guide- accordance with the approved agenda. lines and management controls for ad- The agenda shall list all matters to be visory committees reporting to the Ma- considered at the meeting, and shall in- rine Mammal Commission. These regu- dicate when any part of the meeting lations are authorized by section 8(a) of will be closed to the public on the au- the Federal Advisory Committee Act, 5 thority of exemptions contained in the

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Freedom of Information Act, 5 U.S.C. straints under which the meeting is to 552(b). be conducted, the number of persons [41 FR 3306, Jan. 22, 1976; 41 FR 4020, Jan. 28, who wish to speak during the meeting, 1976] and the extent to which the statement provides the committee with informa- § 510.5 Notice of meetings. tion which has not previously been (a) Notice of each committee meeting available and is relevant to its decision shall be timely published in the FED- or other action on that subject. Inter- ERAL REGISTER. Publication shall be ested persons may be required to serve considered timely if made at least 15 reasonable notice of their intentions to days before the date of the meeting, ex- speak so that the committee may as- cept that shorter notice may be pro- sess whether procedures and scheduling vided in emergency situations. for the meeting can be adjusted to ac- (b) The notice shall state the time, commodate large numbers of partici- place, schedule and purposes of the pants. committee meeting, and shall include, whenever it is available, a summary of § 510.7 Closed meetings. the agenda. The notice shall indicate (a) Whenever the committee seeks to the approximate times at which any have all or a portion of a meeting portion of the meeting will be closed to closed to the public on the basis of an the public and shall include an expla- exemption provided in 5 U.S.C. 552(b), nation for the closing of any portion of the Chairperson shall notify the Des- the meeting pursuant to § 510.7. ignee at least 30 days before the scheduled date of the meeting. The notifica- § 510.6 Public participation. tion shall be in writing and shall speci- (a) All committee meetings, or por- fy all the reasons for closing any part tions of meetings, that are open to the of the meeting. public shall be held at a reasonable (b) If, after consultation with the time and at a place that is reasonably General Counsel of the Commission, accessible to the public. A meeting the Designee finds the request to be room shall be selected which, within warranted and in accordance with the the bounds of the resources and facili- policy of the Act, the request shall be ties available, affords space to accom- granted. The determination of the Des- modate all members of the public who reasonably could be expected to attend. ignee to grant any such request shall (b) Any member of the public shall be be in writing and shall state the spe- permitted to file a written statement cific reasons for closing all or a part of with the committee, either by person- the meeting. Copies of the determina- ally delivering a copy to the Chair- tion shall be made available to the pub- person, or by submitting the statement lic upon request. by mail to the Marine Mammal Com- mission Offices at the address indi- § 510.8 Minutes. cated in the notice of meeting. Such Detailed minutes shall be kept of statements should be received at least each portion of each committee meet- one week in advance of the scheduled ing. The minutes shall include: the meeting at which they are expected to time and place of the meeting; a list of be considered by the committee. the committee members and staff in (c) Opportunities will ordinarily be attendance; a complete summary of afforded to interested persons to speak matters discussed and conclusions to agenda items during that portion of reached; copies of all reports received, the open meeting during which that issued, or approved by the committee; item is to be considered by the com- a description of the extent to which the mittee, subject to such reasonable time meeting was open to the public; and a limits as the committee may establish, description of public participation, in- and consideration of the extent to cluding a list of members of the public which the committee has received the who presented oral or written state- benefit of comments by interested per- ments and an estimate of the number sons, the complexity and the impor- of members of the public who attended tance of the subject, the time con- the open sessions. The Chairperson

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shall certify to the accuracy of the istrative staff manuals and instruc- minutes. tions to staff that affect a member of the public; and to any other Commis- § 510.9 Uniform pay guidelines. sion records reasonably described and (a) Compensation of members and requested by a person in accordance staff of, and consultants to the Com- with these regulations—except to the mittee of Scientific Advisors on Marine extent that such material is exempt in Mammals is fixed in accordance with 16 accordance with paragraph (b) of this U.S.C. 1401(e), 1403(b), and 1406. section. (b) Compensation for members and (b) Requests for inspection and copies staff of, and consultants to all advisory shall not be granted with respect to committees reporting to the Commis- materials that are: sion except the Committee of Sci- (1)(i) Specifically authorized under entific Advisors on Marine Mammals criteria established by an Executive shall be fixed in accordance with guide- Order to be kept secret in the interest lines established by the Director of the of national defense or foreign policy, Office of Management and Budget pur- and suant to section 7(d) of the Act, 5 (ii) Are in fact properly classified U.S.C. appendix I. pursuant to such Executive order; (2) Related solely to the internal per- PART 520—PUBLIC AVAILABILITY sonnel rules and practices of the Com- OF AGENCY MATERIALS mission; (3) Specifically exempted from disclo- Sec. sure by statute; 520.1 Purpose. (4) Trade secrets and commercial or 520.2 Scope. financial information obtained from a 520.3 Definitions. person and privileged or confidential; 520.4 Availability of materials. (5) Inter-agency or intra-agency 520.5 Administrative appeal. memorandums or letters which would 520.6 Extensions of time. 520.7 Fees. not be available by law to a party other than an agency in litigation with AUTHORITY: 5 U.S.C. 552. the Commission; SOURCE: 41 FR 3307, Jan. 22, 1976, unless (6) Personnel and medical files and otherwise noted. similar files, the disclosure of which would constitute a clearly unwarranted § 520.1 Purpose. invasion of personal privacy; These regulations implement the pro- (7) Investigatory records compiled for visions of the ‘‘Freedom of Information law enforcement purposes, but only to Act,’’ 5 U.S.C. 552. They establish pro- the extent that the production of such cedures under which the public may in- records would: spect and obtain copies of nonexempt (i) Interfere with enforcement pro- material maintained by the Commis- ceedings, sion, provide for administrative appeal (ii) Deprive a person of a right to a of initial determinations to deny re- fair trial or an impartial adjudication, quests for material, and prescribe uni- (iii) Constitute an unwarranted inva- form fees to be charged by the Commis- sion of personal privacy, sion to recover direct search and dupli- (iv) Disclose the identity of a con- cation costs. fidential source and, in the case of a record compiled by a criminal law en- § 520.2 Scope. forcement authority in the course of a (a) These regulations shall apply to criminal investigation, or by an agency all final opinions, including concurring conducting a lawful national security and dissenting opinions, as well as or- intelligence investigation, confidential ders, made by the Commission in the information furnished only by the con- adjudication of cases; to all statements fidential source, of policy and interpretations which (v) Disclose investigative techniques have been adopted by the Commission and procedures, or and are not published in the FEDERAL (vi) Endanger the life or physical REGISTER; to the Commission’s admin- safety of law enforcement personnel;

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(8) Contained in or related to exam- request shall be notified immediately ination, operating, or condition reports of the determination made. In making prepared by, on behalf of, or for the use such determinations, it shall first be of an agency responsible for the regula- considered whether the material re- tion or supervision of financial institu- quested is of a type described in tions; or § 520.2(a); if it is, the request shall be (9) Geological and geophysical infor- granted unless the material is exempt- mation and data, including maps, con- ed by § 520.2(b). If the material re- cerning wells. quested is not of a type described in § 520.3 Definitions. § 520.2(a), or is the subject of one or more exemptions, the request shall be As used in these regulations: denied. (a) The term Commission means the (d) If a determination is made to Marine Mammal Commission; (b) The term Director means the Exec- grant a request, the relevant material utive Director of the Marine Mammal shall promptly be made available for Commission; inspection at the Commission offices. (c) The term exempt materials means Copies of the material disclosed shall those materials described in § 520.2(b); be furnished within a reasonable time (d) The term non-exempt materials re- after payment of the fee specified in fers to all materials described in § 520.7. Copies of less than 10 pages of § 520.2(a), but not included in § 520.2(b); material requested in person ordinarily and will be furnished immediately fol- (e) The term General Counsel means lowing the determination to grant the the General Counsel of the Marine request and payment of the fee. Larger Mammal Commission. numbers of copies may be furnished at the earliest convenience of the Com- § 520.4 Availability of materials. mission staff, but must be furnished (a) All non-exempt materials shall be within a reasonable time following available for inspection during normal payment of the fee. business hours at the Commission of- (e) Whenever required to prevent a fices, 1625 I Street, NW., Room 307, clearly unwarranted invasion of per- Washington, DC. Space shall be made sonal privacy, the General Counsel or available at that location for the use of his delegate shall determine that iden- any person who is granted permission tifying details shall be deleted from an to inspect such materials. (b) Requests to inspect, and obtain opinion, statement of policy, interpre- copies of, any material maintained by tation, or staff manual or instruction the Commission may be made in person to which access is granted or of which at the Commission offices, or sub- copies are furnished. Where portions of mitted in writing to the Executive Di- the requested material are exempt rector, Marine Mammal Commission, under § 520.2(b), and are reasonably seg- 1625 I St., NW., Room 307, Washington, regable from the remainder of the ma- DC 20006. Each request should include a terial, those portions shall be excised reasonable description of the material from the material disclosed. Whenever being sought, and should contain suffi- details are deleted or portions are cient detail to facilitate retrieval of excised and not disclosed, the notifica- the material without undue delay. The tion shall include the information Commission staff shall assist to the ex- specified in § 520.4(f). tent practicable in identifying mate- (f) If a determination is made to deny rial that is imprecisely described by a request, the notification shall include the person requesting such material. a statement of the reasons for such ac- (c) An initial determination whether, tion, shall set forth the name and posi- and to what extent, to grant each re- tion of the person responsible for the quest shall be made by the General denial, and shall advise the requester Counsel or his delegate within 10 days of the right, and the procedures re- (excepting Saturdays, Sundays, and quired under § 520.5, to appeal the de- legal public holidays) after receipt of that request. The person making the nial to the Director.

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§ 520.5 Administrative appeal. nous amount of separate and distinct (a) An appeal to the Director of any records which are the subject of a sin- denial, in whole or in part, of a request gle request; or (3) The need for consultation, which for access to and copies of material shall be conducted with all practicable may be made by submission of a writ- speed, with another agency having a ten request for reconsideration. Such substantial interest in the determina- requests must state specific reasons for tion of the request or among two or reconsideration that address directly more components of the agency having the grounds upon which the denial was substantial subject-matter interest based. Requests should be addressed to therein. the Director at the Commission offices. (b) The Director shall make a deter- § 520.7 Fees. mination with respect to any appeal within 20 days (excepting Saturdays, (a) The following standard charges Sundays, and legal public holidays) for document search and duplication, after receipt of the request for recon- based on the direct costs of such serv- sideration. The person making such a ices, must be paid before access to, or request shall immediately be notified copies of material will be granted by mail of the determination. under these regulations: (c) If the initial denial is reversed by (1) Search: $4.00 per person-hour for the Director, any material with which clerical time; $8.00 per person-hour for the reversal is concerned shall be made professional or supervisory time; available for inspection, and copies (2) Duplication: $0.10 per page of shall be furnished, in accordance with photocopied material. § 520.4(d). (b) The Commission shall furnish (d) If the denial is upheld, in whole or without charge, or at a reduced charge, in part, the Director shall include in copies of any material disclosed pursu- the notification a statement of the re- ant to these regulations, whenever the quester’s right of judicial review under General Counsel or the Director deter- 5 U.S.C. 552(a)(4), and the names and mines that waiver or reduction of the positions of the persons responsible for fee is in the public interest because fur- the denial. nishing the information can be considered as primarily benefiting the gen- § 520.6 Extensions of time. eral public. (a) Whenever unusual circumstances [41 FR 3307, Jan. 22, 1976; 41 FR 4020, Jan. 28, exist, as set forth in § 520.6(b), the 1976] times within which determinations must be made by the General Counsel PART 530—COMPLIANCE WITH THE on requests for access (10 working NATIONAL ENVIRONMENTAL days), and by the Director on requests POLICY ACT for reconsideration (20 working days), may be extended by written notice to Sec. the requester. The notice shall set 530.1 Purpose. forth the reasons for such extension, 530.2 Ensuring that environmental docu- and the date on which a determination ments are actually considered in agency is expected to be made. The maximum decision-making. extension of time allowed under this 530.3 Typical classes of action. section shall be 10 working days, but 530.4 Environmental information. shall be utilized only to the extent rea- AUTHORITY: National Environmental Pol- sonably necessary to the proper proc- icy Act, Pub. L. 91–190; 42 U.S.C. 4321 et seq. essing of the particular request. SOURCE: 44 FR 52837, Sept. 11, 1979, unless (b) As used in this section, ‘‘unusual otherwise noted. circumstances’’ shall mean: (1) The need to search for and collect § 530.1 Purpose. the requested records from field facili- The purpose of this part is to estab- ties or other establishments that are lish procedures which supplement the separate from the Commission offices; National Environmental Policy Act (2) The need to search for, collect, (NEPA) regulations and provide for the and appropriately examine a volumi- implementation of those provisions

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identified in § 1507.3(b) of the regula- mammal protection and conservation tions which are applicable to the ac- for which an EIS or environmental as- tivities of the Commission in light of sessment is either not required by the its statutory functions and responsibil- NEPA regulations or for which an EIS ities. or environmental assessment is prepared by another Federal agency; and § 530.2 Ensuring that environmental (b) Research contracts relating to documents are actually considered policy issues, biological-ecological data in agency decision-making. needed to make sound management de- Section 1505.1 of the NEPA regula- cisions, and better methods for col- tions contains requirements to ensure lecting and analyzing data. These ac- adequate consideration of environ- tivities are not, by themselves, major mental documents in agency decision- Federal actions significantly affecting making. To implement these require- the quality of the human environment ments, Commission officials shall: and the Commission’s activities are (a) Consider all relevant environ- therefore categorically excluded from mental documents in evaluating pro- the requirement to prepare an EIS or posals for agency actions; environmental assessment except for (b) Ensure that all relevant environ- proposals for legislation which are ini- mental documents, comments, and re- tiated by the Commission, for which sponses accompany the proposal the Commission shall develop environ- through existing agency review proc- mental assessments or EIS’s, as appro- esses; priate, in accordance with the NEPA (c) Consider only those alternatives regulations. The Commission shall encompassed by the range of alter- independently determine whether an natives discussed in the relevant envi- EIS or an environmental assessment is ronmental documents when evaluating required where: any proposal for action by the Commis- (1) A proposal for agency action is sion which is likely to significantly af- not covered by one of the typical class- fect the quality of the human environ- es of action above; or ment; and (2) For actions which are covered, the (d) Where an environmental impact presence of extraordinary cir- statement (EIS) has been prepared, cumstances indicates that some other consider the specific alternatives ana- level of environmental review may be lyzed in the EIS when evaluating the appropriate. proposal which is the subject of the EIS. All Commission officials directly § 530.4 Environmental information. involved in developing, evaluating, Interested persons may contact the and/or reaching decisions on proposed Office of the General Counsel for infor- actions shall consider relevant environ- mation regarding the Commission’s mental documents and comply with the compliance with NEPA. applicable provisions of the NEPA process. PART 540—INFORMATION § 530.3 Typical classes of action. SECURITY Section 1507.3(b)(2), in conjunction Sec. with § 1508.4, requires agencies to iden- 540.1 Policy. tify typical classes of action that war- 540.2 Program. rant similar treatment under NEPA 540.3 Procedures. with respect to the preparation of AUTHORITY: Executive Order 12356. EIS’s or environmental assessments. As a general matter, the Commission’s § 540.1 Policy. activities do not include actions for which EIS’s or environmental assess- It is the policy of the Marine Mam- ments are required. Its activities in- mal Commission to act in accordance volve: with Executive Order 12356 in matters (a) Consultation with and rec- relating to national security informa- ommendations to other Federal agen- tion. cies for actions relating to marine [44 FR 55381, Sept. 26, 1979]

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§ 540.2 Program. agency exercising original classifica- The Executive Director is designated tion authority with respect to the as the Commission’s official respon- same subject, for review and disposi- sible for implementation and oversight tion in accordance with Executive of information security programs and Order 12356 and that agency’s regula- procedures. He acts as the recipient of tions and guidelines. questions, suggestions, and complaints (b) Exceptional cases. When an em- regarding all elements of this program, ployee or contractor of the Commission and is solely responsible for changes to originates information that is believed it and for insuring that it is at all to require classification, the Executive times consistent with Executive Order Director shall ensure that it is pro- 12356. The Executive Director also tected in accordance with Executive serves as the Commission’s official Order 12356 and shall promptly trans- contact for requests for declassifica- mit it under appropriate safeguards to tion of materials submitted under the the agency with appropriate subject provisions of Executive Order 12356, re- matter jurisdiction and classification gardless of the point of origin of such authority for review and action in ac- requests. He is responsible for assuring cordance with the Order and that agen- that requests submitted under the cy’s regulations and guidelines. Freedom of Information Act are han- (c) Derivative classification. Derivative dled in accordance with that Act and classification markings shall be ap- that declassification requests sub- plied to information that is in submitted under the provisions of Execu- stance the same as information that is tive Order 12356 are acted upon within already classified, in accordance with 60 days of receipt. Executive Order 12356, Section 2–1, unless it is determined through inquiries [44 FR 55381, Sept. 26, 1979] made to the originators of the classified information or other appropriate § 540.3 Procedures. persons that the paraphrasing, restat- (a) Mandatory declassification review. ing, or summarizing of the classified All requests for mandatory review information obviates the need for its shall be handled by the Executive Di- classification, in which case the infor- rector or his designee. Under no cir- mation shall be issued as unclassified cumstances shall the Exective Director or shall be marked appropriately. After refuse to confirm the existence or non- verifying the current level of classi- existence of a document requested fication so far as practicable, paper under the Freedom of Information Act copies of such derivatively classified or the mandatory review provisions of information shall be marked so as to Executive Order 12356, unless the fact indicate: of its existence or non-existence would (1) The source of the original classi- itself be classified under Executive fication; Order 12356. Requests for declassifica- (2) The identity of the Commission tion shall be acted upon promptly pro- employee originating the derivatively viding that the request reasonably de- classified document; scribes the information which is the (3) The dates or events for declas- subject of the request for declassifica- sification or review for declassification tion. In light of the fact that the Com- indicated on the classified source ma- mission does not have original classi- terial; and fication authority and national secu- (4) Any additional authorized mark- rity information in its custody has ings appearing on the source material. been classified by another Federal (d) Handling. All classified documents agency, the Executive Director will shall be delivered to the Executive Di- refer all requests for national security rector or his designee immediately information in its custody to the Fed- upon receipt. All potential recipients eral agency that classified it or, if the of such documents shall be advised of agency that classified it has either the names of such designees and up- ceased to exist or transferred the infor- dated information as necessary. In the mation in conjunction with a transfer event that the Executive Director or of functions, to the appropriate federal his designee is not available to receive

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such documents, they shall be turned PART 550—ENFORCEMENT OF over to the Administrative Officer and NONDISCRIMINATION ON THE secured, unopened, in the combination BASIS OF HANDICAP IN PRO- safe located in the Commission offices GRAMS OR ACTIVITIES CON- until the Executive Director or his des- DUCTED BY MARINE MAMMAL ignee is available. Under no circumstances shall classified materials COMMISSION that cannot be delivered to the Execu- Sec. tive Director or his designee be stored 550.101 Purpose. other than in the designated safe. 550.102 Application. (e) Reproduction. Reproduction of 550.103 Definitions. classified material shall take place 550.104–550.109 [Reserved] only in accordance with Executive 550.110 Self-evaluation. 550.111 Notice. Order 12356, its implementing direc- 550.112–550.129 [Reserved] tives, and any limitations imposed by 550.130 General prohibitions against dis- the originator. Should copies be made, crimination. they are subject to the same controls 550.131–550.139 [Reserved] as the original document. Records 550.140 Employment. 550.141–550.148 [Reserved] showing the number and distribution of 550.149 Program accessibility: Discrimina- copies shall be maintained, where re- tion prohibited. quired by the Executive Order, by the 550.150 Program accessibility: Existing fa- Administrative Officer and the log cilities. stored with the original documents. 550.151 Program accessibility: New con- These measures shall not restrict re- struction and alterations. 550.152–550.159 [Reserved] production for the purposes of manda- 550.160 Communications. tory review. 550.161–550.169 [Reserved] (f) Storage. All classified documents 550.170 Compliance procedures. shall be stored in the combination safe 550.171–550.999 [Reserved] located in the Commission’s offices. AUTHORITY: 29 U.S.C. 794. The combination shall be changed as SOURCE: 51 FR 4579, Feb. 5, 1986, unless oth- required by ISOO Directive No. 1, dated erwise noted. June 23, 1982. The combination shall be known only to the Executive Director § 550.101 Purpose. and his designees with the appropriate This part effectuates section 119 of security clearance. the Rehabilitation, Comprehensive (g) Employee education. All employees Services, and Developmental Disabil- who have been granted a security ities Amendments of 1978, which clearance and who have occasion to amended section 504 of the Rehabilita- handle classified materials shall be ad- tion Act of 1973 to prohibit discrimina- vised of handling, reproduction, and tion on the basis of handicap in pro- storage procedures and shall be re- grams or activities conducted by Exec- quired to review Executive Order 12356 utive agencies or the United States and appropriate ISOO directives. This Postal Service. shall be effected by a memorandum to § 550.102 Application. all affected employees at the time these procedures are implemented. New This part applies to all programs or employees will be instructed in proce- activities conducted by the agency. dures as they enter employment with § 550.103 Definitions. the Commission. (h) Agency terminology. The use of the For purposes of this part, the term— terms Top Secret, Secret, and Confiden- Assistant Attorney General means the Assistant Attorney General, Civil tial shall be limited to materials classi- Rights Division, United States Depart- fied for national security purposes. ment of Justice. [44 FR 55381, Sept. 26, 1979, as amended at 47 Auxiliary aids means services or de- FR 55489, Dec. 10, 1982; 48 FR 44834, Sept. 30, vices that enable persons with im- 1983] paired sensory, manual, or speaking

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skills to have an equal opportunity to tions as orthopedic, visual, speech, and participate in, and enjoy the benefits hearing impairments, cerebral palsy, of, programs or activities conducted by epilepsy, muscular dystrophy, multiple the agency. For example, auxiliary aids sclerosis, cancer, heart disease, diabe- useful for persons with impaired vision tes, mental retardation, emotional ill- include readers, Brailled materials, ness, and drug addition and alcholism. audio recordings, telecommunications (2) Major life activities includes func- devices and other similar services and tions such as caring for one’s self, per- devices. Auxiliary aids useful for performing manual tasks, walking, seeing, sons with impaired hearing include hearing, speaking, breathing, learning, telephone handset amplifiers, tele- and working. phones compatible with hearing aids, (3) Has a record of such an impairment telecommunication devices for deaf means has a history of, or has been persons (TDD’s), interpreters, misclassified as having, a mental or notetakers, written materials, and physical impairment that substantially other similar services and devices. limits one or more major life activi- Complete complaint means a written ties. statement that contains the complain- (4) Is regarded as having an impairment ant’s name and address and describes means— the agency’s alleged discriminatory ac- (i) Has a physical or mental impair- tion in sufficient detail to inform the ment that does not substantially limit agency of the nature and date of the al- major life activities but is treated by leged violation of section 504. It shall the agency as constituting such a limi- be signed by the complainant or by tation; someone authorized to do so on his or (ii) Has a physical or mental impair- her behalf. Complaints filed on behalf ment that substantially limits major of classes or third parties shall describe life activities only as a result of the at- or identify (by name, if possible) the titudes of others toward such impair- alleged victims of discrimination. ment; or Facility means all or any portion of (iii) Has none of the impairments de- buildings, structures, equipment, fined in subparagraph (1) of this defini- roads, walks, parking lots, rolling tion but is treated by the agency as stock or other conveyances, or other having such an impairment. real or personal property. Qualified handicapped person means— Handicapped person means any person (1) With respect to any agency pro- who has a physical or mental impair- gram or activity under which a person ment that substantially limits one or is required to perform services or to more major life activities, has a record achieve a level of accomplishment, a of such an impairment, or is regarded handicapped person who meets the es- as having such an impairment. sential eligibility requirements and As used in this definition, the phrase: who can achieve the purpose of the pro- (1) Physical or mental impairment in- gram or activity without modifications cludes— in the program or activity that the (i) Any physiological disorder or con- agency can demonstrate would result dition, cosmetic disfigurement, or ana- in a fundamental alteration in its na- tomical loss affecting one of more of ture; or the following body systems: Neuro- (2) With respect to any other pro- logical; musculoskeletal; special sense gram or activity, a handicapped person organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- (3) Qualified handicapped person is de- order, such as mental retardation, or- fined for purposes of employment in 29 ganic brain syndrome, emotional or CFR 1613.702(f), which is made applica- mental illness, and specific learning ble to this part by § 550.140. disabilities. The term ‘‘physical or Section 504 means section 504 of the mental impairment’’ includes, but is Rehabilitation Act of 1973 (Pub. L. 93– not limited to, such diseases and condi- 112, 87 Stat. 394 (29 U.S.C. 794)), as

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amended by the Rehabilitation Act §§ 550.112–550.129 [Reserved] Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617), and the Rehabilitation, § 550.130 General prohibitions against Comprehensive Services, and Develop- discrimination. mental Disabilities Amendments of (a) No qualified handicapped person 1978 (Pub. L. 95–602, 92 Stat. 2955). As shall, on the basis of handicap, be ex- used in this part, section 504 applies cluded from participation in, be denied only to programs or activities con- the benefits of, or otherwise be sub- ducted by Executive agencies and not jected to discrimination under any pro- to federally assisted programs. gram or activity conducted by the agency. [51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, (b)(1) The agency, in providing any 1986] aid, benefit, or service, may not, directly or through contractual, licens- §§ 550.104–550.109 [Reserved] ing, or other arrangements, on the basis of handicap— § 550.110 Self-evaluation. (i) Deny a qualified handicapped per- (a) The agency shall, by April 9, 1987, son the opportunity to participate in evaluate its current policies and prac- or benefit from the aid, benefit, or tices, and the effects thereof, that do service; not or may not meet the requirements (ii) Afford a qualfied handicapped of this part, and, to the extent modi- person an opportunity to participate in fication of any such policies and prac- or benefit from the aid, benefit, or tices is required, the agency shall pro- service that is not equal to that af- ceed to make the necessary modifica- forded others; tions. (iii) Provide a qualified handicapped (b) The agency shall provide an op- person with an aid, benefit, or service that is not as effective in affording portunity to interested persons, includ- equal opportunity to obtain the same ing handicapped persons or organiza- result, to gain the same benefit, or to tions representing handicapped per- reach the same level of achievement as sons, to participate in the self-evalua- that provided to others; tion process by submitting comments (iv) Provide different or separate aid, (both oral and written). benefits, or services to handicapped (c) The agency shall, until three persons or to any class of handicapped years following the completion of the persons than is provided to others un- self-evaluation, maintain on file and less such action is necessary to provide make available for public inspections: qualified handicapped persons with aid, (1) A description of areas examined benefits, or services that are as effec- and any problems identified, and tive as those provided to others; (2) A description of any modifications (v) Deny a qualified handicapped per- made. son the opportunity to participate as a member of planning or advisory boards; § 550.111 Notice. or (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the head of the agency ferent, despite the existence of permis- finds necessary to apprise such persons sibly separate or different programs or of the protections against discrimina- activities. tion assured them by section 504 and (3) The agency may not, directly or this regulation. through contractual or other arrangements, utilize criteria or methods of

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administration the purpose or effect of §§ 550.141–550.148 [Reserved] which would— (i) Subject qualified handicapped per- § 550.149 Program accessibility: Dis- sons to discrimination on the basis of crimination prohibited. handicap; or Except as otherwise provided in (ii) Defeat or substantially impair ac- § 550.150, no qualified handicapped per- complishment of the objectives of a son shall, because the agency’s facili- program or activity with respect to ties are inaccessible to or unusable by handicapped persons. handicapped persons, be denied the (4) The agency may not, in deter- benefits of, be excluded from participa- mining the site or location of a facil- tion in, or otherwise be subjected to discrimination under any program or ity, make selections the purpose or ef- activity conducted by the agency. fect of which would— (i) Exclude handicapped persons § 550.150 Program accessibility: Exist- from, deny them the benefits of, or oth- ing facilities. erwise subject them to discrimination (a) General. The agency shall operate under any program or activity con- each program or activity so that the ducted by the agency; or program or activity, when viewed in its (ii) Defeat or substantially impair entirety, is readily accessible to and the accomplishment of the objectives usable by handicapped persons. This of a program or activity with respect paragraph does not— to handicapped persons. (1) Necessarily require the agency to (5) The agency, in the selection of make each of its existing facilities ac- procurement contractors, may not use cessible to and usable by handicapped criteria that subject qualified handi- persons; or capped persons to discrimination on (2) Require the agency to take any the basis of handicap. action that it can demonstrate would (c) The exclusion of nonhandicapped result in a fundamental alteration in persons from the benefits of a program the nature of a program or activity or limited by Federal statute or Execu- in undue financial and administrative tive order to handicapped persons or burdens. In those circumstances where the exclusion of a specific class of agency personnel believe that the pro- handicapped persons from a program posed action would fundamentally limited by Federal statute or Execu- alter the program or activity or would tive order to a different class of handi- result in undue financial and adminis- capped persons is not prohibited by trative burdens, the agency has the this part. burden of proving that compliance with § 550.150(a) would result in such alter- (d) The agency shall administer pro- ation or burdens. The decision that grams and activities in the most inte- compliance would result in such alter- grated setting appropriate to the needs ation or burdens must be made by the of qualified handicapped persons. agency head or his or her designee after considering all agency resources §§ 550.131–550.139 [Reserved] available for use in the funding and op- § 550.140 Employment. eration of the conducted program or activity, and must be accompanied by No qualified handicapped person a written statement of the reasons for shall, on the basis of handicap, be sub- reaching that conclusion. If an action jected to discrimination in employ- would result in such an alteration or ment under any program or activity such burdens, the agency shall take conducted by the agency. The defini- any other action that would not result tions, requirements, and procedures of in such an alteration or such burdens section 501 of the Rehabilitation Act of but would nevertheless ensure that 1973 (29 U.S.C. 791), as established by handicapped persons receive the bene- the Equal Employment Opportunity fits and services of the program or ac- Commission in 29 CFR part 1613, shall tivity. apply to employment in federally con- (b) Methods. The agency may comply ducted programs or activities. with the requirements of this section

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through such means as redesign of (2) Describe in detail the methods equipment, reassignment of services to that will be used to make the facilities accessible buildings, assignment of accessible; aides to beneficiaries, home visits, de- (3) Specify the schedule for taking livery of services at alternate acces- the steps necessary to achieve compli- sible sites, alteration of existing facili- ance with this section and, if the time ties and construction of new facilities, period of the transition plan is longer use of accessible rolling stock, or any than one year, identify steps that will other methods that result in making be taken during each year of the tran- its programs or activities readily ac- sition period; and cessible to and usable by handicapped (4) Indicate the official responsible persons. The agency is nor required to for implementation of the plan. make structural changes in existing fa- [51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, cilities where other methods are effec- 1986] tive in achieving compliance with this section. The agency, in making alter- § 550.151 Program accessibility: New construction and alterations. ations to existing buildings, shall meet accessibility requirements to the ex- Each building or part of a building tent compelled by the Architectural that is constructed or altered by, on Barriers Act of 1968, as amended (42 behalf of, or for the use of the agency shall be designed, constructed, or al- U.S.C. 4151–4157), and any regulations tered so as to be readily accessible to implementing it. In choosing among and usable by handicapped persons. available methods for meeting the re- The definitions, requirements, and quirements of this section, the agency standards of the Architectural Barriers shall give priority to those methods Act (42 U.S.C. 4151–4157), as established that offer programs and activities to in 41 CFR 101–19.600 to 101–19.607, apply qualified handicapped persons in the to buildings covered by this section. most integrated setting appropriate. (c) Time period for compliance. The §§ 550.152–550.159 [Reserved] agency shall comply with the obligations established under this section by § 550.160 Communications. June 6, 1986, except that where struc- (a) The agency shall take appropriate tural changes in facilities are under- steps to ensure effective communica- taken, such changes shall be made by tion with applicants, participants, per- April 7, 1989, but in any event as expe- sonnel of other Federal entities, and ditiously as possible. members of the public. (d) Transition plan. In the event that (1) The agency shall furnish appro- structural changes to facilities will be priate auxiliary aids where necessary undertaken to achieve program acces- to afford a handicapped person an equal sibility, the agency shall develop, by opportunity to participate in, and October 7, 1986, a transition plan set- enjoy the benefits of, a program or acting forth the steps necessary to com- tivity conducted by the agency. (i) In determining what type of auxil- plete such changes. The agency shall iary aid is necessary, the agency shall provide an opportunity to interested give primary consideration to the re- persons, including handicapped persons quests of the handicapped person. or organizations representing handi- (ii) The agency need not provide indi- capped persons, to participate in the vidually prescribed devices, readers for development of the transition plan by personal use or study, or other devices submitting comments (both oral and of a personal nature. written). A copy of the transition plan (2) Where the agency communicates shall be made available for public in- with applicants and beneficiaries by spection. The plan shall, at a min- telephone, telecommunication devices imum— for deaf persons (TDD’s) or equally ef- (1) Identify physical obstacles in the fective telecommunication systems agency’s facilities that limit the acces- shall be used. sibility of its programs or activities to (b) The agency shall ensure that in- handicapped persons; terested persons, including persons

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with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The General Counsel for the Com- (c) The agency shall provide signage mission shall be responsible for coordi- at a primary entrance to each of its in- nating implementation of this section. accessible facilities, directing users to Complaints may be sent to the General a location at which they can obtain in- Counsel for the Commission, Marine formation about accessible facilities. Mammal Commission, Room 307, 1625–I The international symbol for accessi- Street, NW., Washington, DC 20006. bility shall be used at each primary en- (d) The agency shall accept and in- trance of an accessible facility. vestigate all complete complaints for (d) This section does not require the which it has jurisdiction. All complete agency to take any action that it can complaints must be filed within 180 demonstrate would result in a funda- days of the alleged act of discrimina- mental alteration in the nature of a tion. The agency may extend this time program or activity or in undue finan- period for good cause. cial and administrative burdens. In (e) If the agency receives a complaint those circumstances where agency per- over which it does not have jurisdic- sonnel believe that the proposed action tion, it shall promptly notify the com- would fundamentally alter the program plainant and shall make reasonable ef- or activity or would result in undue fi- forts to refer the complaint to the ap- nancial and administrative burdens, propriate government entity. the agency has the burden of proving (f) The agency shall notify the Archi- that compliance with § 550.160 would re- tectural and Transportation Barriers sult in such alteration or burdens. The Compliance Board upon receipt of any decision that compliance would result complaint alleging that a building or in such alteration or burdens must be facility that is subject to the Architec- made by the agency head or his or her tural Barriers Act of 1968, as amended designee after considering all agency (42 U.S.C. 4151–4157), or section 502 of resources available for use in the fund- the Rehabilitation Act of 1973, as ing and operation of the conducted pro- amended (29 U.S.C. 792), is not readily gram or activity, and must be accom- accessible to and usable by handi- panied by a written statement of the capped persons. reasons for reaching that conclusion. If (g) Within 180 days of the receipt of a an action required to comply with this complete complaint for which it has ju- section would result in such an alter- risdiction, the agency shall notify the ation or such burdens, the agency shall complainant of the results of the inves- take any other action that would not tigation in a letter containing— result in such an alteration or such (1) Findings of fact and conclusions burdens but would nevertheless ensure of law; that, to the maximum extent possible, (2) A description of a remedy for each handicapped persons receive the bene- violation found; fits and services of the program or ac- (3) A notice of the right to appeal. tivity. (h) Appeals of the findings of fact and conclusions of law or remedies must be §§ 550.161–550.169 [Reserved] filed by the complainant within 90 days of receipt from the agency of the letter § 550.170 Compliance procedures. required by § 550.170(g). The agency (a) Except as provided in paragraph may extend this time for good cause. (b) of this section, this section applies (i) Timely appeals shall be accepted to all allegations of discrimination on and processed by the head of the agen- the basis of handicap in programs or cy. activities conducted by the agency. (j) The head of the agency shall no- (b) The agency shall process com- tify the complainant of the results of plaints alleging violations of section the appeal within 60 days of the receipt 504 with respect to employment accord- of the request. If the head of the agen- ing to the procedures established by cy determines that additional informa- the Equal Employment Opportunity tion is needed from the complainant,

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he or she shall have 60 days from the § 560.2 Definitions. date of receipt of the additional infor- For purposes of this part, the term— mation to make his or her determina- Administrative Officer means the Ad- tion on the appeal. ministrative Officer of the Marine (k) The time limits cited in para- Mammal Commission. graphs (g) and (j) of this section may be Commission means the Marine Mam- extended with the permission of the mal Commission, a collegial body es- Assistant Attorney General. tablished under 16 U.S.C. 1401 that (l) The agency may delegate its au- functions as a unit and is composed of thority for conducting complaint in- three individual members, each of vestigations to other Federal agencies, whom is appointed by the President, by except that the authority for making and with the advice and consent of the the final determination may not be Senate. delegated to another agency. Commissioner means an individual [51 FR 4579, Feb. 5, 1986, as amended at 51 FR who is a member of the Marine Mam- 4579, Feb. 5, 1986] mal Commission. Executive Director means the Execu- §§ 550.171–550.999 [Reserved] tive Director of the Marine Mammal Commission. PART 560—IMPLEMENTATION OF General Counsel means the General THE GOVERNMENT IN THE SUN- Counsel of the Marine Mammal Com- SHINE ACT mission. Meeting means the deliberations of at Sec. least a majority of the members of the 560.1 Purpose and scope. Commission where such deliberations 560.2 Definitions. determine or result in the joint con- 560.3 Open meetings. duct or disposition of official Commis- 560.4 Notice of meetings. sion business, but does not include an 560.5 Closed meetings. individual Commissioner’s consider- 560.6 Procedures for closing meetings. ation of official Commission business 560.7 Recordkeeping requirements. circulated in writing for disposition ei- 560.8 Public availability of records. ther by notation or by separate, se- quential consideration, and delibera- AUTHORITY: 5 U.S.C. 552b(g). tions on whether to: SOURCE: 50 FR 2571, Jan. 17, 1985, unless (1) Hold a meeting with less than 7 otherwise noted. days notice, as provided in § 560.4(d) of this part; § 560.1 Purpose and scope. (2) Change the subject matter of a This part contains the regulations of publicly announced meeting or the de- the Marine Mammal Commission im- termination of the Commission to open plementing the Government in the or close a meeting or portions thereof Sunshine Act (5 U.S.C. 552b). Con- to public observation, as provided in sistent with the Act, it is the policy of § 560.4(e) of this part; the Marine Mammal Commission that (3) Change the time or place of an an- the public is entitled to the fullest nounced meeting, as provided in practicable information regarding its § 560.4(f) of this part; decision making processes. The provi- (4) Close a meeting or portions of a sions of this part set forth the basic re- meeting, as provided in § 560.5 of this sponsibilities of the Commission with part; or regard to this policy and offer guidance (5) Withhold from disclosure informa- to members of the public who wish to tion pertaining to a meeting or por- exercise the rights established by the tions of a meeting, as provided in § 560.5 Act. These regulations also fulfill the of this part. requirement of 5 U.S.C. 552b(g) that Public observation means attendance each agency subject to the Act promul- by one or more members of the public gate regulations to implement the open at a meeting of the Commission, but meeting requirements of subsections does not include participation in the (b) through (f) of section 552b. meeting.

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Public participation means the presen- (c) The public announcement require- tation or discussion of information, ment shall be implemented by: raising of questions, or other manner (1) Submitting the announcement for of involvement in a meeting of the publication in the FEDERAL REGISTER; Commission by one or more members (2) Distributing the announcement to of the public in a manner that contrib- affected governmental entities; utes to the disposition of Commission (3) Mailing the announcement to per- business. sons and organizations known to have an interest in the subject matter of the § 560.3 Open meetings. meeting; and (a) Except as otherwise provided in (4) Other means that the Executive this part, every portion of every meet- Director deems appropriate to inform ing of the Commission shall be open to interested parties. public observation. (d) A meeting may be held with less (b) Meetings of the Commission, or than 7 days notice if a majority of the portions thereof, shall be open to pub- members of the Commission determine lic participation only when an an- by recorded vote that the business of nouncement to that effect is issued the Commission so requires. The Com- under § 560.4(b)(4) of this part. Public mission shall make a public announce- participation shall be conducted in an ment to this effect at the earliest prac- orderly, nondisruptive manner and in ticable time. The announcement shall accordance with such procedures as the include the information required by chairperson of the meeting may estab- paragraph (b) of this section and shall lish. Public participation may be ter- be issued in accordance with those pro- minated at any time for any reason. cedures set forth in paragraph (c) of this section that are practicable given (c) When holding open meetings, the the available period of time. Commission shall make a diligent ef- (e) The subject matter of an an- fort to provide ample space, sufficient nounced meeting, or the determination visibility, and adequate acoustics to of the Commission to open or close a accommodate the public attendance meeting or portions thereof to public anticipated for the meeting. observation, may be changed if a ma- (d) Members of the public may record jority of the members of the Commis- open meetings of the Commission by sion determine by recorded vote that means of any mechanical or electronic Commission business so requires and device, unless the chairperson of the that no earlier announcement of the meeting determines that such record- change was possible. The Commission ing would disrupt the orderly conduct shall make a public announcement of of the meeting. the changes made and the vote of each § 560.4 Notice of meetings. member on each change at the earliest practicable time. The announcement (a) Except as otherwise provided in shall be issued in accordance with this section, the Commission shall those procedures set forth in paragraph make a public announcement at least 7 (c) of this section that are practicable days prior to a meeting. given the available period of time. (b) The public announcement shall (f) The time or place of an announced include: meeting may be changed only if a pub- (1) The time and place of the meet- lic announcement of the change is ing; made at the earliest practicable time. (2) The subject matter of the meet- The announcement shall be issued in ing; accordance with those procedures set (3) Whether the meeting is to be forth in paragraph (c) of this section open, closed, or portions thereof closed; that are practicable given the available (4) Whether public participation will period of time. be allowed; and (5) The name and telephone number § 560.5 Closed meetings. of the person who will respond to re- (a) A meeting or portions thereof quests for information about the meet- may be closed, and information per- ing. taining to such meeting or portions

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thereof may be withheld from the pub- tigation, confidential information fur- lic, only if the Commission determines nished only by the confidential source that such meeting or portions thereof, or sources, or the disclosure of such information, (v) Disclose investigative techniques is likely to: and procedures, or (1) Disclose matters that are (i) spe- (vi) Endanger the life or physical cifically authorized under criteria es- safety of law enforcement personnel; tablished by an Executive order to be (8) Disclose information contained in kept secret in the interest of national or related to examination, operating, defense or foreign policy and (ii) in fact or condition reports prepared by, on be- properly classified pursuant to that Ex- half of, or for the use of an agency re- ecutive order; sponsible for the regulation or super- (2) Relate solely to the internal per- vision of financial institutions; sonnel rules and practices of the Com- (9) Disclose information the pre- mission; mature disclosure of which would be (3) Disclose matters specifically ex- likely to significantly frustrate imple- empted from disclosure by statute mentation of a proposed action of the (other than the Freedom of Informa- Commission. This exception shall not tion Act, 5 U.S.C. 552), provided that apply in any instance where the Com- the statute: mission has already disclosed to the (i) Requires that the matters be with- public the content or nature of the pro- held from the public in such a manner posed action or where the Commission as to leave no discretion on the issue, is required by law to make such disclo- or sure on its own initiative prior to tak- (ii) Establishes particular criteria for ing final action on the proposal; or withholding or refers to particular (10) Specifically concern the issuance types of matters to be withheld; of a subpoena by the Commission, or (4) Disclose the trade secrets and the participation of the Commission in commercial or financial information a civil action or proceeding, an action obtained from a person and privileged in a foreign court or international tri- or confidential; bunal, or an arbitration, or the initi- (5) Involve either accusing any per- ation, conduct, or disposition by the son of a crime or formally censuring Commission of a particular case of for- any person; mal adjudication pursuant to the pro- (6) Disclose information of a personal cedures in 5 U.S.C. 554 or otherwise in- nature, if disclosure would constitute a volving a determination on the record clearly unwarranted invasion of per- after opportunity for a hearing. sonal privacy; (b) Before a meeting or portions (7) Disclose either investigatory thereof may be closed to public obser- records compiled for law enforcement vation, the Commission shall deter- purposes or information which if writ- mine, notwithstanding the exemptions ten would be contained in such records, set forth in paragraph (a) of this sec- but only to the extent that the production, whether or not the public interest tion of the records or information requires that the meeting or portions would: thereof be open. The Commission may (i) Interfere with enforcement pro- open a meeting or portions thereof that ceedings, could be closed under paragraph (a) of (ii) Deprive a person of a right to ei- this section if the Commission finds it ther a fair trial or an impartial to be in the public interest to do so. ajudication, (iii) Constitute an unwarranted inva- § 560.6 Procedures for closing meet- sion of personal privacy, ings. (iv) Disclose the identity of a con- (a) A meeting or portions thereof fidential source or sources and, in the may be closed and information per- case of a record compiled either by a taining to such meeting or portions criminal law enforcement authority in thereof may be withheld under § 560.5 of the course of a criminal investigation this part only when a majority of the or by an agency conducting a lawful members of the Commission vote to national security intelligence inves- take such action.

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(b) A separate vote of the members of public pursuant to § 560.5(a) (8) or (10) of the Commission shall be taken with re- this part, the Commission shall main- spect to each meeting or portion there- tain a complete transcript, an elec- of proposed to be closed and with re- tronic recording, or a set of minutes of spect to information which is proposed the proceedings. If minutes are main- to be withheld. A single vote may be tained, they shall fully and clearly de- taken with respect to a series of meet- scribe all matters discussed and shall ings or portions thereof which are pro- provide a full and accurate summary of posed to be closed, so long as each any actions taken and the reasons for meeting or portion thereof in such se- which such actions were taken, includ- ries involves the same particular mat- ing a description of the views expressed ter and is scheduled to be held no more on any item and a record reflecting the than thirty days after the initial meet- vote of each Commissioner. All docu- ing in such series. The vote of each participating Commission member shall ments considered in connection with be recorded, and no proxies shall be al- any action shall be identified in the lowed. minutes. (c) A person whose interests may be (c) The transcript, electronic record- directly affected by a portion of a ing, or copy of the minutes shall dis- meeting may request in writing that close the identity of each speaker. the Commission close that portion of (d) The Commission shall maintain a the meeting for any of the reasons re- complete verbatim copy of the tran- ferred to in § 560.5(a) (5), (6) or (7) of script, a complete electronic recording, this part. Upon the request of a Com- or a complete copy of the minutes of missioner, a recorded vote shall be the proceedings of each meeting for at taken whether to close such meeting or least two years, or for one year after a portion thereof. the conclusion of any Commission pro- (d) Before the Commission may hold ceeding with respect to which the a meeting that is closed, in whole or meeting was held, whichever occurs part, a certification shall be obtained later. from the General Counsel that, in his or her opinion, the meeting may prop- § 560.8 Public availability of records. erly be closed. The certification shall be in writing and shall state each ap- (a) The Commission shall make plicable exemptive provision from available to the public the transcript, § 560.5(a) of this part. electronic recording, or minutes of a (e) Within one day of a vote taken meeting, except for items of discussion pursuant to this section, the Commis- or testimony that relate to matters the sion shall make publicly available a Commission has determined to contain written copy of such vote reflecting the information which may be withheld vote of each Commissioner. under § 560.5 of this part. (f) In the case of the closure of a (b) The transcript, electronic record- meeting or portions thereof, the Com- ings or minutes of a meeting shall be mission shall make publicly available made available for public review as within one day of the vote on such ac- soon as practicable after each meeting tion a full written explanation of the at the Marine Mammal Commission, reasons for the closing together with a 1625 I Street NW., Washington, DC list of all persons expected to attend 20006. the meeting and their affiliation. (c) Copies of the transcript, a tran- § 560.7 Recordkeeping requirements. scription of the electronic recording, or the minutes of a meeting shall be fur- (a) Except as otherwise provided in nished at cost to any person upon writ- this section, the Commission shall ten request. Written requests should be maintain either a complete transcript or electronic recording of the pro- addressed to the Administrative Offi- ceedings of each meeting, whether cer, Marine Mammal Commission, 1625 opened or closed. I Street NW., Washington, DC 20006. (b) In the case of either a meeting or portions of a meeting closed to the PARTS 561–599 [RESERVED] 435

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—599) VI National Capital Planning Commission (Parts 600—699)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 2—199) II Office of Management and Budget Guidance (Parts 200—299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300—399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VII Agency for International Development (Parts 700—799) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) X Department of the Treasury (Parts 1000—1099) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1800— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Department of Housing and Urban Development (Parts 2400— 2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699)

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XXVII Small Business Administration (Parts 2700—2799) XXVIII Department of Justice (Parts 2800—2899) XXIX Department of Labor (Parts 2900—2999) XXX Department of Homeland Security (Parts 3000—3099) XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXIV Department of Education (Parts 3400—3499) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVI Office of National Drug Control Policy, Executive Office of the President (Parts 3600—3699) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899) LIX Gulf Coast Ecosystem Restoration Council (Parts 5900—5999)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—199)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) IV Office of Personnel Management and Office of the Director of National Intelligence (Parts 1400—1499) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600—3699)

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XXVIII Department of Justice (Parts 3800—3899) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII U.S. International Development Finance Corporation (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499) XXXV Office of Personnel Management (Parts 4500—4599) XXXVI Department of Homeland Security (Parts 4600—4699) XXXVII Federal Election Commission (Parts 4700—4799) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXX Court Services and Offender Supervision Agency for the District of Columbia (Parts 8000—8099) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXIII Department of Agriculture (Parts 8300—8399)

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LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXIII Special Inspector General for Afghanistan Reconstruction (Parts 9300—9399) LXXXIV Bureau of Consumer Financial Protection (Parts 9400—9499) LXXXVI National Credit Union Administration (Parts 9600—9699) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799) XCVIII Council of the Inspectors General on Integrity and Efficiency (Parts 9800—9899) XCIX Military Compensation and Retirement Modernization Commis- sion (Parts 9900—9999) C National Council on Disability (Parts 10000—10049) CI National Mediation Board (Part 10101)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 1—199) X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Agricultural Marketing Service (Federal Grain Inspection Serv- ice, Fair Trade Practices Program), Department of Agri- culture (Parts 800—899)

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IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI [Reserved] XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX [Reserved] XXV Office of Advocacy and Outreach, Department of Agriculture (Parts 2500—2599) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV National Institute of Food and Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

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L Rural Business-Cooperative Service, Rural Housing Service, and Rural Utilities Service, Department of Agriculture (Parts 5001—5099)

Title 8—Aliens and Nationality

I Department of Homeland Security (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Agricultural Marketing Service (Federal Grain Inspection Serv- ice, Fair Trade Practices Program), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XIII Nuclear Waste Technical Review Board (Parts 1300—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V (Parts 500—599) [Reserved] VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX (Parts 900—999)[Reserved]

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X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIII Financial Stability Oversight Council (Parts 1300—1399) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVI Office of Financial Research (Parts 1600—1699) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—1199) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799)

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VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI National Technical Information Service, Department of Com- merce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399) [Reserved]

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV U.S. Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599) [Reserved]

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I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Millennium Challenge Corporation (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

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I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) [Reserved] XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) [Reserved] XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

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I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—899) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900—999) VI Office of the Assistant Secretary, Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Parts 1200—1299)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— End)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—799)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199)

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II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Safety and Environmental Enforcement, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) V Bureau of Ocean Energy Management, Department of the Inte- rior (Parts 500—599) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799)

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VIII Office of Investment Security, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Department of Defense, Defense Logistics Agency (Parts 1200— 1299) XVI Selective Service System (Parts 1600—1699) XVII Office of the Director of National Intelligence (Parts 1700—1799) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army, Department of De- fense (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299)

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III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Career, Technical, and Adult Education, Department of Education (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) [Reserved] VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) [Reserved] SUBTITLE C—REGULATIONS RELATING TO EDUCATION XI (Parts 1100—1199) [Reserved] XII National Council on Disability (Parts 1200—1299)

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VI [Reserved] VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Parts 1500—1599) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II U.S. Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 300—399) IV National Institute of Standards and Technology, Department of Commerce (Parts 400—599)

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I Department of Veterans Affairs (Parts 0—199) II Armed Forces Retirement Home (Parts 200—299)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Regulatory Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799) VIII Gulf Coast Ecosystem Restoration Council (Parts 1800—1899)

Title 41—Public Contracts and Property Management

SUBTITLE A—FEDERAL PROCUREMENT REGULATIONS SYSTEM [NOTE] SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) 62—100 [Reserved] SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 103—104 [Reserved] 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) 129—200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED]

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SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [RESERVED] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) II—III [Reserved] IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—699) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1099)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 400— 999) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299)

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III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) IX Denali Commission (Parts 900—999) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Administration for Children and Families, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission of Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Parts 2300—2399) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

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IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499) V The First Responder Network Authority (Parts 500—599)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) [Reserved] 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) [Reserved]

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54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation (Parts 1400—1499) [Reserved] XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599)

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VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

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CFR Title, Subtitle or Agency Chapter Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV Afghanistan Reconstruction, Special Inspector General for 5, LXXXIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9, II Agricultural Research Service 7, V Agriculture, Department of 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9, II Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force, Department of 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI

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2015 50 CFR—Continued 80 FR Page 50 CFR 80 FR Chapter III—Continued Page 300.66 (u) removed; (v) and (w) re- Chapter II designated as new (u) and (v); 229.2 Amended...... 6929 (h) introductory text, (s), (t) 229.3 (s) revised...... 6929 and new (u) and (v) revised...... 35206 300.67 (a)(1) and (3) revised...... 35207 229.32 (a)(3), (6), (b) and (c)(2) re- 300.211 Amended...... 8815 vised...... 30375 Amended; eff. 11-30-15 ...... 59047 229.35 (a) and (c) revised; (b) 300.217 (c) added; eff. 11-30-15...... 59047 amended; (d)(2)(ii) added ...... 6929 300.218 (h) added ...... 8815 Chapter III (g) revised; eff. 11-30-15...... 59048 300 Fishery management meas- 300.219 (c)(1) and (5) revised; eff. ures ...... 13771 11-30-15 ...... 59048 Temporary regulations...... 32313, 44883, 300.222 (ss) through (ww) added ...... 8815 46515, 69884 (x) and (z) removed; (y) and (aa) through (ww) redesignated as 300.10—300.17 (Subpart B) Re- new (x) and (y) through (uu); moved ...... 62495 (vv) and (xx) added; eff. in part 300.20 Revised ...... 60537 11-30-15...... 59048 300.21 Amended...... 38989, 60538 300.223 (g) and (h) added ...... 8815 300.24 (u) revised ...... 38989 (a)(1) revised; interim...... 29223 (y) through (bb) added ...... 60538 Regulation at 80 FR 29223 con- 300.25 (h) revised ...... 38989 firmed...... 51478 300.26 Added ...... 60538 (a)(3) revised; interim...... 51480 300.61 Amended...... 35205 (d) revised; (e) removed; eff. 11-30- 300.63 (a), (c)(1) introductory 15 ...... 59048 text, (3)(ii) and (5) revised...... 17352 300.224 (a) revised...... 43636 300.65 (c)(5)(iii)(A)(5), (iv)(A), (G), 300.226 Added ...... 8816 (d)(3), (4)(i), (ii)(B) introduc- 300.227 Added ...... 59048 300.330—300.341 (Subpart Q) tory text, (1) through (4), Added ...... 62495 (iii)(A)(1) and (D)(4) revised; (d)(4)(iii)(A)(5) and (5) added...... 35205 Chapter IV 402.02 Amended...... 26844

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50 CFR—Continued 80 FR 50 CFR—Continued 81 FR Page Page Chapter IV—Continued Chapter III—Continued 402.14 (g)(7) and (i)(1)(i) revised; (a)(2)(i), (ii)(A), (iii)(A), (3), (i)(3) amended; (i)(6) added ...... 26844 (b)(2), (3), (c)(2)(i), (ii) and (3) revised; (a)(2)(vii) removed...... 51135 2016 300.186 (a) revised...... 18800 300.187 (f) introductory text and 50 CFR 81 FR (2) revised ...... 18801 Page 300.189 (a), (b), (c), (m) and (n) re- Chapter II vised...... 51136 229 Fisheries list...... 20550 300.222 (ww) added...... 41250 Chapter III 300.223 (a)(1) revised; interim ...... 33149 300 Fishery management meas- (b)(1) introductory text, (2)(i) ures ...... 2110, 14000, 95892 and (ii) revised; (b)(2)(iii), (iv) Temporary regulations...... 45982, 46614, and (e) added ...... 41250 58410, 69717 300.224 (a) revised...... 41251 300.4 (o) revised; (p) and (q) redes- 300.320—300.324 (Subpart Q) ignated as (q) and (r); new (p) Added ...... 51137 added...... 51133 300.321 Amended ...... 88996 300.20 Revised ...... 50403 300.323 Revised ...... 88997 300.21 Amended...... 24504, 86969 300.324 Redesignated as 300.325; Introductory text revised; added; (a)(3) stayed indefi- amended ...... 50403 nitely ...... 88997 300.22 (b)(3) revised...... 1879 300.325 Redesignated from (b)(1) revised ...... 36184 300.324...... 88997 300.24 (e), (f), (h), (t), (w) and (x) re- Revised...... 88998 vised; (cc) and (dd) added ...... 50403 300.330—300.341 (Subpart Q) Re- (ee) through (hh) added...... 86969 designated as Subpart R...... 51137 300.25 (a) revised; (e) removed; (f), 300.330—300.341 (Subpart R) Re- (g) and (h) redesignated as new designated from Subpart Q...... 51137 (e), (f) and (g)...... 50403 Chapter IV (g)(4) and (5) amended; (h) and (i) Chapter IV Policy statement ...... 8663 added ...... 86969 402.02 Amended ...... 7225 300.27 Added ...... 50403 424 Policy statement...... 7226 (e) through (h) redesignated as 424.01 Revised ...... 7438 (g) through (j); new (e) and (f) 424.02 Revised ...... 7438 added ...... 86970 424.03 Added; eff. 10-27-16 ...... 66484 300.61 Amended...... 18795, 95453 424.12 (a), (b) and (d) through (h) 300.63 (c)(3)(ii) and (e)(1) revised; revised ...... 7439 (f) and (g) removed ...... 18795 424.14 Revised; eff. 10-27-16 ...... 66484 300.64 (i) revised...... 18795 300.107 (b) introductory text, (1), 2017 (3), (c)(6)(i)(A)(5) and (7)(i)(A)(4) revised...... 51133 50 CFR 82 FR Page 300.114 (a)(1), (2), (4), (b), (d), (e), (f), (g)(1), (2), (h) and (j) revised; Chapter II (k) removed ...... 51134 229 Fisheries list ...... 3655 300.117 (b) and (r) revised; (ii) Regulation at 82 FR 3655 eff. date added...... 51134 delayed to 3-21-17 ...... 9690 300.181 Amended ...... 18799, 51134 259 Revised ...... 24565 300.182 Revised ...... 51134 Chapter III 300.183 (a) introductory text, (3), 300 Fishery management meas- (b), (d) and (e) revised ...... 51134 ures ...... 12730 300.184 Revised ...... 51135 Technical correction ...... 28012 300.185 (a)(2)(ii) through (vii), (3), Temporary regulations...... 37824, 40720, (b)(2), (3), (c)(2)(i), (iii) and (3) 41562, 52849, 58564 revised; (a)(2)(viii) and (ix) re- 300.20 Revised ...... 17385 moved ...... 18799 300.21 Amended...... 17385, 56178

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50 CFR—Continued 82 FR 50 CFR—Continued 83 FR Page Page Chapter III—Continued Chapter III—Continued 300.24 (b) removed; (k) through (s) 300.65 (c)(1)(iii), (4)(iii), and revised; (ii) added...... 17385 (5)(ii)(D)(1)(iv) added; (c)(4)(i) (u) revised ...... 18705 revised; eff. 10-22-18 ...... 47829 (ii) removed ...... 45516 300.68 Added; eff. through 12-31-18; (w), (x), (cc), and (dd) revised; (ii) interim...... 12140 and (jj) added...... 56178 300.69 Added; eff. through 12-31-18; 300.25 Heading and (a) through (e) interim...... 13087 revised ...... 17385 (g) revised ...... 18705 300.211 Amended ...... 33869 (d) removed; (e)(1), (3) and (6) re- 300.217 (b)(1) revised...... 33869 vised ...... 45516 300.218 (a)(2)(v) and (g) revised 300.27 (b) and (h) revised; (k) and (OMB number pending in (l) added...... 56178 part)...... 33869 300.61 Stayed in part until 3-12- 300.218 Regulation at 83 FR 33869 17 ...... 8811 eff. 8-30-18 ...... 44245 Regulation at 82 FR 8811 eff. date 300.222 (v), (w), (oo), and (pp) re- corrected to 3-11-17 ...... 9501 vised...... 33869 300.63 (c)(1)(v) and (2)(vi) added; 300.223 (a) and (b) revised...... 33869 (c)(2)(iv), (v) and (e)(2) re- 300.224 (a)(1) revised; (a)(2) revised...... 18587 moved ...... 33870 300.100—300.116 (Subpart G) Re- 300.225 Revised ...... 33870 vised ...... 6223 300.324 (a)(3) reinstated...... 17765 Regulation at 82 FR 6223 eff. date delayed to 3-21-17 ...... 9969 300.224 (a)(2) revised; interim ...... 36343 2019 50 CFR 84 FR 2018 Page 50 CFR 83 FR Chapter II Page 216.24 (b)(4), (6)(iii)(A) through Chapter II (D), (F), and (8)(iv)(A) revised; 229 Fisheries list ...... 5349 eff. date pending ...... 70043 Temporary regulations...... 33848 216.72 Heading, (d) introductory 253.31 Added ...... 24232 text, (1), (6) introductory text, Chapter III (e), (f), and (g) revised; (b), 300 Fishery management meas- (d)(3), (5), and (9) removed...... 52382 ures ...... 10390 216.74 Revised ...... 52383 Temporary regulations...... 45849, 55636 217.30—217.39 (Subpart D) Added; 300.21 Amended...... 15509, 62734 eff. 12-1-21 through 11-30-26 ...... 70322 300.22 Heading and (a) heading re- 218.80—218.89 (Subpart I) Re- vised; (a)(1) and (30) added ...... 15509 vised...... 70781 300.24 (m), (n), (ee), and (ff) re- 223.206 (d)(2)(ii)(A)(3) and (3)(i) in- vised; (kk) through (qq) added; troductory text revised; eff. 4- eff. in part 1-1-19...... 15509 1-21 ...... 70063 300.24 (kk) revised...... 62734 223.207 (a)(4), (6), (7)(ii)(B), (C), 300.25 (g)(3) revised ...... 13205 (d)(3)(ii), and (iii) revised; 300.25 (a)(1), (2), (e)(1), (2), (3), (4) (d)(3)(v) added; eff. 4-1-21 ...... 70063 introductory text, (ii), (5), and 229 Temporary regulations ...... 5356 (6) revised; (e)(4)(iii) and (iv) 229 Fisheries list...... 22051 added; (e)(7), (h), and (i) removed ...... 15509 Chapter III 300.28 Added; eff. in part 1-1-19 ...... 15510 300 Fishery management meas- 300.28 (b) and (e) revised ...... 62734 ures ...... 9243, 17960, 25493 300.61 Amended...... 52766 300 Temporary regulations ...... 35568, 300.63 (b)(3) introductory text re- 52035, 65690, 68057 vised...... 13095 300.21 Amended...... 70044

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50 CFR—Continued 84 FR 2020 Page Chapter III—Continued (Regulations published from January 1, 300.22 (b)(1), (2), (3)(v), (4), 2020, through October 1, 2020) (b)(5)(ii) through (viii), (7), and 50 CFR 85 FR (8) revised; (b)(5)(ix) and (9) Page added...... 70044 Chapter II 300.22 (b)(3)(iii) and (iv) revised; 229 Fisheries list...... 21079 (b)(4)(iii)(D), (5)(i), (9)(iii), and 229 Temporary regulations ...... 50959 (iv) added; eff. date pending...... 70047 Chapter III 300.23 Heading revised ...... 70048 Chapter III Notification ...... 60079 300.24 (u) revised ...... 18413 300 Temporary regulations ...2039, 45341 300.24 (f) revised; (g) removed ...... 70048 300 Fishery management meas- 300.25 (g) revised ...... 18413 ures ...... 6101, 14586, 37023 300.27 (b) revised ...... 70048 300.21 Amended...... 37388 300.65 (d)(6) added...... 52806 300.22 Correction: (b)(4)(ii)(A) and 300.67 (a)(4) added; (h)(6) intro- (iii)(B) revised...... 8199 ductory text revised...... 64026 300.22 (a)(3)(i) revised; eff. date delayed...... 29669 300.105 (h) revised ...... 8625 300.22 (b)(4)(ii)(A) and (iii)(B) re- 300.223 (a)(1), (2), and (3) revised; vised...... 35380 interim...... 37148 300.22 Regulation at 85 FR 29669 Chapter IV eff. date confirmed...... 49975 402.02 Amended...... 45016 300.22 Regulation at 84 FR 70047 402.02 Regulation at 84 FR 45016 eff. date confirmed...... 58297 eff. date delayed to 10-28-19 ...... 50333 300.24 (ff) through (hh) revised; 402.13 (a) revised; (c) added ...... 45016 eff. date delayed...... 29669 402.13 Regulation at 84 FR 45016 300.24 Regulation at 85 FR 29669 eff. date confirmed...... 49975 eff. date delayed to 10-28-19 ...... 50333 300.27 (e) and (f) revised; eff. date 402.14 (l) redesignated as (m); new delayed in part...... 29669 (l) added; (c), (g)(2), (4), (8), and 300.27 Regulation at 85 FR 29669 (h) revised; undesignated text eff. date confirmed...... 49975 following (c) removed ...... 45016 300.29 Added; eff. date delayed ...... 29669 402.14 Regulation at 84 FR 45016 300.61 Amended...... 848, 25323 eff. date delayed to 10-28-19 ...... 50333 300.63 (d) revised ...... 25323 402.16 Introductory text and (a) 300.64 (i) revised...... 25324 through (d) redesignated as 300.211 Amended ...... 37388 new (a) and (1) through (4); new 300.215 (c)(1), (2), (d)(1)(ii), and (b) added; heading, new (a) in- (2)(v) revised...... 37388 troductory text, and new (3) re- 300.216 (b)(2) introductory text, vised...... 45017 (3)(i)(D), (ii) introductory text, 402.16 Regulation at 84 FR 45017 and (c)(1) introductory text re- eff. date delayed to 10-28-19 ...... 50333 vised...... 37389 402.17 Added ...... 45018 300.218 (c), (d)(1) introductory 402.17 Regulation at 84 FR 45018 text, (2) introductory text, (e), (g), and (h) revised; (f) intro- eff. date delayed to 10-28-19 ...... 50333 ductory text added; eff. date 402.40 (b) amended ...... 45018 delayed...... 37389 402.40 Regulation at 84 FR 45018 300.223 Introductory text re- eff. date delayed to 10-28-19 ...... 50333 vised...... 37390 424.02 Amended...... 45052 300.224 Introductory text 424.11 (b) through (f) revised; (g) added...... 37390 added...... 45052 300.226 Introductory text 424.12 (a)(1) and (b)(2) revised...... 45053 added...... 37390 Æ

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