Title 50—Wildlife and Fisheries

(This book contains parts 200 to 599)

Part

CHAPTER II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce ...... 216

CHAPTER III—International Fishing and Related Activities .. 300

CHAPTER IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce); En- dangered Species Committee Regulations ...... 401

CHAPTER V—Marine Mammal Commission ...... 501

CROSS REFERENCES: Commercial fishing on Red Lake Indian Reservation, Bureau of Indian Affairs, Interior: 25 CFR part 242. Disposal of certain wild animals in national parks, National Park Service, Interior: 36 CFR part 10. Exchanges of land for migratory bird or other wildlife refuges, Bureau of Land Manage- ment, Interior: 43 CFR 2200.0–1—2272.1. Fishing, hunting, trapping, and protection of wildlife in national forests and wildlife refuges, Forest Service, USDA: 36 CFR part 241, §§ 261.8, 261.9. Fishing, hunting, trapping, and protection of wildlife in national parks, memorials, recreation areas, etc., National Park Service, Interior: 36 CFR parts 2, 7, 20. Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD: 36 CFR 327.8. Free entry of animals, birds and products of American fisheries under specified conditions, Customs Service, Treasury: 19 CFR 10.70—10.83. Grazing areas for wildlife maintenance, Bureau of Land Management, Interior: 43 CFR part 4110. Making pictures, television production, or sound tracks on areas administered by the United States Fish and Wildlife Service or the National Park Service, Interior: 43 CFR 5.1.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00001 Fmt 8008 Sfmt 8008 Y:\SGML\197209T.XXX 197209T VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00002 Fmt 8008 Sfmt 8008 Y:\SGML\197209T.XXX 197209T CHAPTER II—NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

SUBCHAPTER A—GENERAL PROVISIONS [RESERVED]

SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]

SUBCHAPTER C—MARINE MAMMALS

Part Page 216 Regulations governing the taking and importing of marine mammals ...... 5 217–221 [Reserved] 222 General endangered and threatened marine species 86 223 Threatened marine and anadromous species ...... 108 224 Endangered marine and anadromous species ...... 189 225 [Reserved] 226 Designated critical habitat ...... 192 228 Notice and hearing on section 103(d) regulations .... 233 229 Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972 ...... 240

SUBCHAPTER D—WHALING 230 Whaling provisions...... 274

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

SUBCHAPTER F—AID TO FISHERIES 253 Fisheries assistance programs ...... 277 259 Capital construction fund ...... 286

SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PROD- UCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS 260 Inspection and certification ...... 298 3

VerDate 0ct<31>2002 05:27 Nov 21, 2002 Jkt 197209 PO 00000 Frm 00003 Fmt 8008 Sfmt 8008 Y:\SGML\197209T.XXX 197209T 50 CFR Ch. II (10–1–02 Edition)

Part Page 261 United States Standards for Grades ...... 328

SUBCHAPTERS H–J [RESERVED]

SUBCHAPTER K—CONTINENTAL SHELF 296 Fishermen’s Contingency Fund ...... 330

VerDate 0ct<31>2002 05:27 Nov 21, 2002 Jkt 197209 PO 00000 Frm 00004 Fmt 8008 Sfmt 8008 Y:\SGML\197209T.XXX 197209T SUBCHAPTER A—GENERAL PROVISIONS [RESERVED] SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED] SUBCHAPTER C—MARINE MAMMALS

PART 216—REGULATIONS GOV- 216.36 Permit conditions. 216.37 Marine mammal parts. ERNING THE TAKING AND IM- 216.38 Reporting. PORTING OF MARINE MAMMALS 216.39 Permit amendments. 216.40 Penalties and permit sanctions. Subpart A—Introduction 216.41 Permits for scientific research and enhancement. Sec. 216.42 Photography. [Reserved] 216.1 Purpose of regulations. 216.43 Public display. [Reserved] 216.2 Scope of regulations. 216.44 Applicability/transition. 216.3 Definitions. 216.45 General Authorization for Level B 216.4 Other laws and regulations. harassment for scientific research. 216.5 Payment of penalty. 216.46 U.S. citizens on foreign flag vessels 216.6 Forfeiture and return of seized prop- operating under the International Dol- erty. phin Conservation Program. 216.7 Holding and bonding. 216.47–216.49 [Reserved] 216.8 Enforcement officers. Subpart E—Designated Ports Subpart B—Prohibitions 216.50 Importation at designated ports. 216.11 Prohibited taking. 216.12 Prohibited importation. Subpart F—Pribilof Islands, Taking for 216.13 Prohibited uses, possession, transpor- Subsistence Purposes tation, sales, and permits. 216.14 Marine mammals taken before the 216.71 Allowable take of fur seals. MMPA. 216.72 Restrictions on taking. 216.15 Depleted species. 216.73 Disposition of fur seal parts. 216.16 Prohibitions under the General Au- 216.74 Cooperation with Federal officials. thorization for Level B harassment for scientific research. Subpart G—Pribilof Islands Administration Subpart C—General Exceptions 216.81 Visits to fur seal rookeries. 216.82 Dogs prohibited. 216.21 Actions permitted by international 216.83 Importation of birds or mammals. treaty, convention, or agreement. 216.84 [Reserved] 216.22 Taking by State or local government 216.85 Walrus and Otter Islands. officials. 216.86 Local regulations. 216.23 Native exceptions. 216.87 Wildlife research. 216.24 Taking and related acts incidental to commercial fishing operations by tuna Subpart H—Dolphin Safe Tuna Labeling purse seine vessels in the eastern tropical Pacific Ocean. 216.90 Purposes. 216.25 Exempted marine mammals and ma- 216.91 Dolphin-safe labeling standards. rine mammal products. 216.92 Dolphin-safe requirements for tuna 216.26 Collection of certain marine mammal harvested in the ETP by large purse parts without prior authorization. seine vessels. 216.27 Release, non-releasability, and dis- 216.93 Submission of documentation. position under special exception permits 216.94 Tracking and verification program. for rehabilitated marine mammals. 216.95 False statements or endorsements. 216.96 Official mark for ‘‘Dolphin-safe’’ tuna Subpart D—Special Exceptions products. 216.30 [Reserved] Subpart I—General Regulations Governing 216.31 Definitions. Small Takes of Marine Mammals Inci- 216.32 Scope. dental to Specified Activities 216.33 Permit application submission, review, and decision procedures. 216.101 Purpose. 216.34 Issuance criteria. 216.102 Scope. 216.35 Permit restrictions. 216.103 Definitions.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00005 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 216 50 CFR Ch. II (10–1–02 Edition)

216.104 Submission of requests. 216.142 Effective dates. 216.105 Specific regulations. 216.143 Permissible methods of taking; miti- 216.106 Letter of Authorization. gation. 216.107 Incidental harassment authorization 216.144 Prohibitions. for Arctic waters. 216.145 Requirements for monitoring and re- 216.108 Requirements for monitoring and reporting. porting under incidental harassment au- 216.146 Letters of Authorization. thorizations for Arctic waters. 216.147 Modifications to Letters of Author- ization. Subpart J—Taking of Ringed Seals Incidental to On-Ice Seismic Activities Subpart N [Reserved]

216.111 Specified activity and specified geo- Subpart O—Taking of Marine Mammals In- graphical region. 216.112 Effective dates. cidental to Shock Testing the USS 216.113 Permissible methods. SEAWOLF by Detonation of Conven- 216.114 Mitigation. tional Explosives in the Offshore Waters 216.115 Requirements for monitoring and re- of the U.S. Atlantic Coast porting. 216.116 Applications for Letters of Author- 216.161 Specified activity, geographical re- ization. gion, and incidental take levels. 216.117 Renewal of Letters of Authorization. 216.162 Effective dates. 216.118 Modifications to Letters of Author- 216.163 Permissible methods of taking; miti- ization. gation. 216.119 [Reserved] 216.164 Prohibitions. 216.165 Requirements for monitoring and re- Subpart K—Taking of Marine Mammals In- porting. cidental to Space Vehicle and Test 216.166 Modifications to the Letter of Au- Flight Activities thorization. 216.167–216.169 [Reserved] 216.120 Specified activity and specified geographical region. Subpart P—Taking of Marine Mammals In- 216.121 Effective dates. cidental to Operating A Low Fre- 216.122 Permissible methods of taking. quency Acoustic Source by the North 216.123 Prohibitions. Pacific Acoustic Laboratory 216.124 Mitigation. 216.125 Requirements for monitoring and re- 216.170 Specified activity and specified geo- porting. graphical region. 216.126 Applications for Letters of Author- 216.171 Effective dates. ization. 216.172 Permissible methods of taking. 216.127 Renewal of Letters of Authorization. 216.173 Prohibitions. 216.128 Modifications of Letters of Author- 216.174 Mitigation. ization. 216.175 Requirements for monitoring and reporting. Subpart L—Taking of Marine Mammals 216.176 Letter of authorization. Incidental to Power Plant Operations 216.177 Renewal of a letter of authorization. 216.178 Modifications to a letter of author- 216.130 Specified activity, specified geo- ization. graphical region, and incidental take levels. 216.131 Effective dates. Subpart Q—Taking of Marine Mammals In- 216.132 Permissible methods of taking. cidental to Navy Operations of Surveil- 216.133 Prohibitions. lance Towed Array Sensor System Low 216.134 Mitigation requirements. Frequency Active (SURTASS LFA) Sonar 216.135 Monitoring and reporting. 216.136 Renewal of the Letter of Authoriza- 216.180 Specified activity and specified geo- tion. graphical region. 216.137 Modifications to the Letter of Au- 216.181 Effective dates. thorization. 216.182 Permissible methods of taking. 216.138–216.140 [Reserved] 216.183 Prohibitions. 216.184 Mitigation. Subpart M—Taking of Bottlenose Dolphins 216.185 Requirements for monitoring. and Spotted Dolphins Incidental to Oil 216.186 Requirements for reporting. and Gas Structure Removal Activities 216.187 Applications for Letters of Author- ization. 216.141 Specified activity and specified geo- 216.188 Letters of Authorization. graphical region. 216.189 Renewal of Letters of Authorization.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00006 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.3

216.190 Modifications to Letters of Author- Acts means, collectively, the Marine ization. Mammal Protection Act of 1972, as 216.191 Designation of Biologically Impor- amended, 16 U.S.C. 1361 et seq., the En- tant Marine Mammal Areas. dangered Species Act of 1973, as amend- Subpart R—Taking of Marine Mammals In- ed, 16 U.S.C. 1531 et seq., and the Fur cidental to Construction and Oper- Seal Act of 1966, as amended, 16 U.S.C. ation of Offshore Oil and Gas Facilities 1151 et seq. in the U.S. Beaufort Sea Active sportfishing means paying passengers have their terminal fishing 216.200 Specified activity and specified geo- gear (lures, hooks, etc.) in the water in graphical region. an attempt to catch fish or, in the case 216.201 Effective dates. of fishing involving chumming, fishing 216.202 Permissible methods of taking. is considered to be in progress from the 216.203 Prohibitions. instant fish have been sighted taking 216.204 Mitigation. bait (boiling) during that chumming 216.205 Measures to ensure availability of species for subsistence uses. process. 216.206 Requirements for monitoring and re- Administrator, Northeast Region means porting. Administrator, Northeast Region, Na- 216.207 Applications for Letters of Author- tional Marine Fisheries Service, One ization. Blackburn Drive, Gloucester, MA 01930– 216.208 Letters of Authorization. 2298. 216.209 Renewal of Letters of Authorization. Administrator, Southeast Region means 216.210 Modifications to Letters of Author- Administrator, Southeast Region, Na- ization. tional Marine Fisheries Service, 9721 NOTE TO PART 216: See also 50 CFR parts 228 Executive Center Drive, St. Peters- and 229 for regulations governing certain incidental takings of marine mammals. burg, FL 33702–2432. Administrator, Southwest Region AUTHORITY: 16 U.S.C. 1361 et seq., unless means the Regional Administrator, otherwise noted. Southwest Region, National Marine SOURCE: 39 FR 1852, Jan. 15, 1974, unless Fisheries Service, 501 W. Ocean Blvd., otherwise noted. Suite 4200, Long Beach, CA 90802–4213, or his or her designee. Subpart A—Introduction Agreement on the International Dolphin Conservation Program (Agreement on the § 216.1 Purpose of regulations. IDCP) means the Agreement estab- The regulations in this part imple- lishing the formal binding IDCP that ment the Marine Mammal Protection was signed in Washington, DC on May Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– 21, 1998. 1407, Pub. L. 92–522, which, among other Alaskan Native means a person de- things, restricts the taking, possession, fined in the Alaska Native Claims Set- transportation, selling, offering for tlement Act (43 U.S.C. 1602(b)) (85 Stat. sale, and importing of marine mam- 588) as a citizen of the United States mals. who is of one-fourth degree or more Alaska Indian (including Tsimishian § 216.2 Scope of regulations. Indians enrolled or not enrolled in the Metlaktla Indian Community), Es- This part 216 applies solely to marine kimo, or Aleut blood or combination mammals and marine mammal prod- thereof. The term includes any Native, ucts as defined in § 216.3. For regula- as so defined, either or both of whose tions under the MMPA, with respect to adoptive parents are not Natives. It other marine mammals and marine also includes, in the absence of proof of mammal products, see 50 CFR part 18. a minimum blood quantum, any citizen [39 FR 1852, Jan. 15, 1974, as amended at 59 of the United States who is regarded as FR 50375, Oct. 3, 1994] an Alaska Native by the Native village or group, of which he claims to be a § 216.3 Definitions. member and whose father or mother is In addition to definitions contained (or, if deceased, was) regarded as Na- in the MMPA, and unless the context tive by any Native village or Native otherwise requires, in this part 216: group. Any such citizen enrolled by the

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00007 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.3 50 CFR Ch. II (10–1–02 Edition)

Secretary of the Interior pursuant to § 216.23(c) may be used so long as no section 5 of the Alaska Native Claims large scale mass production industry Settlement Act shall be conclusively results. Traditional native handicrafts presumed to be an Alaskan Native for include, but are not limited to, weav- purposes of this part. ing, carving, stitching, sewing, lacing, Article of handicraft means items beading, drawing, and painting. The made by an Indian, Aleut or Eskimo formation of traditional native groups, from the nonedible byproducts of fur such as a cooperative, is permitted so seals taken for personal or family con- long as no large scale mass production sumption which— results. (1) Were commonly produced by Alas- Bona fide scientific research: (1) Means kan Natives on or before October 14, scientific research on marine mammals 1983; conducted by qualified personnel, the (2) Are composed wholly or in some results of which: significant respect of natural materials, and; (i) Likely would be accepted for pub- (3) Are significantly altered from lication in a refereed scientific journal; their natural form and which are pro- (ii) Are likely to contribute to the duced, decorated, or fashioned in the basic knowledge of marine mammal bi- exercise of traditional native handi- ology or ecology. (Note: This includes, crafts without the use of pantographs, for example, marine mammal parts in multiple carvers, or similar mass copy- a properly curated, professionally ac- ing devices. Improved methods of pro- credited scientific collection); or duction utilizing modern implements (iii) Are likely to identify, evaluate, such as sewing machines or modern or resolve conservation problems. tanning techniques at a tannery reg- (2) Research that is not on marine istered pursuant to § 216.23(c) may be mammals, but that may incidentally used so long as no large scale mass pro- take marine mammals, is not included duction industry results. Traditional in this definition (see sections native handicrafts include, but are not 101(a)(3)(A), 101(a)(5)(A), and limited to, weaving, carving, stitching, 101(a)(5)(D) of the MMPA, and sections sewing, lacing, beading, drawing, and 7(b)(4) and 10(a)(1)(B) of the ESA). painting. The formation of traditional Carrying capacity means the Regional native groups, such as a cooperative, is Director’s determination of the max- permitted so long as no large scale imum amount of fish that a vessel can mass production results. carry in short tons based on the great- Assistant Administrator means the As- er of the amount indicated by the sistant Administrator for Fisheries, builder of the vessel, a marine sur- National Marine Fisheries Service, Na- veyor’s report, or the highest amount tional Oceanic and Atmospheric Ad- reported landed from any one trip. ministration, Silver Spring, MD 20910, Certified charter vessel means a fishing or his/her designee. vessel of a non-U.S. flag nation, which Authentic native articles of handicrafts is operating under the jurisdiction of and clothing means items made by an Indian, Aleut or Eskimo which (a) were the marine mammal laws and regula- commonly produced on or before De- tions of another, harvesting, nation by cember 21, 1972, and (b) are composed a formal declaration entered into by wholly or in some significant respect of mutual agreement of the nations. natural materials, and (c) are signifi- Co-investigator means the on-site rep- cantly altered from their natural form resentative of a principal investigator. and which are produced, decorated, or Commercial fishing operation means fashioned in the exercise of traditional the lawful harvesting of fish from the native handicrafts without the use of marine environment for profit as part pantographs, multiple carvers, or simi- of an ongoing business enterprise. Such lar mass copying devices. Improved terms may include licensed com- methods of production utilizing mod- mercial passenger fishing vessel (as de- ern implements such as sewing ma- fined) activities, but no other sport- chines or modern tanning techniques fishing activities, whether or not the at a tannery registered pursuant to fish so caught are subsequently sold.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00008 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.3

Commercial passenger fishing vessel Feeding is offering, giving, or means any vessel licensed for commer- attempting to give food or non-food cial passenger fishing purposes within items to marine mammals in the wild. the State out of which it is operating It includes operating a vessel or pro- and from which, while under charter or viding other platforms from which hire, persons are legally permitted to feeding is conducted or supported. It conduct sportfishing activities. does not include the routine discard of Custody means holding a live marine bycatch during fishing operations or mammal pursuant to the conditional the routine discharge of waste or fish authority granted under the MMPA, byproducts from fish processing plants and the responsibility therein for cap- or other platforms if the discharge is tive maintenance of the marine mam- otherwise legal and is incidental to op- mal. eration of the activity. Declaration of Panama means the dec- First exporter means the person or laration signed in Panama City, Repub- company that first exports the fish or lic of Panama, on October 4, 1995. fish product, or, in the case of ship- Director, Office of Protected Resources means Director, Office of Protected Re- ments that are subject to the labeling sources, National Marine Fisheries requirements of 50 CFR part 247 and Service, 1315 East-West Highway, Sil- that only contain fish harvested by ver Spring, MD 20910. vessels of the United States, the first Dolphin Mortality Limit (DML) means seller of the fish or fish product. the maximum allowable number of in- Fisheries Certificate of Origin means cidental dolphin mortalities per cal- NOAA Form 370, as described in endar year assigned to a vessel, unless § 216.24(f)(5). a shorter time period is specified. Force majeure means forces outside Endangered Species means a species or the vessel operator’s or vessel owner’s subspecies of marine mammal listed as control that could not be avoided by ‘‘endangered’’ pursuant to the Endan- the exercise of due care. gered Species Act of 1973, 87 Stat. 884, FSA means the Fur Seal Act of 1966, Pub. L. 93–205 (see part 17 of this title). as amended, 16 U.S.C. 1151 et seq. ESA means the Endangered Species Fur seal means North Pacific fur seal, Act of 1973, as amended, 16 U.S.C. 1531 scientifically known as Callorhinus et seq. ursinus. ETP means the eastern tropical Pa- Hard part means any bone, tooth, ba- cific Ocean which includes the Pacific leen, treated pelt, or other part of a ° Ocean area bounded by 40 N. latitude, marine mammal that is relatively solid ° ° 40 S. latitude, 160 W. longitude and or durable. the coastlines of North, Central and Harvesting nation means the country South America. under whose flag one or more fishing Facility means, in the context specific vessels are documented, or which has to captive marine mammals,: (1) One or by formal declaration agreed to assert more permanent primary enclosures jurisdiction over one or more certified used to hold marine mammals captive (i.e., pools, lagoons) and associated in- charter vessels, from which vessel(s) frastructure (i.e., equipment and sup- fish are caught that are a part of any plies necessary for the care and main- cargo or shipment of fish to be im- tenance of marine mammals) where ported into the United States, regard- these enclosures are either located less of any intervening transshipments. within the boundaries of a single con- Humane means the method of taking, tiguous parcel of land and water, or are import, export, or other activity which grouped together within the same gen- involves the least possible degree of eral area within which enclosure-to-en- pain and suffering practicable to the closure transport is expected to be animal involved. completed in less than one hour; or Import means to land on, bring into, (2) A traveling display/exhibit, where or introduce into, or attempt to land the enclosure(s) and associated infra- on, bring into, or introduce into, any structure is transported together with place subject to the jurisdiction of the the marine mammals. United States, whether or not such

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00009 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.3 50 CFR Ch. II (10–1–02 Edition)

landing, bringing, or introduction con- that may affect behavior). For captive stitutes an importation within the Cus- animals, this definition does not in- toms laws of the United States; except clude: that, for the purpose of any ban issued (1) A procedure conducted by the pro- under 16 U.S.C. 1371(a)(2) on the impor- fessional staff of the holding facility or tation of fish or fish products, the defi- an attending veterinarian for purposes nition of ‘‘import’’ in § 216.24(f)(1)(ii) of animal husbandry, care, mainte- shall apply. nance, or treatment, or a routine med- Incidental catch means the taking of a ical procedure that, in the reasonable marine mammal (1) because it is di- judgment of the attending veteri- rectly interfering with commercial narian, would not constitute a risk to fishing operations, or (2) as a con- the health or welfare of the captive sequence of the steps used to secure the animal; or fish in connection with commercial (2) A procedure involving either the fishing operations: Provided, That a introduction of a substance or object marine mammal so taken must imme- (i.e., as described in this definition) or diately be returned to the sea with a a stimulus directed at animals that, in minimum of injury and further, that the reasonable judgment of the attend- the taking of a marine mammal, which ing veterinarian, would not involve a otherwise meets the requirements of risk to the health or welfare of the cap- this definition shall not be considered tive animal. an incidental catch of that mammal if Label means a display of written, it is used subsequently to assist in printed, or graphic matter on or affixed commercial fishing operations. to the immediate container of any arti- Intentional purse seine set means that cle. a tuna purse seine vessel or associated Land or landing means to begin off- vessels chase marine mammals and loading any fish, to arrive in port with subsequently make a purse seine set. the intention of offloading fish, or to International Dolphin Conservation cause any fish to be offloaded. Program (IDCP) means the inter- Large-scale driftnet means a gillnet national program established by the that is composed of a panel or panels of agreement signed in La Jolla, Cali- webbing, or a series of such gillnets, fornia, in June 1992, as formalized, with a total length of 2.5 kilometers or modified, and enhanced in accordance more that is used on the high seas and with the Declaration of Panama and allowed to drift with the currents and the Agreement on the IDCP. winds for the purpose of harvesting fish International Dolphin Conservation by entangling the fish in the webbing Program Act (IDCPA) means Public Law of the net. 105–42, enacted into law on August 15, Level A Harassment means any act of 1997. pursuit, torment, or annoyance which International Review Panel (IRP) has the potential to injure a marine means the International Review Panel mammal or marine mammal stock in established by the Agreement on the the wild. IDCP. Level B Harassment means any act of Intrusive research means a procedure pursuit, torment, or annoyance which conducted for bona fide scientific re- has the potential to disturb a marine search involving: A break in or cutting mammal or marine mammal stock in of the skin or equivalent, insertion of the wild by causing disruption of be- an instrument or material into an ori- havioral patterns, including, but not fice, introduction of a substance or ob- limited to, migration, breathing, nurs- ject into the animal’s immediate envi- ing, breeding, feeding, or sheltering but ronment that is likely either to be in- which does not have the potential to gested or to contact and directly affect injure a marine mammal or marine animal tissues (i.e., chemical sub- mammal stock in the wild. stances), or a stimulus directed at ani- Marine environment means the oceans mals that may involve a risk to health and the seas, including estuarine and or welfare or that may have an impact brackish waters. on normal function or behavior (i.e., Marine mammal means those speci- audio broadcasts directed at animals mens of the following orders, which are

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00010 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.3

morphologically adapted to the marine Secretary shall mean the Secretary of environment, whether alive or dead, Commerce or his authorized represent- and any part thereof, including but not ative. limited to, any raw, dressed or dyed fur Serious injury means any injury that or skin: Cetacea (whales and por- will likely result in mortality. poises), Pinnipedia, other than walrus Sexual harassment means any unwel- (seals and sea lions). come sexual advance, request for sex- MMPA means the Marine Mammal ual favors, or other verbal and physical Protection Act of 1972, as amended, 16 conduct of a sexual nature which has U.S.C. 1361 et seq. the purpose or effect of substantially Native village or town means any com- interfering with an individual’s work munity, association, tribe, band, clan performance or creating an intimi- or group. dating, hostile, or offensive working Optimum sustainable population is a environment. population size which falls within a Soft part means any marine mammal range from the population level of a part that is not a hard part. Soft parts given species or stock which is the do not include urine or fecal material. largest supportable within the eco- South Pacific Ocean means any waters system to the population level that re- of the Pacific Ocean that lie south of sults in maximum net productivity. the equator. Maximum net productivity is the Stranded or stranded marine mammal greatest net annual increment in popu- means a marine mammal specimen lation numbers or biomass resulting under the jurisdiction of the Secretary: from additions to the population due to reproduction and/or growth less losses (1) If the specimen is dead, and is on due to natural mortality. a beach or shore, or is in the water Per-stock per-year dolphin mortality within the Exclusive Economic Zone of limit means the maximum allowable the United States; or number of incidental dolphin mortali- (2) If the specimen is alive, and is on ties and serious injuries from a speci- a beach or shore and is unable to re- fied stock per calendar year, as estab- turn to the water, or is in the water lished under the IDCP. within the Exclusive Economic Zone of Pregnant means pregnant near term. the United States where the water is so Pribilovians means Indians, Aleuts, shallow that the specimen is unable to and Eskimos who live on the Pribilof return to its natural habitat under its Islands. own power. Principal investigator means the indi- Subsistence means the use of marine vidual primarily responsible for the mammals taken by Alaskan Natives taking, importation, export, and any for food, clothing, shelter, heating, related activities conducted under a transportation, and other uses nec- permit issued for scientific research or essary to maintain the life of the taker enhancement purposes. or those who depend upon the taker to Public display means an activity that provide them with such subsistence. provides opportunities for the public to Subsistence uses means the customary view living marine mammals at a facil- and traditional uses of fur seals taken ity holding marine mammals captive. by Pribilovians for direct personal or Regional Director means the Director, family consumption as food, shelter, Southwest Region, NMFS, 501 W. Ocean fuel, clothing, tools or transportation; Blvd., Long Beach, CA 90802, or his/her for the making and selling of handi- designee. craft articles out of nonedible byprod- Rehabilitation means treatment of ucts of fur seals taken for personal or beached and stranded marine mammals family consumption; and for barter, or taken under section 109(h)(1) of the sharing for personal or family con- MMPA or imported under section sumption. As used in this definition— 109(h)(2) of the MMPA, with the intent (1) Family means all persons related of restoring the marine mammal’s by blood, marriage, or adoption, or any health and, if necessary, behavioral person living within a household on a patterns. permanent basis.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00011 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.4 50 CFR Ch. II (10–1–02 Edition)

(2) Barter means the exchange of fur Aids section of the printed volume and on seals or their parts, taken for subsist- GPO Access. ence uses— EFFECTIVE DATE NOTES: 1. At 63 FR 66076, (i) For other wildlife or fish or their Dec. 1, 1998, in § 216.3, the definition parts, or Administrator, Southeast Region was added, ef- (ii) For other food or for nonedible fective Jan. 1, 1999 through Sept. 30, 2004. 2. At 64 FR 28120, May 25, 1999, in § 216.3, the items other than money if the ex- definition Administrator, Northeast Region was change is of a limited and noncommer- added, effective July 1, 1999 through June 30, cial nature. 2004. Take means to harass, hunt, capture, collect, or kill, or attempt to harass, § 216.4 Other laws and regulations. hunt, capture, collect, or kill any ma- (a) Federal. Nothing in this part, nor rine mammal. This includes, without any permit issued under authority of limitation, any of the following: The this part, shall be construed to relieve collection of dead animals, or parts a person from any other requirements thereof; the restraint or detention of a imposed by a statute or regulation of marine mammal, no matter how tem- the United States, including any appli- porary; tagging a marine mammal; the cable statutes or regulations relating negligent or intentional operation of to wildlife and fisheries, health, quar- an aircraft or vessel, or the doing of antine, agriculture, or customs. any other negligent or intentional act (b) State laws or regulations. See part which results in disturbing or molest- 403 of this chapter. ing a marine mammal; and feeding or [39 FR 1852, Jan. 15, 1974, as amended at 41 attempting to feed a marine mammal FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, in the wild. 1993] Threatened species means a species of marine mammal listed as ‘‘threatened’’ § 216.5 Payment of penalty. pursuant to the Endangered Species The respondent shall have 30 days Act of 1973, 87 Stat. 884, Pub. L. 93–205. from receipt of the final assessment de- Trip means a voyage starting when a cision within which to pay the penalty vessel leaves port with all fish wells assessed. Upon a failure to pay the pen- empty of fish and ending when a vessel alty, the Secretary may request the unloads all of its fish. Attorney General to institute a civil Tuna product means any food product action in the appropriate United States processed for retail sale and intended District Court to collect the penalty. for human or animal consumption that contains an item listed in [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981] § 216.24(f)(2)(i) or (ii), but does not include perishable items with a shelf life § 216.6 Forfeiture and return of seized of less than 3 days. property. Wasteful manner means any taking or (a) Whenever any cargo or marine method of taking which is likely to re- mammal or marine mammal product sult in the killing of marine mammals has been seized pursuant to section 107 beyond those needed for subsistence, of the MMPA, the Secretary shall expe- subsistence uses, or for the making of dite any proceedings commenced under authentic native articles of handicrafts these regulations. and clothing, or which results in the (b) Whenever a civil penalty has been waste of a substantial portion of the assessed by the Secretary under these marine mammal and includes, without regulations, any cargo, marine mam- limitation, the employment of a meth- mal, or marine mammal product seized od of taking which is not likely to as- pursuant to section 107 of the MMPA sure the capture or killing of a marine shall be subject to forfeiture. If re- mammal, or which is not immediately spondent voluntarily forfeits any such followed by a reasonable effort to re- seized property or the monetary value trieve the marine mammal. thereof without court proceedings, the EDITORIAL NOTE: For FEDERAL REGISTER ci- Secretary may apply the value thereof, tations affecting § 216.3, see the List of Sec- if any, as determined by the Secretary, tions Affected, which appears in the Finding toward payment of the civil penalty.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00012 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.8

(c) Whenever a civil penalty has been cruing 5 days or more after the date of assessed under these regulations, and the return receipt shall be for the ac- whether or not such penalty has been count of the respondent: Provided, That paid, the Secretary may request the if it is the final decision of the Sec- Attorney General to institute a civil retary under these regulations that the action in an appropriate United States respondent has committed the alleged District Court to compel forfeiture of violation, all charges which have ac- such seized property or the monetary crued for the storage, care, or handling value thereof to the Secretary for dis- of the seized property shall be for the position by him in such manner as he account of the respondent. deems appropriate. If no judicial action to compel forfeiture is commenced [39 FR 1852, Jan. 15, 1974. Redesignated at 46 within 30 days after final decision- FR 61652, Dec. 18, 1981, and amended at 59 FR making assessment of a civil penalty, 50375, Oct. 3, 1994] pursuant to § 216.60, such seized property shall immediately be returned to § 216.7 Holding and bonding. the respondent. (a) Any marine mammal, marine (d) If the final decision of the Sec- mammal product, or other cargo seized retary under these regulations is that pursuant to section 107 of the MMPA respondent has committed no violation shall be delivered to the appropriate of the MMPA or of any permit or regu- Regional Director of the National Ma- lations issued thereunder, any marine rine Fisheries Service (see § 201.2 of this mammal, marine mammal product, or title) or his designee, who shall either other cargo seized from respondent in hold such seized property or arrange connection with the proceedings under for the proper handling and care of these regulations, or the bond or other such seized property. monetary value substituted therefor, (b) Any arrangement for the handling shall immediately be returned to the and care of seized property shall be in respondent. writing and shall state the compensa- (e) If the Attorney General com- tion to be paid. Subpart F of 15 CFR mences criminal proceedings pursuant part 904 contains additional procedures to section 105(b) of the MMPA, and that govern seized property that is sub- such proceedings result in a finding that the person accused is not guilty of ject to forfeiture or has been forfeited a criminal violation of the MMPA, the under the MMPA. Secretary may institute proceedings [39 FR 1852, Jan. 15, 1974. Redesignated at 46 for the assessment of a civil penalty FR 61652, Dec. 18, 1981, and amended at 50 FR under this part: Provided, That if no 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] such civil penalty proceedings have been commenced by the Secretary § 216.8 Enforcement officers. within 30 days following the final dis- Enforcement Agents of the National position of the criminal case, any prop- Marine Fisheries Service shall enforce erty seized pursuant to section 107 of the provisions of the MMPA and may the MMPA shall be returned to the re- take any actions authorized by the spondent. MMPA with respect to enforcement. In (f) If any seized property is to be re- addition, the Secretary may utilize, by turned to the respondent, the Regional agreement, the personnel, services, and Director shall issue a letter author- facilities of any other Federal Agency izing such return. This letter shall be for the purposes of enforcing this dispatched to the respondent by reg- MMPA. Pursuant to the terms of sec- istered mail, return receipt requested, and shall identify the respondent, the tion 107(b) of the MMPA, the Secretary seized property, and, if appropriate, the may also designate officers and em- bailee of the seized property. It shall ployees of any State or of any posses- also provide that upon presentation of sion of the United States to enforce the the letter and proper identification, provisions of this MMPA. the seized property is authorized to be [39 FR 1852, Jan. 15, 1974. Redesignated at 46 released. All charges for storage, care, FR 61652, Dec. 18, 1981, and amended at 59 FR or handling of the seized property ac- 50375, Oct. 3, 1994]

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00013 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.11 50 CFR Ch. II (10–1–02 Edition)

Subpart B—Prohibitions (3) Specimen of an endangered or threatened species of marine mammal. § 216.11 Prohibited taking. (4) Specimen taken from a depleted Except as otherwise provided in subspecies or stock of marine mammals, parts C, D, and I of this part 216 or in or part 228 or 229, it is unlawful for: (5) Marine mammal taken in an inhu- (a) Any person, vessel, or conveyance mane manner. subject to the jurisdiction of the (d) It is unlawful to import into the United States to take any marine United States any fish, whether fresh, mammal on the high seas, or frozen, or otherwise prepared, if such (b) Any person, vessel, or conveyance fish was caught in a manner proscribed to take any marine mammal in waters by the Secretary of Commerce for per- or on lands under the jurisdiction of sons subject to the jurisdiction of the the United States, or United States, whether or not any ma- (c) Any person subject to the juris- rine mammals were in fact taken inci- diction of the United States to take dent to the catching of the fish. any marine mammal during the mora- [39 FR 1852, Jan. 15, 1974, as amended at 59 torium. FR 50375, Oct. 3, 1994]

[39 FR 1852, Jan. 15, 1974, as amended at 47 § 216.13 Prohibited uses, possession, FR 21254, May 18, 1982; 54 FR 21921, May 19, transportation, sales, and permits. 1989] It is unlawful for: § 216.12 Prohibited importation. (a) Any person to use any port, har- (a) Except as otherwise provided in bor or other place under the jurisdic- subparts C and D of this part 216, it is tion of the United States for any pur- unlawful for any person to import any pose in any way connected with a pro- marine mammal or marine mammal hibited taking or an unlawful importa- product into the United States. tion of any marine mammal or marine (b) Regardless of whether an importa- mammal product; or tion is otherwise authorized pursuant (b) Any person subject to the juris- to subparts C and D of this part 216, it diction of the United States to possess is unlawful for any person to import any marine mammal taken in violation into the United States any: of the MMPA or these regulations, or (1) Marine mammal: to transport, sell, or offer for sale any (i) Taken in violation of the MMPA, such marine mammal or any marine or mammal product made from any such (ii) Taken in another country in vio- mammal. lation to the laws of that country; (c) Any person subject to the juris- (2) Any marine mammal product if diction of the United States to use in a (i) The importation into the United commercial fishery, any means or States of the marine mammal from method of fishing in contravention of which such product is made would be regulations and limitations issued by unlawful under paragraph (b)(1) of this the Secretary of Commerce for that section, or fishery to achieve the purposes of this (ii) The sale in commerce of such MMPA. product in the country of origin if the (d) Any person to violate any term, product is illegal. condition, or restriction of any permit (c) Except in accordance with an ex- issued by the Secretary. ception referred to in subpart C and [39 FR 1852, Jan. 15, 1974, as amended at 59 §§ 216.31 (regarding scientific research FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May permits only) and 216.32 of this part 216, 10, 1996] it is unlawful to import into the United States any: § 216.14 Marine mammals taken before (1) Marine mammal which was preg- the MMPA. nant at the time of taking. (a) Section 102(e) of the MMPA pro- (2) Marine mammal which was nurs- vides, in effect, that the MMPA shall ing at the time of taking, or less than not apply to any marine mammal 8 months old, whichever occurs later. taken prior to December 21, 1972, or to

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00014 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.16

any marine mammal product, con- be imported unless the requirements of sisting of or composed in whole or in this section have been fulfilled. part of, any marine mammal taken be- (d) This section has no application to fore that date. This prior status of any any marine mammal or marine mam- marine mammal or marine mammal mal product intended to be imported product may be established by submit- pursuant to §§ 216.21, 216.31 or § 216.32. ting to the Director, National Marine Fisheries Service prior to, or at the [39 FR 1852, Jan. 15, 1974, as amended at 59 time of importation, an affidavit con- FR 50375, 50376, Oct. 3, 1994] taining the following: (1) The Affiant’s name and address; § 216.15 Depleted species. (2) Identification of the Affiant; The following species or population (3) A description of the marine mam- stocks have been designated by the As- mals or marine mammal products sistant Administrator as depleted which the Affiant desires to import; under the provisions of the MMPA. (4) A statement by the Affiant that, (a) Hawaiian monk seal (Monachus to the best of his knowledge and belief, schauinslandi). the marine mammals involved in the (b) Bowhead whale (Balaena mystice- application were taken prior to Decem- tus). ber 21, 1972; (c) North Pacific fur seal (Callorhinus (5) A statement by the Affiant in the ursinus). Pribilof Island population. following language: (d) Bottlenose dolphin (Tursiops The foregoing is principally based on the truncatus), coastal-migratory stock attached exhibits which, to the best of my along the U.S. mid-Atlantic coast. knowledge and belief, are complete, true and (e) Eastern spinner dolphin (Stenella correct. I understand that this affidavit is longirostris orientalis). being submitted for the purpose of inducing the Federal Government to permit the im- (f) Northeastern offshore spotted dol- portation of—under the Marine Mammal phin (Stenella attenuata). Protection Act of 1972 (16 U.S.C. 1361 through (g) Cook Inlet, Alaska, stock of 1407) and regulations promulgated there- beluga whales (Delphinapterus leucas). under, and that any false statements may The stock includes all beluga whales subject me to the criminal penalties of 13 occurring in waters of the Gulf of Alas- U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972. ka north of 58° North latitude including, but not limited to, Cook Inlet, (b) Either one of two exhibits shall be Kamishak Bay, Chinitna Bay, Tuxedni attached to such affidavit, and will Bay, Prince William Sound, Yakutat contain either: Bay, Shelikof Strait, and off Kodiak Is- (1) Records or other available evi- land and freshwater tributaries to dence showing that the product con- these waters. sists of or is composed in whole or in part of marine mammals taken prior to [53 FR 17899, May 18, 1988, as amended at 58 the effective date of the MMPA. Such FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, records or other evidentiary material 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, must include information on how, Oct. 3, 1994; 65 FR 34597, May 31, 2000] when, where, and by whom the animals were taken, what processing has taken § 216.16 Prohibitions under the Gen- place since taking, and the date and lo- eral Authorization for Level B harassment for scientific research. cation of such processing; or (2) A statement from a government It shall be unlawful for any person agency of the country of origin exer- to: cising jurisdiction over marine mam- (a) Provide false information in a let- mals that any and all such mammals ter of intent submitted pursuant to from which the products sought to be § 216.45(b); imported were derived were taken prior (b) Violate any term or condition im- to December 21, 1972. posed pursuant to § 216.45(d). (c) No pre-Act marine mammal or pre-Act marine mammal product may [59 FR 50376, Oct. 3, 1994]

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00015 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.21 50 CFR Ch. II (10–1–02 Edition)

Subpart C—General Exceptions captivity until such time as it is able to be returned to its natural habitat. It § 216.21 Actions permitted by inter- shall be permissible to dispose of a car- national treaty, convention, or cass of a marine mammal taken in ac- agreement. cordance with this subsection whether The MMPA and these regulations the animal is dead at the time of tak- shall not apply to the extent that they ing or dies subsequent thereto. are inconsistent with the provisions of (b) Each taking permitted under this any international treaty, convention section shall be included in a written or agreement, or any statute imple- report to be submitted to the Secretary menting the same relating to the tak- every six months beginning December ing or importation of marine mammals 31, 1973. Unless otherwise permitted by or marine mammal products, which the Secretary, the report shall contain was existing and in force prior to De- a description of: cember 21, 1972, and to which the (1) The animal involved; United States was a party. Specifi- (2) The circumstances requiring the cally, the regulations in subpart B of taking; this part and the provisions of the (3) The method of taking; MMPA shall not apply to activities (4) The name and official position of carried out pursuant to the Interim the State official or employee involved; Convention on the Conservation of (5) The disposition of the animal, in- North Pacific Fur Seals signed at cluding in cases where the animal has Washington on February 9, 1957, and been retained in captivity, a descrip- the Fur Seal Act of 1966, 16 U.S.C. 1151 tion of the place and means of confine- through 1187, as in each case, from ment and the measures taken for its time to time amended. maintenance and care; and [39 FR 1852, Jan. 15, 1974, as amended at 59 (6) Such other information as the FR 50376, Oct. 3, 1994] Secretary may require. (c) Salvage of dead stranded marine § 216.22 Taking by State or local gov- mammals or parts therefrom and sub- ernment officials. sequent transfer. (a) A State or local government offi- (1) Salvage. In the performance of of- cial or employee may take a marine ficial duties, a state or local govern- mammal in the normal course of his ment employee; an employee of the Na- duties as an official or employee, and tional Marine Fisheries Service, the no permit shall be required, if such U.S. Fish and Wildlife Service, or any taking: other Federal agency with jurisdiction (1) Is accomplished in a humane man- and conservation responsibilities in ner; marine shoreline areas; or a person au- (2) Is for the protection or welfare of thorized under 16 U.S.C. 1382(c) may such mammal or for the protection of take and salvage a marine mammal the public health or welfare; and specimen if it is stranded and dead or it (3) Includes steps designed to insure was stranded or rescued and died dur- return of such mammal, if not killed in ing treatment, transport, captivity or the course of such taking, to its nat- other rehabilitation subsequent to that ural habitat. In addition, any such offi- stranding or distress if salvage is for cial or employee may, incidental to the purpose of utilization in scientific such taking, possess and transport, but research or for the purpose of mainte- not sell or offer for sale, such mammal nance in a properly curated, profes- and use any port, harbor, or other place sionally accredited scientific collec- under the jurisdiction of the United tion. States. All steps reasonably prac- (2) Registration. A person salvaging a ticable under the circumstances shall dead marine mammal specimen under be taken by any such employee or offi- this section must register the salvage cial to prevent injury or death to the of the specimen with the appropriate marine mammal as the result of such Regional Office of the National Marine taking. Where the marine mammal in Fisheries Service within 30 days after question is injured or sick, it shall be the taking or death occurs. The reg- permissible to place it in temporary istration must include:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00016 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.22

(i) The name, address, and any offi- sionally accredited scientific collec- cial position of the individual engaged tion, or for educational purposes; in the taking and salvage; (iv) The unique number assigned by (ii) A description of the marine mam- the National Marine Fisheries Service mal specimen salvaged including the is on, marked on, or affixed to the ma- scientific and common names of the rine mammal specimen or container; species; and (iii) A description of the parts (v) Except as provided under para- salvaged; graph (c)(8) of this section, the person (iv) The date and the location of the transferring the marine mammal speci- taking; men notifies the appropriate Regional (v) Such other information as deemed Office of the National Marine Fisheries necessary by the Assistant Adminis- Service of the transfer, including noti- trator. fication of the number of the specimen (3) Identification and curation. The Re- transferred and the person to whom the gional Director will assign a single specimen was transferred, within 30 unique number to each carcass, and the days after the transfer occurs. parts thereof, that are salvaged under (6) Other transfers within the United the provisions of this section. The per- States. Except as provided under para- son who salvaged the specimen may graphs (c)(5) and (c)(8) of this section, a designate the number to be assigned. person who salvages a marine mammal After this number is assigned, the per- specimen, or who has received a marine son who salvaged the specimen must mammal specimen under the provi- permanently mark that number on sions of this section, may not transfer each separate hard part of that speci- that specimen to another person within men and must affix that number with the United States unless the Regional tags or labels to each soft part of that Director of the appropriate Regional specimen or the containers in which Office of the National Marine Fisheries that soft part is kept. Each specimen Service grants prior written authoriza- salvaged under this section must be curated in accordance with profes- tion for the transfer. The Regional Di- sional standards. rector may grant authorization for the (4) No sale or commercial trade. No per- transfer if there is evidence that the son may sell or trade for commercial conditions listed under paragraphs purposes any marine mammal speci- (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this men salvaged under this section. section are met. (5) Transfer without prior authoriza- (7) Tranfers outside of the United tion. A person who salvages a marine States. A person who salvages a marine mammal specimen under this section mammal specimen, or a person who has may transfer that specimen to another received a marine mammal specimen person if: under the provisions of this section, (i) The person transferring the ma- may not transfer that specimen to a rine mammal specimen does not re- person outside of the United States un- ceive remuneration for the specimen; less the Assistant Administrator (ii) The person receiving the marine grants prior written authorization for mammal specimen is an employee of the transfer. The Assistant Adminis- the National Marine Fisheries Service, trator may grant authorization for the the U.S. Fish and Wildlife Service, or transfer if there is evidence that the any other Federal agency with jurisdic- conditions listed under paragraphs tion and conservation responsibilities (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this in marine shoreline areas; is a person section are met. authorized under 16 U.S.C. 1382(c); or is (8) Exceptions to requirements for notifi- a person who has received prior author- cation or prior authorization. A person ization under paragraph (c)(6) of this may transfer a marine mammal speci- section; men salvaged under this section with- (iii) The marine mammal specimen is out the notification required in para- transferred for the purpose of scientific graph (c)(5)(v) of this section or the research, for the purpose of mainte- prior authorization required in para- nance in a properly curated, profes- graph (c)(6) of this section if:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00017 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.23 50 CFR Ch. II (10–1–02 Edition)

(i) The transfer is a temporary trans- istered under paragraph (c) of this sec- fer to a laboratory or research facility tion for the purpose of processing, and within the United States so that anal- will be returned directly or through a yses can be performed for the person registered agent to the Indian, Aleut or salvaging the specimen; or Eskimo; or (ii) The transfer is a loan of not more (ii) It is sold or transferred to a reg- than 1 year to another professionally istered agent for resale or transfer to accredited scientific collection within an Indian, Aleut, or Eskimo; or the United States. (iii) It has first been transformed [39 FR 1852, Jan. 15, 1974, as amended at 56 into an authentic native article of FR 41307, Aug. 20, 1991] handicraft or clothing; or (iv) It is an edible portion and sold § 216.23 Native exceptions. (A) in an Alaskan Native village or (a) Taking. Notwithstanding the pro- town, or (B) to an Alaskan Native for hibitions of subpart B of this part 216, his consumption. but subject to the restrictions con- (c) Any tannery, or person who wish- tained in this section, any Indian, es to act as an agent, within the juris- Aleut, or Eskimo who resides on the diction of the United States may apply coast of the North Pacific Ocean or the to the Director, National Marine Fish- Arctic Ocean may take any marine eries Service, U.S. Department of Com- mammal without a permit, if such tak- merce, Washington, DC 20235, for reg- ing is: istration as a tannery or an agent (1) By Alaskan Natives who reside in which may possess and process marine Alaska for subsistence, or mammal products for Indians, Aleuts, (2) For purposes of creating and sell- or Eskimos. The application shall ining authentic native articles of handi- clude the following information: craft and clothing, and (i) The name and address of the appli- (3) In each case, not accomplished in cant; a wasteful manner. (ii) A description of the applicant’s (b) Restrictions. (1) No marine mam- procedures for receiving, storing, proc- mal taken for subsistence may be sold essing, and shipping materials; or otherwise transferred to any person (iii) A proposal for a system of book- other than an Alaskan Native or deliv- keeping and/or inventory segregation ered, carried, transported, or shipped in by which the applicant could maintain interstate or foreign commerce, unless: accurate records of marine mammals (i) It is being sent by an Alaskan Na- received from Indians, Aleuts, or Eski- tive directly or through a registered mos pursuant to this section; agent to a tannery registered under (iv) Such other information as the paragraph (c) of this section for the Secretary may request; purpose of processing, and will be re- (v) A certification in the following turned directly or through a registered language: agent to the Alaskan Native; or I hereby certify that the foregoing infor- (ii) It is sold or transferred to a reg- mation is complete, true and correct to the istered agent in Alaska for resale or best of my knowledge and belief. I under- transfer to an Alaskan Native; or stand that this information is submitted for (iii) It is an edible portion and it is the purpose of obtaining the benefit of an ex- sold in an Alaskan Native village or ception under the Marine Mammal Protec- town. tion Act of 1972 (16 U.S.C. 1361 through 1407) (2) No marine mammal taken for pur- and regulations promulgated thereunder, and poses of creating and selling authentic that any false statement may subject me to native articles of handicraft and cloth- the criminal penalties of 18 U.S.C. 1001, or to penalties under the Marine Mammal Protec- ing may be sold or otherwise trans- tion Act of 1972. ferred to any person other than an In- dian, Aleut or Eskimo, or delivered, (vi) The signature of the applicant. carried, transported or shipped in The sufficiency of the application shall interstate or foreign commerce, unless: be determined by the Secretary, and in (i) It is being sent by an Indian, that connection, he may waive any re- Aleut or Eskimo directly or through a quirement for information, or require registered agent to a tannery reg- any elaboration or further information

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00018 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

deemed necessary. The registration of with the date, time, and location of a tannery or other agent shall be sub- harvest within the container in which ject to such conditions as the Sec- the jawbone is placed. The jawbone(s) retary prescribes, which may include, must be retained by the whaling cap- but are not limited to, provisions retain or vessel operator and delivered to garding records, inventory segregation, NMFS at the Anchorage Field Office, reports, and inspection. The Secretary 222 West 7th Avenue, Anchorage, Alaska may charge a reasonable fee for proc- 99513 within 72 hours of returning from essing such applications, including an the hunt. appropriate apportionment of overhead (3) Reporting. Upon delivery to NMFS and administrative expenses of the De- of a jawbone, the whaling captain or partment of Commerce. vessel operator must complete and (d) Notwithstanding the preceding mail a reporting form, available from provisions of this section, whenever, NMFS, to the NMFS Anchorage Field under the MMPA, the Secretary deter- Office within 30 days. A separate form mines any species of stock of marine mammals to be depleted, he may pre- is required for each whale harvested. scribe regulations pursuant to section (i) To be complete, the form must 103 of the MMPA upon the taking of contain the following information: the such marine animals by any Indian, date and location of kill, the method of Aleut, or Eskimo and, after promulga- harvest, and the coloration of the tion of such regulations, all takings of whale. The respondent will also be in- such marine mammals shall conform vited to report on any other observa- to such regulations. tions concerning the animal or cir- (e) Marking and reporting of Cook Inlet cumstance of the harvest. Beluga Whales. (1) Definitions. In addi- (ii) Data collected pursuant to para- tion to definitions contained in the graph (e) of this section will be re- MMPA and the regulations in this part: ported on forms obtained from the An- (i) Reporting means the collection and chorage Field Office. These data will be delivery of biological data, harvest maintained in the NMFS Alaska Re- data, and other information regarding gional Office in Juneau, Alaska, where the effect of taking a beluga whale such data will be available for public (Delphinapterus leucas) from Cook Inlet, review. as required by NMFS. (4) No person may falsify any infor- (ii) Whaling captain or vessel operator mation required to be set forth on the means the individual who is identified reporting form as required by para- by Alaskan Natives as the leader of graph (e) of this section. each hunting team (usually the other (5) The Anchorage Field Office of crew on the boat) and who is the whal- NMFS is located in room 517 of the ing captain; or the individual operating Federal Office Building, 222 West 7th Av- the boat at the time the whale is har- enue; its mailing address is: NMFS, vested or transported to the place of processing. Box 43, Anchorage, AK. 99513. (iii) Cook Inlet means all waters of [39 FR 1852, Jan. 15, 1974, as amended at 59 Cook Inlet north of 59° North latitude, FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, including, but not limited to, waters of 1999] Kachemak Bay, Kamishak Bay, Chinitna Bay, and Tuxedni Bay. § 216.24 Taking and related acts inci- (2) Marking. Each whaling captain or dental to commercial fishing oper- vessel operator, upon killing and land- ations by tuna purse seine vessels ing a beluga whale (Delphinapterus in the eastern tropical Pacific Ocean. leucas) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving (a)(1) No marine mammal may be the teeth intact and in place. When taken in the course of a commercial multiple whales are harvested during fishing operation by a United States one hunting trip, the jawbones will be purse seine fishing vessel in the ETP marked for identification in the field unless the taking constitutes an inci- to ensure correct reporting of harvest dental catch as defined in § 216.3, and information by placing a label marked vessel and operator permits have been

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

obtained in accordance with these reg- west Region, the permit will not be re- ulations, and such taking is not in vio- turned and a new permit will not be lation of such permits or regulations. issued before the end of the calendar (2)(i) It is unlawful for any person year. Vessel permits are valid through using a United States purse seine fish- December 31 of each year. ing vessel of 400 short tons (st) (362.8 (2) Operator permit. The person in metric tons (mt)) carrying capacity or charge of and actually controlling fish- less to intentionally deploy a net on or ing operations (hereinafter referred to to encircle dolphins, or to carry more as the operator) on a United States than two speedboats, if any part of its purse seine fishing vessel engaged in fishing trip is in the ETP. commercial fishing operations under a (ii) It is unlawful for any person vessel permit must possess a valid op- using a United States purse seine fishing vessel of greater than 400 short tons erator permit issued under paragraph (362.8 mt) carrying capacity that does (b) of this section. Such permits are not have a valid permit obtained under not transferable and must be renewed these regulations to catch, possess, or annually. To receive a permit, the op- land tuna if any part of the vessel’s erator must have satisfactorily com- fishing trip is in the ETP. pleted all required training under para- (iii) It is unlawful for any person sub- graph (c)(4) of this section. The opera- ject to the jurisdiction of the United tor’s permit is valid only when the per- States to receive, purchase, or possess mit holder is on a vessel with a valid tuna caught, possessed, or landed in vessel permit. Operator permits will be violation of paragraph (a)(2)(ii) of this valid through December 31 of each section. year. (iv) It is unlawful for a person subject (3) Possession and display. A valid ves- to the jurisdiction of the United States sel permit issued pursuant to para- to intentionally deploy a purse seine graph (b)(1) of this section must be on net on, or to encircle, dolphins from a board the vessel while engaged in fish- vessel operating in the ETP when the ing operations, and a valid operator DML assigned to that vessel has been permit issued pursuant to paragraph reached, or when there is not a DML (b)(2) of this section must be in the pos- assigned to that vessel. session of the operator to whom it was (3) Upon written request made in ad- issued. Permits must be shown upon re- vance of entering the ETP, the limita- quest to NMFS enforcement agents, or tions in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may be waived to U.S. Coast Guard officers, or to des- by the Administrator, Southwest Re- ignated agents of NMFS or the IATTC gion, for the purpose of allowing tran- (including observers). A vessel owner or sit through the ETP. The waiver will operator who is at sea on a fishing trip provide, in writing, the terms and con- when his or her permit expires and to ditions under which the vessel must op- whom a permit for the next year has erate, including a requirement to re- been issued may take marine mammals port by radio to the Administrator, under the terms of the new permit Southwest Region, the vessel’s date of without having to display it on board exit from or subsequent entry into the the vessel until the vessel returns to permit area. port. (b) Permits—(1) Vessel permit. The (4) Application for vessel permit. The owner or managing owner of a United owner or managing owner of a purse States purse seine fishing vessel of seine vessel may apply for a vessel per- greater than 400 st (362.8 mt) carrying mit from the Administrator, South- capacity that participates in commer- west Region, allowing at least 45 days cial fishing operations in the ETP must for processing. The application must be possess a valid vessel permit issued signed by the applicant and contain: under this paragraph (b) of this sec- (i) The name, official number, ton- tion. This permit is not transferable nage, carrying capacity in short or and must be renewed annually. If a vessel permit holder surrenders his/her metric tons, maximum speed in knots, permit to the Administrator, South- processing equipment, and type and

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

quantity of gear, including an inven- time if a different fee is determined in tory of equipment required under para- accordance with the NOAA Finance graph (c)(2) of this section if the appli- Handbook and specified by the Admin- cation is for purse seining involving istrator, Southwest Region, on the ap- the intentional taking of marine mam- plication form. mals, of the vessel that is to be covered (iii) Observer placement fee. The vessel under the permit; permit holder must submit the fee for (ii) A statement of whether the vessel the placement of observers, as estab- will make sets involving the inten- lished by the IATTC or other approved tional taking of marine mammals; observer program, to the Adminis- (iii) The type and identification num- trator, Southwest Region, by Sep- ber(s) of Federal, State, and local com- tember 1 of the year prior to the year mercial fishing licenses under which in which the vessel will be operated in vessel operations are conducted, and the ETP. The Administrator, South- the dates of expiration; west Region, will forward all observer (iv) The name(s) of the operator(s) placement fees to the IATTC or to the anticipated to be used; and applicable international organization (v) The name of the applicant, wheth- approved by the Administrator, South- er he/she is the owner or the managing west Region. owner, his/her address, telephone and (7) Application approval. The Adminis- fax numbers, and, if applicable, the trator, Southwest Region, will deter- name, address, telephone and fax num- mine the adequacy and completeness of bers of the agent or organization act- an application and, upon determining ing on behalf of the vessel. that an application is adequate and (5) Application for operator permit. A complete, will approve that application person wishing to operate a purse seine and issue the appropriate permit, ex- vessel may apply for an operator per- cept for applicants having unpaid or mit from the Administrator, South- overdue civil penalties, criminal fines, west Region, allowing at least 45 days or other liabilities incurred in a legal for processing. The application must be proceeding. signed by the applicant or the appli- (8) Conditions applicable to all per- cant’s representative, if applicable, and mits— (i) General Conditions. Failure to contain: comply with the provisions of a permit (i) The name, address, telephone and or with these regulations may lead to fax numbers of the applicant; suspension, revocation, modification, (ii) The type and identification num- or denial of a permit. The permit hold- ber(s) of any Federal, state, and local er, vessel, vessel owner, operator, or fishing licenses held by the applicant; master may be subject, jointly or sev- (iii) The name of the vessel(s) on erally, to the penalties provided for which the applicant anticipates serving under the MMPA. Procedures gov- as an operator; and erning permit sanctions and denials are (iv) The date, location, and provider found at subpart D of 15 CFR part 904. of any training for the operator permit. (ii) Observer placement. By obtaining a (6) Fees. (i) Vessel permit application permit, the permit holder consents to fees. An application for a permit under the placement of an observer on the paragraph (b)(1) of this section must vessel during every trip involving oper- include a fee for each vessel as speci- ations in the ETP and agrees to pay- fied on the application form. The As- ment of the fees for observer place- sistant Administrator may change the ment. No observer will be assigned to a amount of this fee at any time if a dif- vessel unless that vessel owner has sub- ferent fee is determined in accordance mitted payment of observer fees to the with the NOAA Finance Handbook and Administrator, Southwest Region. The specified by the Administrator, South- observers may be placed under an ob- west Region, on the application form. server program of NMFS, IATTC, or (ii) Operator permit fee. There is no fee another international observer pro- for a operator permit under paragraph gram approved by the IDCP and the (b)(2) of this section. The Assistant Ad- Administrator, Southwest Region. ministrator may impose a fee or (iii) Explosives. The use of explosive change the amount of this fee at any devices is prohibited during all tuna

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

purse seine operations that involve ma- only under the immediate direction of rine mammals. the holder of a valid operator’s permit. (iv) Reporting requirements. (A) The (2) No retention of Marine Mammals. vessel permit holder of each permitted Except as otherwise authorized by a vessel must notify the Administrator, specific permit, marine mammals inci- Southwest Region or the IATTC con- dentally taken must be immediately tact designated by the Administrator, returned to the ocean without further Southwest Region, at least 5 days in injury. The operator of a purse seine advance of the vessel’s departure on a vessel must take every precaution to fishing voyage to allow for observer refrain from causing or permitting in- placement on every voyage. cidental mortality or serious injury of (B) The vessel permit holder must no- marine mammals. Live marine mam- tify the Administrator, Southwest Re- mals must not be brailed, sacked up, or gion, or the IATTC contact designated hoisted onto the deck during ortza re- by the Administrator, Southwest Re- trieval. gion, of any change of vessel operator (3) Gear and equipment required for at least 48 hours prior to departing on valid permit. A vessel possessing a ves- a trip. In the case of a change in oper- sel permit for purse seining involving ator due to an emergency, notification the intentional taking of marine mam- must be made within 72 hours of the mals may not engage in fishing oper- change. ations involving the intentional de- (v) Data release. By using a permit, ployment of the net on or encirclement the permit holder authorizes the re- of dolphins unless it is equipped with a lease to NMFS and the IATTC of all dolphin safety panel in its purse seine, data collected by observers aboard has the other required gear and equip- purse seine vessels during fishing trips ment, and uses the required proce- under the IATTC observer program or dures. another international observer pro- (i) Dolphin safety panel. The dolphin gram approved by the Administrator, safety panel must be a minimum of 180 Southwest Region. The permit holder fathoms in length (as measured before must furnish the international ob- installation), except that the minimum server program with all release forms length of the panel in nets deeper than required to authorize the observer data 18 strips must be determined in a ratio to be provided to NMFS and the of 10 fathoms in length for each strip of IATTC. Data obtained under such re- net depth. It must be installed so as to leases will be used for the same pur- protect the perimeter of the backdown poses as would data collected directly area. The perimeter of the backdown by observers placed by NMFS and will area is the length of corkline that be- be subject to the same standards of gins at the outboard end of the last confidentiality. bowbunch pulled and continues to at (9) Mortality and serious injury reports. least two-thirds the distance from the The Administrator, Southwest Region, backdown channel apex to the stern will provide to the public periodic sta- tiedown point. The dolphin safety tus reports summarizing the estimated panel must consist of small mesh web- incidental dolphin mortality and seri- bing not to exceed 1 1/4 inches (3.18 cen- ous injury by U.S. vessels of individual timeter (cm)) stretch mesh extending species and stocks. downward from the corkline and, if (c) Purse seining by vessels with DMLs. present, the base of the dolphin apron In addition to the terms and conditions to a minimum depth equivalent to two set forth in paragraph (b) of this sec- strips of 100 meshes of 4 1/4 inches (10.80 tion, any permit for a vessel to which cm) stretch mesh webbing. In addition, a DML has been assigned under para- at least a 20-fathom length of corkline graph (c)(8) of this section and any op- must be free from bunchlines at the erator permit when used on such a ves- apex of the backdown channel. sel are subject to the following terms (ii) Dolphin safety panel markers. Each and conditions: end of the dolphin safety panel and dol- (1) A vessel may be used to chase and phin apron must be identified with an encircle schools of dolphins in the ETP easily distinguishable marker.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

(iii) Dolphin safety panel hand holds. specified by the Administrator, South- Throughout the length of the corkline west Region. The vessel permit holder under which the dolphin safety panel must notify the Administrator, South- and dolphin apron are located, hand west Region, of any net modification at hold openings must be secured so that least 5 days prior to departure of the they will not allow the insertion of a 1 vessel in order to determine whether a 3/8 inch (3.50 cm) diameter cylindrical- reinspection or trial set/net alignment shaped object. is required. (iv) Dolphin safety panel corkline (iii) Upon failure to pass an inspec- hangings. Throughout the length of the tion or reinspection, a vessel may not corkline under which the dolphin safe- engage in purse seining involving the ty panel and dolphin apron are located, intentional taking of marine mammals corkline hangings must be inspected by until the deficiencies in gear or equip- the vessel operator following each trip. ment are corrected as required by Hangings found to have loosened to the NMFS. extent that a cylindrical object with a (5) Operator permit holder training re- 1 3/8 inch (3.50 cm) diameter can be in- quirements. An operator must maintain serted between the cork and corkline proficiency sufficient to perform the hangings, must be tightened so as not procedures required herein, and must to allow the insertion of a cylindrical attend and satisfactorily complete a object with a 1 3/8 inch (3.50 cm) diame- formal training session approved by ter. the Administrator, Southwest Region, (v) Speedboats. A minimum of three in order to obtain his or her permit. At speedboats in operating condition must the training session an attendee will be be carried. All speedboats carried instructed on the relevant provisions aboard purse seine vessels and in oper- and regulatory requirements of the ating condition must be rigged with MMPA and the IDCP, and the fishing tow lines and towing bridles or towing gear and techniques that are required posts. Speedboat hoisting bridles may for, or will contribute to, reducing seri- not be substituted for towing bridles. ous injury and mortality of dolphin in- (vi) Raft. A raft suitable to be used as cidental to purse seining for tuna. Op- a dolphin observation-and-rescue plat- erators who have received a written form must be carried. certificate of satisfactory completion (vii) Face mask and snorkel, or view of training and who possess a current box. At least two face masks and snor- or previous calendar year permit will kels or view boxes must be carried. not be required to attend additional (viii) Lights. The vessel must be formal training sessions unless there equipped with lights capable of pro- are substantial changes in the relevant ducing a minimum of 140,000 lumens of provisions or implementing regulations output for use in darkness to ensure of the MMPA or the IDCP, or in fishing sufficient light to observe that proce- gear and techniques. Additional train- dures for dolphin release are carried ing may be required for any operator out and to monitor incidental dolphin who is found by the Administrator, mortality. Southwest Region, to lack proficiency (4) Vessel inspection—(i) Annual. At in the required fishing procedures or least once during each calendar year, familiarity with the relevant provi- purse seine nets and other gear and sions or regulations of the MMPA or equipment required under § 216.24(c)(2) the IDCP. must be made available for inspection (6) Marine mammal release require- and for a trial set/net alignment by an ments. All operators must use the fol- authorized NMFS inspector or IATTC lowing procedures during all sets in- staff as specified by the Administrator, volving the incidental taking of marine Southwest Region, in order to obtain a mammals in association with the cap- vessel permit. ture and landing of tuna. (ii) Reinspection. Purse seine nets and (i) Backdown procedure. Backdown other gear and equipment required by must be performed following a purse these regulations must be made avail- seine set in which dolphins are capable for reinspection by an authorized tured in the course of catching tuna, NMFS inspector or IATTC staff as and must be continued until it is no

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

longer possible to remove live dolphins channel apex to the stern tiedown from the net by this procedure. At point. least one crewman must be deployed (7) Experimental fishing operations. during backdown to aid in the release The Administrator, Southwest Region, of dolphins. Thereafter, other release may authorize experimental fishing op- procedures required will be continued erations, consistent with the provi- so that all live dolphins are released sions of the IDCP, for the purpose of prior to the initiation of the sack-up testing proposed improvements in fish- procedure. ing techniques and equipment that (ii) Prohibited use of sharp or pointed may reduce or eliminate dolphin mor- instrument. The use of a sharp or point- tality or serious injury, or do not re- ed instrument to remove any marine quire the encirclement of dolphins in mammal from the net is prohibited. the course of fishing operations. The (iii) Sundown sets prohibited. On every Administrator, Southwest Region, may set encircling dolphin, the backdown waive, as appropriate, any requirements of this section except DMLs and procedure must be completed no later the obligation to carry an observer. than one-half hour after sundown, ex- (i) A vessel permit holder may apply cept as provided here. For the purpose to the Administrator, Southwest Re- of this section, sundown is defined as gion, for an experimental fishing oper- the time at which the upper edge of the ation waiver allowing for processing no sun disappears below the horizon or, if less than 90 days before the date the the view of the sun is obscured, the proposed operation is intended to local time of sunset calculated from ta- begin. An application must be signed bles developed by the U.S. Naval Ob- by the permitted operator and contain: servatory or other authoritative source (A) The name(s) of the vessel(s) and approved by the Administrator, South- the vessel permit holder(s) to partici- west Region. A sundown set is a set in pate; which the backdown procedure has not (B) A statement of the specific vessel been completed and rolling the net to gear and equipment or procedural re- sack-up has not begun within one-half quirement to be exempted and why hour after sundown. Should a set ex- such an exemption is necessary to con- tend beyond one-half hour after sun- duct the experiment; down, the operator must use the re- (C) A description of how the proposed quired marine mammal release proce- modification to the gear and equip- dures including the use of the high in- ment or procedures is expected to re- tensity lighting system. In the event a duce incidental mortality or serious in- sundown set occurs where the seine jury of marine mammals; skiff was let go 90 or more minutes be- (D) A description of the applicability fore sundown, and an earnest effort to of this modification to other purse rescue dolphins is made, the Inter- seine vessels; national Review Panel of the IDCP (E) The planned design, time, dura- may recommend to the United States tion, and general area of the experi- that in the view of the International mental operation; Review Panel, prosecution by the (F) The name(s) of the permitted op- United States is not recommended. erator(s) of the vessel(s) during the ex- Any such recommendation will be con- periment; and sidered by the United States in evalu- (G) A statement of the qualifications ating the appropriateness of prosecu- of the individual or company doing the tion in a particular circumstance. analysis of the research. (iv) Dolphin safety panel. During (ii) The Administrator, Southwest backdown, the dolphin safety panel Region, will acknowledge receipt of the must be positioned so that it protects application and, upon determining that the perimeter of the backdown area. it is complete, will publish a notice in The perimeter of the backdown area is the FEDERAL REGISTER summarizing the length of corkline that begins at the application, making the full appli- the outboard end of the last bow bunch cation available for inspection and in- pulled and continues to at least two- viting comments for a minimum period thirds the distance from the backdown of 30 days from the date of publication.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

(iii) The Administrator, Southwest the owner intends to use to inten- Region, after considering the informa- tionally deploy purse seine fishing nets tion in the application and the com- in the ETP to encircle dolphins in an ments received on it, will either issue a effort to capture tuna during the pe- waiver to conduct the experiment riod. NMFS will forward the list of which includes restrictions or condi- purse seine vessels to the Director of tions deemed appropriate, or deny the the IATTC on or before October 1, or as application, giving the reasons for de- otherwise required under the IDCP, for nial. possible assignment of a DML for the 6- (iv) A waiver for an experimental month period July 1 to December 31. fishing operation will be valid only for Under the IDCP, the DML will be cal- the vessels and operators named in the culated by the IDCP from any unuti- permit, for the time period and areas lized pool of DMLs in accordance with specified, for trips carrying an observer the procedure described in Annex IV of designated by the Administrator, the Agreement on the IDCP and will Southwest Region, when all the terms not exceed one-third of an unadjusted and conditions of the permit are met. full-year DML as calculated by the (v) The Administrator, Southwest IDCP. Region, may suspend or revoke an ex- (iii)(A) The Administrator, South- perimental fishing waiver in accord- west Region, will notify vessel owners ance with 15 CFR part 904 if the terms of the DML assigned for each vessel for and conditions of the waiver or the pro- the following year, or the second half visions of the regulations are not fol- of the year, as applicable. lowed. (B) The Administrator, Southwest (8) Operator permit holder performance Region, may adjust the DMLs in ac- requirements. [Reserved] cordance with Annex IV of the Agree- (9) Vessel permit holder dolphin mor- ment on the IDCP. All adjustments of tality limits. For purposes of this para- full-year DMLs will be made before graph, the term ‘‘vessel permit holder’’ January 1, and the Administrator, includes both the holder of a current Southwest Region, will notify the Di- vessel permit and also the holder of a rector of the IATTC of any adjust- vessel permit for the following year. ments prior to a vessel departing on a (i) By September 1 each year, a vessel trip using its adjusted DML. The noti- permit holder desiring a DML for the fication will be no later than February following year must provide to the Ad- 1 in the case of adjustments to full- ministrator, Southwest Region, the year DMLs, and no later than May 1 in name of the United States purse seine the case of adjustments to DMLs for fishing vessel(s) of carrying capacity the second half of the year. greater than 400 st (362.8 mt) carrying (C) Within the requirements of Annex capacity that the owner intends to use IV of the Agreement on the IDCP, the to intentionally deploy purse seine Administrator, Southwest Region, may fishing nets in the ETP to encircle dol- adjust a vessel’s DML if it will further phins in an effort to capture tuna dur- scientific or technological advance- ing the following year. NMFS will for- ment in the protection of marine mam- ward the list of purse seine vessels to mals in the fishery or if the past per- the Director of the IATTC on or before formance of the vessel indicates that October 1, or as otherwise required by the protection or use of the yellowfin the IDCP, for assignment of a DML for tuna stocks or marine mammals is best the following year under the provisions served by the adjustment, within the of Annex IV of the Agreement on the mandates of the MMPA. Experimental IDCP. fishing operation waivers or scientific (ii) Each vessel permit holder that research permits will be considered a desires a DML only for the period be- basis for adjustments. tween July 1 to December 31 must pro- (iv)(A) A vessel assigned a full-year vide the Administrator, Southwest Re- DML that does not make a set on dol- gion, by September 1 of the prior year, phins by April 1 or that leaves the fish- the name of the United States purse ery will lose its DML for the remainder seine fishing vessel(s) of greater than of the year, unless the failure to set on 400 st (362.8 mt) carrying capacity that dolphins is due to force majeure or other

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

extraordinary circumstances as deter- the Director of the IATTC for proc- mined by the International Review essing in accordance with Annex IV of Panel. the Agreement on the IDCP. A per-trip (B) A vessel assigned a DML for the DML will be assigned if one is made second half of the year will be consid- available in accordance with the terms ered to have lost its DML if the vessel of Annex IV of the IDCP. If a vessel as- has not made a set on dolphins before signed a per-trip DML does not set on December 31, unless the failure to set dolphins during that trip, the vessel on dolphins is due to force majeure or will be considered to have lost its DML extraordinary circumstances as deter- unless this was a result of force majeure mined by the International Review or other extraordinary circumstances Panel. as determined by the International Re- (C) Any vessel that loses its DML for view Panel. After two consecutive 2 consecutive years will not be eligible losses of a DML, a vessel will not be el- to receive a DML for the following igible to receive a DML for the next year. fishing year. (D) NMFS will determine, based on (vii) Observers will make their available information, whether a vessel records available to the vessel operator has left the fishery. at any reasonable time, including after (1) A vessel lost at sea, undergoing each set, in order for the operator to extensive repairs, operating in an monitor the balance of the DML(s) re- ocean area other than the ETP, or for maining for use. which other information indicates will (viii) Vessel and operator permit no longer be conducting purse seine op- holders must not deploy a purse seine erations in the ETP for the remainder net on or encircle any school of dol- of the period covered by the DML will phins containing individuals of a par- be determined to have left the fishery. ticular stock of dolphins: (2) NMFS will make all reasonable ef- (A) When the applicable per-stock forts to determine the intentions of the per-year dolphin mortality limit for vessel owner, and the owner of any vessel that has been preliminarily deter- that stock of dolphins (or for that ves- mined to have left the fishery will be sel, if so assigned) has been reached or provided notice of such preliminary de- exceeded; or termination and given the opportunity (B) After the time and date provided to provide information on whether the in actual notification or notification in vessel has left the fishery prior to the FEDERAL REGISTER by the Adminis- NMFS making a final determination trator, Southwest Region, based upon under 15 CFR part 904 and notifying the the best available evidence, stating IATTC. when any applicable per-stock per-year (v) Any vessel that exceeds its as- dolphin mortality limit has been signed DML after any applicable ad- reached or exceeded, or is expected to justment under paragraph (c)(8)(iii) of be reached in the near future. this section will have its DML for the (ix) If individual dolphins belonging subsequent year reduced by 150 percent to a stock that is prohibited from being of the overage, unless another adjust- taken are not reasonably observable at ment is determined by the Inter- the time the net skiff attached to the national Review Panel. net is released from the vessel at the (vi) A vessel that is covered by a start of a set, the fact that individuals valid vessel permit and that does not of that stock are subsequently taken normally fish for tuna in the ETP but will not be cause for enforcement ac- desires to participate in the fishery on tion provided that all procedures re- a limited basis may apply for a per-trip quired by the applicable regulations DML from the Administrator, South- have been followed. west Region, at any time, allowing at (x) Vessel and operator permit hold- least 60 days for processing. The re- ers must not intentionally deploy a quest must state the expected number purse seine net on or encircle dolphins of trips involving sets on dolphins and intentionally: the anticipated dates of the trip or (A) When the vessel’s DML, as ad- trips. The request will be forwarded to justed, is reached or exceeded; or

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00026 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

(B) After the date and time provided for the purpose of conducting research in actual notification by letter, fac- and observing operations, including simile, radio, or electronic mail, or no- collecting information that may be tice in the FEDERAL REGISTER by the used in civil or criminal penalty pro- Administrator, Southwest Region, ceedings, forfeiture actions, or permit based upon the best available evidence, sanctions. A vessel that fails to carry that intentional sets on dolphins must an observer in accordance with these cease because the total of the DMLs as- requirements may not engage in fish- signed to the U.S. fleet has been ing operations. reached or exceeded, or is expected to (2) Research and observation duties be exceeded in the near future. will be carried out in such a manner as (xi) Sanctions recommended by the to minimize interference with commer- International Review Panel for any cial fishing operations. Observers must violation of these rules will be consid- be provided access to vessel personnel ered by NMFS and NOAA in enforce- and to dolphin safety gear and equipment actions brought under these regu- ment, electronic navigation equip- lations. ment, radar displays, high powered bin- (xii) Intentionally deploying a purse oculars, and electronic communication seine net on, or to encircle, dolphins equipment. The navigator must provide after a vessel’s DML, as adjusted, has true vessel locations by latitude and been reached will disqualify the vessel longitude, accurate to the nearest from consideration for a DML for the minute, upon request by the observer. following year. If already assigned, the Observers must be provided with ade- DML for the following year will be quate space on the bridge or pilothouse withdrawn, and the Director of the for clerical work, as well as space on IATTC will be notified by NMFS that deck adequate for carrying out ob- the DML assigned to that vessel will be server duties. No vessel owner, master, unutilized. Procedures found at 15 CFR operator, or crew member of a per- part 904 apply to the withdrawal of the mitted vessel may impair, or in any permit. way interfere with, the research or ob- (d) Purse seining by vessels without as- servations being carried out. Masters signed DMLs. In addition to the requirements of paragraph (b) of this sec- must allow observers to use vessel tion, a vessel permit used for a trip not communication equipment to report involving an assigned DML and the op- information concerning the take of erator’s permit when used on such a marine mammals and other observer vessel are subject to the following collected data upon request of the ob- terms and conditions: a permit holder server. may take marine mammals provided (3) Any marine mammals killed dur- that such taking is an accidental oc- ing fishing operations that are acces- currence in the course of normal com- sible to crewmen and requested from mercial fishing operations and the ves- the permit holder or master by the ob- sel does not intentionally deploy its server must be brought aboard the ves- net on, or to encircle, dolphins; marine sel and retained for biological proc- mammals taken incidental to such essing, until released by the observer commercial fishing operations must be for return to the ocean. Whole marine immediately returned to the environ- mammals or marine mammal parts ment where captured without further designated as biological specimens by injury, using release procedures such the observer must be retained in cold as hand rescue, and aborting the set at storage aboard the vessel until re- the earliest effective opportunity; the trieved by authorized personnel of use of one or more rafts and face masks NMFS or the IATTC when the vessel or view boxes to aid in the rescue of returns to port for unloading. dolphins is recommended. (4) It is unlawful for any person to (e) Observers: (1) The holder of a ves- forcibly assault, impede, intimidate, sel permit must allow an observer duly interfere with, or to influence or at- authorized by the Administrator, tempt to influence an observer, or to Southwest Region, to accompany the harass (including sexual harassment) vessel on all fishing trips in the ETP an observer by conduct which has the

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00027 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

purpose or effect of unreasonably inter- ‘‘intermediary nation,’’ an import oc- fering with the observer’s work per- curs when the fish or fish product is re- formance, or which creates an intimi- leased from a nation’s Customs’ cus- dating, hostile, or offensive environ- tody and enters into the territory of ment. In determining whether conduct the nation. For other purposes, constitutes harassment, the totality of ‘‘import’’ is defined in § 216.3. the circumstances, including the na- (2)(i) HTS numbers requiring a Fisheries ture of the conduct and the context in Certificate of Origin, subject to yellowfin which it occurred, will be considered. tuna embargo. The following U.S. Har- The determination of the legality of a monized Tariff Schedule (HTS) num- particular action will be made from the bers identify yellowfin tuna or yel- facts on a case-by-case basis. lowfin tuna products that are har- (5)(i) All observers must be provided vested in the ETP purse seine fishery sleeping, toilet and eating accommoda- and imported into the United States. tions at least equal to that provided to All shipments containing tuna or tuna a full crew member. A mattress or products imported into the United futon on the floor or a cot is not ac- States under these HTS numbers must ceptable in place of a regular bunk. be accompanied by a Fisheries Certifi- Meal and other galley privileges must cate of Origin (FCO), NOAA Form 370. be the same for the observer as for Yellowfin tuna identified by any of the other crew members. following HTS numbers that was har- (ii) Female observers on a vessel with vested using a purse seine in the ETP an all-male crew must be accommo- may not be imported into the United dated either in a single-person cabin States unless both the nation with ju- or, if reasonable privacy can be ensured risdiction over the harvesting vessel by installing a curtain or other tem- and the exporting nation (if different) porary divider, in a two-person cabin have an affirmative finding under para- shared with a licensed officer of the graph (f)(9) of this section. vessel. If the cabin assigned to a female observer does not have its own toilet and shower facilities that can be pro- (A) Frozen: vided for the exclusive use of the ob- 0303.42.0020 Yellowfin tuna, whole, frozen. server, then a schedule for time-shar- 0303.42.0040 Yellowfin tuna, eviscerated, head on, frozen. ing common facilities must be estab- 0303.42.0060 Yellowfin tuna, other, frozen. lished before the placement meeting (B) Canned: and approved by NMFS or other ap- 1604.14.1000 Tuna, non-specific, in airtight containers, in oil. proved observer program and must be 1604.14.2040 Tuna, other than albacore, not over followed during the entire trip. 7kg, in airtight containers. (iii) In the event there are one or 1604.14.3040 Tuna, other than albacore, in airtight more female crew members, the female containers, not in oil, over quota. (C) Loins: observer must be provided a bunk in a 1604.14.4000 Tuna, not in airtight containers, not cabin shared solely with female crew in oil, over 6.8kg. members, and provided toilet and 1604.14.5000 Tuna, other, not in airtight containers. shower facilities shared solely with (D) Other (only if the these female crew members. product contains (f) Importation, purchase, shipment, tuna): sale and transport. (1)(i) It is illegal to 0304.10.4099 Other fish, fillets and other fish meat, fresh or chilled. import into the United States any fish, 0304.20.2066 Other fish, fillets, skinned, in blocks whether fresh, frozen, or otherwise pre- weighing over 4.5kg, frozen. pared, if the fish have been caught with 0304.20.6096 Other fish, fillets, frozen. 0304.90.1089 Other fish meat, in bulk or immediate commercial fishing technology that re- containers, fresh or chilled. sults in the incidental kill or inci- 0304.90.9091 Other fish meat, fresh or chilled. dental serious injury of marine mammals in excess of that allowed under (ii) HTS numbers requiring a Fisheries this part for U.S. fishermen, or as spec- Certificate of Origin, not subject to yel- ified at paragraphs (f)(7) through (f)(9) lowfin tuna embargo. The following HTS of this section. numbers identify tuna or tuna prod- (ii) For purposes of this paragraph(f), ucts, other than fresh tuna or tuna and in applying the definition of an identified in paragraph (f)(2)(i) of this

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00028 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

section, known to be imported into the United States. All shipments imported 1604.11.2030 Salmon, sockeye, canned in oil, in into the United States under these airtight containers. HTS numbers must be accompanied by 1604.11.2090 Salmon, other, canned in oil, in air- a FCO. The shipment may not be im- tight containers. ported into the United States if har- 1604.11.4010 Salmon, chum, canned, not in oil. 1604.11.4020 Salmon, pink, canned, not in oil. vested by a large-scale driftnet nation, 1604.11.4030 Salmon, sockeye, canned, not in oil. unless accompanied by the official 1604.11.4040 Salmon, other, canned, not in oil. statement described in paragraph 1604.11.4050 Salmon, other, canned, not in oil. 1604.19.2000 Fish, other, in airtight containers, not (f)(5)(x) of this section. in oil. 1604.19.3000 Fish, other, in airtight containers, in oil. 1605.90.6055 Squid, loligo, prepared/preserved. (A) Frozen: (C) Other: 0303.41.0000 Albacore or longfinned tunas, frozen. 0304.10.4099 Other fish, fillets and other fish meat, 0303.43.0000 Skipjack, frozen. 0303.49.0020 Bluefin, frozen. fresh or chilled. 0303.49.0040 Other tuna, frozen. 0304.20.2066 Other fish, fillets, skinned, in blocks (B) Canned: weighing over 4.5kg, frozen. 1604.14.2020 Albacore tuna, in airtight containers, 0304.20.6098 Other fish, fillets, frozen. not in oil, not over 7kg, in quota. 0304.90.1089 Other fish, fillets and fish meat, in 1604.14.3020 Albacore tuna, in airtight containers, bulk or in immediate containers, not in oil, not in quota. fresh or chilled. 0304.90.9092 Other fish meat, fresh or chilled.

(iii) Exports from driftnet nations only: 0305.30.6080 Fish, non-specific, fillet. dried/salted/ HTS numbers requiring a Fisheries Cer- brine. tificate of Origin and official certification. 0305.49.4040 Fish, non-specific, smoked. 0305.59.2000 Shark fins. The following HTS numbers identify 0305.59.4000 Fish, non-specific, dried. categories of fish and shellfish, other 0305.69.4000 Salmon, non-specific, salted. than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, 0305.69.5000 Fish, non-specific, in immediate containers, salted, not over 6.8kg. known to have been harvested using a 0305.69.6000 Fish, non-specific, salted, other. large-scale driftnet and imported into 0307.49.0050 Squid, non-specific, frozen/dried/salt- the United States. Shipments exported ed/brine. 0307.49.0060 Squid, non-specific, & cuttle fish fro- from a large-scale driftnet nation and zen/dried/salted/brine. imported into the United States under any of the HTS numbers listed in para- (3) Imports requiring a Fisheries Certifi- graph (f)(2) of this section must be ac- cate of Origin. Shipments containing companied by an FCO and the official the following may not be imported into statement described in paragraph the United States unless a completed (f)(5)(x) of this section. FCO is filed with the Customs Service at the time of importation: (i) Tuna classified under an HTS (A) Frozen: number listed in paragraphs (f)(2)(i) or 0303.10.0012 Salmon, chinook, frozen. 0303.10.0022 Salmon, chum, frozen. (f)(2)(ii) of this section, or 0303.10.0032 Salmon, pink, frozen. (ii) Fish classified under an HTS 0303.10.0042 Salmon, sockeye, frozen. number listed in paragraph (f)(2) of this 0303.10.0052 Salmon, coho, frozen. 0303.10.0062 Salmon, Pacific, non-specific, frozen. section that was harvested by a vessel 0303.21.0000 Trout, frozen. of a large-scale driftnet nation, as 0303.22.0000 Salmon, Atlantic and Danube, fro- identified under paragraph (f)(8) of this zen. section. 0303.29.0000 Salmonidae, other, frozen. 0303.70.4097 Fish, other, frozen. (4) Disposition of Fisheries Certificates 0303.75.0010 Dogfish, frozen. of Origin. The FCO form described in 0303.75.0090 Other sharks, frozen. paragraph (f)(5) of this section may be 0303.79.2041 Swordfish steaks, frozen 0303.79.2049 Swordfish, other, frozen. obtained from the Administrator, Southwest Region, or downloaded from 0304.20.2066 Fish, fillet, skinned, in blocks frozen the Internet at http://swr.ucsd.edu/ over 4.5kg. 0304.20.6008 Salmonidae, salmon fillet, frozen. noaa370.htm. The FCO required under 0304.20.6096 Fish, fillet, frozen. paragraph (f)(3) of this section must ac- 0307.49.0010 Squid, other, fillet, frozen. company the tuna or tuna products (B) Canned: 1604.11.2020 Salmon, pink, canned in oil, in air- from entry into the United States, tight containers. through final processing, and it must

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00029 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

be endorsed at each change in owner- a method other than large-scale ship. FCOs that require multiple en- driftnet; and dorsements must be submitted to the (xii) If the shipment contains tuna Administrator, Southwest Region, by harvested in the ETP by a purse seine the last endorser when all required en- vessel of more than 400 st (362.8 mt) dorsements are completed. An invoice carrying capacity, each importer or must accompany the shipment at the processor who takes custody of the time of importation or, in the alter- shipment must sign and date the form native, must be made available within to certify that the form and attached 30 days of a request by the Secretary or documentation accurately describe the the Administrator, Southwest Region, shipment of fish that they accompany. to produce the invoice. (6) Dolphin-safe label. Tuna or tuna (5) Contents of Fisheries Certificate of products sold in or exported from the Origin. An FCO, certified to be accurate United States that include on the label by the first exporter of the accom- the term ‘‘dolphin-safe’’ or any other panying shipment, must include the term or symbol that claims or suggests following information: the tuna were harvested in a manner (i) Customs entry identification; not injurious to dolphins are subject to (ii) Date of entry; the requirements of subpart H of this (iii) Exporter’s full name and com- part. plete address; (7) Scope of embargoes—(i) ETP yel- (iv) Importer’s or consignee’s full lowfin tuna embargo. Yellowfin tuna or name and complete address; yellowfin tuna products harvested (v) Species description, product form, using a purse seine in the ETP identi- and HTS number; fied by an HTS number listed in para- (vi) Total net weight of the shipment graph (f)(2)(i) of this section may not in kilograms; be imported into the United States if (vii) Ocean area where the fish were such tuna or tuna products were: harvested (ETP, Western Pacific (A) Harvested on or after March 3, Ocean, South Pacific Ocean, Atlantic 1999, the effective date of section 4 of Ocean, Caribbean Sea, Indian Ocean, or the IDCPA, and harvested by, or ex- other); ported from, a nation that the Assist- (viii) Type of fishing gear used to ant Administrator has determined has harvest the fish (purse seine, longline, purse seine vessels of greater than 400 baitboat, large-scale driftnet, gillnet, st (362.8 mt) carrying capacity har- trawl, pole and line, or other); vesting tuna in the ETP, unless the As- (ix) Country under whose laws the sistant Administrator has made an af- harvesting vessel operated based upon firmative finding required for importa- the flag of the vessel or, if a certified tion for that nation under paragraph charter vessel, the country that ac- (f)(9) of this section; cepted responsibility for the vessel’s (B) Exported from an intermediary fishing operations; nation, as defined in section 3 of the (x) Dates on which the fishing trip MMPA, and a ban is currently in force began and ended; prohibiting the importation from that (xi) If the shipment includes tuna or nation under paragraph (f)(9)(viii) of products harvested with a purse seine this section; or net, the name of the harvesting vessel; (C) Harvested before March 3, 1999, (xii) Dolphin safe condition of the the effective date of section 4 of the shipment; IDCPA, and would have been banned (xiv) For shipments harvested by ves- from importation under section sels of a nation known to use large- 101(a)(2) of the MMPA at the time of scale driftnets, as determined by the harvest. Secretary pursuant to paragraph (f)(8) (ii) Driftnet embargo. A shipment con- of this section, a statement must be in- taining an item listed in paragraph cluded on the Fisheries Certificate of (f)(2) of this section may not be im- Origin that is dated and signed by a reported into the United States if it: sponsible government official of the (A) Was exported from or harvested harvesting nation, certifying that the on the high seas by any nation deter- fish or fish products were harvested by mined by the Assistant Administrator

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00030 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.24

to be engaged in large-scale driftnet documentation or other verification of fishing, unless the FCO is accompanied statements made in connection with by an original statement by a respon- requests to allow importations. An af- sible government official of the har- firmative finding applies to tuna and vesting nation, signed and dated by tuna products that were harvested by that official, certifying that the fish or vessels of the nation after February 15, fish products were harvested by a 1999. To make an affirmative finding, method other than large-scale driftnet; the Assistant Administrator must find or that: (B) Is identified on the FCO as having (A) The harvesting nation partici- been harvested by a large-scale pates in the IDCP and is either a mem- driftnet. ber of the IATTC or has initiated (and (8) Large-scale driftnet nation: deter- within 6 months thereafter completed) mination. Based upon the best informa- all steps required of applicant nations, tion available, the Assistant Adminis- in accordance with article V, para- trator will determine which nations graph 3, of the Convention establishing have registered vessels that engage in the IATTC, to become a member of fishing using large-scale driftnets. that organization; Such determinations will be published (B) The nation is meeting its obliga- in the FEDERAL REGISTER. A respon- tions under the IDCP and its obliga- sible government official of any such tions of membership in the IATTC, in- nation may certify to the Assistant cluding all financial obligations; Administrator that none of the na- (C)(1) The annual total dolphin mor- tion’s vessels use large-scale driftnets. tality of the nation’s purse seine fleet Upon receipt of the certification, the (including certified charter vessels op- Assistant Administrator may find, and erating under its jurisdiction) did not publish such finding in the FEDERAL exceed the aggregated total of the mor- REGISTER, that none of that nation’s tality limits assigned by the IDCP for vessels engage in fishing with large- that nation’s purse seine vessels for the scale driftnets. year preceding the year in which the (9) Affirmative finding procedure for nations harvesting yellowfin tuna using a finding would start; or purse seine in the ETP. (i) The Assistant (2)(i) Because of extraordinary cir- Administrator will determine, on an cumstances beyond the control of the annual basis, whether to make an af- nation and the vessel captains, the firmative finding based upon documen- total dolphin mortality of the nation’s tary evidence provided by the govern- purse seine fleet (including certified ment of the exporting nation, by the charter vessels operating under its ju- government of the harvesting nation, if risdiction) exceeded the aggregated different, or by the IDCP and the total of the mortality limits assigned IATTC, and will publish the finding in by the IDCP for that nation’s purse the FEDERAL REGISTER. A finding will seine vessels; and remain valid for 1 year or for such (ii) Immediately after the national other period as the Assistant Adminis- authorities discovered the aggregate trator may determine. An affirmative mortality of its fleet had been exceed- finding will be terminated if the Assist- ed, the nation required all its vessels to ant Administrator determines that the cease fishing for tuna in association requirements of this paragraph are no with dolphins for the remainder of the longer being met. Every 5 years, the calendar year; and government of the harvesting nation, (D)(1) For calendar year 2000 and any must submit such documentary evi- subsequent years in which the parties dence directly to the Assistant Admin- agree to a global allocation system for istrator and request an affirmative per-stock per-year individual stock finding. Documentary evidence needs quotas, the nation responded to the no- to be submitted by the harvesting na- tification from the IATTC that an indi- tion for the first affirmative finding vidual stock quota had been reached by subsequent to the effective date of this prohibiting any additional sets on the rule. The Assistant Administrator may stock for which the quota had been require the submission of supporting reached;

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00031 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.24 50 CFR Ch. II (10–1–02 Edition)

(2) If a per-stock per-year quota is al- nation that is not meeting the obliga- located to each nation, the annual per- tions of the IDCP. stock per-year dolphin mortality of the (iii) A harvesting nation may apply nation’s purse seine fleet (including for an affirmative finding at any time certified charter vessels operating by providing to the Assistant Adminis- under its jurisdiction) did not exceed trator the information and authoriza- the aggregated total of the per-stock tions required in paragraphs (f)(9)(i) per-year limits assigned by the IDCP and (f)(9)(ii) of this section, allowing at for that nation’s purse seine vessels (if least 60 days from the submission of any) for the year preceding the year in complete information to NMFS for which the finding would start; or processing. (3)(i) Because of extraordinary cir- (iv) The Assistant Administrator will cumstances beyond the control of the make or renew an affirmative finding nation and the vessel captains, the per- for the period from April 1 through stock per-year dolphin mortality of the March 31, or portion thereof, if the har- nation’s purse seine fleet (including vesting nation has provided all the in- certified charter vessels operating formation and authorizations required under its jurisdiction) exceeded the ag- by paragraphs (f)(9)(i) and (f)(9)(ii) of gregated total of the per-stock per-year this section, and has met the require- limits assigned by the IDCP for that ments of paragraphs (f)(9)(i) and nation’s purse seine vessels; and (f)(9)(ii) of this section. (ii) Immediately after the national (v) Reconsideration of finding. The As- authorities discovered the aggregate sistant Administrator may reconsider per-stock mortality limits of its fleet a finding upon a request from, and the had been exceeded, the nation required all its vessels to cease fishing for tuna submission of additional information in association with the stocks whose by, the harvesting nation, if the infor- limits had been exceeded, for the re- mation indicates that the nation has mainder of the calendar year. met the requirements under para- (ii) Documentary Evidence and Compli- graphs (f)(9)(i) and (f)(9)(ii) of this sec- ance with the IDCP.—(A) Documentary tion. Evidence. The Assistant Administrator (vi) Intermediary nation. Except as au- will make an affirmative finding under thorized under this paragraph, no tuna paragraph (f)(9)(i) of this section only or tuna products classified under one of if the government of the harvesting na- the HTS numbers listed in paragraph tion provides directly to the Assistant (f)(2)(i) of this section may be imported Administrator, or authorizes the into the United States from any inter- IATTC to release to the Assistant Ad- mediary nation. An ‘‘intermediary na- ministrator, complete, accurate, and tion’’ is a nation that exports yellowfin timely information that enables the tuna or yellowfin tuna products to the Assistant Administrator to determine United States and that imports yel- whether the harvesting nation is meet- lowfin tuna or yellowfin tuna products ing the obligations of the IDCP, and that are subject to a direct ban on im- whether ETP-harvested tuna imported portation into the United States pursu- from such nation comports with the ant to section 101(a)(2)(B) of the tracking and verification regulations MMPA, unless shown not to be yel- of subpart H of this part. lowfin tuna or yellowfin tuna products (B) Revocation. After considering the harvested using purse seine in the ETP. information provided under paragraph The Assistant Administrator will pub- (f)(9)(ii)(A) of this section, each party’s lish in the FEDERAL REGISTER a notice financial obligations to the IATTC, and announcing when NMFS has deter- any other relevant information, includ- mined, based on the best information ing information that a nation is con- available, that a nation is an sistently failing to take enforcement ‘‘intermediary nation.’’ After the effec- actions on violations which diminish tive date of that notice, these import the effectiveness of the IDCP, the As- restrictions shall apply. Shipments of sistant Administrator, in consultation yellowfin tuna or yellowfin tuna prod- with the Secretary of State, will re- ucts shipped through a nation on a voke an affirmative finding issued to a through bill of lading or in another

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00032 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.25

manner that does not enter the ship- tion, the District Director of Customs ments into that nation as an importa- shall refuse to release the fish for entry tion do not make that nation an inter- into the United States and shall issue a mediary nation. notice of such refusal to the importer (A) Intermediary nation determination or consignee. status. Imports from an intermediary (11) Disposition of fish refused entry nation of tuna and tuna products clas- into the United States; redelivered fish. sified under any of the HTS numbers in Fish which is denied entry under para- paragraph (f)(2)(i) of this section may graph (f)(3) of this section and which is be imported into the United States not exported under Customs super- only if the Assistant Administrator de- vision within 90 days from the date of termines and publishes in the FEDERAL notice of refusal of admission or date of REGISTER that the intermediary nation redelivery shall be disposed of under has provided certification and reason- Customs laws and regulations. Pro- able proof that it has not imported in vided however, that any disposition the preceding 6 months yellowfin tuna shall not result in an introduction into or yellowfin tuna products that are the United States of fish caught in vio- subject to a ban on direct importation lation of the MMPA. into the United States under section (12) Market Prohibitions. It is unlawful 101(a)(2)(B) of the MMPA. At that time, for any person to sell, purchase, offer the nation shall no longer be consid- for sale, transport, or ship in the ered an ‘‘intermediary nation’’ and United States, any tuna or tuna prod- these import restrictions shall no ucts unless the tuna products are ei- longer apply. ther: (B) Changing the status of intermediary (i) Dolphin-safe under subpart H; or nation determinations. The Assistant (ii) harvested in compliance with the Administrator will review decisions IDCP by vessels under the jurisdiction under this paragraph upon the request of a nation that is a member of the of an intermediary nation. Such re- IATTC or has initiated, and within 6 quests must be accompanied by specific months thereafter completes, all steps and detailed supporting information or required by applicant nations to be- documentation indicating that a re- come members of the IATTC. view or reconsideration is warranted. (iii) For purposes of this section, For purposes of this paragraph, the tuna or tuna products are ‘‘dolphin- term ‘‘certification and reasonable safe’’ if they are dolphin-safe under proof’’ means the submission to the As- subpart H. sistant Administrator by a responsible (g) Penalties. Any person or vessel government official from the nation of subject to the jurisdiction of the a document reflecting the nation’s cus- United States will be subject to the toms records for the preceding 6 penalties provided for under the MMPA months, together with a certification for the conduct of fishing operations in attesting that the document is accu- violation of these regulations. rate. (vii) Pelly certification. After 6 months [65 FR 48, Jan 3, 2000] of an embargo being in place against a nation under this section, that fact § 216.25 Exempted marine mammals will be certified to the President for and marine mammal products. purposes of certification under section (a) The provisions of the MMPA and 8(a) of the Fishermen’s Protective Act these regulations shall not apply: of 1967 (22 U.S.C. 1978(a)) for as long as (1) To any marine mammal taken be- the embargo remains in effect. fore December 21, 1972 1, or (viii) Coordination. The Assistant Ad- (2) To any marine mammal product if ministrator will promptly advise the the marine mammal portion of such Department of State and the Depart- ment of the Treasury of embargo deci- 1 In the context of captive maintenance of sions, actions and finding determina- marine mammals, the only marine mammals tions. exempted under this section are those that (10) Fish refused entry. If fish is denied were actually captured or otherwise in cap- entry under paragraph (f)(3) of this sec- tivity before December 21, 1972.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.26 50 CFR Ch. II (10–1–02 Edition)

product consists solely of a marine rine mammal part collected or im- mammal taken before such date. ported under this section. (b) The prohibitions contained in (e) The export of parts collected § 216.12(c) (3) and (4) shall not apply to without prior authorization under marine mammals or marine mammal paragraph (b) of this section may occur products imported into the United if consistent with the provisions at States before the date on which a no- § 216.37(d) under subpart D. tice is published in the FEDERAL REG- [39 FR 1852, Jan. 15, 1974, as amended at 59 ISTER with respect to the designation FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, of the species or stock concerned as de- 1996] pleted or endangered. (c) Section 216.12(b) shall not apply to § 216.27 Release, non-releasability, and articles imported into the United disposition under special exception States before the effective date of the permits for rehabilitated marine foreign law making the taking or sale, mammals. as the case may be, of such marine (a) Release requirements. (1) Any ma- mammals or marine mammal products rine mammal held for rehabilitation unlawful. must be released within six months of capture or import unless the attending [39 FR 1852, Jan. 15, 1974, as amended at 56 veterinarian determines that: FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994] (i) The marine mammal might adversely affect marine mammals in the § 216.26 Collection of certain marine wild; mammal parts without prior au- (ii) Release of the marine mammal to thorization. the wild will not likely be successful Notwithstanding any other provision given the physical condition and be- of this subpart: havior of the marine mammal; or (a) Any bones, teeth or ivory of any (iii) More time is needed to deter- dead marine mammal may be collected mine whether the release of the marine from a beach or from land within 1⁄4 of mammal to the wild will likely be suc- a mile of the ocean. The term ocean in- cessful. Releasability must be reevalu- cludes bays and estuaries. ated at intervals of no less than six (b) Notwithstanding the provisions of months until 24 months from capture subpart D, soft parts that are sloughed, or import, at which time there will be excreted, or discharged naturally by a a rebuttable presumption that release living marine mammal in the wild may into the wild is not feasible. be collected or imported for bona fide (2) The custodian of the rehabilitated scientific research and enhancement, marine mammal shall provide written provided that collection does not in- notification prior to any release into volve the taking of a living marine the wild. mammal in the wild. (i) Notification shall be provided to: (c) Any marine mammal part col- (A) The NMFS Regional Director at lected under paragraph (a) of this sec- least 15 days in advance of releasing tion or any marine mammal part col- any beached or stranded marine mam- lected and imported under paragraph mal, unless advance notice is waived in (b) of this section must be registered writing by the Regional Director; or and identified, and may be transferred (B) The Office Director at least 30 or otherwise possessed, in accordance days in advance of releasing any im- with § 216.22(c). In registering a marine ported marine mammal. mammal part collected or imported (ii) Notification shall include the fol- under paragraph (b) of this section, the lowing: person who collected or imported the (A) A description of the marine mam- part must also state the scientific re- mal, including its physical condition search or enhancement purpose for and estimated age; which the part was collected or im- (B) The date and location of release; ported. and (d) No person may purchase, sell or (C) The method and duration of trade for commercial purposes any ma- transport prior to release.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.27

(3) The Regional Director, or the Of- marine mammal for any activity au- fice Director as appropriate, may: thorized under subpart D in lieu of ani- (i) Require additional information mals taken from the wild. prior to any release; (5) Any rehabilitated beached or (ii) Change the date or location of re- stranded marine mammal placed on lease, or the method or duration of public display following a non-releas- transport prior to release; ability determination under paragraph (iii) Impose additional conditions to (a)(1) of this section and pending dis- improve the likelihood of success or to position under paragraph (c) of this monitor the success of the release; or section, or any marine mammal im- (iv) Require other disposition of the ported for medical treatment otherwise marine mammal. unavailable and placed on public dis- (4) All marine mammals must be re- play pending disposition after such leased near wild populations of the medical treatment is concluded, must same species, and stock if known, un- be held in captive maintenance con- less a waiver is granted by the Re- sistent with all requirements for public gional Director or the Office Director. display. (5) All marine mammals released (c) Disposition for a special exception must be tagged or marked in a manner purpose. (1) Upon receipt of an author- acceptable to the Regional Director or ization request made under paragraph the Office Director. The tag number or (b)(3)(i) of this section, or release noti- description of the marking must be re- fication under (a)(2), the Office Direc- ported to the Regional Director or Of- tor may authorize the retention or fice Director following release. transfer of custody of the marine mam- (b) Non-releasability and postponed de- mal for a special exception purpose au- terminations. (1) The attending veteri- thorized under subpart D. narian shall provide the Regional Di- (2) The Office Director will first con- rector or Office Director with a written sider requests from a person authorized report setting forth the basis of any de- to hold the marine mammal for reha- termination under paragraphs (a)(1)(i) bilitation. The Office Director may au- through (iii) of this section. thorize such person to retain or trans- (2) Upon receipt of a report under fer custody of the marine mammal for paragraph (b)(1) of this section, the Re- scientific research, enhancement, or gional Director or Office Director, in public display purposes. their sole discretion, may: (3) The Office Director may authorize (i) Order the release of the marine retention or transfer of custody of the mammal; marine mammal only if: (ii) Order continued rehabilitation (i) Documentation has been sub- for an additional 6 months; or mitted to the Office Director that the (iii) Order other disposition as au- person retaining the subject animal or thorized. the person receiving custody of the (3) No later than 30 days after a ma- subject animal by transfer, hereinafter rine mammal is determined referred to as the recipient, complies unreleasable in accordance with para- with public display requirements of 16 graphs (a)(1)(i) through (iii) of this sec- U.S.C. 1374(c)(2)(A) or, for purposes of tion, the person with authorized cus- scientific research and enhancement, tody must: holds an applicable permit, or an appli- (i) Request authorization to retain or cation for such a special exception per- transfer custody of the marine mam- mit under § 216.33 or a request for a mal in accordance with paragraph (c) major amendment under § 216.39 has of this section, or; been submitted to the Office Director (ii) Humanely euthanize the marine and has been found complete; mammal or arrange any other disposi- (ii) The recipient agrees to hold the tion of the marine mammal authorized marine mammal in conformance with by the Regional Director or Office Di- all applicable requirements and stand- rector. ards; and (4) Notwithstanding any of the provi- (iii) The recipient acknowledges that sions of this section, the Office Direc- the marine mammal is subject to sei- tor may require use of a rehabilitated zure by the Office Director:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.30 50 CFR Ch. II (10–1–02 Edition)

(A) If, at any time pending issuance Subpart D—Special Exceptions of the major amendment or permit, the Office Director determines that seizure § 216.30 [Reserved] is necessary in the interest of the health or welfare of the marine mam- § 216.31 Definitions. mal; For the purpose of this subpart, the (B) If the major amendment or per- definitions set forth in 50 CFR part 217 mit is denied; or shall apply to all threatened and en- (C) If the recipient is issued a notice dangered marine mammals, unless a of violation and assessment, or is sub- more restrictive definition exists under ject to permit sanctions, in accordance the MMPA or part 216. with 15 CFR part 904. [61 FR 21935, May 10, 1996] (4) There shall be no remuneration associated with any transfer, provided § 216.32 Scope. that, the transferee may reimburse the The regulations of this subpart apply transferor for any and all costs associ- to: ated with the rehabilitation and trans- (a) All marine mammals and marine port of the marine mammal. mammal parts taken or born in cap- (5) Marine mammals undergoing re- tivity after December 20, 1972; and habilitation or pending disposition (b) All marine mammals and marine under this section shall not be subject mammal parts that are listed as to public display, unless such activities threatened or endangered under the are specifically authorized by the Re- ESA. gional Director or the Office Director, and conducted consistent with the re- [61 FR 21935, May 10, 1996] quirements applicable to public dis- § 216.33 Permit application submis- play. Such marine mammals shall not sion, review, and decision proce- be trained for performance or be in- dures. cluded in any aspect of a program in- (a) Application submission. Persons volving interaction with the public; seeking a special exemption permit and under this subpart must submit an ap- (6) Marine mammals undergoing re- plication to the Office Director. The habilitation shall not be subject to in- application must be signed by the ap- trusive research, unless such activities plicant, and provide in a properly for- are specifically authorized by the Of- matted manner all information nec- fice Director in consultation with the essary to process the application. Writ- Marine Mammal Commission and its ten instructions addressing informa- Committee of Scientific Advisors on tion requirements and formatting may Marine Mammals, and are conducted be obtained from the Office Director pursuant to a scientific research per- upon request. mit. (b) Applications to export living marine (d) Reporting. In addition to the re- mammals. For applicants seeking a spe- port required under § 216.22(b), the per- cial exception permit to export living son authorized to hold marine mam- marine mammals, the application mals for rehabilitation must submit re- must: ports to the Regional Director or Office (1) Be submitted through the Conven- Director regarding release or other dis- tion on International Trade in Endan- position. These reports must be pro- gered Fauna and Flora management vided in the form and frequency speci- authority of the foreign government fied by the Regional Director or Office or, if different, the appropriate agency or agencies of the foreign government Director. that exercises oversight over marine [61 FR 21933, May 10, 1996] mammals.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.33

(2) Include a certification from the mals (Committee) in making these ini- foreign government that: tial, and any subsequent, determina- (i) The information set forth in the tions. application is accurate; (4) Incomplete applications will be (ii) The laws and regulations of the returned with explanation. If the appli- foreign governmentinvolved allow en- cant fails to resubmit a complete appli- forcement of the terms and conditions cation or correct the identified defi- of the permit, and that the foreign gov- ciencies within 60 days, the application ernment will enforce all terms and con- will be deemed withdrawn. Applica- ditions; and tions that propose activities incon- (iii) The foreign government involved sistent with this subpart will be re- will afford comity to any permit turned with explanation, and will not amendment, modification, suspension be considered further. or revocation decision. (d) Notice of receipt and application re- (c) (1) NMFS will notify Initial review. view. (1) Upon receipt of a valid, com- the applicant of receipt of the applica- plete application, and the preparation tion. of any NEPA documentation that has (2) During the initial review, the Of- been determined initially to be re- fice Director will determine: quired, the Office Director will publish (i) Whether the application is com- a notice of receipt in the FEDERAL REG- plete. (ii) Whether the proposed activity is ISTER. The notice will: for purposes authorized under this sub- (i) Summarize the application, in- part. cluding: (iii) If the proposed activity is for en- (A) The purpose of the request; hancement purposes, whether the spe- (B) The species and number of marine cies or stock identified in the applica- mammals; tion is in need of enhancement for its (C) The type and manner of special survival or recovery and whether the exception activity proposed; proposed activity will likely succeed in (D) The location(s) in which the ma- its objectives. rine mammals will be taken, from (iv) Whether the activities proposed which they will be imported, or to are to be conducted consistent with the which they will be exported; and permit restrictions and permit specific (E) The requested period of the per- conditions as described in § 216.35 and mit. § 216.36(a). (ii) List where the application is (v) Whether sufficient information is available for review. included regarding the environmental (iii) Invite interested parties to sub- impact of the proposed activity to en- mit written comments concerning the able the Office Director: application within 30 days of the date (A) To make an initial determination of the notice. under the National Environmental Pol- icy Act (NEPA) as to whether the pro- (iv) Include a NEPA statement that posed activity is categorically excluded an initial determination has been made from preparation of further environ- that the activity proposed is categori- mental documentation, or whether the cally excluded from the requirement to preparation of an environmental as- prepare an EA or EIS, that an EA was sessment (EA) or environmental im- prepared resulting in a finding of no pact statement (EIS) is appropriate or significant impact, or that a final EIS necessary; and has been prepared and is available for (B) To prepare an EA or EIS if an ini- review. tial determination is made by the Of- (2) The Office Director will forward a fice Director that the activity proposed copy of the complete application to the is not categorically excluded from such Commission for comment. If no com- requirements. ments are received within 45 days (or (3) The Office Director may consult such longer time as the Office Director with the Marine Mammal Commission may establish) the Office Director will (Commission) and its Committee of consider the Commission to have no Scientific Advisors on Marine Mam- objection to issuing a permit.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.33 50 CFR Ch. II (10–1–02 Edition)

(3) The Office Director may consult (iv) Any other information or data with any other person, institution, or that the Office Director deems rel- agency concerning the application. evant. (4) Within 30 days of publication of (3) If the permit is issued, upon re- the notice of receipt in the FEDERAL ceipt, the holder must date and sign REGISTER, any interested party may the permit, and return a copy of the submit written comments or may re- original to the Office Director. The quest a public hearing on the applica- permit shall be effective upon the per- tion. mit holder’s signing of the permit. In (5) If the Office Director deems it ad- signing the permit, the holder: visable, the Office Director may hold a (i) Agrees to abide by all terms and public hearing within 60 days of publi- conditions set forth in the permit, and cation of the notice of receipt in the all restrictions and relevant regula- FEDERAL REGISTER. Notice of the date, tions under this subpart; and time, and place of the public hearing (ii) Acknowledges that the authority will be published in the FEDERAL REG- to conduct certain activities specified ISTER not less than 15 days in advance in the permit is conditional and subject of the public hearing. Any interested to authorization by the Office Director. person may appear in person or (4) Notice of the decision of the Office through representatives and may sub- Director shall be published in the mit any relevant material, data, views, FEDERAL REGISTER within 10 days after or comments. A summary record of the the date of permit issuance or denial hearing will be kept. (6) The Office Director may extend and shall indicate where copies of the the period during which any interested permit, if issued, may be reviewed or party may submit written comments. obtained. If the permit issued involves Notice of the extension must be pub- marine mammals listed as endangered or threatened under the ESA, the no- lished in the FEDERAL REGISTER within 60 days of publication of the notice of tice shall include a finding by the Of- fice Director that the permit: receipt in the FEDERAL REGISTER. (7) If, after publishing a notice of re- (i) Was applied for in good faith; ceipt, the Office Director determines (ii) If exercised, will not operate to on the basis of new information that an the disadvantage of such endangered or EA or EIS must be prepared, the Office threatened species; and Director must deny the permit unless (iii) Is consistent with the purposes an EA is prepared with a finding of no and policy set forth in section 2 of the significant impact. If a permit is de- ESA. nied under these circumstances the ap- (5) If the permit is denied, the Office plication may be resubmitted with in- Director shall provide the applicant formation sufficient to prepare an EA with an explanation for the denial. or EIS, and will be processed as a new (6) Under the MMPA, the Office Di- application. rector may issue a permit for scientific (e) Issuance or denial procedures. (1) research before the end of the public Within 30 days of the close of the pub- comment period if delaying issuance lic hearing or, if no public hearing is could result in injury to a species, held, within 30 days of the close of the stock, or individual, or in loss of public comment period, the Office Di- unique research opportunities. The Of- rector will issue or deny a special ex- fice Director also may waive the 30-day ception permit. comment period required under the (2) The decision to issue or deny a ESA in an emergency situation where permit will be based upon: the health or life of an endangered or (i) All relevant issuance criteria set threatened marine mammal is threat- forth at § 216.34; ened and no reasonable alternative is (ii) All purpose-specific issuance cri- available. If a permit is issued under teria as appropriate set forth at § 216.41, these circumstances, notice of such § 216.42, and § 216.43; issuance before the end of the comment (iii) All comments received or views period shall be published in the solicited on the permit application; FEDERAL REGISTER within 10 days of and issuance.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.35

(7) The applicant or any party op- § 216.35 Permit restrictions. posed to a permit may seek judicial re- The following restrictions shall apply view of the terms and conditions of to all permits issued under this sub- such permit or of a decision to deny part: such permit. Review may be obtained (a) The taking, importation, export, by filing a petition for review with the or other permitted activity involving appropriate U.S. District Court as pro- marine mammals and marine mammal vided for by law. parts shall comply with the regulations of this subpart. [61 FR 21935, May 10, 1996] (b) The maximum period of any special exception permit issued, or any § 216.34 Issuance criteria. major amendment granted, is five (a) For the Office Director to issue years from the effective date of the any permit under this subpart, the ap- permit or major amendment. In ac- plicant must demonstrate that: cordance with the provisions of § 216.39, (1) The proposed activity is humane the period of a permit may be extended and does not present any unnecessary by a minor amendment up to 12 months risks to the health and welfare of ma- beyond that established in the original rine mammals; permit. (2) The proposed activity is con- (c) Except as provided for in sistent with all restrictions set forth at § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under § 216.35 and any purpose-specific restric- the authority of a permit must be tions as appropriate set forth at taken or imported in a humane man- § 216.41, § 216.42, and § 216.43; ner, and in compliance with the Acts (3) The proposed activity, if it in- and any applicable foreign law. Impor- volves endangered or threatened ma- tation of marine mammals and marine rine mammals, will be conducted con- mammal parts is subject to the provi- sistent with the purposes and policies sions of 50 CFR part 14. set forth in section 2 of the ESA; (d) The permit holder shall not take (4) The proposed activity by itself or from the wild any marine mammal in combination with other activities, which at the time of taking is either will not likely have a significant ad- unweaned or less than eight months verse impact on the species or stock; old, or is a part of a mother-calf/pup (5) Whether the applicant’s expertise, pair, unless such take is specifically facilities, and resources are adequate authorized in the conditions of the spe- to accomplish successfully the objec- cial exception permit. Additionally, tives and activities stated in the appli- the permit holder shall not import any cation; marine mammal that is pregnant or lactating at the time of taking or im- (6) If a live animal will be held cap- port, or is unweaned or less than eight tive or transported, the applicant’s months old unless such import is spe- qualifications, facilities, and resources cifically authorized in the conditions are adequate for the proper care and of the special exception permit. maintenance of the marine mammal; (e) Captive marine mammals shall and not be released into the wild unless (7) Any requested import or export specifically authorized by the Office will not likely result in the taking of Director under a scientific research or marine mammals or marine mammal enhancement permit. parts beyond those authorized by the (f) The permit holder is responsible permit. for all activities of any individual who (b) The opinions or views of scientists is operating under the authority of the or other persons or organizations permit; knowledgeable of the marine mammals (g) Individuals conducting activities that are the subject of the application authorized under the permit must pos- or of other matters germane to the ap- sess qualifications commensurate with plication will be considered. their duties and responsibilities, or must be under the direct supervision of [61 FR 21936, May 10, 1996] a person with such qualifications;

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.36 50 CFR Ch. II (10–1–02 Edition)

(h) Persons who require state or Fed- (b) Other conditions. In addition to eral licenses to conduct activities au- the specific conditions imposed pursu- thorized under the permit must be duly ant to paragraph (a) of this section, the licensed when undertaking such activi- Office Director shall specify any other ties; permit conditions deemed appropriate. (i) Special exception permits are not transferable or assignable to any other [61 FR 21937, May 10, 1996] person, and a permit holder may not § 216.37 Marine mammal parts. require any direct or indirect compensation from another person in re- With respect to marine mammal turn for requesting authorization for parts acquired by take or import au- such person to conduct the taking, im- thorized under a permit issued under port, or export activities authorized this subpart: under the subject permit; (a) Marine mammal parts are (j) The permit holder or designated transferrable if: agent shall possess a copy of the per- (1) The person transferring the part mit when engaged in a permitted activ- receives no remuneration of any kind ity, when the marine mammal is in for the marine mammal part; transit incidental to such activity, and (2) The person receiving the marine whenever marine mammals or marine mammal part is: mammal parts are in the possession of (i) An employee of NMFS, the U.S. the permit holder or agent. A copy of Fish and Wildlife Service, or any other the permit shall be affixed to any con- governmental agency with conserva- tainer, package, enclosure, or other tion and management responsibilities, means of containment, in which the who receives the part in the course of marine mammals or marine mammal their official duties; parts are placed for purposes of transit, (ii) A holder of a special exception supervision, or care. For marine mam- permit which authorizes the take, im- mals held captive and marine mammal port, or other activity involving the parts in storage, a copy of the permit possession of a marine mammal part of shall be kept on file in the holding or the same species as the subject part; or storage facility. (iii) In the case of marine mammal [61 FR 21936, May 10, 1996] parts from a species that is not depleted, endangered or threatened, a § 216.36 Permit conditions. person who is authorized under section (a) Specific conditions. (1) Permits 112(c) of the MMPA and subpart C of issued under this subpart shall contain this part to take or import marine specific terms and conditions deemed mammals or marine mammal parts; appropriate by the Office Director, in- (iv) Any other person specifically au- cluding, but not limited to: thorized by the Regional Director, con- (i) The number and species of marine sistent with the requirements of para- mammals that are authorized to be graphs (a)(1) and (a)(3) through (6) of taken, imported, exported, or other- this section. wise affected; (3) The marine mammal part is trans- (ii) The manner in which marine ferred for the purpose of scientific re- mammals may be taken according to search, maintenance in a properly type of take; curated, professionally accredited sci- (iii) The location(s) in which the ma- entific collection, or education, pro- rine mammals may be taken, from vided that, for transfers for edu- which they may be imported, or to cational purposes, the recipient is a which they may be exported, as appli- museum, educational institution or cable, and, for endangered or threat- equivalent that will ensure that the ened marine mammal species to be im- part is available to the public as part ported or exported, the port of entry or of an educational program; export; (4) A unique number assigned by the (iv) The period during which the per- permit holder is marked on or affixed mit is valid. to the marine mammal part or con- (2) [Reserved] tainer;

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.39

(5) The person receiving the marine to the marine mammal specimen or mammal part agrees that, as a condi- container; tion of receipt, subsequent transfers (3) The marine mammal part is ex- may only occur subject to the provi- ported or reimported in compliance sions of paragraph (a) of this section; with all applicable domestic and for- and eign laws; (6) Within 30 days after the transfer, (4) If exported or reimported for edu- the person transferring the marine cational purposes, the recipient is a mammal part notifies the Regional Di- museum, educational institution, or rector of the transfer, including a de- equivalent that will ensure that the scription of the part, the person to part is available to the public as part whom the part was transferred, the of an educational program; and purpose of the transfer, certification (5) Special reports are submitted that the recipient has agreed to comply within 30 days after both export and re- with the requirements of paragraph (a) import as required by the Office Direc- of this section for subsequent transfers, tor under § 216.38. and, if applicable, the recipient’s per- [61 FR 21937, May 10, 1996] mit number. (b) Marine mammal parts may be § 216.38 Reporting. loaned to another person for a purpose All permit holders must submit an- described in paragraph (a)(3) of this nual, final, and special reports in ac- section and without the agreement and cordance with the requirements estab- notification required under paragraphs lished in the permit, and any reporting (a)(5) and (6) of this section, if: format established by the Office Direc- (1) A record of the loan is main- tor. tained; and [61 FR 21937, May 10, 1996] (2) The loan is for not more than one year. Loans for a period greater than 12 § 216.39 Permit amendments. months, including loan extensions or (a) General. Special exception permits renewals, require notification of the may be amended by the Office Direc- Regional Director under paragraph tor. Major and minor amendments may (a)(6). be made to permits in response to, or (c) Unless other disposition is speci- independent of, a request from the per- fied in the permit, a holder of a special mit holder. Amendments must be con- exception permit may retain marine sistent with the Acts and comply with mammal parts not destroyed or other- the applicable provisions of this sub- wise disposed of during or after a sci- part. entific research or enhancement activ- (1) A major amendment means any ity, if such marine mammal parts are: change to the permit specific condi- (1) Maintained as part of a properly tions under § 216.36(a) regarding: curated, professionally accredited col- (i) The number and species of marine lection; or mammals that are authorized to be (2) Made available for purposes of sci- taken, imported, exported, or other- entific research or enhancement at the wise affected; request of the Office Director. (ii) The manner in which these ma- (d) Marine mammal parts may be ex- rine mammals may be taken, imported, ported and subsequently reimported by exported, or otherwise affected, if the a permit holder or subsequent author- proposed change may result in an in- ized recipient, for the purpose of sci- creased level of take or risk of adverse entific research, maintenance in a impact; properly curated, professionally ac- (iii) The location(s) in which the ma- credited scientific collection, or edu- rine mammals may be taken, from cation, provided that: which they may be imported, and to (1) The permit holder or other person which they may be exported, as appli- receives no remuneration for the ma- cable; and rine mammal part; (iv) The duration of the permit, if the (2) A unique number assigned by the proposed extension would extend the permit holder is marked on or affixed duration of the permit more than 12

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.40 50 CFR Ch. II (10–1–02 Edition)

months beyond that established in the (b) All special exception permits are original permit. subject to suspension, revocation, (2) A minor amendment means any modification and denial in accordance amendment that does not constitute a with the provisions of subpart D of 15 major amendment. CFR part 904. (b) Amendment requests and proposals. (1) Requests by a permit holder for an [61 FR 21938, May 10, 1996] amendment must be submitted in writ- § 216.41 Permits for scientific research ing and include the following: and enhancement. (i) The purpose and nature of the amendment; In addition to the requirements (ii) Information, not previously sub- under §§ 216.33 through 216.38, permits mitted as part of the permit applica- for scientific research and enhance- tion or subsequent reports, necessary ment are governed by the following re- to determine whether the amendment quirements: satisfies all issuance criteria set forth (a) Applicant. (1) For each application at § 216.34, and, as appropriate, § 216.41, submitted under this section, the appli- § 216.42, and § 216.43. cant shall be the principal investigator (iii) Any additional information re- responsible for the overall research or quired by the Office Director for pur- enhancement activity. If the research poses of reviewing the proposed amend- or enhancement activity will involve a ment. periodic change in the principal inves- (2) If an amendment is proposed by tigator or is otherwise controlled by the Office Director, the permit holder and dependent upon another entity, the will be notified of the proposed amend- applicant may be the institution, gov- ment, together with an explanation. ernmental entity, or corporation re- (c) Review of proposed amendments. (1) sponsible for supervision of the prin- Major amendments. The provisions of cipal investigator. § 216.33(d) and (e) governing notice of (2) For any scientific research involv- receipt, review and decision shall apply ing captive maintenance, the applica- to all proposed major amendments. tion must include supporting docu- (2) Minor amendments. (i) After re- mentation from the person responsible viewing all appropriate information, for the facility or other temporary en- the Office Director will provide the closure. permit holder with written notice of (b) Issuance Criteria. For the Office the decision on a proposed or requested Director to issue any scientific re- amendment, together with an expla- search or enhancement permit, the ap- nation for the decision. plicant must demonstrate that: (ii) If the minor amendment extends (1) The proposed activity furthers a the duration of the permit 12 months bona fide scientific or enhancement or less from that established in the purpose; original permit, notice of the minor (2) If the lethal taking of marine amendment will be published in the mammals is proposed: FEDERAL REGISTER within 10 days from (i) Non-lethal methods for conducting the date of the Office Director’s deci- the research are not feasible; and sion. (ii) For depleted, endangered, or (iii) A minor amendment will be ef- threatened species, the results will di- fective upon a final decision by the Of- rectly benefit that species or stock, or fice Director. will fulfill a critically important re- [61 FR 21937, May 10, 1996] search need. (3) Any permanent removal of a ma- § 216.40 Penalties and permit sanc- rine mammal from the wild is con- tions. sistent with any applicable quota es- (a) Any person who violates any pro- tablished by the Office Director. vision of this subpart or permit issued (4) The proposed research will not thereunder is subject to civil and likely have significant adverse effects criminal penalties, permit sanctions on any other component of the marine and forfeiture as authorized under the ecosystem of which the affected species Acts, and 15 CFR part 904. or stock is a part.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.41

(5) For species or stocks designated under section 4(f) of the ESA for the or proposed to be designated as de- species or stock; or pleted, or listed or proposed to be listed (B) If there is no conservation or re- as endangered or threatened: covery plan, with the Office Director’s (i) The proposed research cannot be evaluation of the actions required to accomplished using a species or stock enhance the survival or recovery of the that is not designated or proposed to be species or stock in light of the factors designated as depleted, or listed or pro- that would be addressed in a conserva- posed to be listed as threatened or en- tion or recovery plan. dangered; (iv) An enhancement permit may au- (ii) The proposed research, by itself thorize the captive maintenance of a or in combination with other activities marine mammal from a threatened, en- will not likely have a long-term direct dangered, or depleted species or stock or indirect adverse impact on the spe- only if the Office Director determines cies or stock; that: (iii) The proposed research will ei- (A) The proposed captive mainte- ther: nance will likely contribute directly to (A) Contribute to fulfilling a research the survival or recovery of the species need or objective identified in a species or stock by maintaining a viable gene recovery or conservation plan, or if pool, increasing productivity, pro- there is no conservation or recovery viding necessary biological informa- plan in place, a research need or objection, or establishing animal reserves tive identified by the Office Director in required to support directly these ob- stock assessments established under jectives; and section 117 of the MMPA; (B) The expected benefit to the spe- (B) Contribute significantly to under- cies or stock outweighs the expected standing the basic biology or ecology benefits of alternatives that do not re- of the species or stock, or to identi- quire removal of marine mammals fying, evaluating, or resolving con- from the wild. servation problems for the species or (v) The Office Director may authorize stock; or the public display of marine mammals (C) Contribute significantly to ful- held under the authority of an en- filling a critically important research hancement permit only if: need. (A) The public display is incidental (6) For proposed enhancement activi- to the authorized captive maintenance; ties: (B) The public display will not inter- (i) Only living marine mammals and fere with the attainment of the sur- marine mammal parts necessary for vival or recovery objectives; enhancement of the survival, recovery, (C) The marine mammals will be held or propagation of the affected species consistent with all requirements and or stock may be taken, imported, ex- standards that are applicable to marine ported, or otherwise affected under the mammals held under the authority of authority of an enhancement permit. the Acts and the Animal Welfare Act, Marine mammal parts would include in unless the Office Director determines this regard clinical specimens or other that an exception is necessary to im- biological samples required for the con- plement an essential enhancement ac- duct of breeding programs or the diag- tivity; and nosis or treatment of disease. (D) The marine mammals will be ex- (ii) The activity will likely concluded from any interactive program tribute significantly to maintaining or and will not be trained for perform- increasing distribution or abundance, ance. enhancing the health or welfare of the (vi) The Office Director may author- species or stock, or ensuring the sur- ize non-intrusive scientific research to vival or recovery of the affected species be conducted while a marine mammal or stock in the wild. is held under the authority of an en- (iii) The activity is consistent with: hancement permit, only if such sci- (A) An approved conservation plan entific research: developed under section 115(b) of the (A) Is incidental to the permitted en- MMPA or recovery plan developed hancement activities; and

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.42 50 CFR Ch. II (10–1–02 Edition)

(B) Will not interfere with the attain- what is necessary to conduct the re- ment of the survival or recovery objec- search (i.e., educational and commer- tives. cial photography). (c) Restrictions. (1) The following re- (2) Any marine mammal or progeny strictions apply to all scientific re- held in captive maintenance under an search permits issued under this sub- enhancement permit shall be returned part: to its natural habitat as soon as fea- (i) Research activities must be con- sible, consistent with the terms of the ducted in the manner authorized in the enhancement permit and the objectives permit. of an approved conservation or recov- (ii) Research results shall be pub- ery plan. In accordance with section lished or otherwise made available to 10(j) of the ESA, the Office Director the scientific community in a reason- may authorize the release of any popu- able period of time. lation of an endangered or threatened (iii) Research activities must be con- species outside the current range of ducted under the direct supervision of such species if the Office Director de- the principal investigator or a co-in- termines that such release will further vestigator identified in the permit. the conservation of such species. (iv) Personnel involved in research [61 FR 21938, May 10, 1996] activities shall be reasonable in number and limited to: § 216.42 Photography. [Reserved] (A) Individuals who perform a function directly supportive of and nec- § 216.43 Public display. [Reserved] essary to the permitted research activ- § 216.44 Applicability/transition. ity; and (B) Support personnel included for (a) General. The regulations of this the purpose of training or as backup subpart are applicable to all persons, personnel for persons described in para- including persons holding permits or graph (c)(1)(iv)(A). other authorizing documents issued be- (v) Any marine mammal part im- fore June 10, 1996, by NMFS for the ported under the authority of a sci- take, import, export, or conduct of any entific research permit must not have otherwise prohibited activity involving been obtained as the result of a lethal a marine mammal or marine mammal taking that would be inconsistent with part for special exception purposes. the Acts, unless authorized by the Of- (b) Scientific research. Any intrusive fice Director. research as defined in § 216.3, initiated (vi) Marine mammals held under a after June 10, 1996, must be authorized permit for scientific research shall not under a scientific research permit. In- be placed on public display, included in trusive research authorized by the Of- an interactive program or activity, or fice Director to be conducted on cap- trained for performance unless such active marine mammals held for public tivities: display purposes prior to June 10, 1996, (A) Are necessary to address sci- must be authorized under a scientific entific research objectives and have research permit one year after June 10, been specifically authorized by the Of- 1996. fice Director under the scientific re- [61 FR 21939, May 10, 1996] search permit; and (B) Are conducted incidental to and § 216.45 General Authorization for do not in any way interfere with the Level B harassment for scientific permitted scientific research; and research. (C) Are conducted in a manner con- (a) General Authorization. (1) Persons sistent with provisions applicable to are authorized under section public display, unless exceptions are 104(c)(3)(C) of the MMPA to take ma- specifically authorized by the Office rine mammals in the wild by Level B Director. harassment, as defined in § 216.3, for (vii) Any activity conducted inci- purposes of bona fide scientific re- dental to the authorized scientific research Provided, That: search activity must not involve any (i) They submit a letter of intent in taking of marine mammals beyond accordance with the requirements of

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.45

paragraph (b) of this section, receive is responsible for the overall research confirmation that the General Author- project, or the institution, govern- ization applies in accordance with mental entity, or corporation respon- paragraph (c) of this section, and com- sible for supervision of the principal in- ply with the terms and conditions of vestigator. paragraph (d) of this section; or (2) The letter of intent must include (ii) If such marine mammals are list- the following information: ed as endangered or threatened under (i) The name, address, telephone the ESA, they have been issued a per- number, qualifications and experience mit under Section 10(a)(1)(A) of the of the applicant and any co-investi- ESA and implementing regulations at gator(s) to be conducting the proposed 50 CFR parts 217–227, particularly at research, and a curriculum vitae for § 222.23 through § 222.28, to take marine each, including a list of publications by mammals in the wild for the purpose of each such investigator relevant to the scientific research, the taking author- objectives, methodology, or other as- ized under the permit involves such pects of the proposed research; Level B harassment of marine mam- (ii) The species or stocks of marine mals or marine mammal stocks, and mammals (common and scientific they comply with the terms and condi- names) that are the subject of the sci- tions of that permit. entific research and any other species (2) Except as provided under para- or stock of marine mammals that may graph (a)(1)(ii) of this section, no tak- be harassed during the conduct of the ing, including harassment, of marine research; mammals listed as threatened or en- (iii) The geographic location(s) in dangered under the ESA is authorized which the research is to be conducted, under the General Authorization. Ma- e.g., geographic name or lat./long.; rine mammals listed as endangered or (iv) The period(s) of time over which threatened under the ESA may be the research will be conducted (up to taken for purposes of scientific re- five years), including the field sea- search only after issuance of a permit son(s) for the research, if applicable; for such activities pursuant to the (v) The purpose of the research, in- ESA. cluding a description of how the pro- (3) The following types of research posed research qualifies as bona fide re- activities will likely qualify for inclu- search as defined in § 216.3; and sion under the General Authorization: (vi) The methods to be used to con- Photo-identification studies, behav- duct the research. ioral observations, and vessel and aer- (3) The letter of intent must be ial population surveys (except aerial signed, dated, and certified by the ap- surveys over pinniped rookeries at alti- plicant as follows: tudes of less than 1,000 ft). In accordance with section 104(c)(3)(C) of (b) Letter of intent. Except as provided the Marine Mammal Protection Act of 1972, under paragraph (a)(1)(ii) of this sec- as amended (16 U.S.C. 1361 et seq.) and imple- tion, any person intending to take ma- menting regulations (50 CFR part 216), I rine mammals in the wild by Level B hereby notify the National Marine Fisheries harassment for purposes of bona fide Service of my intent to conduct research in- scientific research under the General volving only Level B harassment on marine Authorization must submit, at least 60 mammals in the wild, and request confirmation that the General Authorization for days before commencement of such re- Level B Harassment for Scientific Research search, a letter of intent by certified applies to the proposed research as described return/receipt mail to the Chief, Per- herein. I certify that the information in this mits Division, F/PR1, Office of Pro- letter of intent is complete, true, and correct tected Resources, NMFS, 1335 East- to the best of my knowledge and belief, and West Highway, Silver Spring, MD I understand that any false statement may 20910–3226. subject me to the criminal penalties of 18 (1) The letter of intent must be sub- U.S.C. 1001, or penalties under the MMPA and implementing regulations. I acknowl- mitted by the principal investigator edge and accept that authority to conduct (who shall be deemed the applicant). scientific research on marine mammals in For purposes of this section, the prin- the wild under the General Authorization is cipal investigator is the individual who a limited conditional authority restricted to

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00045 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.45 50 CFR Ch. II (10–1–02 Edition)

Level B harassment only, and that any other (2) Annual reports of activities con- take of marine mammals, including the conducted under the General Authoriza- duct of any activity that has the potential to tion must be submitted to the Chief, injure marine mammals (i.e., Level A harass- Permits Division (address listed in ment), may subject me to penalties under the MMPA and implementing regulations. paragraph (b) of this section) within 90 days of completion of the last field sea- (c) Confirmation that the General Au- son(s) during the calendar year or, if thorization applies or notification of per- the research is not conducted during a mit requirement. defined field season, no later than 90 (1) Not later than 30 days after re- days after the anniversary date of the ceipt of a letter of intent as described letter of confirmation issued under in paragraph (b) of this section, the paragraph (c) of this section. Annual Chief, Permits Division, NMFS will reports must include: issue a letter to the applicant either: (i) A summary of research activities (i) Confirming that the General Au- conducted; thorization applies to the proposed sci- (ii) Identification of the species and entific research as described in the let- number of each species taken by Level ter of intent; B harassment; (ii) Notifying the applicant that all (iii) An evaluation of the progress or part of the research described in the made in meeting the objectives of the letter of intent is likely to result in a research as described in the letter of taking of a marine mammal in the wild intent; and involving other than Level B harass- (iv) Any incidental scientific, edu- ment and, as a result, cannot be con- cational, or commercial uses of photo- ducted under the General Authoriza- graphs, videotape, and film obtained as tion, and that a scientific research per- a result of or incidental to the research mit is required to conduct all or part of and if so, names of all photographers. the subject research; or (3) Authorization to conduct research (iii) Notifying the applicant that the under the General Authorization is for letter of intent fails to provide suffi- the period(s) of time identified in the cient information and providing a de- letter of intent or for a period of 5 scription of the deficiencies, or noti- years from the date of the letter of fying the applicant that the proposed confirmation issued under paragraph research as described in the letter of (c) of this section, whichever is less, intent is not bona fide research as de- unless extended by the Director or fined in § 216.3. modified, suspended, or revoked in ac- (2) A copy of each letter of intent and cordance with paragraph (e) of this sec- letter confirming that the General Au- tion; thorization applies or notifying the ap- (4) Activities conducted under the plicant that it does not apply will be General Authorization may only be forwarded to the Marine Mammal Com- conducted under the on-site super- mission. vision of the principal investigator or (3) Periodically, NMFS will publish a co-investigator(s) named in the letter summary document in the FEDERAL of intent. All personnel involved in the REGISTER notifying the public of let- conduct of activities under the General ters of confirmation issued. Authorization must perform a function (d) Terms and conditions. Persons directly supportive of and necessary for issued letters of confirmation in ac- the research being conducted, or be one cordance with paragraph (c) of this sec- of a reasonable number of support per- tion are responsible for complying with sonnel included for the purpose of the following terms and conditions: training or as back-up personnel; (1) Activities are limited to those (5) The principal investigator must conducted for the purposes, by the notify the appropriate Regional Direc- means, in the locations, and during the tor, NMFS, (Regional Director) in writ- periods of time described in the letter ing at least 2 weeks before initiation of of intent and acknowledged as author- on-site activities. The Regional Direc- ized under the General Authorization tor shall consider this information in in the confirmation letter sent pursu- efforts to coordinate field research ac- ant to paragraph (c) of this section; tivities to minimize adverse impacts

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.50

on marine mammals in the wild. The (i) The letter of intent included false principal investigator must cooperate information or statements of a mate- with coordination efforts by the Re- rial nature; gional Director in this regard; (ii) The research does not constitute (6) If research activities result in a bona fide scientific research; taking which exceeds Level B harass- (iii) Research activities result in ment, the applicant shall: takings of marine mammals other than (i) Report the taking within 12 hours by Level B harassment; to the Director, Office of Protected Re- (iv) Research activities differ from sources, or his designee as set forth in those described in the letter of intent the letter authorizing research; and submitted by the applicant and letter (ii) Temporarily discontinue for 72 of confirmation issued by NMFS; or hours all field research activities that (v) The applicant violates any term resulted in the taking. During this or condition set forth in this section. time period, the applicant shall consult (2) Any suspension, revocation, or with NMFS as to the circumstances modification is subject to the require- surrounding the taking and any pre- ments of 15 CFR part 904. cautions necessary to prevent future [59 FR 50376, Oct. 3, 1994] taking, and may agree to amend the research protocol, as deemed necessary § 216.46 U.S. citizens on foreign flag by NMFS. vessels operating under the Inter- (7) NMFS may review scientific re- national Dolphin Conservation Pro- search conducted pursuant to the Gen- gram. eral Authorization. If requested by The MMPA’s provisions do not apply NMFS, the applicant must cooperate to a citizen of the United States who with any such review and shall: incidentally takes any marine mam- (i) Allow any employee of NOAA or mal during fishing operations in the any other person designated by the Di- ETP which are outside the U.S. exclu- rector, Office of Protected Resources to sive economic zone (as defined in sec- observe research activities; and tion 3 of the Magnuson-Stevens Fish- (ii) Provide any documents or other ery Conservation and Management Act information relating to the scientific (16 U.S.C. 1802)), while employed on a research; fishing vessel of a harvesting nation (8) Any photographs, videotape, or that is participating in, and in compli- film obtained during the conduct of re- ance with, the IDCP. search under the General Authoriza- [65 FR 56, Jan. 3, 2000] tion must be identified by a statement that refers to the General Authoriza- §§ 216.47–216.49 [Reserved] tion or ESA permit number, and includes the file number provided by Subpart E—Designated Ports NMFS in the confirmation letter, the name of the photographer, and the date § 216.50 Importation at designated the image was taken. This statement ports. must accompany the image(s) in all (a) Any marine mammal or marine subsequent uses or sales. The annual mammal product which is subject to report must note incidental scientific, the jurisdiction of the National Marine educational, or commercial uses of the Fisheries Service, National Oceanic images, and if there are any such uses, and Atmospheric Administration, De- the names of all photographers; and partment of Commerce and is intended (9) Persons conducting scientific re- for importation into the United States search under authority of the General shall be subject to the provisions of 50 Authorization may not transfer or as- CFR part 14. sign any authority granted thereunder (b) For the information of importers, to any other person. designated ports of entry for the (e) Suspension, revocation, or modifica- United States are: tion. (1) NMFS may suspend, revoke, or New York, N.Y. modify the authority to conduct sci- Miami, Fla. entific research under the General Au- Chicago, Ill. thorization if: San Francisco, Calif.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00047 Fmt 8010 Sfmt 8003 Y:\SGML\197209T.XXX 197209T § 216.71 50 CFR Ch. II (10–1–02 Edition)

Los Angeles, Calif. of any changes to those conditions in- New Orleans, La. dicating that the number of seals that Seattle, Wash. may be taken for subsistence each year Honolulu, Hi. should be made higher or lower. Fol- (c) Additionally, marine mammals or lowing a 30-day public comment period, marine mammal products which are a final notification of the expected an- entered into Alaska, Hawaii, Puerto nual harvest levels for the next 3 years Rico, Guam, American Samoa or the will be published. Virgin Islands and which are not to be (c)(1) No fur seal may be taken on the forwarded or transhipped within the Pribilof Islands before June 23 of each United States may be imported year. through the following ports: (2) No fur seal may be taken except Alaska—Juneau, Anchorage, Fairbanks by experienced sealers using the tradi- Hawaii—Honolulu tional harvesting methods, including Puerto Rico—San Juan stunning followed immediately by Guam—Honolulu, Hi. American Samoa—Honolulu, Hi. exsanguination. The harvesting meth- Virgin Islands—San Juan, P.R. od shall include organized drives of subadult males to killing fields unless (d) Importers are advised to see 50 it is determined by the NMFS rep- CFR part 14 for importation require- resentatives, in consultation with the ments and information. Pribilovians conducting the harvest, [39 FR 1852, Jan. 15, 1974. Redesignated at 59 that alternative methods will not re- FR 50376, Oct. 3, 1994] sult in increased disturbance to the rookery or the increased accidental Subpart F—Pribilof Islands, Taking take of female seals. for Subsistence Purposes (3) Any taking of adult fur seals or pups, or the intentional taking of § 216.71 Allowable take of fur seals. subadult female fur seals is prohibited. Pribilovians may take fur seals on (4) Only subadult male fur seals 124.5 the Pribilof Islands if such taking is centimeters or less in length may be (a) For subsistence uses, and taken. (b) Not accomplished in a wasteful (5) Seals with tags and/or entangling manner. debris may only be taken if so directed by NMFS scientists. [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] (d) The scheduling of the harvest is at the discretion of the Pribilovians, § 216.72 Restrictions on taking. but must be such as to minimize stress (a) The harvests of seals on St. Paul to the harvested seals. The and St. George Islands shall be treated Pribilovians must give adequate ad- independently for the purposes of this vance notice of their harvest schedules section. Any suspension, termination, to the NMFS representatives to allow or extension of the harvest is applica- for necessary monitoring activities. ble only to the island for which it is Scheduling must be consistent with the issued. following restrictions: (b) By April 1 of every third year, be- (1) St. Paul Island—Seals may only be ginning April 1994, the Assistant Ad- harvested from the following haulout ministrator will publish in the areas: Zapadni, English Bay, Northeast FEDERAL REGISTER a summary of the Point, Polovina, Lukanin, Kitovi, and preceding 3 years of harvesting and a Reef. No haulout area may be har- discussion of the number of seals ex- vested more than once per week. pected to be taken annually over the (2) St. George Island—Seals may only next 3 years to satisfy the subsistence be harvested from the following requirements of each island. This dis- haulout areas: Northeast and Zapadni. cussion will include an assessment of Neither haulout area may be harvested factors and conditions on St. Paul and more than twice per week. St. George Islands that influence the (e)(1) The Assistant Administrator is need by Pribilof Aleuts to take seals required to suspend the take provided for subsistence uses and an assessment for in § 215.31 when:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.81

(i) He determines, after reasonable agent, to a tannery registered under 50 notice by NMFS representatives to the CFR 216.23(c) for the purpose of proc- Pribilovians on the island, that the essing, and will be returned directly to subsistence needs of the Pribilovians the Alaskan Native for conversion into on the island have been satisfied; an article of handicraft, or or (c) Is being sold or transferred to an (ii) He determines that the harvest is Alaskan Native, or to an agent reg- otherwise being conducted in a waste- istered under 50 CFR 216.23(c) for resale ful manner; or or transfer to an Alaskan Native, who (iii) The lower end of the range of the will convert the seal part into a handi- estimated subsistence level provided in craft. the notice issued under paragraph (b) [51 FR 24840, July 9, 1986. Redesignated at 61 of this section is reached. FR 11750, Mar. 22, 1996] (2) A suspension based on a determination under paragraph (e)(1)(ii) of § 216.74 Cooperation with Federal offi- this section may be lifted by the As- cials. sistant Administrator if he finds that Pribilovians who engage in the har- the conditions which led to the determination that the harvest was being vest of seals are required to cooperate conducted in a wasteful manner have with scientists engaged in fur seal re- been remedied. search on the Pribilof Islands who may (3) A suspension issued in accordance need assistance in recording tag or with paragraph (e)(1)(iii) of this section other data and collecting tissue or may not exceed 48 hours in duration other fur seal samples for research pur- and shall be followed immediately by a poses. In addition, Pribilovians who review of the harvest data to determine take fur seals for subsistence uses if a finding under paragraph (e)(1)(i) of must, consistent with 5 CFR this section is warranted. If a the har- 1320.7(k)(3), cooperate with the NMFS vest is not suspended under paragraph representatives on the Pribilof Islands (e)(1)(i) of this section, the Assistant who are responsible for compiling the Administrator must provide a revised following information on a daily basis: estimate of the number of seals re- (a) The number of seals taken each quired to satisfy the Pribilovians’ sub- day in the subsistence harvest, sistence needs. (b) The extent of the utilization of (f) The Assistant Administrator shall fur seals taken, and terminate the take provided for in (c) Other information determined by § 215.31 on August 8 of each year or the Assistant Administrator to be nec- when it is determined under paragraph essary for determining the subsistence (e)(1)(i) of this section that the subsist- needs of the Pribilovians or for making ence needs of the Pribilovians on the determinations under § 215.32(e). island have been satisfied, whichever [51 FR 24840, July 9, 1986. Redesignated at 61 occurs first. FR 11750, Mar. 22, 1996] [51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 FR 35474, July 12, Subpart G—Pribilof Islands 1994. Redesignated at 61 FR 11750, Mar. 22, Administration 1996] § 216.81 Visits to fur seal rookeries. § 216.73 Disposition of fur seal parts. Except for transfers to other Alaskan From June 1 to October 15 of each Natives for barter or sharing for per- year, no person, except those author- sonal or family consumption, no part ized by a representative of the National of a fur seal taken for subsistence uses Marine Fisheries Service, or accom- may be sold or otherwise transferred to panied by an authorized employee of any person unless it is a nonedible by- the National Marine Fisheries Service, product which: shall approach any fur seal rookery or (a) Has been transformed into an ar- hauling grounds nor pass beyond any ticle of handicraft, or posted sign forbidding passage. (b) Is being sent by an Alaskan Na- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 tive directly, or through a registered FR 11750, Mar. 22, 1996]

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.82 50 CFR Ch. II (10–1–02 Edition)

§ 216.82 Dogs prohibited. Service, National Oceanic and Atmos- pheric Administration, 1700 Westlake In order to prevent molestation of fur Avenue North, Seattle, WA 98109, by seal herds, the landing of any dogs at filing with the Director an application Pribilof Islands is prohibited. which shall include: [41 FR 49488, Nov. 9, 1976. Redesignated at 61 (i) Copies of the required Federal and FR 11750, Mar. 22, 1996] State of Alaska permits; and (ii) A resume of the intended research § 216.83 Importation of birds or mam- program. mals. (3) All approved research shall be No mammals or birds, except house- subject to all regulations and adminis- hold cats, canaries and parakeets, shall trative procedures in effect on the be imported to the Pribilof Islands Pribilof Islands, and such research without the permission of an author- shall not commence until approval ized representative of the National Ma- from the Director is received. rine Fisheries Service. (4) Any approved research program shall be subject to such terms and con- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] ditions as the Director, Pribilof Islands Program deems appropriate. § 216.84 [Reserved] (5) Permission to utilize the Pribilof Islands to conduct an approved re- § 216.85 Walrus and Otter Islands. search program may be revoked by the By Executive Order 1044, dated Feb- Director, Pribilof Islands Program at ruary 27, 1909, Walrus and Otter Islands any time for noncompliance with any were set aside as bird reservations. All terms and conditions, or for violations persons are prohibited to land on these of any regulation or administrative islands except those authorized by the procedure in effect on the Pribilof Is- lands. appropriate representative of the Na- tional Marine Fisheries Service. [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] Subpart H—Dolphin Safe Tuna § 216.86 Local regulations. Labeling Local regulations will be published from time to time and will be brought AUTHORITY: 16 U.S.C. 1385. to the attention of local residents and SOURCE: 61 FR 27794, June 3, 1996, unless persons assigned to duty on the Islands otherwise noted. by posting in public places and brought to the attention of tourists by personal § 216.90 Purposes. notice. This subpart governs the require- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 ments for using the official mark, de- FR 11750, Mar. 22, 1996] scribed in § 216.96, or an alternative mark that refers to dolphins, porpoises, § 216.87 Wildlife research. or marine mammals, to label tuna or (a) Wildlife research, other than re- tuna products offered for sale in or ex- search on North Pacific fur seals, in- ported from the United States using cluding specimen collection, may be the term ‘‘dolphin-safe’’ or suggesting permitted on the Pribilof Islands sub- the tuna were harvested in a manner ject to the following conditions: not injurious to dolphins. (1) Any person or agency, seeking to [65 FR 56, Jan. 3, 2000] conduct such research shall first obtain any Federal or State of Alaska permit § 216.91 Dolphin-safe labeling stand- required for the type of research in- ards. volved. (a) It is a violation of section 5 of the (2) Any person seeking to conduct Federal Trade Commission Act (15 such research shall obtain prior ap- U.S.C. 45) for any producer, importer, proval of the Director, Pribilof Islands exporter, distributor, or seller of any Program, National Marine Fisheries tuna products that are exported from

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.92

or offered for sale in the United States seine net was intentionally deployed on to include on the label of those prod- or used to encircle dolphins during the ucts the term ‘‘dolphin-safe’’ or any particular voyage on which the tuna other term or symbol that claims or was harvested; suggests that the tuna contained in the (3) Driftnet. By a vessel engaged in products were harvested using a meth- large-scale driftnet fishing; or od of fishing that is not harmful to dol- (4) Other fisheries. By a vessel in a phins if the products contain tuna har- fishery other than one described in vested: paragraphs (a)(1) through(a)(3) of this (1) ETP large purse seine vessel. In the section that is identified by the Assist- ETP by a purse seine vessel of greater ant Administrator as having a regular than 400 st (362.8 mt) carrying capacity and significant mortality or serious in- unless: jury of dolphins, unless such product is (i) The documentation requirements accompanied by a written statement, for dolphin-safe tuna under §§ 216.92 and executed by the captain of the vessel 216.94 are met; and an observer participating in a na- (ii) No dolphin were killed or seri- tional or international program ac- ously injured during the sets in which ceptable to the Assistant Adminis- the tuna were caught; or trator, that no dolphins were killed or (iii) If the Assistant Administrator seriously injured in the sets or other publishes notification in the FEDERAL gear deployments in which the tuna REGISTER announcing a finding that were caught, provided that the Assist- the intentional deployment of purse ant Administrator determines that seine nets on or encirclement of dol- such an observer statement is nec- phins is having a significant adverse essary. impact on any depleted stock: (b) It is a violation of section 5 of the (A) No tuna products were caught on Federal Trade Commission Act (15 a trip using a purse seine net inten- U.S.C. 45) to willingly and knowingly tionally deployed on or to encircle dol- use a label referred to in this section in phins; and a campaign or effort to mislead or de- (B) No dolphins were killed or seri- ceive consumers about the level of pro- ously injured during the sets in which tection afforded dolphins under the the tuna were caught. IDCP. (2) Non-ETP purse seine vessel. Outside (c) A tuna product that is labeled the ETP by a vessel using a purse seine with the official mark, described in net: § 216.96, may not be labeled with any (i) In a fishery in which the Assistant other label or mark that refers to dol- Administrator has determined that a phins, porpoises, or marine mammals. regular and significant association oc- [65 FR 57, Jan. 3, 2000] curs between dolphins and tuna (similar to the association between § 216.92 Dolphin-safe requirements for dolphins and tuna in the ETP), unless tuna harvested in the ETP by large such products are accompanied by a purse seine vessels. written statement, executed by the (a) U.S. vessels. Tuna products that captain of the vessel and an observer contain tuna harvested by U.S. flag participating in a national or inter- purse seine vessels of greater than 400 national program acceptable to the As- st (362.8 mt) carrying capacity in the sistant Administrator, certifying that ETP may be labeled ‘‘dolphin-safe’’ if no purse seine net was intentionally the following requirements are met: deployed on or used to encircle dol- (1) ‘‘Dolphin-safe’’ Tuna Tracking phins during the particular voyage on Forms certified by the vessel captain which the tuna were caught and no dol- and the observer are submitted to the phins were killed or seriously injured Regional Administrator, Southwest in the sets in which the tuna were Region, at the end of the fishing trip caught; or during which the tuna was harvested; (ii) In any other fishery unless the (2) The tuna has been processed by a products are accompanied by a written U.S. tuna processor in a plant located statement executed by the captain of in one of the 50 states, Puerto Rico, or the vessel certifying that no purse American Samoa that is in compliance

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.93 50 CFR Ch. II (10–1–02 Edition)

with the tuna tracking and verification (b) The import documents required requirements of § 216.94; by §§ 216.91 and 216.92 must accompany (3) The tuna or tuna products are ac- the tuna product whenever it is offered companied by a properly completed for sale or export, except that these FCO; documents need not accompany the (4) The tuna or tuna products meet product when offered for sale if: the dolphin-safe labeling standards (1) The documents do not require fur- under § 216.91; and ther endorsement by any importer or (5) The FCO is properly endorsed by processor and are submitted to officials each processor certifying that, to the of the U.S. Customs Service at the best of his or her knowledge and belief, time of import; or the FCO and attached documentation (2) The documents are endorsed as re- are complete and accurate. quired by § 216.92(b)(4) and the final (b) Imported tuna. Tuna or tuna prod- processor delivers the endorsed docu- ucts harvested in the ETP by purse ments to the Administrator, Southwest seine vessels of greater than 400 st Region, or to U.S. Customs as required. (362.8 mt) carrying capacity and pre- [65 FR 57, Jan. 3, 2000] sented for import into the United States are dolphin safe if: § 216.94 Tracking and verification pro- (1) The tuna was harvested by a U.S. gram. vessel fishing in compliance with the The Administrator, Southwest Re- requirements of the IDCP and applica- gion, has established a national track- ble U.S. law, or by a vessel belonging ing and verification program to accu- to a nation that has obtained an af- rately document the ‘‘dolphin-safe’’ firmative finding of § 216.24(f)(9); condition of tuna, under the standards (2) The tuna or tuna products are ac- set forth in § 216.91(a). The tracking companied by a properly completed program includes procedures and re- FCO; ports for use when importing tuna into (3) The tuna or tuna products are ac- the U.S. and during U.S. purse seine companied by valid documentation fishing, processing, and marketing in signed by a representative of the appro- the U.S. and abroad. Verification of priate IDCP member nation, certifying tracking system operations is attained that: through the establishment of audit and (i) There was an IDCP approved ob- document review requirements. The server on board the vessel(s) during the tracking program is consistent with entire trip(s); and the international tuna tracking and (ii) The tuna contained in the ship- verification program adopted by the ment were caught according to the dol- Parties to the IDCP. phin-safe labeling standards of § 216.91; (a) Tuna tracking forms. Whenever a (4) The documentation provided in U.S. flag tuna purse seine vessel of paragraph(b)(3) of this section includes greater than 400 st (362.8 mt) carrying a listing of vessel names and identi- capacity fishes in the ETP, IDCP ap- fying numbers of the associated Tuna proved Tuna Tracking Forms (TTFs), Tracking Forms for each trip of which bearing the IATTC cruise number as- tuna in the shipment originates; and signed to that trip, are used by the ob- (5) The FCO is properly endorsed by server to record every set made during each exporter, importer, and processor that trip. One TTF is used to record certifying that, to the best of his or her ‘‘dolphin-safe’’ sets and a second TTF knowledge and belief, the FCO and at- is used to record ‘‘non-dolphin-safe’’ tached documentation are complete sets. The information entered on the and accurate. TTFs following each set includes date [65 FR 57, Jan. 3, 2000] of trip, set number, date of loading, name of the vessel, vessel Captain’s § 216.93 Submission of documentation. name, observer’s name, well number, (a) Requirements for the submission weights by species composition, esti- of documents concerning the activities mated tons loaded, and date of the set. of U.S. flag vessels with greater than The observer and the vessel engineer 400 st carrying capacity fishing in the initial the entry for each set, and the ETP are contained in § 216.94. vessel Captain and observer review and

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.94

sign both TTFs at the end of the fish- Once a well has been identified as ing trip certifying that the information ‘‘non-dolphin-safe’’ or ‘‘mixed’’ all tuna on the form is accurate. The captain’s subsequently loaded into that well will and observer’s certification of the TTF be designated as ‘‘non-dolphin-safe.’’ on which dolphin-safe sets are recorded When the contents of such a ‘‘mixed complies with 16 U.S.C. 1385(h). well’’ are received by a processor, the (b) Tracking fishing operations. (1) tuna will be weighed and separated ac- During ETP fishing trips by purse seine cording to the observer’s report of the vessels, tuna caught in sets designated estimated weight of ‘‘dolphin-safe’’ and as ‘‘dolphin-safe’’ by the vessel ob- ‘‘non-dolphin-safe’’ tuna contained in server must be stored separately from that well. In addition, 15 percent of the tuna caught in ‘‘non-dolphin-safe’’ sets ‘‘dolphin-safe’’ tuna unloaded from the from the time of capture through un- ‘‘mixed well’’ will be designated as loading, except as provided in para- ‘‘non-dolphin-safe.’’ graph (b)(2) of this section. Vessel per- (ii) Near the end of an ETP fishing sonnel will decide into which wells trip, if the only well space available is tuna will be loaded. The observer will in a ‘‘non-dolphin-safe’’ well, and there initially designate whether each set is is an opportunity to make one last set, ‘‘dolphin-safe’’ or not, based on his/her ‘‘dolphin-safe’’ tuna caught in that set observation of the set. The observer may be loaded into the ‘‘non-dolphin- will initially identify a vessel fish well safe’’ well. The ‘‘dolphin-safe’’ tuna as ‘‘dolphin-safe’’ if the first tuna load- must be kept physically separate from ed into the well during a trip was cap- the ‘‘non-dolphin-safe’’ tuna already in tured in a set in which no dolphin died the well, using netting or other mate- or was seriously injured. The observer rial. will initially identify a vessel fish well (3) The captain, managing owner, or as ‘‘non-dolphin-safe’’ if the first tuna vessel agent of a U.S. purse seine vessel loaded into the well during a trip was returning to port from a trip, any part captured in a set in which a dolphin of which included fishing in the ETP, died or was seriously injured. Any tuna must provide at least 48 hours notice of loaded into a well previously des- the vessel’s intended place of landing, ignated ‘‘non-dolphin-safe’’ or ‘‘mixed arrival time, and schedule of unloading well’’ is considered ‘‘non-dolphin-safe’’ to the Administrator, Southwest Re- tuna. Except as provided for in para- gion. graph (b)(2)(i) of this section, the ob- (4) If the trip terminates when the server will change the designation of a vessel enters port to unload part or all ‘‘dolphin-safe’’ well to ‘‘non-dolphin- of its catch, new TTFs will be assigned safe’’ if any tuna are loaded into the to the new trip, and any information well that were captured in a set in concerning tuna retained on the vessel which a dolphin died or was seriously will be recorded as the first entry on injured. the TTFs for the new trip. If the trip is (2) Mixed wells. Only two acceptable not terminated following a partial un- conditions exist under which a loading, the vessel will retain the ‘‘mixed’’ well can be created. original TTFs and submit a copy of (i) In the event that a set has been those TTFs to the Administrator, designated ‘‘dolphin-safe’’ by the ob- Southwest Region, within 5 working server, but during the loading process days. In either case, the species and dolphin mortality or serious injury is amount unloaded will be noted on the identified, the ‘‘dolphin-safe’’ designa- respective originals. tion of the set will change to ‘‘non-dol- (5) Tuna offloaded to trucks, storage phin-safe.’’ If one or more of the wells facilities or carrier vessels must be into which the newly designated ‘‘non- loaded or stored in such a way as to dolphin-safe’’ tuna are loaded already maintain and safeguard the identifica- contains ‘‘dolphin-safe’’ tuna loaded tion of the ‘‘dolphin-safe’’ or ‘‘non-dol- during a previous set, the observer will phin-safe’’ designation of the tuna as it note in his or her trip records the well left the fishing vessel. numbers and the estimated weight of (6)(i) When ETP caught tuna is to be such ‘‘non-dolphin-safe’’ tuna and des- offloaded from a U.S. purse seiner di- ignate such well(s) as ‘‘mixed well(s).’’ rectly to a U.S. canner within the 50

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.94 50 CFR Ch. II (10–1–02 Edition)

states, Puerto Rico, or American (2) At the close of delivery activities, Samoa, or in any port and subse- which may include weighing, boxing or quently loaded aboard a carrier vessel containerizing, and transfer to cold for transport to a U.S. processing loca- storage or processing, the company tion, a NMFS representative may meet must provide a copy of the processor’s the U.S. purse seiner to receive the receiving report to the NMFS rep- TTFs from the vessel observer and to resentative, if present. If a NMFS rep- monitor the handling of ‘‘dolphin-safe’’ resentative is not present, the com- and ‘‘non-dolphin-safe’’ tuna. pany must submit a copy of the proc- (ii) When ETP caught tuna is essor’s receiving report to the Adminis- offloaded from an U.S. purse seiner in trator, Southwest Region, electroni- any port and subsequently loaded cally, by mail, or by fax within 5 work- aboard a carrier vessel for transport to ing days. The processor’s receiving re- a cannery outside the jurisdiction of port must contain, at a minimum: date the United States, a NMFS representa- of delivery, catcher vessel name and tive may meet the vessel to receive flag, trip number and dates, storage copies of the TTFs from the observer container number(s), ‘‘dolphin-safe’’ or and monitor the offloading. The U.S. ‘‘non-dolphin-safe’’ designation of each caught tuna becomes the tracking and container, species, product description, verification responsibility of the for- and weight of tuna in each container. eign buyer when it is offloaded from (3) Tuna canning companies will re- the U.S. vessel. port on a monthly basis the amounts of (iii) If a NMFS representative does ETP-caught tuna that are removed not meet the vessel in port at the time from cold storage. This report may be of arrival, the observer may take the submitted in conjunction with the signed TTFs to the IATTC office and monthly report required in paragraph mail copies to the Administrator, (c)(5) of this section. This report must Southwest Region, from that location contain: within 5 working days of the end of the (i) The date of removal; trip. (iv) When ETP caught tuna is (ii) Storage container number(s) and offloaded from a U.S. purse seiner di- ‘‘dolphin-safe’’ or ‘‘non-dolphin-safe’’ rectly to a processing facility located designation of each container; and outside the jurisdiction of the United (iii) Details of the disposition of fish States in a country that is a party to (for example, canning, sale, rejection, the IDCP, the national authority in etc.). whose area of jurisdiction the tuna is (4) During canning activities, ‘‘non- to be processed will assume the respon- dolphin-safe’’ tuna may not be mixed sibility for tracking and verification of in any manner or at any time in its the tuna offloaded. A representative of processing with any ‘‘dolphin-safe’’ the national authority will receive cop- tuna or tuna products and may not ies of the TTFs from the observer, and share the same storage containers, copies of the TTFs will be forwarded to cookers, conveyers, tables, or other the Administrator, Southwest Region. canning and labeling machinery. (c) Tracking cannery operations. (1) (5) Canned tuna processors must sub- Whenever a tuna canning company in mit a report to the Administrator, the 50 states, Puerto Rico, or American Southwest Region, of all tuna received Samoa is scheduled to receive a domes- at their processing facilities in each tic or imported shipment of ETP calendar month whether or not the caught tuna for processing, the com- tuna is actually canned or stored dur- pany must provide at least 48 hours no- ing that month. Monthly cannery re- tice of the location and arrival date ceipt reports must be submitted elec- and time of such a shipment, to the Ad- tronically or by mail before the last ministrator, Southwest Region, so that day of the month following the month a NMFS representative can be present being reported. Monthly reports must to monitor delivery and verify that contain the following information: ‘‘dolphin-safe’’ and ‘‘non-dolphin-safe’’ (i) Domestic receipts: species, condi- tuna are clearly identified and remain tion (round, loin, dressed, gilled and segregated. gutted, other), weight in short tons to

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.96

the fourth decimal, ocean area of cap- Region, any such exporter, ture (eastern tropical Pacific, western transshipper, importer, or processor Pacific, Indian, eastern and western must provide the Administrator, Atlantic, other), catcher vessel, trip Southwest Region, timely access to all dates, carrier name, unloading dates, pertinent records and facilities to and location of unloading. allow for audits and spot-checks on (ii) Import receipts: In addition to the caught, landed, and processed tuna. information required in paragraph (f) Confidentiality of proprietary infor- (c)(5)(i) of this section, a copy of the mation. Information submitted to the FCO for each imported receipt must be Assistant Administrator under this provided. section will be treated as confidential (d) Tracking imports. All tuna prod- in accordance with NOAA Administra- ucts, except fresh tuna, that are im- tive Order 216–100 ‘‘Protection of Con- ported into the United States must be fidential Fisheries Statistics.’’ accompanied by a properly certified FCO as required by § 216.24(f). [65 FR 57, Jan. 3, 2000] (e) Verification requirements.—(1) § 216.95 False statements or endorse- Record maintenance. Any exporter, ments. transshipper, importer, or processor of any tuna or tuna products containing Any person who knowingly and will- tuna harvested in the ETP must main- fully makes a false statement or false tain records related to that tuna for at endorsement required by § 216.92 is lia- least 3 years. These records include, ble for a civil penalty not to exceed but are not limited to: FCO and re- $100,000, that may be assessed in an acquired certifications, any report re- tion brought in any appropriate Dis- quired in paragraph (a) and (b) of this trict Court of the United States on be- section, invoices, other import docu- half of the Secretary. ments, and trip reports. (2) Record submission. Within 30 days § 216.96 Official mark for ‘‘Dolphin- of receiving a written request from the safe’’ tuna products. Administrator, Southwest Region, any (a) This is the ‘‘official mark’’ (see exporter, transshipper, importer, or figure 1) designated by the United processor of any tuna or tuna products States Department of Commerce that containing tuna harvested in the ETP may be used to label tuna products must submit to the Administrator any that meet the ‘‘dolphin-safe’’ standards record required to be maintained under set forth in the Dolphin Protection paragraph (e)(1) of this section. Consumer Information Act, 16 U.S.C. (3) Audits and spot-checks. Upon re- 1385, and implementing regulations at quest of the Administrator, Southwest §§ 216.91 through 216.94:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.101 50 CFR Ch. II (10–1–02 Edition)

(b) Location and size of the official Act of 1972, as amended, 16 U.S.C. mark. The official mark on labels must 1371(a)(5), which provides a mechanism allow the consumer to identify the offi- for allowing, upon request, the inci- cial mark and be similar in design and dental, but not intentional, taking of scale to figure 1. A full color version of small numbers of marine mammals by the official mark is available at http:/ U.S. citizens who engage in a specified /swr.ucsd.edu/dsl.htm. activity (other than commercial fish- [65 FR 34410, May 30, 2000] ing) within a specified geographic region.

Subpart I—General Regulations § 216.102 Scope. Governing Small Takes of Ma- The taking of small numbers of marine Mammals Incidental to rine mammals under section 101(a)(5) Specified Activities (A) through (D) of the Marine Mammal Protection Act may be allowed only if SOURCE: 61 FR 15887, Apr. 10, 1996, unless the National Marine Fisheries Service: otherwise noted. (a) Finds, based on the best scientific evidence available, that the total tak- § 216.101 Purpose. ing by the specified activity during the The regulations in this subpart im- specified time period will have a neg- plement section 101(a)(5) (A) through ligible impact on species or stock of (D) of the Marine Mammal Protection marine mammal(s) and will not have

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T ER30MY00.019 National Marine Fisheries Service/NOAA, Commerce § 216.104

an unmitigable adverse impact on the fects on annual rates of recruitment or availability of those species or stocks survival. of marine mammals intended for sub- Small numbers means a portion of a sistence uses; marine mammal species or stock whose (b) Prescribes either regulations taking would have a negligible impact under § 216.106, or requirements and on that species or stock. conditions contained within an inci- Specified activity means any activity, dental harassment authorization issued other than commercial fishing, that under § 216.107, setting forth permis- takes place in a specified geographical sible methods of taking and other region and potentially involves the means of effecting the least practicable taking of small numbers of marine adverse impact on the species or stock mammals. of marine mammal and its habitat and Specified geographical region means an on the availability of the species or area within which a specified activity stock of marine mammal for subsist- is conducted and that has certain bio- ence uses, paying particular attention geographic characteristics. to rookeries, mating grounds, and Unmitigable adverse impact means an areas of similar significance; and impact resulting from the specified ac- (c) Prescribes either regulations or tivity: requirements and conditions contained (1) That is likely to reduce the avail- within an incidental harassment au- ability of the species to a level insuffi- thorization, as appropriate, pertaining cient for a harvest to meet subsistence to the monitoring and reporting of needs by: such taking. The specific regulations (i) Causing the marine mammals to governing certain specified activities abandon or avoid hunting areas; are contained in subsequent subparts of (ii) Directly displacing subsistence this part. users; or § 216.103 Definitions. (iii) Placing physical barriers between the marine mammals and the In addition to definitions contained subsistence hunters; and in the MMPA, and in § 216.3, and unless the context otherwise requires, in sub- (2) That cannot be sufficiently miti- sequent subparts to this part: gated by other measures to increase Arctic waters means the marine and the availability of marine mammals to estuarine waters north of 60° N. lat. allow subsistence needs to be met. Citizens of the United States and U.S. § 216.104 Submission of requests. citizens mean individual U.S. citizens or any corporation or similar entity if it (a) In order for the National Marine is organized under the laws of the Fisheries Service to consider author- United States or any governmental izing the taking by U.S. citizens of unit defined in 16 U.S.C. 1362(13). U.S. small numbers of marine mammals in- Federal, state and local government cidental to a specified activity (other agencies shall also constitute citizens than commercial fishing), or to make a of the United States for purposes of finding that an incidental take is un- this part. likely to occur, a written request must Incidental harassment, incidental tak- be submitted to the Assistant Adminis- ing and incidental, but not intentional, trator. All requests must include the taking all mean an accidental taking. following information for their activ- This does not mean that the taking is ity: unexpected, but rather it includes (1) A detailed description of the spe- those takings that are infrequent, un- cific activity or class of activities that avoidable or accidental. (A complete can be expected to result in incidental definition of ‘‘take’’ is contained in taking of marine mammals; § 216.3). (2) The date(s) and duration of such Negligible impact is an impact result- activity and the specific geographical ing from the specified activity that region where it will occur; cannot be reasonably expected to, and (3) The species and numbers of ma- is not reasonably likely to, adversely rine mammals likely to be found with- affect the species or stock through ef- in the activity area;

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.104 50 CFR Ch. II (10–1–02 Edition)

(4) A description of the status, dis- subsistence community with a draft tribution, and seasonal distribution plan of cooperation; (when applicable) of the affected spe- (ii) A schedule for meeting with the cies or stocks of marine mammals like- affected subsistence communities to ly to be affected by such activities; discuss proposed activities and to re- (5) The type of incidental taking au- solve potential conflicts regarding any thorization that is being requested aspects of either the operation or the (i.e., takes by harassment only; takes plan of cooperation; by harassment, injury and/or death) (iii) A description of what measures and the method of incidental taking; the applicant has taken and/or will (6) By age, sex, and reproductive con- take to ensure that proposed activities dition (if possible), the number of ma- will not interfere with subsistence rine mammals (by species) that may be whaling or sealing; and taken by each type of taking identified (iv) What plans the applicant has to in paragraph (a)(5) of this section, and continue to meet with the affected the number of times such takings by communities, both prior to and while each type of taking are likely to occur; conducting the activity, to resolve con- (7) The anticipated impact of the ac- flicts and to notify the communities of tivity upon the species or stock of ma- any changes in the operation; rine mammal; (13) The suggested means of accom- (8) The anticipated impact of the ac- plishing the necessary monitoring and tivity on the availability of the species reporting that will result in increased or stocks of marine mammals for sub- knowledge of the species, the level of sistence uses; taking or impacts on populations of (9) The anticipated impact of the ac- marine mammals that are expected to tivity upon the habitat of the marine be present while conducting activities mammal populations, and the likeli- and suggested means of minimizing hood of restoration of the affected burdens by coordinating such reporting habitat; requirements with other schemes al- (10) The anticipated impact of the ready applicable to persons conducting loss or modification of the habitat on such activity. Monitoring plans should the marine mammal populations in- include a description of the survey volved; techniques that would be used to deter- (11) The availability and feasibility mine the movement and activity of (economic and technological) of equip- marine mammals near the activity ment, methods, and manner of con- site(s) including migration and other ducting such activity or other means of habitat uses, such as feeding. Guide- effecting the least practicable adverse lines for developing a site-specific mon- impact upon the affected species or itoring plan may be obtained by writ- stocks, their habitat, and on their ing to the Director, Office of Protected availability for subsistence uses, pay- Resources; and ing particular attention to rookeries, (14) Suggested means of learning of, mating grounds, and areas of similar encouraging, and coordinating research significance; opportunities, plans, and activities re- (12) Where the proposed activity lating to reducing such incidental tak- would take place in or near a tradi- ing and evaluating its effects. tional Arctic subsistence hunting area (b)(1) The Assistant Administrator and/or may affect the availability of a shall determine the adequacy and com- species or stock of marine mammal for pleteness of a request and, if deter- Arctic subsistence uses, the applicant mined to be adequate and complete, must submit either a plan of coopera- will begin the public review process by tion or information that identifies publishing in the FEDERAL REGISTER ei- what measures have been taken and/or ther: will be taken to minimize any adverse (i) A proposed incidental harassment effects on the availability of marine authorization; or mammals for subsistence uses. A plan (ii) A notice of receipt of a request must include the following: for the implementation or re- (i) A statement that the applicant implementation of regulations gov- has notified and provided the affected erning the incidental taking.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.106

(2) Through notice in the FEDERAL istrator shall publish in the FEDERAL REGISTER, newspapers of general cir- REGISTER the negative finding along culation, and appropriate electronic with the basis for denying the request. media in the coastal areas that may be affected by such activity, NMFS will § 216.105 Specific regulations. invite information, suggestions, and (a) For all petitions for regulations comments for a period not to exceed 30 under this paragraph, applicants must days from the date of publication in provide the information requested in the FEDERAL REGISTER. All informa- § 216.104(a) on their activity as a whole, tion and suggestions will be considered which includes, but is not necessarily by the National Marine Fisheries Serv- limited to, an assessment of total im- ice in developing, if appropriate, the pacts by all persons conducting the ac- most effective regulations governing tivity. the issuance of letters of authorization (b) For allowed activities that may or conditions governing the issuance of result in incidental takings of small an incidental harassment authoriza- numbers of marine mammals by har- tion. assment, serious injury, death or a (3) Applications that are determined combination thereof, specific regula- to be incomplete or inappropriate for tions shall be established for each al- the type of taking requested, will be re- lowed activity that set forth: turned to the applicant with an expla- (1) Permissible methods of taking; nation of why the application is being (2) Means of effecting the least prac- returned. ticable adverse impact on the species (c) The Assistant Administrator shall and its habitat and on the availability evaluate each request to determine, of the species for subsistence uses; and based upon the best available scientific (3) Requirements for monitoring and evidence, whether the taking by the reporting, including requirements for specified activity within the specified the independent peer-review of pro- geographic region will have a neg- posed monitoring plans where the pro- ligible impact on the species or stock posed activity may affect the avail- and, where appropriate, will not have ability of a species or stock for taking an unmitigable adverse impact on the for subsistence uses. availability of such species or stock for (c) Regulations will be established subsistence uses. If the Assistant Ad- based on the best available informa- ministrator finds that the mitigating tion. As new information is developed, measures would render the impact of through monitoring, reporting, or re- the specified activity negligible when search, the regulations may be modi- it would not otherwise satisfy that re- fied, in whole or in part, after notice quirement, the Assistant Adminis- and opportunity for public review. trator may make a finding of negligible impact subject to such miti- § 216.106 Letter of Authorization. gating measures being successfully im- (a) A Letter of Authorization, which plemented. Any preliminary findings of may be issued only to U.S. citizens, is ‘‘negligible impact’’ and ‘‘no required to conduct activities pursuant unmitigable adverse impact’’ shall be to any regulations established under proposed for public comment along § 216.105. Requests for Letters of Au- with either the proposed incidental thorization shall be submitted to the harassment authorization or the pro- Director, Office of Protected Re- posed regulations for the specific activ- sources. The information to be sub- ity. mitted in a request for an authoriza- (d) If, subsequent to the public review tion will be specified in the appropriate period, the Assistant Administrator subpart to this part or may be obtained finds that the taking by the specified by writing to the above named person. activity would have more than a neg- (b) Issuance of a Letter of Authoriza- ligible impact on the species or stock tion will be based on a determination of marine mammal or would have an that the level of taking will be con- unmitigable adverse impact on the sistent with the findings made for the availability of such species or stock for total taking allowable under the spe- subsistence uses, the Assistant Admin- cific regulations.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.107 50 CFR Ch. II (10–1–02 Edition)

(c) Letters of Authorization will (3) Requirements for monitoring and specify the period of validity and any reporting, including requirements for additional terms and conditions appro- the independent peer-review of propriate for the specific request. posed monitoring plans where the pro- (d) Notice of issuance of all Letters of posed activity may affect the avail- Authorization will be published in the ability of a species or stock for taking FEDERAL REGISTER within 30 days of for subsistence uses. issuance. (b) Issuance of an incidental harass- (e) Letters of Authorization shall be ment authorization will be based on a withdrawn or suspended, either on an determination that the number of ma- individual or class basis, as appro- rine mammals taken by harassment priate, if, after notice and opportunity will be small, will have a negligible im- for public comment, the Assistant Ad- pact on the species or stock of marine ministrator determines that: mammal(s), and will not have an (1) The regulations prescribed are not unmitigable adverse impact on the being substantially complied with; or availability of species or stocks for taking for subsistence uses. (2) The taking allowed is having, or (c) An incidental harassment author- may have, more than a negligible im- ization will be either issued or denied pact on the species or stock or, where within 45 days after the close of the relevant, an unmitigable adverse im- public review period. pact on the availability of the species (d) Notice of issuance or denial of an or stock for subsistence uses. incidental harassment authorization (f) The requirement for notice and will be published in the FEDERAL REG- opportunity for public review in ISTER within 30 days of issuance of a § 216.106(e) shall not apply if the Assist- determination. ant Administrator determines that an (e) Incidental harassment authoriza- emergency exists that poses a signifi- tions will be valid for a period of time cant risk to the wellbeing of the spe- not to exceed 1 year but may be re- cies or stocks of marine mammals con- newed for additional periods of time cerned. not to exceed 1 year for each reauthor- (g) A violation of any of the terms ization. and conditions of a Letter of Author- (f) An incidental harassment authorization or of the specific regulations ization shall be modified, withdrawn, shall subject the Holder and/or any in- or suspended if, after notice and oppor- dividual who is operating under the au- tunity for public comment, the Assist- thority of the Holder’s Letter of Au- ant Administrator determines that: thorization to penalties provided in the (1) The conditions and requirements MMPA. prescribed in the authorization are not being substantially complied with; or § 216.107 Incidental harassment au- (2) The authorized taking, either in- thorization for Arctic waters. dividually or in combination with (a) Except for activities that have other authorizations, is having, or may the potential to result in serious injury have, more than a negligible impact on or mortality, which must be authorized the species or stock or, where relevant, under § 216.105, incidental harassment an unmitigable adverse impact on the authorizations may be issued, fol- availability of the species or stock for lowing a 30-day public review period, to subsistence uses. allowed activities that may result in (g) The requirement for notice and only the incidental harassment of a opportunity for public review in para- small number of marine mammals. graph (f) of this section shall not apply Each such incidental harassment au- if the Assistant Administrator deter- thorization shall set forth: mines that an emergency exists that (1) Permissible methods of taking by poses a significant risk to the well- harassment; being of the species or stocks of marine (2) Means of effecting the least prac- mammals concerned. ticable adverse impact on the species, (h) A violation of any of the terms its habitat, and on the availability of and conditions of an incidental harass- the species for subsistence uses; and ment authorization shall subject the

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.108

holder and/or any individual who is op- posals must be independently peer-re- erating under the authority of the viewed prior to issuance of an inci- holder’s incidental harassment author- dental harassment authorization under ization to penalties provided in the this subpart. In order to complete the MMPA. peer-review process within the time frames mandated by the MMPA for an § 216.108 Requirements for monitoring incidental harassment authorization, a and reporting under incidental harassment authorizations for Arctic proposed monitoring plan submitted waters. under this paragraph must be submitted to the Assistant Administrator (a) Holders of an incidental harass- no later than the date of submission of ment authorization in Arctic waters the application for an incidental har- and their employees, agents, and des- assment authorization. Upon receipt of ignees must cooperate with the Na- tional Marine Fisheries Service and a complete monitoring plan, and at its other designated Federal, state, or discretion, the National Marine Fish- local agencies to monitor the impacts eries Service will either submit the of their activity on marine mammals. plan to members of a peer review panel Unless stated otherwise within an inci- for review or within 60 days of receipt dental harassment authorization, the of the proposed monitoring plan, sched- holder of an incidental harassment au- ule a workshop to review the plan. The thorization effective in Arctic waters applicant must submit a final moni- must notify the Alaska Regional Direc- toring plan to the Assistant Adminis- tor, National Marine Fisheries Service, trator prior to the issuance of an inci- of any activities that may involve a dental harassment authorization. take by incidental harassment in Arc- (e) At its discretion, the National tic waters at least 14 calendar days Marine Fisheries Service may place an prior to commencement of the activ- observer aboard vessels, platforms, air- ity. craft, etc., to monitor the impact of ac- (b) Holders of incidental harassment tivities on marine mammals. authorizations effective in Arctic wa- (f)(1) As specified in the incidental ters may be required by their author- harassment authorization, the holder ization to designate at least one quali- of an incidental harassment authoriza- fied biological observer or another ap- tion for Arctic waters must submit re- propriately experienced individual to ports to the Assistant Administrator observe and record the effects of activi- within 90 days of completion of any in- ties on marine mammals. The number dividual components of the activity (if of observers required for monitoring any), within 90 days of completion of the impact of the activity on marine the activity, but no later than 120 days mammals will be specified in the inci- prior to expiration of the incidental dental harassment authorization. If ob- harassment authorization, whichever is servers are required as a condition of earlier. This report must include the the authorization, the observer(s) must following information: be approved in advance by the National Marine Fisheries Service. (i) Dates and type(s) of activity; (c) The monitoring program must, if (ii) Dates and location(s) of any ac- appropriate, document the effects tivities related to monitoring the ef- (including acoustical) on marine mam- fects on marine mammals; and mals and document or estimate the ac- (iii) Results of the monitoring activi- tual level of take. The requirements ties, including an estimate of the ac- for monitoring plans, as specified in tual level and type of take, species the incidental harassment authoriza- name and numbers of each species ob- tion, may vary depending on the activ- served, direction of movement of spe- ity, the location, and the time. cies, and any observed changes or (d) Where the proposed activity may modifications in behavior. affect the availability of a species or (2) Monitoring reports will be re- stock of marine mammal for taking for viewed by the Assistant Administrator subsistence purposes, proposed moni- and, if determined to be incomplete or toring plans or other research pro- inaccurate, will be returned to the

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.111 50 CFR Ch. II (10–1–02 Edition)

holder of the authorization with an ex- (a) On-ice geophysical seismic activi- planation of why the report is being re- ties involving vibrator-type, airgun, or turned. If the authorization holder dis- other energy source equipment shown agrees with the findings of the Assist- to have similar or lesser effects. ant Administrator, the holder may re- (b) Operation of transportation and quest an independent peer review of the camp facilities associated with seismic report. Failure to submit a complete activities. and accurate report may result in a delay in processing future authoriza- § 216.114 Mitigation. tion requests. (a) All activities identified in § 216.113 (g) Results of any behavioral, feed- must be conducted in a manner that ing, or population studies, that are minimizes to the greatest extent prac- conducted supplemental to the moni- ticable adverse effects on ringed and toring program, should be made avail- bearded seals and their habitat. able to the National Marine Fisheries (b) All activities identified in § 216.113 Service before applying for an inci- must be conducted as far as practicable dental harassment authorization for from any observed ringed or bearded the following year. seal or ringed seal lair. No energy source must be placed over an observed ringed seal lair, whether or not any Subpart J—Taking of Ringed Seals seal is present. Incidental to On-Ice Seismic Activities § 216.115 Requirements for monitoring and reporting.

SOURCE: 63 FR 5283, Feb. 2, 1998, unless oth- (a) Holders of Letters of Authoriza- erwise noted. tion are required to cooperate with the National Marine Fisheries Service and EFFECTIVE DATE NOTE: At 63 FR 5283, Feb. 2, 1998, subpart J was revised, effective Feb. any other Federal, state, or local agen- 2, 1998, to Dec. 31, 2002. cy monitoring the impacts on ringed or bearded seals. § 216.111 Specified activity and speci- (b) Holders of Letters of Authoriza- fied geographical region. tion must designate qualified on-site Regulations in this subpart apply individuals, as specified in the Letter only to the incidental taking of ringed of Authorization, to observe and record seals (Phoca hispida) and bearded seals the presence of ringed or bearded seals (Erignathus barbatus) by U.S. citizens and ringed seal lairs along shot lines engaged in on-ice seismic exploratory and around camps, and the information and associated activities over the required in paragraph (d) of this sec- Outer Continental Shelf of the Beau- tion. fort Sea of Alaska, from the shore (c) Holders of Letters of Authoriza- outward to 45 mi (72 km) and from tion must conduct additional moni- Point Barrow east to Demarcation toring as required under an annual Let- Point, from January 1 through May 31 ter of Authorization. of any calendar year. (d) An annual report must be submitted to the Assistant Administrator § 216.112 Effective dates. for Fisheries within 90 days after completing each year’s activities and must Regulations in this subpart are effec- include the following information: tive from February 2, 1998 through De- (1) Location(s) of survey activities. cember 31, 2002. (2) Level of effort (e.g., duration, area surveyed, number of surveys), methods § 216.113 Permissible methods. used, and a description of habitat (e.g., The incidental, but not intentional, ice thickness, surface topography) for taking of ringed and bearded seals from each location. January 1 through May 31 by U.S. citi- (3) Numbers of ringed seals, bearded zens holding a Letter of Authorization, seals, or other marine mammals ob- issued under § 216.106, is permitted dur- served, proximity to seismic or associ- ing the course of the following activi- ated activities, and any seal reactions ties: observed for each location.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.119

(4) Numbers of ringed seal lairs ob- (1) Timely receipt of the reports reserved and proximity to seismic or as- quired under § 216.115(d), which have sociated activities for each location. been reviewed by the Assistant Admin- (5) Other information as required in a istrator and determined to be accept- Letter of Authorization. able; and (2) A determination that the mitiga- § 216.116 Applications for Letters of Authorization. tion measures required under § 216.114(b) and the Letter of Authoriza- (a) To incidentally take ringed and tion have been undertaken. bearded seals pursuant to these regula- (b) A notice of issuance of a Letter of tions, each company conducting seis- Authorization or of a renewal of a Let- mic operations between January 1 and May 31 in the geographical area deter of Authorization will be published scribed in § 216.111, must apply for and in the FEDERAL REGISTER within 30 obtain a Letter of Authorization in ac- days of issuance. cordance with § 216.106. (b) The application must be sub- § 216.118 Modifications to Letters of Authorization. mitted to the National Marine Fish- eries Service at least 90 days before the (a) In addition to complying with the activity is scheduled to begin. provisions of § 216.106, except as pro- (c) Applications for Letters of Au- vided in paragraph (b) of this section, thorization and for renewals of Letters no substantive modification, including of Authorization must include the fol- withdrawal or suspension, to a Letter lowing: of Authorization issued pursuant to (1) Name of company requesting the § 216.106 and subject to the provisions of authorization; this subpart shall be made until after (2) A description of the activity in- notice and an opportunity for public cluding method to be used (vibroseis, comment. For purposes of this para- airgun, watergun), the dates and dura- graph, renewal of a Letter of Author- tion of the activity, the specific loca- ization under § 216.117, without modi- tion of the activity and the estimated fication, is not considered a sub- area that will actually be affected by stantive modification. the exploratory activity; (b) If the Assistant Administrator de- (3) Any plans to monitor the behavior termines that an emergency exists that and effects of the activity on marine mammals; poses a significant risk to the well- (4) A description of what measures being of the species or stocks of marine the applicant has taken and/or will mammals specified in § 216.111, the Let- take to ensure that proposed activities ter of Authorization issued pursuant to will not interfere with subsistence seal- § 216.106, or renewed pursuant to this ing; and section may be substantively modified (5) What plans the applicant has to without prior notice and an oppor- continue to meet with the affected tunity for public comment. A notice communities, both prior to and while will be published in the FEDERAL REG- conducting the activity, to resolve con- ISTER subsequent to the action. flicts and to notify the communities of any changes in the operation. § 216.119 [Reserved] (d) A copy of the Letter of Authoriza- tion must be in the possession of the Subpart K—Taking of Marine persons conducting activities that may Mammals Incidental to Space involve incidental takings of ringed Vehicle and Test Flight Activi- and bearded seals. ties § 216.117 Renewal of Letters of Author- ization. SOURCE: 64 FR 9930, Mar. 1, 1999, unless oth- (a) A Letter of Authorization issued erwise noted. under § 216.106 for the activity identi- EFFECTIVE DATE NOTE: At 64 FR 9930, Mar. fied in § 216.111 will be renewed annu- 1, 1999, subpart K was added, effective Mar. 1, ally upon: 1999, to Dec. 31, 2003.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.120 50 CFR Ch. II (10–1–02 Edition)

§ 216.120 Specified activity and speci- (a) Take any marine mammal not fied geographical region. specified in § 216.120(b); (a) Regulations in this subpart apply (b) Take any marine mammal speci- only to the incidental taking of those fied in § 216.120(b) other than by inci- marine mammals specified in para- dental, unintentional harassment; graph (b) of this section by U.S. citi- (c) Take a marine mammal specified zens engaged in: in § 216.120(b) if such take results in (1) Launching up to 10 Minuteman more than a negligible impact on the and Peacekeeper missiles each year species or stocks of such marine mam- from Vandenberg Air Force Base, for a mal; or total of up to 50 missiles over the 5- (d) Violate, or fail to comply with, year authorization period, the terms, conditions, and require- (2) Launching up to 20 rockets each ments of these regulations or a Letter year from Vandenberg Air Force Base, of Authorization issued under § 216.106. for a total of up to 100 rocket launches over the 5-year authorization period, § 216.124 Mitigation. (3) Aircraft flight test operations, (a) The activity identified in and (4) Helicopter operations from Van- § 216.120(a) must be conducted in a man- denberg Air Force Base. ner that minimizes, to the greatest ex- (b) The incidental take of marine tent possible, adverse impacts on ma- mammals on Vandenberg Air Force rine mammals and their habitats. Base and in waters off southern Cali- When conducting operations identified fornia, under the activity identified in in § 216.120, the following mitigation paragraph (a) of this section, is limited measures must be utilized: to the following species: Harbor seals (1) All aircraft and helicopter flight (Phoca vitulina), California sea lions paths must maintain a minimum dis- (Zalophus californianus), northern ele- tance of 1,000 ft (305 m) from recognized phant seals (Mirounga angustirostris), seal haulouts and rookeries (e.g., Point northern fur seals (Callorhinus ursinus), Sal, Purisima Point, Rocky Point), ex- Guadalupe fur seals (Arctocephalus cept in emergencies or for real-time se- townsendi), and Steller sea lions curity incidents (e.g., search-and-res- (Eumetopias jubatus). cue, fire-fighting) which may require approaching pinniped rookeries closer § 216.121 Effective dates. than 1,000 ft (305 m). Regulations in this subpart are effec- (2) For missile and rocket launches, tive from March 1, 1999, through De- unless constrained by other factors in- cember 31, 2003. cluding, but not limited to, human safety, national security or launch tra- § 216.122 Permissible methods of tak- jectories, in order to ensure minimum ing. negligible impacts of launches on har- (a) Under Letters of Authorization bor seals and other pinnipeds, holders issued pursuant to § 216.106, the 30th of Letters of Authorization must avoid, Space Wing, U.S. Air Force, its con- whenever possible, launches during the tractors, and clients, may incidentally, harbor seal pupping season of February but not intentionally, take marine through May. mammals by harassment, within the (3) For Titan IV launches only, the area described in § 216.120, provided all holder of that Letter of Authorization terms, conditions, and requirements of must avoid launches, whenever pos- these regulations and such Letter(s) of sible, which predict a sonic boom on Authorization are complied with. the Northern Channel Islands during (b) [Reserved] harbor seal, elephant seal, and Cali- fornia sea lion pupping seasons. § 216.123 Prohibitions. (4) If post-launch surveys determine Notwithstanding takings authorized that an injurious or lethal take of a by § 216.120 and by a Letter of Author- marine mammal has occurred, the ization issued under § 216.106, no person launch procedure and the monitoring in connection with the activities de- methods must be reviewed, in coopera- scribed in § 216.120 shall: tion with NMFS, and appropriate

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.125

changes must be made through modi- (5) Conduct acoustic measurements fication to a Letter of Authorization, of those launch vehicles not having prior to conducting the next launch sound pressure level measurements under that Letter of Authorization. made previously. (5) Additional mitigation measures as (c) Holders of Letters of Authoriza- contained in a Letter of Authorization. tion must conduct additional moni- (b) [Reserved] toring as required under an annual Let- ter of Authorization. § 216.125 Requirements for monitoring (d) The Holder of the Letter of Au- and reporting. thorization must submit a report to (a) Holders of Letters of Authoriza- the Southwest Administrator, National tion issued pursuant to § 216.106 for ac- Marine Fisheries Service within 90 tivities described in § 216.120(a) are re- days after each launch. This report quired to cooperate with the National must contain the following informa- Marine Fisheries Service, and any tion: other Federal, state or local agency (1) Date(s) and time(s) of the launch, monitoring the impacts of the activity (2) Design of the monitoring pro- on marine mammals. Unless specified gram, and otherwise in the Letter of Authoriza- (3) Results of the monitoring pro- tion, the Holder of the Letter of Au- grams, including, but not necessarily thorization must notify the Adminis- trator, Southwest Region, National limited to: Marine Fisheries Service, by letter or (i) Numbers of pinnipeds present on telephone, at least 2 weeks prior to ac- the haulout prior to commencement of tivities possibly involving the taking the launch, of marine mammals. (ii) Numbers of pinnipeds that may (b) Holders of Letters of Authoriza- have been harassed as noted by the tion must designate qualified on-site number of pinnipeds estimated to have individuals, as specified in the Letter entered the water as a result of launch of Authorization, to: noise, (1) Conduct observations on harbor (iii) The length of time(s) pinnipeds seal, elephant seal, and sea lion activ- remained off the haulout or rookery, ity in the vicinity of the rookery near- (iv) The numbers of pinniped adults est the launch platform or, in the ab- or pups that may have been injured or sence of pinnipeds at that location, at killed as a result of the launch, and another nearby haulout, for at least 72 (v) Behavioral modifications by hours prior to any planned launch oc- pinnipeds noted that were likely the curring during the harbor seal pupping result of launch noise or the sonic season (1 March through 30 June) and boom. continue for a period of time not less (e) An annual report must be sub- than 48 hours subsequent to launching, mitted that describes any incidental (2) Monitor haulout sites on the takings not reported under paragraph Northern Channel Islands if it is deter- (d) of this section. mined that a sonic boom could impact (f) A final report must be submitted those areas (this determination will be at least 180 days prior to expiration of made in consultation with the National Marine Fisheries Service), these regulations. This report will: (3) As required under a Letter of Au- (1) Summarize the activities under- thorization, investigate the potential taken and the results reported all pre- for spontaneous abortion, disruption of vious reports, effective female-neonate bonding, and (2) Assess the impacts at each of the other reproductive dysfunction, major rookeries, (4) Supplement observations on Van- (3) Assess the cumulative impact on denberg and on the Northern Channel pinnipeds and other marine mammals Islands, if indicated, with video-record- from Vandenberg activities, and ing of mother-pup seal responses for (4) State the date(s) location(s) and daylight launches during the pupping findings of any research activities re- season, and lated to monitoring the effects on

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.126 50 CFR Ch. II (10–1–02 Edition)

launch noise and sonic booms on ma- § 216.128 Modifications of Letters of rine mammal populations. Authorization. [64 FR 9930, Mar. 1, 1999, as amended at 67 FR (a) In addition to complying with the 2824, Jan. 22, 2002] provisions of § 216.106, except as provided in paragraph (b) of this section, § 216.126 Applications for Letters of no substantive modification, including Authorization. withdrawal or suspension, to the Let- (a) To incidentally take harbor seals ter of Authorization issued pursuant to and other marine mammals pursuant § 216.106 and subject to the provisions of to these regulations, either the U.S. this subpart shall be made until after citizen (see definition at § 216.103) con- notice and an opportunity for public ducting the activity or the 30th Space comment. Wing on behalf of the U.S. citizen con- (b) If the Assistant Administrator de- ducting the activity, must apply for termines that an emergency exists that and obtain a Letter of Authorization in poses a significant risk to the well- accordance with § 216.106. being of the species or stocks of marine (b) The application must be submitted to the National Marine Fish- mammals specified in § 216.120(b) or eries Service at least 30 days before the that significantly and detrimentally activity is scheduled to begin. alters the scheduling of launches, a (c) Applications for Letters of Au- Letter of Authorization issued pursu- thorization and for renewals of Letters ant to § 216.106 may be substantively of Authorization must include the fol- modified without a prior notice and an lowing: opportunity for public comment. A no- (1) Name of the U.S. citizen request- tice will be published in the FEDERAL ing the authorization, REGISTER subsequent to the action. (2) A description of the activity, the dates of the activity, and the specific Subpart L—Taking of Marine location of the activity, and Mammals Incidental to Power (3) Plans to monitor the behavior and Plant Operations effects of the activity on marine mammals. (d) A copy of the Letter of Authoriza- SOURCE: 64 FR 28120, May 25, 1999, unless tion must be in the possession of the otherwise noted. persons conducting activities that may EFFECTIVE DATE NOTE: At 64 FR 28120, May involve incidental takings of seals and 25, 1999, subpart L was added, effective July sea lions. 1, 1999 through June 30, 2004.

§ 216.127 Renewal of Letters of Author- § 216.130 Specified activity, specified ization. geographical region, and incidental A Letter of Authorization issued take levels. under § 216.126 for the activity identi- (a) Regulations in this subpart apply fied in § 216.120(a) will be renewed annu- only to the incidental taking of harbor ally upon: seals (Phoca vitulina), gray seals (a) Timely receipt of the reports re- (Halichoerus grypus), harp seals (Phoca quired under § 216.125(d), which have groenlandica), and hooded seals been reviewed by the Assistant Admin- (Cystophora cristata) by U.S. citizens istrator and determined to be accept- engaged in power plant operations at able; the Seabrook Station nuclear power (b) A determination that the mitiga- plant, Seabrook, NH. tion measures required under § 216.124 (b) The incidental take of harbor, and the Letter of Authorization have gray, harp, and hooded seals under the been undertaken; and activity identified in this section is (c) A notice of issuance of a Letter of limited to 20 harbor seals and 4 of any Authorization or a renewal of a Letter combination of gray, harp, and hooded of Authorization will be published in seals for each year of the authoriza- the FEDERAL REGISTER within 30 days tion. of issuance.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.135

§ 216.131 Effective dates. the Letter of Authorization, the sched- Regulations in this subpart are effec- ule and other conditions for implemen- tive from July 1, 1999 through June 30, tation of the measures. Implementa- 2004. tion of such measures must be completed no later than 42 months after § 216.132 Permissible methods of tak- the date of issuance of the final rule. ing. Failure of the holder of the Letter of Under a Letter of Authorization Authorization to implement such issued to North Atlantic Energy Serv- measures in accordance with the NMFS ices Corporation for Seabrook Station, specifications may be grounds to inval- the North Atlantic Energy Services idate the Letter of Authorization. Corporation may incidentally, but not intentionally, take marine mammals § 216.135 Monitoring and reporting. specified in § 216.130 in the course of op- (a) The holder of the Letter of Au- erating the station’s intake cooling thorization is required to cooperate water system. with NMFS and any other Federal, state, or local agency monitoring the § 216.133 Prohibitions. impacts of the activity on harbor, Notwithstanding takings authorized gray, harp, or hooded seals. by § 216.130(a) and by the Letter of Au- (b) The holder of the Letter of Au- thorization, issued under § 216.106, the thorization must designate a qualified following activities are prohibited: individual or individuals capable of (a) The taking of harbor seals, gray identifying any seal or seal parts or seals, harp seals, and hooded seals that marine mammal or marine mammal is other than incidental. parts, that occur in the intake circu- (b) The taking of any marine mam- lating system, including the intake mal not authorized in this applicable transition structure, both forebays, subpart or by any other law or regula- and any marine mammal or marine tion. mammal parts observed as a result of (c) The violation of, or failure to screen washings conducted. comply with, the terms, conditions, and requirements of this part or a Let- (c) The holder of the Letter of Au- ter of Authorization issued under thorization must conduct at least two § 216.106. daily visual inspections of the circulating water and service water forebays § 216.134 Mitigation requirements. during the period specified in the Let- ter of Authorization. The holder of the Letter of Author- ization is required to report, within 6 (d) The holder of the Letter of Au- months from the issuance of a final thorization must conduct at least daily rule, to the Administrator, Northeast inspections of the intake transition Region, NMFS, on possible mitigation structure from April 1 through Decem- measures effecting the least prac- ber, unless weather conditions prevent ticable adverse impact on the seals safe access to the structure. specified in § 216.130. The report shall (e) The holder of the Letter of Au- also include a recommendation of thorization must conduct screen which measures, if any, the holder washings at least daily during the could feasibly implement. A descrip- months of higher incidents of observed tion of any mitigation measures that takes and this period will be specified Seabrook Station has considered, but in the Letter of Authorization. During determined would not be feasible, must the months not specified in the LOA, be included as well. After submission of screen washings will be conducted such report, NMFS shall determine twice a week. Examination of the de- whether the holder of the Letter of Au- bris must be conducted to determine if thorization must implement measures any seal remains are present. to effect the least practicable adverse (f) The holder of the Letter of Au- impact on the seals. If NMFS deter- thorization must report orally to the mines that such measures must be im- Northeast Regional Administrator, plemented then NMFS shall specify, NMFS, by telephone or other accept- after consultation with the holder of able means, any marine mammals or

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.136 50 CFR Ch. II (10–1–02 Edition)

marine mammal parts found in the lo- mitted under § 216.135, to determine cations specified in § 216.135(b) through whether or not the taking is having (e). Such oral reports must be made by more than a negligible impact on the the close of the next business day fol- species or stock involved. The Letter of lowing the finding of any marine mam- Authorization may be renewed pro- mal or marine mammal parts. vided a negligible impact determina- (g) The holder of the Letter of Au- tion is made and other conditions and thorization must arrange to have a ne- requirements specified in § 216.136(a) cropsy examination performed by are satisfied, and provided that any qualified individuals on any marine modifications of the Letter of Author- mammal or marine mammal parts re- ization that may be required are done covered through monitoring as speci- pursuant to § 216.137. fied under § 216.135(b) through (e). (c) Notice of issuance of a renewal of (h) The holder of the Letter of Au- the Letter of Authorization will be thorization must also provide written published in the FEDERAL REGISTER notification to the Administrator, within 30 days of issuance. Northeast Region, NMFS, of such marine mammal or marine mammal parts § 216.137 Modifications to the Letter of found within 30 days from the time of Authorization. the discovery. This report must con- (a) In addition to complying with the tain the results of any examinations or provisions of § 216.106, except as pro- necropsies of the marine mammals in vided in paragraph (b) of this section, addition to any other information re- no substantive modification, including lating to the circumstances of the withdrawal or suspension, to the Let- take. ter of Authorization issued pursuant to (i) An annual report, identifying § 216.106 and subject to the provisions of mitigation measures implemented to this subpart shall be made until after effect the least practicable adverse im- notice and an opportunity for public pact on the seals and/or are being con- comment. For purposes of this para- sidered for implementation pursuant to graph, renewal of a Letter of Author- the requirements specified at § 216.134, ization under § 216.136, without modi- must be submitted to the Adminis- fication, is not considered a sub- trator, Northeast Region, NMFS, with- stantive modification. in 30 days prior to the expiration date (b) If NMFS determines that an of the issuance of the Letter of Author- emergency exists that poses a signifi- ization. cant risk to the well-being of the species or stocks of marine mammals § 216.136 Renewal of the Letter of Au- specified in § 216.130, the Letter of Au- thorization. thorization issued pursuant to this sec- (a) A Letter of Authorization issued tion may be substantively modified under § 216.106 for the activity identi- without prior notice and an oppor- fied in § 216.130(a) may be renewed an- tunity for public comment. Notifica- nually provided the following condition will be published in the FEDERAL tions and requirements are satisfied: REGISTER subsequent to the action. (1) Timely receipt of the reports required under § 216.135, which have been §§ 216.138–216.140 [Reserved] reviewed by the Administrator, North- east Region, NMFS, and determined to Subpart M—Taking of Bottlenose be acceptable; Dolphins and Spotted Dol- (2) A determination that the maximum incidental take authorizations in phins Incidental to Oil and § 216.130(b) will not be exceeded; and Gas Structure Removal Activi- (3) A determination that research on ties mitigation measures required under § 216.134(a) and the Letter of Authoriza- SOURCE: 67 FR 49874, Aug. 1, 2002, unless tion have been undertaken. otherwise note. (b) If a species’ annual incidental EFFECTIVE DATE NOTE: At 67 FR 49874, Aug. take authorization is exceeded, NMFS 1, 2002, subpart M was added, effective Au- will review the documentation sub- gust 1, 2002 through Feb. 2, 2004.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.145

§ 216.141 Specified activity and speci- them at least 3,000 ft (910 m) from the fied geographical region. detonation site; (a) Regulations in this subpart apply (ii) Whenever the conditions de- only to the incidental taking of marine scribed in paragraph (b)(1)(i) of this mammals by U.S. citizens engaged in section occur, the aerial survey re- removing oil and gas drilling and pro- quired under § 216.145(b)(1) must be reduction structures in state waters and peated prior to detonation of charges. on the Outer Continental Shelf in the (2) Detonation of explosives must Gulf of Mexico adjacent to the coasts occur no earlier than 1hour after sun- of Texas, Louisiana, Alabama, Mis- rise and no later than 1 hour before sissippi, and Florida. The incidental, sunset; but not intentional, taking of marine (3) If weather or sea conditions pre- mammals by U.S. citizens holding a clude adequate aerial, shipboard or Letter of Authorization is permitted subsurface surveillance, detonations during the course of severing pilings, must be delayed until conditions im- well conductors, and related supporting prove sufficiently for surveillance to be structures, and other activities related undertaken; and to the removal of the oil well struc- (4) Detonations must be staggered by ture. a minimum of 0.9 seconds for each (b) The incidental take of marine group of charges. mammals under the activity identified in paragraph (a) of this section is lim- § 216.144 Prohibitions. ited annually to a total of 200 takings Notwithstanding takings authorized by harassment of bottlenose dolphins by § 216.141 or by a Letter of Authoriza- (Tursiops truncatus) and spotted dol- tion issued under § 216.106, the fol- phins (Stenella frontalis and S. lowing activities are prohibited: attenuata). (a) The taking of a marine mammal § 216.142 Effective dates. that is other than unintentional, except that the intentional passive Effective August 1, 2002 through Feb- herding of dolphins from the vicinity of ruary 2, 2004. the structure may be authorized under § 216.143 Permissible methods of tak- section 109(h) of the Act as described in ing; mitigation. a Letter of Authorization; (a) The use of the following means in (b) The violation of, or failure to conducting the activities identified in comply with, the terms, conditions, § 216.141 are permissible: Bulk explo- and requirements of this part or a Let- sives, shaped explosive charges, me- ter of Authorization issued or renewed chanical or abrasive cutters, and un- under § 216.106 or § 216.146; derwater arc cutters. (c) The incidental taking of any ma- (b) All activities identified in § 216.141 rine mammal of a species either not must be conducted in a manner that specified in this subpart or whenever minimizes, to the greatest extent prac- the taking authorization for authorized ticable, adverse effects on bottlenose species has been reached; dolphins, spotted dolphins, and their (d) The use of single explosive habitat. When using explosives, the fol- charges having an impulse and pressure lowing mitigation measures must be greater than that generated by a 50–lb utilized: (22.7 kg) explosive charge detonated (1)(i) If bottlenose or spotted dolphins outside the structure piling; and are observed within 3,000 ft (910 m) of (e) The taking of a marine mammal the structure prior to detonating in water depths greater than 656 ft (200 charges, detonation must be delayed m). until either the marine mammal(s) are more than 3,000 ft (910 m) from the § 216.145 Requirements for monitoring structure or actions (e.g., operating a and reporting. vessel in the vicinity of the dolphins to (a) Observer(s) approved by the Na- stimulate bow riding, then steering the tional Marine Fisheries Service in ad- vessel away from the structure to be vance of the detonation must be used removed) are successful in removing to monitor the area around the site

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.146 50 CFR Ch. II (10–1–02 Edition)

prior to, during, and after detonation (e) In water depths of 328 ft (100 m) or of charges. greater, passive acoustic detection (b)(1) Both before and after each det- must be employed prior to detonation. onation episode, a 30-minute or more If marine mammals are detected by the aerial survey by NMFS-approved ob- acoustic device, the operator must in- servers must be conducted within 1 form either the U.S. government ob- hour of the detonation episode. To en- server or the agent of the holder of the sure that no marine mammals are Letter of Authorization immediately. within the designated 3,000 ft (941 m) (f)(1) A report summarizing the re- safety zone nor are likely to enter the sults of structure removal activities, designated safety zone prior to or at mitigation measures, monitoring ef- the time of detonation, the pre-detona- forts, and other information as re- tion survey must encompass all waters quired by a Letter of Authorization, within one nautical mile of the struc- must be submitted to the Regional Ad- ture. ministrator, NMFS, Southeast Region, (2) A second post-detonation aerial or 9721 Executive Center Drive N, St. Pe- vessel survey of the detonation site tersburg, FL 33702 within 30 calendar must be conducted no earlier than 48 days of completion of the removal of hours and no later than 1 week after the structure. the oil and gas structure is removed, (2) NMFS will accept the NMFS-ap- unless a systematic underwater marine proved observer report as the activity mammal survey, either by divers or re- report if all requirements for reporting motely operated vehicles that are dedi- contained in the Letter of Authoriza- cated to marine mammals and sea tur- tion are provided to that observer be- tles, of the site has been successfully fore the observer’s report is complete. conducted with 24 hours of the detonation event. The aerial or vessel survey § 216.146 Letters of Authorization. must concentrate down-current from (a) To incidentally take bottlenose the structure. and spotted dolphins pursuant to this (3) The NMFS-approved observer may subpart, each company operating or waive post-detonation monitoring de- that operated an oil or gas structure in scribed in paragraph (b)(2) of this sec- the geographical area described in tion provided no marine mammals § 216.141, and that is responsible for were sighted during either the aerial abandonment or removal of the struc- surveys before detonation or during the ture, must apply for and obtain a Let- 48 hour pre-detonation observer moni- ter of Authorization in accordance toring period. with § 216.106. (c) During all diving operations (b) A copy of the Letter of Authoriza- (working dives as required in the tion must be in the possession of the course of the removals), divers must be persons conducting activities that may instructed to scan the subsurface areas involve incidental takings of surrounding the structure (detonation) bottlenose and spotted dolphins. sites for bottlenose or spotted dolphins and if marine mammals are sighted to § 216.147 Modifications to Letters of inform either the NMFS-approved ob- Authorization. server or the agent of the holder of the (a) In addition to complying with the Letter of Authorization immediately provisions of § 216.106, except as pro- upon surfacing. vided in paragraph (b) of this section, (d) In water depths of 150 ft (46 m) or no substantive modification, including greater, or in cases where divers are withdrawal or suspension, to the Let- not deployed in the course of normal ter of Authorization issued pursuant to removal operations, a remotely oper- § 216.106 and subject to the provisions of ated vehicle (ROV) must be deployed this subpart shall be made until after prior to detonation to scan areas below notice and an opportunity for public structures. If marine mammals are comment. sighted, the ROV operator must inform (b) If the Assistant Administrator de- either the NMFS-approved observer or termines that an emergency exists that the agent of the holder of the Letter of poses a significant risk to the well- Authorization immediately. being of the species or stocks of marine

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.163

mammals specified in § 216.141(b), the bredanensis); killer whale (Orcinus Letter of Authorization issued pursu- orca); false killer whale (Pseudorca ant to § 216.106 may be substantively crassidens); pygmy killer whale (Feresa modified without prior notice and an attenuata); Fraser’s dolphin opportunity for public comment. A no- (Lagenodelphis hosei); harbor porpoise tice will be published in the FEDERAL (Phocoena phocoena); melon-headed REGISTER subsequent to the action. whale (Peponocephala electra); northern bottlenose whale (Hyperoodon Subpart N [Reserved] ampullatus); Cuvier’s beaked whale (Ziphius cavirostris), Blainville’s beaked Subpart O—Taking of Marine whale (Mesoplodon densirostris); Mammals Incidental to Shock Gervais’ beaked whale (M. europaeus); Testing the USS SEAWOLF by Sowerby’s beaked whale (M. bidens); Detonation of Conventional True’s beaked whale (M. mirus); com- Explosives in the Offshore Wa- mon dolphin (Delphinus delphis); and ters of the U.S. Atlantic Coast Atlantic white-sided dolphin (Lagenorhynchus acutus). (c) The incidental take of marine SOURCE: 63 FR 66076, Dec. 1, 1998, unless otherwise noted. mammals identified in paragraph (b) of this section is limited to a total of 1 EFFECTIVE DATE NOTE: At 63 FR 66076, Dec. mortality, 5 injuries and 1,788 harass- 1, 1998, subpart O was added, effective Jan. 1, 1999 through Sept. 30, 2004. ment takes for detonations in the area described in paragraph (a) of this sec- § 216.161 Specified activity, geo- tion, except that the taking by serious graphical region, and incidental injury or mortality for species listed in take levels. paragraph (b) of this section that are (a) Regulations in this subpart apply also listed as threatened or endangered only to the incidental taking of marine under § 17.11 of this title, is prohibited. mammals specified in paragraph (b) of this section by U.S. citizens engaged in § 216.162 Effective dates. the detonation of conventional mili- Regulations in this subpart are effec- tary explosives within the waters of tive May 1 through September 30 of the U.S. Atlantic Coast offshore any single year between the years 2000 Mayport, FL for the purpose of shock and 2004, inclusive. testing the USS SEAWOLF. (b) The incidental take of marine § 216.163 Permissible methods of tak- mammals under the activity identified ing; mitigation. in paragraph (a) of this section is lim- (a) Under a Letter of Authorization ited to the following species: Blue issued pursuant to § 216.106, the U.S. whale (Balaenoptera musculus); fin Navy may incidentally, but not inten- whale (B. physalus); sei whale (B. borealis); Bryde’s whale (B. edeni); tionally, take marine mammals by minke whale (B. acutorostrata); hump- harassment, injury or mortality in the back whale (Megaptera novaeangliae); course detonating five 4,536 kg (10,000 northern right whale (Eubalaena lb) conventional explosive charges glacialis); sperm whale (Physeter within the area described in § 216.161(a), macrocephalus); dwarf sperm whale provided all terms, conditions, and re- (Kogia simus); pygmy sperm whale (K. quirements of these regulations and breviceps); pilot whales (Globicephala such Letter of Authorization are com- melas, G. macrorhynchus); Atlantic spot- plied with. ted dolphin (Stenella frontalis); (b) The activity identified in para- Pantropical spotted dolphin (S. graph (a) of this section must be con- attenuata); striped dolphin (Stenella ducted in a manner that minimizes, to coeruleoalba); spinner dolphin (S. the greatest extent possible, adverse longirostris); Clymene dolphin (S. impacts on marine mammals and their clymene); bottlenose dolphin (Tursiops habitat. When detonating explosives, truncatus); Risso’s dolphin (Grampus the following mitigation measures griseus); rough-toothed dolphin (Steno must be utilized:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.164 50 CFR Ch. II (10–1–02 Edition)

(1) If marine mammals are observed ter of Authorization issued under within the designated safety zone pre- § 216.106. scribed in the Letter of Authorization, (c) The incidental taking of any ma- or within the buffer zone prescribed in rine mammal of a species not specified the Letter of Authorization and on a in this subpart. course that will put them within the safety zone prior to detonation, deto- § 216.165 Requirements for monitoring nation must be delayed until marine and reporting. mammals are either no longer within (a) The holder of the Letter of Au- the safety zone or are on a course with- thorization is required to cooperate in the buffer zone that is taking them with the National Marine Fisheries away from the safety zone, except that Service and any other Federal, state or no detonation will occur if a marine local agency monitoring the impacts of mammal listed as threatened or endan- the activity on marine mammals. The gered under § 17.11 of this title is de- holder must notify the Administrator, tected within the buffer zone and sub- Southeast Region at least 2 weeks sequently cannot be detected until prior to activities involving the deto- such time as sighting and acoustic nation of explosives in order to satisfy teams have searched the area for 2.5 paragraph (g) of this section. hours (approximately 3 times the typ- (b) The holder of the Letter of Au- ical large whale dive duration). If a thorization must designate qualified northern right whale is seen within the on-site individuals, as specified in the safety or buffer zone, detonation must Letter of Authorization, to record the not occur until the animal is positively effects of explosives detonation on ma- reacquired outside the buffer zone and rine mammals that inhabit the Atlan- at least one additional aerial moni- tic Ocean test area. toring of the safety range and buffer (c) The Atlantic Ocean test area zone shows that no other right whales must be surveyed by marine mammal are present. biologists and other trained individ- (2) If weather and/or sea conditions as uals, and the marine mammal popu- described in the Letter of Authoriza- lations monitored, approximately 3 tion preclude adequate aerial surveil- weeks prior to detonation, 48–72 hours lance, detonation must be delayed prior to a scheduled detonation, on the until conditions improve sufficiently day of detonation, and for a period of for aerial surveillance to be under- time specified in the Letter of Author- taken. ization after each detonation. Moni- toring shall include, but not nec- (3) If post-test surveys determine essarily be limited to, aerial, ship- that an injurious or lethal take of a board, and acoustic surveillance suffi- marine mammal has occurred, or if any cient to ensure that no marine mam- marine mammals are observed in the mals are within the designated safety safety range immediately after a deto- zone nor are likely to enter the des- nation, the test procedure and the ignated safety zone immediately prior monitoring methods must be reviewed to, or at the time of, detonation. by NMFS in consultation with the (d) Under the direction of a certified Navy and appropriate changes made marine mammal veterinarian, exam- prior to conducting the next detona- ination and recovery of any dead or in- tion. jured marine mammals will be conducted. Necropsies will be performed § 216.164 Prohibitions. and tissue samples taken from any Notwithstanding takings authorized dead animals. After completion of the by § 216.161(b) and by a Letter of Au- necropsy, animals not retained for thorization issued under § 216.106, the shoreside examination will be tagged following activities are prohibited: and returned to the sea. The occur- (a) The taking of a marine mammal rence of live marine mammals will also that is other than unintentional. be documented. (b) The violation of, or failure to (e) The holder of the Letter of Au- comply with, the terms, conditions, thorization is required to measure dur- and requirements of this part or a Let- ing the first detonation, and provide a

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.170

report on, prior to the second detona- submitted to the Director, Office of tion, the attenuation of the sound pres- Protected Resources, no later than 18 sure levels of the HBX1 explosive months after completion of shock test- charge. Measurements must be made at ing the USS SEAWOLF. a number of distances from the detonation sufficient to verify the model pre- § 216.166 Modifications to the Letter of dictions for the 3.7 km (2 nm) safety Authorization. zone. Based upon the results of this (a) In addition to complying with the test, the monitoring and safety zones provisions of § 216.106, except as pro- described in the Letter of Authoriza- vided in paragraph (b) of this section, tion, may be modified accordingly. no substantive modification, including (f) Activities related to the moni- withdrawal or suspension, to the Let- toring described in paragraphs (c) and ter of Authorization issued pursuant to (d) of this section, or in the Letter of § 216.106 and subject to the provisions of Authorization issued under § 216.106, in- this subpart shall be made until after cluding the retention of marine mam- notice and an opportunity for public mals, may be conducted without the comment. need for a separate scientific research (b) If the Assistant Administrator de- permit. The use of retained marine termines that an emergency exists that mammals for scientific research other poses a significant risk to the well- than shoreside examination must be being of the species or stocks of marine authorized pursuant to subpart D of mammals specified in § 216.161(b), or this part. that significantly and detrimentally (g) In coordination and compliance alters the scheduling of explosives det- with appropriate Navy regulations, at onation within the area specified in its discretion, the National Marine § 216.161(a), the Letter of Authorization Fisheries Service may place observer(s) issued pursuant to § 216.106 may be sub- on any ship or aircraft involved in ma- stantively modified without prior no- rine mammal reconnaissance, or moni- tice and an opportunity for public com- toring either prior to, during, or after ment. A notice will be published in the explosives detonation in order to mon- FEDERAL REGISTER subsequent to the itor the impact on marine mammals. action. (h) A final report must be submitted to the Administrator, Southeast Re- §§ 216.167–216.169 [Reserved] gion, no later than 120 days after completion of shock testing the USS Subpart P—Taking of Marine SEAWOLF. This report must contain Mammals Incidental to Oper- the following information: ating A Low Frequency (1) Date and time of all detonations conducted under the Letter of Author- Acoustic Source by the North ization. Pacific Acoustic Laboratory (2) A description of all pre-detonation and post-detonation activities related SOURCE: 66 FR 43458, Aug. 17, 2001, unless to mitigating and monitoring the ef- otherwise noted. fects of explosives detonation on ma- EFFECTIVE DATE NOTE: At 66 FR 43458, Aug. rine mammal populations. 17, 2001, subpart P was added, effective Sept. (3) Results of the monitoring pro- 17, 2001 to Sept. 17, 2006. gram, including numbers by species/ stock of any marine mammals noted § 216.170 Specified activity and speci- injured or killed as a result of the deto- fied geographical region. nation and numbers that may have (a) Regulations in this subpart apply been harassed due to presence within only to the incidental taking of small the designated safety zone. numbers of marine mammals specified (4) Results of coordination with in paragraph (b) of this section by U.S. coastal marine mammal/sea turtle citizens engaged in conducting acous- stranding networks. tic research using a moored, low-fre- (i) A final report on results of quency acoustic source by the North necropsies of stranded marine mam- Pacific Acoustic Laboratory off Kauai, mals funded by the U.S. Navy must be Hawaii.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.171 50 CFR Ch. II (10–1–02 Edition)

(b) The incidental harassment of ma- the activities described in § 216.170(a) rine mammals under the activity iden- shall: tified in paragraph (a) of this section is (a) Take any marine mammal not limited to small numbers of the fol- specified in § 216.170(b); lowing species: humpback whales (b) Take any marine mammal speci- (Megaptera novaengliae), fin whales fied in § 216.170(b) other than by inci- (Balaenoptera physalus), blue whales (B. dental, unintentional harassment; musculus), Bryde’s whales (B. edeni), (c) Take any marine mammal speci- minke whales (B. acutorostrata), North fied in § 216.170(b) if such take results Pacific right whales (Balaena in more than a negligible impact on japonicus), sperm whales (Physeter the species or stocks of such marine macrocephalus), short-finned pilot mammal; or whales (Globicephala macrorhynchus), (d) Violate, or fail to comply with, beaked whales (Ziphius cavirostris, the terms, conditions, and require- Berardius bairdi, and Mesoplodon spp.), ments of these regulations or a Letter spinner dolphins (Stenella longirostris), of Authorization issued under §§ 216.106 spotted dolphins (Stenella attenuata), and 216.176. striped dolphins (Stenella coeruleoalba), bottlenose dolphins (Tursiops § 216.174 Mitigation. truncatus), rough-toothed dolphins As described in the Letter of Author- (Steno bredanensis), pygmy sperm ization issued under §§ 216.106 and whales (Kogia breviceps), dwarf sperm 216.176., the North Pacific Acoustic whales (Kogia simus), killer whales Laboratory acoustic source must: (Orcinus orca), false killer whales (a) Operate at the minimum duty (Pseudorca crassidens), pygmy killer cycle necessary for conducting large- whales (Feresa attenuata), and melon- scale acoustic thermometry and long- headed whales (Peponocephala electra). range propagation objectives. and Hawaiian monk seals (Monachus (b) Not increase the duty cycle dur- schauinslandi). ing the months of January through § 216.171 Effective dates. April. (c) Operate at the minimum power Regulations in this subpart are effec- level necessary for conducting large- tive from September 17, 2001, through scale acoustic thermometry and long- September 17, 2006. range propagation objectives, but no more than 260 Watts. § 216.172 Permissible methods of tak- (d) Precede all transmissions from ing. the acoustic source by a 5-minute (a) Under a Letter of Authorization ramp-up of the acoustic source’s power. issued pursuant to §§ 216.106 and 216.176, the Holder of this Letter of Authoriza- § 216.175 Requirements for monitoring tion may incidentally, but not inten- and reporting. tionally, take marine mammals by har- (a) The holder of the Letter of Au- assment within the area described in § thorization is required to cooperate 216.170(a), provided the activity is in with the National Marine Fisheries compliance with all terms, conditions, Service and any other Federal, state or and requirements of these regulations local agency monitoring the impacts of and the Letter of Authorization. the activity on marine mammals. The (b) The activities identified in § holder must notify the Southwest Re- 216.170(a) must be conducted in a man- gional Administrator at least 2 weeks ner that minimizes, to the greatest ex- prior to commencing monitoring ac- tent practicable, any adverse impacts tivities. on marine mammals and their habitat. (b) The Holder of this Authorization must conduct a minimum of eight sur- § 216.173 Prohibitions. veys each year from February through Notwithstanding takings authorized early April in the area off the north by § 216.170(b) and by a Letter of Au- shore of Kauai, Hawaii, as specified in thorization issued under §§ 216.106 and the Letter of Authorization issued 216.176, no person in connection with under §§ 216.106 and 216.176.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.177

(c) The Holder of this Authorization (1) Permissible methods of incidental must, through coordination with ma- taking; rine mammal stranding networks in (2) Authorized geographic area for Hawaii, monitor strandings of marine taking; mammals to detect long-term trends in (3) Means of effecting the least prac- stranding and the potential relation- ticable adverse impact on the species ship to the North Pacific Acoustic Lab- of marine mammals authorized for tak- oratory acoustic source. ing and its habitat; and (d) Activities related to the moni- (4) Requirements for monitoring and toring described in paragraphs (b) and reporting incidental takes. (c) of this section, or in the Letter of (d) Issuance of a Letter of Authoriza- Authorization issued under §§ 216.106 tion will be based on a determination and 216.176 may be conducted without that the number of marine mammals the need for a separate scientific re- taken by the activity will be small, and search permit. that the number of marine mammals (e) In coordination and compliance taken by the activity, specified in § with marine mammal researchers oper- 216.170(b), as a whole, will have no more ating under this subpart, at its discre- than a negligible impact on the species tion, the National Marine Fisheries or stocks of affected marine mam- Service may place an observer on any mal(s). aircraft involved in marine mammal (e) Notice of issuance or denial of a surveys in order to monitor the impact Letter of Authorization will be pub- on marine mammals. lished in the FEDERAL REGISTER within (f) The holder of a Letter of Author- 30 days of a determination. ization must annually submit a report to the Director, Office of Protected Re- § 216.177 Renewal of a letter of au- sources, National Marine Fisheries thorization. Service, no later than 120 days after (a) A Letter of Authorization issued the conclusion of the humpback whale under § 216.106 and § 216.176 for the ac- aerial survey monitoring program. tivity identified in § 216.170(a) will be This report must contain all the infor- renewed annually upon: mation required by the Letter of Au- (1) Notification to the National Ma- thorization, including the results, if rine Fisheries Service that the activity any, of coordination with coastal ma- described in the application for a Let- rine mammal stranding networks. ter of Authorization submitted under § (g) A final comprehensive report 216.176 will be undertaken and that must be submitted to the Director, Of- there will not be a substantial modi- fice of Protected Resources, National fication to the described work, mitiga- Marine Fisheries Service no later than tion, or monitoring undertaken during 240 days after completion of the final the upcoming season; year of humpback whale aerial survey (2) Timely receipt of the monitoring monitoring conducted under § 216.175. reports required under § 216.175, which This report must contain all the infor- have been reviewed by the National mation required by the Letter of Au- Marine Fisheries Service and deter- thorization. mined to be acceptable; (3) A determination by the National § 216.176 Letter of authorization. Marine Fisheries Service that the miti- (a) A Letter of Authorization, unless gation, monitoring, and reporting suspended or revoked, will be valid for measures required under §§ 216.174 and a period of time specified in the Letter 216.175 and the Letter of Authorization of Authorization but may not exceed were undertaken and will be under- the period of validity of this subpart. taken during the upcoming period of (b) A Letter of Authorization with a validity of a renewed Letter of Author- period of validity less than the period ization; and of validity of this subpart may be re- (4) Renewal of a Letter of Authoriza- newed subject to renewal conditions in tion will be based on a determination § 216.177. that the number of marine mammals (c) A Letter of Authorization will set taken by the activity continues to be forth: small and that the number of marine

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.178 50 CFR Ch. II (10–1–02 Edition)

mammals taken by the activity, speci- § 216.180 Specified activity and specified in § 216.170(b), will have no more fied geographical region. than a negligible impact on the species Regulations in this subpart apply or stock of affected marine mammal(s). only to the incidental taking of those (b) A notice of issuance or denial of a marine mammal species specified in renewal of a Letter of Authorization paragraph (b) of this section by the will be published in the FEDERAL REG- U.S. Navy, Department of Defense, ISTER within 30 days of a determina- while engaged in the operation of no tion. more than two SURTASS LFA sonar systems conducting active sonar oper- § 216.178 Modifications to a letter of ations, in areas specified in paragraph authorization. (a) of this section. The authorized ac- (a) In addition to complying with the tivities, as specified in a Letter of Au- thorization issued under §§ 216.106 and provisions of §§ 216.106 and 216.176, ex- 216.188, include the transmission of low cept as provided in paragraph (b) of frequency sounds from the SURTASS this section, no substantive modifica- LFA sonar and the transmission of tion (including withdrawal or suspen- high frequency sounds from the mitiga- sion) to the Letter of Authorization tion sonar described in § 216.185 during issued pursuant to §§ 216.106 and 216.176 training, testing, and routine military and subject to the provisions of this operations of SURTASS LFA sonar. subpart shall be made by the National (a) With the exception of those areas Marine Fisheries Service until after a specified in § 216.183(d), the incidental notification and an opportunity for taking by harassment may be author- public comment has been provided. For ized in the following areas as specified purposes of this paragraph, a renewal in a Letter of Authorization: of a Letter of Authorization under § (1) Atlantic Polar Biome: 216.177 without modification, except for (i) Boreal Polar Province (1/ the period of validity, is not considered BPLR)(i.e., LFA sonar 180-dB exclusion a substantive modification. zone); (ii) Atlantic Arctic Province (2/ (b) If the Assistant Administrator de- ARCT); termines that an emergency exists that (iii) Atlantic Subarctic Province (3/ poses a significant risk to the well- SARC); being of the species or stocks of marine (2) North Atlantic Coastal Biome: mammals specified in § 216.170(b), a (i) Northeast Atlantic Shelves Prov- Letter of Authorization issued pursu- ince (11/NECS), ant to §§ 216.106 and 216.176 may be sub- (A) North/Irish Sea Subprovince, stantively modified without prior noti- (B) English Channel Subprovince, fication and an opportunity for public (C) Southern Outer Shelf Subprov- comment. Notification will be pub- ince, lished in the FEDERAL REGISTER within (D) Northern Outer Shelf Subprov- 30 days subsequent to the action. ince, and (E) Baltic Subprovince; and (ii) Northwest Atlantic Shelves Prov- Subpart Q—Taking of Marine ince (15/NWCS), Mammals Incidental to Navy (A) Newfoundland/Nova Scotia Shelf Operations of Surveillance Subprovince, Towed Array Sensor System (B) Gulf of St. Lawrence Coastal Sub- Low Frequency Active province, (SURTASS LFA) Sonar (C) Gulf of Maine/Bay of Fundy Coastal Subprovince, (D) Georges Bank/New York Bight SOURCE: 67 FR 46785, July 16, 2002, unless Coastal Subprovince, otherwise noted. (E) Middle Atlantic Bight Coastal EFFECTIVE DATE NOTE: At 67 FR 46785, July Subprovince, 16, 2002, subpart Q was added, effective Aug. (F) South Atlantic Bight Coastal 15, 2002 through Aug. 15, 2007. Subprovince;

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.180

(3) South Atlantic Coastal Biome: (i) Alaska Downwelling Coastal Prov- (i) Benguela Current Coastal Prov- ince (65/ALSK), ince (22/BENG); (A) Canadian/Alaskan Coastal Sub- (ii) Brazil Current Coastal Province province, (20/BRAZ); (B) Aleutian Stream Coastal Sub- (iii) Eastern (Canary) Coastal Prov- province, ince (12/CNRY); (ii) California Current Province (66/ (iv) Southwest Atlantic Shelves CALC), Province (21/FKLD); (A) Oregon-British Columbia Coastal (v) Guianas Coastal Province (14/ Subprovince, GUIA); (B) Point Conception/Cape Mendicino (vi) Guinea Current Coastal Province Coastal Subprovince, (13/GUIN), (C) Southern California Bight Sub- (A) Guiana Coastal Subprovince, and province, and (B) Central African Coastal Subprov- (D) Baja California Subprovince; ince; (iii) Central American Coastal Prov- (4) Atlantic Westerly Winds Biome: ince (67/CAMR); (i) Gulf Stream Province (5/GFST); (iv) China Sea Coastal Province (69/ (ii) North Atlantic Drift Province (4/ CHIN); NADR); (10) South Pacific Coastal Biome: (iii) North Atlantic Subtropical (i) East Australian Coastal Province Gyral East Province (18/NASTE); and (71/AUSE); (iv) North Atlantic Subtropical Gyral (ii) Humboldt Current Coastal Prov- West Province (6/NASTW); ince (68/HUMB); (5) Atlantic Trade Wind Biome: (A) Chilean Coastal Subprovince and (i) Caribbean Province (17/CARB); (B) Peruvian Coastal Subprovince; (iii) New Zealand Coastal Province (A) Gulf of Mexico Subprovince; (72/NEWZ); (B) Caribbean Sea Subprovince; (iv) Sunda/Arafura Shelves Province (ii) Eastern Tropical Atlantic Prov- (70/SUND); ince (9/ETRA); (11) Pacific Polar Biome: (iii) North Atlantic Tropical Gyral (i) North Pacific Epicontinental Sea Province (7/NATR); Province (50/BERS); (iv) South Atlantic Gyral Province (A) Bering Sea Subprovince; (10/SATL); (B) Okhotsk Sea Subprovince; (v) Western Tropical Atlantic Prov- (ii) Reserved; ince (8/WTRA); (12) Pacific Trade Wind Biome: (6) Mediterranean/Black Sea Biome: (i) Archipelagic Deep Basins Province (i) Mediterranean Sea Province (16A/ (64/ARCH); MEDI); (ii) North Pacific Tropical Gyre West (ii) Black Sea Province (16B/BLSE); Province (56/NPTGW); (7) Indian Ocean Coastal Biome: (iii) North Pacific Tropical Gyre East (i) Australia/Indonesia Coastal Prov- Province (60/NPTGE); ince (37/AUSW); (iv) Pacific Equatorial Divergence (ii) Eastern India Coastal Province Province (62/PEQD); (35/INDE); (v) North Pacific Equatorial (iii) Northwestern Arabian Upwelling Countercurrent Province (61/PNEC); Province (34/ARAB); (vi) South Pacific Subtropical Gyre (iv) Eastern Africa Coastal Province Province (59/SPGS); (32/EAFR); (vii) Western Pacific Warm Pool (v) Western India Coastal Province Province (63/WARM); (36/INDW); (13) Pacific Westerly Winds Biome: (vi) Red Sea, Persian Gulf Province (i) Kuroshio Current Province (53/ (33/REDS); KURO); (8) Indian Ocean Trade Wind Biome: (ii) North Pacific Transition Zone (i) Indian South Subtropical Gyre Province (54/NPPF); Province (31/ISSG); (iii) Pacific Subarctic Gyres (East) (ii) Indian Monsoon Gyres Province Province (51/PSAGE); (30/MONS); (iv) Pacific Subarctic Gyres (West) (9) North Pacific Coastal Biome: Province (52/PSAGW);

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.181 50 CFR Ch. II (10–1–02 Edition)

(14) Antarctic Westerly Winds Biome: pacificus), killer whale (Orcinus orca), (i) Subantarctic Water Ring Province false killer whale (Pseudorca (81/SANT), crassidens), pygmy killer whale (Feresa (A) Atlantic Subantarctic Ring Sub- attenuata), sperm whale (Physeter province; macrocephalus), dwarf and pygmy sperm (B) Indian Ocean Subantarctic Ring whales (Kogia simus and K. breviceps), Subprovince; and short-finned and long-finned pilot (C) Pacific Ocean Subantarctic Water whales (Globicephala macrorhynchus and Ring Subprovince; G. melas). (ii) Subtropical Convergence Prov- (3) Pinnipeds—harbor seals (Phoca ince (80/SSTC), vitulina), spotted seals (P. largha), rib- (A) Atlantic South Subtropical Con- bon seals (P. fasciata), gray seals vergence Subprovince; (Halichoerus grypus), hooded seal (B) Indian Ocean South Subtropical (Cystophora cristata), elephant seals Convergence Subprovince; (Mirounga angustirostris and M. leonina). (C) Pacific Ocean South Subtropical Hawaiian monk seals (Monachus Convergence Subprovince; schauinslandi), Mediterranean monk (iii) Tasman Sea Province (58/TASM); seals (Monachus monachus), northern (15) Antarctic Polar Biome: fur seals (Callorhinus ursinus); southern (SURTASS LFA sonar exclusion zone); fur seals (Arctocephalus spp.), Steller (i) Antarctic Province (82/ANTA) sea lions (Eumetopias jubatus), Cali- (ii) Austral Polar Province (83/ fornia sea lions (Zalophus APLR). californianus), Australian sea lions (b) The incidental take by Level A (Neophoca cinerea), New Zealand sea and Level B harassment of marine lions (Phocarctos hookeri), and South mammals under the activity identified American sea lions (Otaria flavescens). in this section is limited to the following species and species groups: § 216.181 Effective dates. (1) Mysticete whales—blue whale Regulations in this subpart are effec- ( ), fin whale Balaenoptera musculus tive from August 15, 2002 through Au- ( ), minke whale Balaenoptera physalus gust 15, 2007. (Balaenoptera acutorostrata), Bryde’s whale (Balaenoptera edeni), sei whale § 216.182 Permissible methods of tak- (Balaenoptera borealis), humpback ing. whale (Megaptera novaeangliae), northern right whale (Eubalaena glacialis), (a) Under Letters of Authorization southern right whale (Eubalaena issued pursuant to §§ 216.106 and 216.188, australis), pygmy right whale (Capera the Holder of the Letter of Authoriza- marginata), bowhead whale (Balaena tion may incidentally, but not inten- mysticetus), and gray whales tionally, take marine mammals by (Eschrichtius robustus). Level A and Level B harassment within (2) Odontocete whales—Risso’s dol- the areas described in § 216.180(a), pro- phin (Grampus griseus), rough-toothed vided the activity is in compliance dolphin (Steno bredanensis), Fraser’s with all terms, conditions, and require- dolphin (Lagenodelphis hosei), right- ments of these regulations and the ap- whale dolphin (Lissodelphis spp.), propriate Letter of Authorization. bottlenose dolphin (Tursiops truncatus), (b) The activities identified in common dolphin (Delphinus delphis), § 216.180 must be conducted in a manner Dall’s porpoise (Phocoenoides dalli), har- that minimizes, to the greatest extent bor porpoise (Phocoena phocoena), practicable, any adverse impacts on beluga whale (Delphinapterus leucas), marine mammals, their habitat, and Stenella spp. Lagenorhynchus spp., the availability of marine mammals Cephalorhynchus spp. melon-headed for subsistence uses. whale (Peponocephala spp.), beaked whales (Berardius spp., Hyperoodon spp., § 216.183 Prohibitions. Mesoplodon spp.), Cuvier’s beaked Notwithstanding takings authorized whale (Ziphius cavirostris), Shepard’s by § 216.180 and by a Letter of Author- beaked whale (Tasmacetus shepherdi), ization issued under §§ 216.106 and Longman’s beaked whale (Indopacetus 216.188, no person in connection with

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.184

the activities described in § 216.180 (2) There is no further detection of shall: any marine mammal within the safety (a) Take any marine mammal not and buffer zones as determined by the specified in § 216.180(b); visual and/or passive or active acoustic (b) Take any marine mammal speci- monitoring described in § 216.185. fied in § 216.180(b) other than by inci- (c) The high-frequency marine mam- dental, unintentional Level A and mal monitoring sonar (HF/M3) de- Level B harassment; scribed in § 216.185 will be ramped-up (c) Take any marine mammal by re- slowly to operating levels over a period ceiving a sound pressure level greater of no less than 5 minutes: than 180 dB while operating under a (1) At least 30 minutes prior to any Letter of Authorization in any geo- SURTASS LFA sonar transmissions; graphic area for which a Letter of Au- (2) Prior to any SURTASS LFA sonar thorization has not been issued; calibrations or testings that are not (d) Take a marine mammal specified part of regular SURTASS LFA sonar in § 216.180(b) if such taking results in transmissions described in paragraph more than a negligible impact on the (c)(1) of this section; and species or stocks of such marine mam- (3) Anytime after the HF/M3 source mal; or has been powered down for more than 2 (e) Violate, or fail to comply with, minutes. the terms, conditions, and require- (d) The HF/M3 source will not in- ments of the regulations in this sub- crease its sound pressure level once a part or any Letter of Authorization marine mammal is detected; ramp-up issued under §§ 216.106 and 216.188. may proceed once marine mammals are no longer detected. § 216.184 Mitigation. (e) The Holder of a Letter of Author- The activity identified in § 216.180(a) ization will not operate the SURTASS must be conducted in a manner that LFA sonar while under a Letter of Au- minimizes, to the greatest extent prac- thorization, such that the SURTASS ticable, adverse impacts on marine LFA sonar sound field exceeds 180 dB mammals and their habitats. When (re 1 µPa(rms)): conducting operations identified in (1) At a distance of 12 nautical miles § 216.180, the mitigation measures de- (nm) (22 kilometers (km)) from any scribed in this section and in any Let- coastline, including offshore islands; ter of Authorization issued under (2) Within any offshore area that has §§ 216.106 and 216.188 must be imple- been designated as biologically impor- mented. tant for marine mammals under (a) Through monitoring described § 216.183(f), during the biologically im- under § 216.185, the Holder of a Letter of portant season for that particular area; Authorization will ensure, to the great- (3) Within the offshore boundaries est extent practicable, that no marine that extend beyond 12 nm (22 km) of mammal is subjected to a sound pres- the following National Marine Sanc- sure level of 180 dB or greater. tuaries: (b) If a marine mammal is detected (i) Monterey Bay, within the area subjected to sound (ii) Gulf of the Farallones, and pressure levels of 180 dB or greater (iii) Cordell Bank; (safety zone) or within the 1 km (0.5 (4) Within 23 nm (37.4 km) during the nm) (buffer) zone extending beyond the months of December, January, March, 180-dB safety zone, SURTASS LFA and May of each year in the Olympic sonar transmissions will be imme- Coast National Marine Sanctuary. diately delayed or suspended. Trans- (f) The following areas have been des- missions will not resume earlier than ignated by NMFS as offshore areas of 15 minutes after: critical biological importance for ma- (1) All marine mammals have left the rine mammals (by season if appro- area of the safety and buffer zones; and priate):

Name of area Location of area Months of importance

(1) 200-m isobath North American East From 28° N. to 50° N. west of 40° W ...... Year-Round. Coast.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.185 50 CFR Ch. II (10–1–02 Edition)

Name of area Location of area Months of importance

(2) Antarctic Convergence Zone ...... 30° E. to 80° E to 45° S. 80° E. to 150° October 1 through March 31. E. to 55° S. 150° E. to 50° W. to 60° S. 50° W to 30° E. to 50° S. (3) Costa Rica Dome ...... Centered at 9° N. and 88° W ...... Year-Round. (4) Penguin Bank ...... Centered at 21° N. and 157° 30′W ...... November 1 through May 1.

§ 216.185 Requirements for moni- § 216.186 Requirements for reporting. toring. (a) The Holder of the Letter of Au- (a) In order to mitigate the taking of thorization must submit quarterly mis- marine mammals by SURTASS LFA sion reports to the Director, Office of sonar to the greatest extent prac- Protected Resources, NMFS, no later ticable, the Holder of a Letter of Au- than 30 days after the end of each quar- thorization issued pursuant to §§ 216.106 ter beginning on the date of effective- and 216.188 must: ness of a Letter of Authorization or as (1) Conduct visual monitoring from specified in the appropriate Letter of the ship’s bridge during all daylight Authorization. Each quarterly mission hours; report will include all active-mode mis- (2) Use low frequency passive sions completed during that quarter. SURTASS LFA sonar to listen for vo- At a minimum, each classified mission calizing marine mammals; and report must contain the following in- (3) Use the HF/M3 sonar to locate and formation: track marine mammals in relation to (1) Dates, times, and location of the the SURTASS LFA sonar vessel and vessel during the mission; the sound field produced by the (2) Information on sonar trans- SURTASS LFA sonar source array. missions as detailed in the Letter of (b) Monitoring under paragraph (a) of Authorization; and this section must: (3) Results of the marine mammal (1) Commence at least 30 minutes be- monitoring program specified in the fore the first SURTASS LFA sonar Letter of Authorization. transmission; (b) The Holder of a Letter of Author- (2) Continue between transmission ization must submit an annual report pings; and to the Director, Office of Protected Re- (3) Continue either for at least 15 sources, NMFS, no later than 90 days minutes after completion of the prior to expiration of a Letter of Au- SURTASS LFA sonar transmission ex- thorization. This report must contain ercise, or, if marine mammals are ex- all the information required by the hibiting unusual behavioral patterns, Letter of Authorization. for a period of time until behavior pat- (c) A final comprehensive report terns return to normal or conditions must be submitted to the Director, Of- prevent continued observations; fice of Protected Resources, NMFS at (c) Holders of Letters of Authoriza- least 240 days prior to expiration of tion for activities described in § 216.180 these regulations. In addition to con- are required to cooperate with the Na- taining all the information required by tional Marine Fisheries Service and any final year Letter of Authorization, any other federal agency for moni- this report must contain an analysis of toring the impacts of the activity on new passive technologies and an assess- marine mammals. ment of whether such a system is fea- (d) Holders of Letters of Authoriza- sible as an alternative to SURTASS tion must designate qualified on-site LFA sonar. individuals to conduct the mitigation, monitoring and reporting activities § 216.187 Applications for Letters of specified in the Letter of Authoriza- Authorization. tion. (a) To incidentally take marine (e) Holders of Letters of Authoriza- mammals pursuant to these regulation must conduct all monitoring and tions, the U.S. Navy authority con- research required under the Letter of ducting the activity identified in Authorization. § 216.180 must apply for and obtain a

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.189

Letter of Authorization in accordance ing, their habitat, and the availability with § 216.106. of the species for subsistence uses; and (b) The application for an initial or a (4) Requirements for monitoring and renewal of a Letter of Authorization reporting incidental takes. must be submitted to the Director, Of- (c) Issuance of each Letter of Author- fice of Protected Resources, NMFS, at ization will be based on a determina- least 60 days before the date that ei- tion that the number of marine mam- ther the vessel is scheduled to begin mals taken by the activity will be conducting SURTASS LFA sonar oper- small, that the total number of marine ations or the previous Letter of Au- mammals taken by the activity speci- thorization is scheduled to expire. fied in § 216.180 as a whole will have no (c) All applications for a Letter of more than a negligible impact on the Authorization must include the fol- species or stock of affected marine lowing information: mammal(s), and that the total taking (1) The date(s), duration, and the will not have an unmitigable adverse specified geographical region where the impact on the availability of species or vessel’s activity will occur; stocks of marine mammals for taking (2) The species and/or stock(s) of ma- for subsistence uses. rine mammals likely to be found with- (d) Notice of issuance or denial of an in each specified geographical region; application for a Letter of Authoriza- (3) The type of incidental taking au- tion will be published in the FEDERAL thorization requested (i.e., take by REGISTER within 30 days of a deter- Level A and/or Level B harassment); mination. (4) The estimated percentage of ma- § 216.189 Renewal of Letters of Author- rine mammal species/stocks poten- ization. tially affected in each specified geographic region for the 12-month period (a) A Letter of Authorization issued of effectiveness of the Letter of Au- under § 216.106 and § 216.188 for the ac- thorization; and tivity identified in § 216.180 will be renewed annually upon: (5) The means of accomplishing the (1) Notification to NMFS that the ac- necessary monitoring and reporting tivity described in the application sub- that will result in increased knowledge mitted under § 216.187 will be under- of the species and the level of taking or taken and that there will not be a sub- impacts on marine mammal popu- stantial modification to the described lations. work, mitigation or monitoring under- (d) The National Marine Fisheries taken during the upcoming season; Service will review an application for a (2) Notification to NMFS of the infor- Letter of Authorization in accordance mation identified in § 216.187(c), includ- with § 216.104(b) and, if adequate and ing the planned geographic area(s), and complete, issue a Letter of Authoriza- anticipated duration of each SURTASS tion. LFA sonar operation; § 216.188 Letters of Authorization. (3) Timely receipt of the monitoring reports required under § 216.185, which (a) A Letter of Authorization, unless have been reviewed by NMFS and de- suspended or revoked will be valid for a termined to be acceptable; period of time not to exceed one year, (4) A determination by NMFS that but may be renewed annually subject the mitigation, monitoring and report- to annual renewal conditions in ing measures required under §§ 216.184 § 216.189. and 216.185 and the Letter of Authoriza- (b) Each Letter of Authorization will tion were undertaken and will be un- set forth: dertaken during the upcoming annual (1) Permissible methods of incidental period of validity of a renewed Letter taking; of Authorization; and (2) Authorized geographic areas for (5) A determination by NMFS that incidental takings; the number of marine mammals taken (3) Means of effecting the least prac- by the activity continues to be small, ticable adverse impact on the species that the total number of marine mam- of marine mammals authorized for tak- mals taken by the activity specified in

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.190 50 CFR Ch. II (10–1–02 Edition)

§ 216.180, as a whole will have no more lished in the FEDERAL REGISTER within than a negligible impact on the species 30 days subsequent to the action. or stock of affected marine mammal(s), and that the total taking will not have § 216.191 Designation of Biologically an unmitigable adverse impact on the Important Marine Mammal Areas. availability of species or stocks of ma- (a) Biologically important areas for rine mammals for taking for subsist- marine mammals may be nominated ence uses. under this paragraph by the National (b) If a request for a renewal of a Let- Marine Fisheries Service or by the pub- ter of Authorization issued under lic. §§ 216.106 and 216.188 indicates that a (b) In order for the National Marine substantial modification to the de- Fisheries Service to designate offshore scribed work, mitigation or monitoring areas of biological importance for ma- will occur, or if NMFS proposes a sub- rine mammals under this rule, pro- stantial modification to the Letter of ponents must petition NMFS by re- Authorization, NMFS will provide a pe- questing an area be added to the list of riod of 30 days for public review and biologically important areas in comment on the proposed modifica- § 216.184(f) and submitting the following tion. Amending the list of areas for up- information: coming SURTASS LFA sonar oper- (1) Geographic region proposed for ations is not considered a substantial consideration (including geographic modification to the Letter of Author- boundaries); ization. (2) A list of marine mammals within (c) A notice of issuance or denial of a the proposed geographic region; renewal of a Letter of Authorization (3) Whether the proposal is for year- will be published in the FEDERAL REG- round designation or seasonal, and if ISTER within 30 days of a determination. seasonal, months of years for proposed designation; § 216.190 Modifications to Letters of (4) Detailed information on the biol- Authorization. ogy of marine mammals within the (a) Except as provided in paragraph area, including estimated population (b) of this section, no substantial modi- size, distribution, density, status, and fication (including withdrawal or sus- the principal biological activity during pension) to a Letter of Authorization the proposed period of designation suf- issued pursuant to §§ 216.106 and 216.188 ficient for NMFS to make a prelimi- and subject to the provisions of this nary determination that the area is subpart shall be made by NMFS until biologically important for marine after notification and an opportunity mammals; and for public comment has been provided. (5) Detailed information on the area For purposes of this paragraph, a re- with regard to its importance for ei- newal of a Letter of Authorization ther primary feeding, breeding, or mi- under § 216.189, without modification, gration for those species of marine except for the period of validity and a mammals that have the potential to be listing of planned operating areas, or affected by low frequency sounds; for moving the authorized SURTASS (c) Areas within 12 nm (22 km) of any LFA sonar system from one ship to an- coastline, including offshore islands, or other, is not considered a substantial within non-operating areas for modification. SURTASS LFA sonar are not eligible (b) If the National Marine Fisheries for consideration; Service determines that an emergency (d) If a petition is received without exists that poses a significant risk to sufficient information for the National the well-being of the species or stocks Marine Fisheries Service to proceed, of marine mammals specified in NMFS will determine whether the § 216.180(b), a Letter of Authorization nominated area warrants further issued pursuant to §§ 216.106 and 216.188 study. If so, NMFS will begin a sci- may be substantially modified without entific review of the area. prior notice and opportunity for public (e)(1) If through a petition or inde- comment. Notification will be pub- pendently, NMFS makes a preliminary

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.204

determination that an area is bio- § 216.201 Effective dates. logically important for marine mam- Regulations in this subpart are effec- mals and is not located within a pre- tive from May 25, 2000, until May 25, viously designated area, NMFS will 2005. propose to add the area to § 216.184(f) and provide a public comment period of § 216.202 Permissible methods of tak- at least 45 days from the date of publi- ing. cation in the FEDERAL REGISTER. (a) Under Letters of Authorization (2) The National Marine Fisheries issued pursuant to §§ 216.106 and 216.208, Service will publish its final deter- the Holder of the Letter of Authoriza- mination in the FEDERAL REGISTER. tion may incidentally, but not intentionally, take marine mammals by Subpart R—Taking of Marine harassment, injury, and mortality Mammals Incidental to Con- within the area described in § 216.200(a), struction and Operation of provided the activity is in compliance Offshore Oil and Gas Facilities with all terms, conditions, and require- in the U.S. Beaufort Sea ments of the regulations in this subpart and the appropriate Letter of Au- thorization. SOURCE: 65 FR 34030, May 25, 2000, unless (b) The activities identified in otherwise noted. § 216.200 must be conducted in a manner EFFECTIVE DATE NOTE: At 65 FR 34030, May that minimizes, to the greatest extent 25, 2000, subpart R was added, effective May practicable, any adverse impacts on 25, 2000, to May 25, 2005. marine mammals, their habitat, and on the availability of marine mammals § 216.200 Specified activity and speci- for subsistence uses. fied geographical region. Regulations in this subpart apply § 216.203 Prohibitions. only to the incidental taking of those Notwithstanding takings authorized marine mammal species specified in by § 216.200 and by a Letter of Author- paragraph (b) of this section by U.S. ization issued under §§ 216.106 and citizens engaged in oil and gas develop- 216.208, no person in connection with ment activities in areas within state the activities described in § 216.200 and/or Federal waters in the U.S. Beau- shall: fort Sea specified in paragraph (a) of (a) Take any marine mammal not this section. The authorized activities specified in § 216.200(b); as specified in a Letter of Authoriza- (b) Take any marine mammal speci- tion issued under §§ 216.106 and 216.208 fied in § 216.200(b) other than by inci- include, but may not be limited to, site dental, unintentional harassment, in- construction, including ice road and jury or mortality; pipeline construction, vessel and heli- (c) Take a marine mammal specified copter activity; and oil production ac- in § 216.200(b) if such taking results in tivities, including ice road construc- more than a negligible impact on the tion, and vessel and helicopter activ- species or stocks of such marine mam- ity, but excluding seismic operations. mal; or (a)(1) Northstar Oil and Gas Develop- (d) Violate, or fail to comply with, ment; and the terms, conditions, and require- (2) [Reserved] ments of the regulations in this sub- (b) The incidental take by harass- part or a Letter of Authorization ment, injury or mortality of marine issued under § 216.106. mammals under the activity identified in this section is limited to the fol- § 216.204 Mitigation. lowing species: bowhead whale (Balaena The activity identified in § 216.200(a) mysticetus), gray whale (Eschrichtius must be conducted in a manner that robustus), beluga whale (Delphinapterus minimizes, to the greatest extent pos- leucas), ringed seal (Phoca hispida), sible, adverse impacts on marine mam- spotted seal (Phoca largha) and bearded mals and their habitats. When con- seal (Erignathus barbatus). ducting operations identified in

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.205 50 CFR Ch. II (10–1–02 Edition)

§ 216.200, the mitigation measures con- and reporting activities specified in the tained in the Letter of Authorization Letter of Authorization issued pursu- issued under §§ 216.106 and 216.208 must ant to § 216.106 and § 216.208. be utilized. (c) Holders of Letters of Authoriza- tion must conduct all monitoring and/ § 216.205 Measures to ensure avail- or research required under the Letter ability of species for subsistence of Authorization. uses. (d) Unless specified otherwise in the When applying for a Letter of Au- Letter of Authorization, the Holder of thorization pursuant to § 216.207, or a that Letter of Authorization must sub- renewal of a Letter of Authorization mit interim reports to the Director, Of- pursuant to § 216.209, the applicant fice of Protected Resources, National must submit a Plan of Cooperation Marine Fisheries Service, no later than that identifies what measures have 90 days after completion of the winter been taken and/or will be taken to min- monitoring season (approximately Sep- imize any adverse effects on the avail- tember 15th), and 90 days after the ability of marine mammals for subsist- open water monitoring season ence uses. A plan must include the fol- (approximately February 1st). This re- lowing: port must contain all information re- (a) A statement that the applicant quired by the Letter of Authorization. has notified and met with the affected (e) A draft annual comprehensive re- subsistence communities to discuss port must be submitted by May 1st of proposed activities and to resolve po- the year following the issuance of a tential conflicts regarding timing and LOA; methods of operation; (b) A description of what measures (f) A final annual comprehensive re- the applicant has taken and/or will port must be submitted within the take to ensure that oil development ac- time period specified in the governing tivities will not interfere with subsist- Letter of Authorization. ence whaling or sealing; (g) A final comprehensive report on (c) What plans the applicant has to all marine mammal monitoring and re- continue to meet with the affected search conducted during the effective communities to notify the commu- period of the regulations in this sub- nities of any changes in operation. part must be submitted to the Direc- tor, Office of Protected Resources, Na- § 216.206 Requirements for monitoring tional Marine Fisheries Service at and reporting. least 240 days prior to expiration of (a) Holders of Letters of Authoriza- these regulations or 240 days after the tion issued pursuant to §§ 216.106 and expiration of these regulations if re- 216.208 for activities described in newal of the regulations will not be re- § 216.200 are required to cooperate with quested. the National Marine Fisheries Service, and any other Federal, state or local § 216.207 Applications for Letters of Authorization. agency monitoring the impacts of the activity on marine mammals. Unless (a) To incidentally take bowhead specified otherwise in the Letter of Au- whales and other marine mammals thorization, the Holder of the Letter of pursuant to the regulations in this sub- Authorization must notify the Admin- part, the U.S. citizen (see definition at istrator, Alaska Region, National Ma- § 216.103) conducting the activity iden- rine Fisheries Service, or his/her des- tified in § 216.200, must apply for and ignee, by letter or telephone, at least 2 obtain either an initial Letter of Au- weeks prior to initiating new activities thorization in accordance with potentially involving the taking of ma- §§ 216.106 and 216.208, or a renewal under rine mammals. § 216.209. (b) Holders of Letters of Authoriza- (b) The application for an initial Let- tion must designate qualified on-site ter of Authorization must be submitted individuals, approved in advance by the to the National Marine Fisheries Serv- National Marine Fisheries Service, to ice at least 180 days before the activity conduct the mitigation, monitoring is scheduled to begin.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 216.209

(c) Applications for initial Letters of stock of affected marine mammal(s), Authorization must include all infor- and will not have an unmitigable ad- mation items identified in § 216.104(a). verse impact on the availability of spe- (d) NMFS will review an application cies or stocks of marine mammals for for an initial Letter of Authorization taking for subsistence uses. in accordance with § 216.104(b) and, if (d) Notice of issuance or denial of a adequate and complete, will publish a Letter of Authorization will be pub- notice of receipt of a request for inci- lished in the FEDERAL REGISTER within dental taking and, in accordance with 30 days of a determination. Administrative Procedure Act requirements, a proposed amendment to § 216.209 Renewal of Letters of Author- § 216.200(a). In conjunction with amend- ization. ing § 216.200(a), the National Marine (a) A Letter of Authorization issued Fisheries Service will provide a min- under § 216.106 and § 216.208 for the ac- imum of 45 days for public comment on tivity identified in § 216.200 will be re- the application for an initial Letter of newed annually upon: Authorization. (1) Notification to the National Ma- (e) Upon receipt of a complete appli- rine Fisheries Service that the activity cation for an initial Letter of Author- described in the application submitted ization, and at its discretion, the Na- under § 216.207 will be undertaken and tional Marine Fisheries Service may that there will not be a substantial submit the monitoring plan to mem- modification to the described work, bers of a peer review panel for review mitigation or monitoring undertaken and/or schedule a workshop to review during the upcoming season; the plan. Unless specified in the Letter (2) Timely receipt of the monitoring of Authorization, the applicant must reports required under § 216.205, and the submit a final monitoring plan to the Letter of Authorization issued under Assistant Administrator prior to the § 216.208, which have been reviewed by issuance of an initial Letter of Author- the National Marine Fisheries Service ization. and determined to be acceptable, and the Plan of Cooperation required under § 216.208 Letters of Authorization. § 216.205; and (a) A Letter of Authorization, unless (3) A determination by the National suspended, revoked or not renewed, Marine Fisheries Service that the miti- will be valid for a period of time not to gation, monitoring and reporting meas- exceed the period of validity of this ures required under § 216.204 and the subpart, but must be renewed annually Letter of Authorization issued under subject to annual renewal conditions in §§ 216.106 and 216.208, were undertaken § 216.209. and will be undertaken during the up- (b) Each Letter of Authorization will coming annual period of validity of a set forth: renewed Letter of Authorization. (1) Permissible methods of incidental (b) If a request for a renewal of a Let- taking; ter of Authorization issued under (2) Means of effecting the least prac- §§ 216.106 and 216.208 indicates that a ticable adverse impact on the species, substantial modification to the de- its habitat, and on the availability of scribed work, mitigation or monitoring the species for subsistence uses; and undertaken during the upcoming sea- (3) Requirements for monitoring and son will occur, the National Marine reporting, including any requirements Fisheries Service will provide the pub- for the independent peer-review of pro- lic a minimum of 30 days for review posed monitoring plans. and comment on the request. Review (c) Issuance and renewal of each Let- and comment on renewals of Letters of ter of Authorization will be based on a Authorization are restricted to: determination that the number of ma- (1) New cited information and data rine mammals taken by the activity that indicates that the determinations will be small, that the total number of made in this subpart are in need of re- marine mammals taken by the activity consideration, as a whole will have no more than a (2) The Plan of Cooperation, and negligible impact on the species or (3) The proposed monitoring plan.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 216.210 50 CFR Ch. II (10–1–02 Edition)

(c) A notice of issuance or denial of a 222.205 Import and export requirements. Renewal of a Letter of Authorization will be published in the FEDERAL REG- Subpart C—General Permit Procedures ISTER within 30 days of a determina- 222.301 General requirements. tion. 222.302 Procedure for obtaining permits. 222.303 Issuance of permits. § 216.210 Modifications to Letters of Authorization. 222.304 Renewal of permits. 222.305 Rights of succession and transfer of (a) In addition to complying with the permits. provisions of §§ 216.106 and 216.208, ex- 222.306 Modification, amendment, suspen- cept as provided in paragraph (b) of sion, cancellation, and revocation of per- this section, no substantive modifica- mits. tion (including withdrawal or suspen- 222.307 Permits for incidental taking of spe- sion) to the Letter of Authorization by cies. the National Marine Fisheries Service, 222.308 Permits for scientific purposes or for issued pursuant to §§ 216.106 and 216.208 the enhancement of propagation or sur- and subject to the provisions of this vival of species. 222.309 Permits for listed species of sea tur- subpart shall be made until after noti- tles involving the Fish and Wildlife Serv- fication and an opportunity for public ice. comment has been provided. For purposes of this paragraph, a renewal of a AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. Letter of Authorization under § 216.209, 742a et seq.; 31 U.S.C. 9701. Section 222.403 also issued under 16 U.S.C. without modification (except for the 1361 et seq. period of validity), is not considered a substantive modification. SOURCE: 64 FR 14054, Mar. 23, 1999, unless (b) If the Assistant Administrator de- otherwise noted. termines that an emergency exists that poses a significant risk to the well- Subpart A—Introduction and being of the species or stocks of marine General Provisions mammals specified in § 216.200(b), a Letter of Authorization issued pursu- § 222.101 Purpose and scope of regula- ant to §§ 216.106 and 216.208 may be sub- tions. stantively modified without prior noti- (a) The regulations of parts 222, 223, fication and an opportunity for public and 224 of this chapter implement the comment. Notification will be pub- Endangered Species Act (Act), and gov- lished in the FEDERAL REGISTER within ern the taking, possession, transpor- 30 days subsequent to the action. tation, sale, purchase, barter, exportation, importation of, and other re- PARTS 217–221[RESERVED] quirements pertaining to wildlife and plants under the jurisdiction of the PART 222—GENERAL ENDANGERED Secretary of Commerce and determined AND THREATENED MARINE SPECIES to be threatened or endangered pursuant to section 4(a) of the Act. These Subpart A—Introduction and General regulations are implemented by the Provisions National Marine Fisheries Service, Na- tional Oceanic and Atmospheric Ad- Sec. ministration, U.S. Department of Com- 222.101 Purpose and scope of regulations. merce, This part pertains to general 222.102 Definitions. provisions and definitions. Specifically, 222.103 Federal/state cooperation in the conservation of endangered and threatened parts 223 and 224 pertain to provisions species. to threatened species and endangered species, respectively. Part 226 enumer- Subpart B—Certificates of Exemption for ates designated critical habitat for en- Pre-Act Endangered Species Parts dangered and threatened species. Cer- tain of the endangered and threatened 222.201 General requirements. 222.202 Certificate renewal. marine species enumerated in §§ 224.102 222.203 Modification, amendment, suspen- and 223.102 are included in Appendix I sion, and revocation of certificates. or II to the Convention on Inter- 222.204 Administration of certificates. national Trade of Endangered Species

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00086 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.102

of Wild Fauna and Flora. The importa- wise apply if the unlisted species cov- tion, exportation, and re-exportation of ered by the plan were actually listed. such species are subject to additional For the Services to cover a species regulations set forth at 50 CFR part 23, under a conservation plan, it must be chapter I. listed on the section 10(a)(1)(B) permit. (b) For rules and procedures relating Alaska Regional Administrator means to species determined to be threatened the Regional Administrator for the or endangered under the jurisdiction of Alaska Region of the National Marine the Secretary of the Interior, see 50 Fisheries Service, National Oceanic CFR parts 10 through 17. For rules and and Atmospheric Administration, U.S. procedures relating to the general im- Department of Commerce, or their au- plementation of the Act jointly by the thorized representative. Mail sent to Departments of the Interior and Com- the Alaska Regional Administrator merce and for certain species under the should be addressed: Alaska Regional joint jurisdiction of both the Secre- Administrator, F/AK, Alaska Regional taries of the Interior and Commerce, Office, National Marine Fisheries Serv- see 50 CFR Chapter IV. Marine mam- ice, NOAA, P.O. Box 21668 Juneau, AK mals listed as endangered or threat- 99802–1668. ened and subject to these regulations Approved turtle excluder device (TED) may also be subject to additional re- means a device designed to be installed quirements pursuant to the Marine in a trawl net forward of the cod end Mammal Protection Act (for regula- for the purpose of excluding sea turtles tions implementing that act, see 50 from the net, as described in 50 CFR CFR part 216). 223.207. (c) No statute or regulation of any Assistant Administrator means the As- state shall be construed to relieve a sistant Administrator for Fisheries of person from the restrictions, condi- the National Marine Fisheries Service, tions, and requirements contained in National Oceanic and Atmospheric Ad- parts 222, 223, and 224 of this chapter. In ministration, U.S. Department of Com- addition, nothing in parts 222, 223, and merce, or his authorized representa- 224 of this chapter, including any per- tive. Mail sent to the Assistant Admin- mit issued pursuant thereto, shall be istrator should be addressed: Assistant construed to relieve a person from any Administrator for Fisheries, National other requirements imposed by a stat- Marine Fisheries Service, NOAA, 1315 ute or regulation of any state or of the East-West Highway, Silver Spring, MD United States, including any applicable 20910. health, quarantine, agricultural, or Atlantic Area means all waters of the customs laws or regulations, or any Atlantic Ocean south of 36°33′00.8″ N. other National Marine Fisheries Serv- lat. (the line of the North Carolina/Vir- ice enforced statutes or regulations. ginia border) and adjacent seas, other than waters of the Gulf Area, and all § 222.102 Definitions. waters shoreward thereof (including Accelerator funnel means a device ports). used to accelerate the flow of water Atlantic Shrimp Fishery—Sea Turtle through a shrimp trawl net. Conservation Area (Atlantic SFSTCA) Act means the Endangered Species means the inshore and offshore waters Act of 1973, as amended, 16 U.S.C. 1531 extending to 10 nautical miles (18.5 km) et seq. offshore along the coast of the States Adequately covered means, with re- of Georgia and South Carolina from the spect to species listed pursuant to sec- Georgia-Florida border (defined as the tion 4 of the Act, that a proposed con- line along 30°42′45.6″ N. lat.) to the servation plan has satisfied the permit North Carolina-South Carolina border issuance criteria under section (defined as the line extending in a di- 10(a)(2)(B) of the Act for the species rection of 135°34′55″ from true north covered by the plan and, with respect from the North Carolina-South Caro- to unlisted species, that a proposed lina land boundary, as marked by the conservation plan has satisfied the per- border station on Bird Island at mit issuance criteria under section 33°51′07.9″ N. lat., 078°32′32.6″ W. long.). 10(a)(2)(B) of the Act that would other- Authorized officer means:

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00087 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.102 50 CFR Ch. II (10–1–02 Edition)

(1) Any commissioned, warrant, or toration, acquisition, protection, or petty officer of the U.S. Coast Guard; other conservation purposes under a (2) Any special agent or enforcement conservation plan. officer of the National Marine Fish- Cooperative Agreement means an eries Service; agreement between a state(s) and the (3) Any officer designated by the head National Marine Fisheries Service, of a Federal or state agency that has NOAA, Department of Commerce, entered into an agreement with the which establishes and maintains an ac- Secretary or the Commandant of the tive and adequate program for the con- Coast Guard to enforce the provisions servation of resident species listed as of the Act; or endangered or threatened pursuant to (4) Any Coast Guard personnel ac- section 6(c)(1) of the Endangered Spe- companying and acting under the di- cies Act. rection of any person described in para- Fishing, or to fish, means: graph (1) of this definition. (1) The catching, taking, or har- Bait shrimper means a shrimp trawler vesting of fish or wildlife; that fishes for and retains its shrimp (2) The attempted catching, taking, catch alive for the purpose of selling it or harvesting of fish or wildlife; for use as bait. (3) Any other activity that can rea- Beam trawl means a trawl with a sonably be expected to result in the rigid frame surrounding the mouth catching, taking, or harvesting of fish that is towed from a vessel by means of or wildlife; or one or more cables or ropes. (4) Any operations on any waters in Certificate of exemption means any document so designated by the Na- support of, or in preparation for, any tional Marine Fisheries Service and activity described in paragraphs (1) signed by an authorized official of the through (3) of this definition. National Marine Fisheries Service, in- Footrope means a weighted rope or cluding any document which modifies, cable attached to the lower lip (bottom amends, extends or renews any certifi- edge) of the mouth of a trawl net along cate of exemption. the forward most webbing. Changed circumstances means changes Footrope length means the distance in circumstances affecting a species or between the points at which the ends of geographic area covered by a conserva- the footrope are attached to the trawl tion plan that can reasonably be an- net, measured along the forward-most ticipated by plan developers and NMFS webbing. and that can be planned for (e.g., the Foreign commerce includes, among listing of new species, or a fire or other other things, any transaction between natural catastrophic event in areas persons within one foreign country, or prone to such events). between persons in two or more foreign Commercial activity means all activi- countries, or between a person within ties of industry and trade, including, the United States and a person in one but not limited to, the buying or sell- or more foreign countries, or between ing of commodities and activities con- persons within the United States, ducted for the purpose of facilitating where the fish or wildlife in question such buying and selling: Provided, how- are moving in any country or countries ever, that it does not include the exhi- outside the United States. bition of commodities by museums or Four-seam, straight-wing trawl means similar cultural or historical organiza- a design of shrimp trawl in which the tions. main body of the trawl is formed from Conservation plan means the plan re- a top panel, a bottom panel, and two quired by section 10(a)(2)(A) of the Act side panels of webbing. The upper and that an applicant must submit when lower edges of the side panels of web- applying for an incidental take permit. bing are parallel over the entire length. Conservation plans also are known as Four-seam, tapered-wing trawl means a ‘‘habitat conservation plans’’ or design of shrimp trawl in which the ‘‘HCPs.’’ main body of the trawl is formed from Conserved habitat areas means areas a top panel, a bottom panel, and two explicitly designated for habitat res- side panels of webbing. The upper and

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.102

lower edges of the side panels of web- anic and Atmospheric Administration bing converge toward the rear of the (Coast Charts, 1:80,000 scale) and as de- trawl. scribed in 33 CFR part 80. Gillnet means a panel of netting, sus- Leatherback conservation zone means pended vertically in the water by floats that portion of the Atlantic Area lying along the top and weights along the north of a line along 28°24.6′ N. lat. bottom, to entangle fish that attempt (Cape Canaveral, FL). to pass through it. Northeast Regional Administrator Gulf Area means all waters of the means the Regional Administrator for Gulf of Mexico west of 81° W. long. (the the Northeast Region of the National line at which the Gulf Area meets the Marine Fisheries Service, National Atlantic Area) and all waters shore- Oceanic and Atmospheric Administra- ward thereof (including ports). tion, U.S. Department of Commerce, or Gulf Shrimp Fishery-Sea Turtle Con- their authorized representative. Mail servation Area (Gulf SFSTCA) means the sent to the Northeast Regional Admin- offshore waters extending to 10 nau- istrator should be addressed: Northeast tical miles (18.5 km) offshore along the Regional Administrator, F/NE, North- coast of the States of Texas and Lou- east Regional Office, National Marine isiana from the South Pass of the Mis- Fisheries Service, NOAA, One ° ′ sissippi River (west of 89 08.5 W. long.) Blackburn Drive, Gloucester, MA 01930– to the U.S.-Mexican border. 2298. Habitat restoration activity means an Northwest Regional Administrator activity that has the sole objective of means the Regional Administrator for restoring natural aquatic or riparian the Northwest Region of the National habitat conditions or processes. Marine Fisheries Service, National Harm in the definition of ‘‘take’’ in Oceanic and Atmospheric Administra- the Act means an act which actually tion, U.S. Department of Commerce, or kills or injures fish or wildlife. Such an their authorized representative. Mail act may include significant habitat sent to the Northwest Regional Admin- modification or degradation which actually kills or injures fish or wildlife istrator should be addressed: North- by significantly impairing essential be- west Regional Administrator, F/NW, havioral patterns, including, breeding, Northwest Regional Office, National spawning, rearing, migrating, feeding Marine Fisheries Service, NOAA, 7600 or sheltering. Sand Point Way NE, Seattle, WA 98115– Headrope means a rope that is at- 0070. tached to the upper lip (top edge) of the Office of Enforcement means the na- mouth of a trawl net along the for- tional fisheries enforcement office of ward-most webbing. the National Marine Fisheries Service. Headrope length means the distance Mail sent to the Office of Enforcement between the points at which the ends of should be addressed: Office of Enforce- the headrope are attached to the trawl ment, F/EN, National Marine Fisheries net, measured along the forward-most Service, NOAA, 8484 Suite 415, Georgia webbing. Ave., Silver Spring, MD 20910. Import means to land on, bring into, Office of Protected Resources means or introduce into, or attempt to land the national program office of the en- on, bring into, or introduce into any dangered species and marine mammal place subject to the jurisdiction of the programs of the National Marine Fish- United States, whether or not such eries Service. Mail sent to the Office of landing, bringing, or introduction con- Protected Resources should be ad- stitutes an importation within the dressed: Office of Protected Resources, meaning of the tariff laws of the F/PR, National Marine Fisheries Serv- United States. ice, NOAA, 1315 East West Highway, Inshore means marine and tidal wa- Silver Spring, MD 20910. ters landward of the 72 COLREGS de- Offshore means marine and tidal wa- marcation line (International Regula- ters seaward of the 72 COLREGS de- tions for Preventing Collisions at Sea, marcation line (International Regula- 1972), as depicted or noted on nautical tions for Preventing Collisions at Sea, charts published by the National Oce- 1972), as depicted or noted on nautical

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.102 50 CFR Ch. II (10–1–02 Edition)

charts published by the National Oce- tives and products thereof, which was anic and Atmospheric Administration lawfully held within the United States (Coast Charts, 1:80,000 scale) and as de- on December 28, 1973, in the course of a scribed in 33 CFR part 80. commercial activity; or any finished Operating conservation program means scrimshaw product, if such product or those conservation management activi- the raw material for such product was ties which are expressly agreed upon lawfully held within the United States and described in a Conservation Plan on December 28, 1973, in the course of a or its Implementing Agreement. These commercial activity. activities are to be undertaken for the Properly implemented conservation plan affected species when implementing an means any conservation plan, imple- approved Conservation Plan, including menting agreement, or permit whose measures to respond to changed cir- commitments and provisions have been cumstances. or are being fully implemented by the Permit means any document so des- permittee. ignated by the National Marine Fish- Pusher-head trawl (chopsticks) means eries Service and signed by an author- a trawl that is spread by two poles sus- ized official of the National Marine pended from the bow of the trawler in Fisheries Service, including any docu- an inverted ‘‘V’’ configuration. ment which modifies, amends, extends, Resident species means, for purposes or renews any permit. of entering into cooperative agree- Person means an individual, corpora- ments with any state pursuant to section, partnership, trust, association, or tion 6(c) of the Act, a species that ex- any other private entity, or any offi- ists in the wild in that state during any cer, employee, agent, department, or part of its life. instrumentality of the Federal govern- Right whale means, as used in part 224 ment of any state or political subdivi- of this chapter, any whale that is a sion thereof or of any foreign govern- member of the western North Atlantic ment. population of the northern right whale Pound net leader means a long species (Eubalaena glacialis). straight net that directs the fish off- Roller trawl means a variety of beam shore towards the pound, an enclosure trawl that is used, usually by small that captures the fish. Some pound net vessels, for fishing over uneven or vege- leaders are all mesh, while others have tated sea bottoms. stringers and mesh. Stringers are Scrimshaw product means any art vertical lines in a pound net leader form which involves the substantial that are spaced a certain distance etching or engraving of designs upon, apart and are not crossed by horizontal or the substantial carving of figures, lines to form mesh. patterns, or designs from any bone or Possession means the detention and tooth of any marine mammal of the control, or the manual or ideal custody order Cetacea. For purposes of this of anything that may be the subject of part, polishing or the adding of minor property, for one’s use and enjoyment, superficial markings does not con- either as owner or as the proprietor of stitute substantial etching, engraving, a qualified right in it, and either held or carving. personally or by another who exercises Secretary means the Secretary of it in one’s place and name. Possession Commerce or an authorized representa- includes the act or state of possessing tive. and that condition of facts under which persons can exercise their power over a Shrimp means any species of marine corporeal thing at their pleasure to the shrimp (Order Crustacea) found in the exclusion of all other persons. Posses- Atlantic Area or the Gulf Area, includ- sion includes constructive possession ing, but not limited to: that which means not an actual but an (1) Brown shrimp (Penaeus aztecus). assumed existence one claims to hold (2) White shrimp (Penaeus setiferus). by virtue of some title, without having (3) Pink shrimp (Penaeus duorarum). actual custody. (4) Rock shrimp (Sicyonia brevirostris). Pre-Act endangered species part means (5) Royal red shrimp (Hymenopenaeus any sperm whale oil, including deriva- robustus).

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.102

(6) Seabob shrimp (Xiphopenaeus Carolina land boundary, as marked by kroyeri). the border station on Bird Island at Shrimp trawler means any vessel that 33°51′07.9″ N. lat., 078°32′32.6″ W. is equipped with one or more trawl nets long.(the North Carolina-South Caro- and that is capable of, or used for, fish- lina border). ing for shrimp, or whose on-board or Summer flounder trawler means any landed catch of shrimp is more than 1 vessel that is equipped with one or percent, by weight, of all fish com- more bottom trawl nets and that is ca- prising its on-board or landed catch. pable of, or used for, fishing for floun- Skimmer trawl means a trawl that is der or whose on-board or landed catch fished along the side of the vessel and of flounder is more than 100 lb (45.4 kg). is held open by a rigid frame and a lead Take means to harass, harm, pursue, weight. On its outboard side, the trawl hunt, shoot, wound, kill, trap, capture, is held open by one side of the frame or collect, or to attempt to harass, extending downward and, on its in- harm, pursue, hunt, shoot, wound, kill, board side, by a lead weight attached trap, capture, or collect. by cable or rope to the bow of the ves- Taper, in reference to the webbing sel. used in trawls, means the angle of a Southeast Regional Administrator cut used to shape the webbing, ex- means the Regional Administrator for pressed as the ratio between the cuts the Southeast Region of the National that reduce the width of the webbing Marine Fisheries Service, National by cutting into the panel of webbing Oceanic and Atmospheric Administra- through one row of twine (bar cuts) and tion, U.S. Department of Commerce, or the cuts that extend the length of the their authorized representative. Mail panel of webbing by cutting straight sent to the Southeast Regional Admin- aft through two adjoining rows of istrator should be addressed: Southeast twine (point cuts). For example, se- Regional Administrator, F/SE, South- quentially cutting through the lengths east Regional Office, National Marine of twine on opposite sides of a mesh, Fisheries Service, NOAA, 9721 Execu- leaving an uncut edge of twines all tive Center Drive N., St. Petersburg, lying in the same line, produces a rel- FL 33702–2432. atively strong taper called ‘‘all-bars’’; Southwest Regional Administrator making a sequence of 4-bar cuts fol- means the Regional Administrator for lowed by 1-point cut produces a more the Southwest Region of the National gradual taper called ‘‘4 bars to 1 point’’ Marine Fisheries Service, National or ‘‘4b1p’’; similarly, making a se- Oceanic and Atmospheric Administra- quence of 2-bar cuts followed by 1-point tion, U.S. Department of Commerce, or cut produces a still more gradual taper their authorized representative. Mail called ‘‘2b1p’’; and making a sequence sent to the Southwest Regional Admin- of cuts straight aft does not reduce the istrator should be addressed: South- width of the panel and is called a west Regional Administrator, F/SW, ‘‘straight’’ or ‘‘all-points’’ cut. Southwest Regional Office, National Taut means a condition in which Marine Fisheries Service, NOAA, 501 there is no slack in the net webbing. West Ocean Blvd, Suite 4200, Long Test net, or try net, means a net Beach, CA 90802–4213. pulled for brief periods of time just be- Stretched mesh size means the dis- fore, or during, deployment of the pri- tance between the centers of the two mary net(s) in order to test for shrimp opposite knots in the same mesh when concentrations or determine fishing pulled taut. conditions (e.g., presence or absence of Summer flounder means the species bottom debris, jellyfish, bycatch, Paralichthys dentatus. seagrasses, etc.). Summer flounder fishery-sea turtle pro- Tongue means any piece of webbing tection area means all offshore waters, along the top, center, leading edge of a bounded on the north by a line along trawl, whether lying behind or ahead of 37°05′ N. lat. (Cape Charles, VA) and the headrope, to which a towing bridle bounded on the south by a line extend- can be attached for purposes of pulling ing in a direction of 135°34′55″ from true the trawl net and/or adjusting the north from the North Carolina-South shape of the trawl.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.103 50 CFR Ch. II (10–1–02 Edition)

Transportation means to ship, convey, EFFECTIVE DATE NOTE: At 67 FR 13101, Mar. carry or transport by any means what- 21, 2002, § 222.102 was amended by adding the ever, and deliver or receive for such definition for ‘‘Gillnet’’, effective Mar. 15, 2002 through 240 days after Mar. 15, 2002 (Nov. shipment, conveyance, carriage, or 12, 2002). transportation. Triple-wing trawl means a trawl with § 222.103 Federal/state cooperation in a tongue on the top, center, leading the conservation of endangered and edge of the trawl and an additional threatened species. tongue along the bottom, center, lead- (a) Application for and renewal of coop- ing edge of the trawl. erative agreements. (1) The Assistant Ad- Two-seam trawl means a design of ministrator may enter into a Coopera- shrimp trawl in which the main body of tive Agreement with any state that es- the trawl is formed from a top and a tablishes and maintains an active and bottom panel of webbing that are di- adequate program for the conservation rectly attached to each other down the of resident species listed as endangered sides of the trawl. or threatened. In order for a state pro- Underway with respect to a vessel, gram to be deemed an adequate and ac- means that the vessel is not at anchor, tive program, the Assistant Adminis- or made fast to the shore, or aground. trator must find, and annually recon- Unforeseen circumstances means firm that the criteria of either sections changes in circumstances affecting a 6(c)(1) (A) through (E) or sections species or geographic area covered by a 6(c)(1) (i) and (ii) of the Act have been conservation plan that could not rea- satisfied. sonably have been anticipated by plan (2) Following receipt of an applica- developers and NMFS at the time of tion by a state for a Cooperative Agree- the conservation plan’s negotiation ment with a copy of a proposed state and development, and that result in a program, and a determination by the substantial and adverse change in the Assistant Administrator that the state status of the covered species. program is adequate and active, the Vessel means a vehicle used, or capa- Assistant Administrator shall enter ble of being used, as a means of trans- into an Agreement with the state. portation on water which includes (3) The Cooperative Agreement, as every description of watercraft, includ- well as the Assistant Administrator’s ing nondisplacement craft and sea- finding upon which it is based, must be planes. reconfirmed annually to ensure that it Vessel restricted in her ability to ma- reflects new laws, species lists, rules or neuver has the meaning specified for regulations, and programs and to dem- this term at 33 U.S.C. 2003(g). onstrate that it is still adequate and active. Wildlife means any member of the (b) Allocation and availability of funds. animal kingdom, including without (1) The Assistant Administrator shall limitation any mammal, fish, bird allocate funds, appropriated for the (including any migratory, nonmigra- purpose of carrying out section 6 of the tory, or endangered bird for which pro- Act, to various states using the fol- tection is also afforded by treaty or lowing as the basis for the determina- other international agreement), am- tion: phibian, reptile, mollusk, crustacean, (i) The international commitments of arthropod or other invertebrate, and the United States to protect endan- includes any part, product, egg, or off- gered or threatened species; spring thereof, or the dead body or (ii) The readiness of a state to pro- parts thereof. ceed with a conservation program con- Wing net (butterfly trawl) means a sistent with the objectives and pur- trawl that is fished along the side of poses of the Act; the vessel and that is held open by a (iii) The number of federally listed four-sided, rigid frame attached to the endangered and threatened species outrigger of the vessel. within a state; [64 FR 14054, Mar. 23, 1999, as amended at 64 (iv) The potential for restoring en- FR 60731, Nov. 8, 1999; 67 FR 13101, Mar. 21, dangered and threatened species within 2002; 67 FR 41203, June 17, 2002] a state; and

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.201

(v) The relative urgency to initiate a subject to applicable Federal regula- program to restore and protect an en- tions. dangered or threatened species in (4) Payments of funds, including pay- terms of survival of the species. ment of such preliminary costs and ex- (2) Funds allocated to a state are penses as may be incurred in connec- available for obligation during the fis- tion with projects, shall not be made cal year for which they are allocated unless all necessary or required docu- and until the close of the succeeding ments are first submitted to and ap- fiscal year. Obligation of allocated proved by the Assistant Administrator. funds occurs when an award or con- Payments shall only be made for ex- tract is signed by the Assistant Admin- penditures reported and certified by istrator. the state agency. Payments shall be (c) Financial assistance and payments. made only to the state office or official designated by the state agency and au- (1) A state must enter into a Coopera- thorized under the laws of the state to tive Agreement before financial assist- receive public funds for the state. ance is approved by the Assistant Ad- ministrator for endangered or threatened species projects. Specifically, the Subpart B—Certificates of Exemp- Agreement must contain the actions tion for Pre-Act Endangered that are to be taken by the Assistant Species Parts Administrator and/or by the state, the benefits to listed species expected to be § 222.201 General requirements. derived from these actions, and the es- (a) The Assistant Administrator may timated cost of these actions. exempt any pre-Act endangered species (2) Subsequent to such Agreement, part from the prohibitions of sections the Assistant Administrator may fur- 9(a)(1)(A), 9(a)(1)(E), or 9(a)(1)(F) of the ther agree with a state to provide fi- Act. nancial assistance in the development (1) No person shall engage in any ac- and implementation of acceptable tivities identified in such sections of projects for the conservation of endan- the Act that involve any pre-Act en- gered and threatened species. Docu- dangered species part without a valid ments to provide financial assistance Certificate of Exemption issued pursu- will consist of an application for Fed- ant to this subpart B. (2) No person may export, deliver, re- eral assistance and an award or a con- ceive, carry, transport or ship in inter- tract. The availability of Federal funds state or foreign commerce in the shall be contingent upon the continued course of a commercial activity; or sell existence of the Cooperative Agree- or offer for sale in interstate or foreign ment and compliance with all applica- commerce any pre-Act finished scrim- ble Federal regulations for grant ad- shaw product unless that person has ministration and cost accounting prin- been issued a valid Certificate of Ex- ciples. emption and the product or the raw (3)(i) The payment of the Federal material for such product was held by share of costs incurred when con- such certificate holder on October 13, ducting activities included under a 1982. contract or award shall not exceed 75 (3) Any person engaged in activities percent of the program costs as stated otherwise prohibited under the Act or in the agreement. However, the Federal regulations shall bear the burden of share may be increased to 90 percent proving that the exemption or certifi- when two or more states having a com- cate is applicable, was granted, and mon interest in one or more endan- was valid and in force at the time of gered or threatened resident species, the otherwise prohibited activity. the conservation of which may be en- (b) Certificates of Exemption issued hanced by cooperation of such states, under this subpart are no longer avail- jointly enter into an agreement with able to new applicants. However, the the Assistant Administrator. Assistant Administrator may renew or (ii) The state share of program costs modify existing Certificates of Exemp- may be in the form of cash or in-kind tions as authorized by the provisions contributions, including real property, set forth in this subpart.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.202 50 CFR Ch. II (10–1–02 Edition)

(c) Any person granted a Certificate (c) The following information will be of Exemption, including a renewal, used as the basis for determining under this subpart, upon a sale of any whether an application for renewal of a exempted pre-Act endangered species Certificate of Exemption is complete: part, must provide the purchaser in (1) Title: Application for Renewal of writing with a description (including Certificate of Exemption. full identification number) of the part (2) The date of application. sold and must inform the purchaser in (3) The identity of the applicant, in- writing of the purchaser’s obligation cluding complete name, original Cer- under paragraph (b) of this section, in- tificate of Exemption number, current cluding the address given in the certifi- address, and telephone number. If the cate to which the purchaser’s report is applicant is a corporation, partnership, to be sent. or association, set forth the details. (d) Any purchaser of pre-Act endan- (4) The period of time for which a re- gered species parts included in a valid newal of the Certificate of Exemption Certificate of Exemption, unless an ul- is requested. However, no renewal of timate user, within 30 days after the Certificate of Exemption, or right receipt of such parts, must submit a claimed thereunder, shall be effective written report to the address given in after the close of the 5-year period be- the certificate. The report must specify ginning on the date of the expiration of the quantity of such parts or products the previous renewal of the certificate received, the name and address of the of exemption. seller, a copy of the invoice or other (5)(i) A complete and detailed up- document showing the serial numbers, dated inventory of all pre-Act endan- weight, and descriptions of the parts or gered species parts for which the appli- products received, the date on which cant seeks exemption. Each item on such parts or products were received, the inventory must be identified by the and the intended use of such parts by following information: A unique serial the purchaser. The term ‘‘ultimate number; the weight of the item to the user’’, for purposes of this paragraph, nearest whole gram; and a detailed de- means any person who acquired such scription sufficient to permit ready endangered species part or product for identification of the item. Small lots, his or her own consumption or for not exceeding five pounds (2,270 grams), other personal use (including gifts) and of scraps or raw material, which may not for resale. include or consist of one or more whole raw whale teeth, may be identified by a § 222.202 Certificate renewal. single serial number and total weight. (a) Any person to whom a Certificate All finished scrimshaw items subse- of Exemption has been issued by the quently made from a given lot of scrap National Marine Fisheries Service may may be identified by the lot serial apply to the Assistant Administrator number plus additional digits to sig- for renewal of such certificate. Any nify the piece number of the individual person holding a valid Certificate of finished item. Identification numbers Exemption which was renewed after will be in the following format: 00– October 13, 1982, and was in effect on 000000–0000. The first two digits will be March 31, 1988, may apply to the Sec- the last two digits of the appropriate retary for one renewal for a period not certificate of exemption number; the to exceed 5 years. next six digits, the serial number of the (b) The sufficiency of the application individual piece or lot of scrap or raw shall be determined by the Assistant material; and the last four digits, Administrator in accordance with the where applicable, the piece number of requirements of paragraph (c) of this an item made from a lot of scrap or section. At least 15 days should be al- raw material. The serial numbers for lowed for processing. When an applica- each certificate holder’s inventory tion for a renewal has been received must begin with 000001, and piece num- and deemed sufficient, the Assistant bers, where applicable, must begin with Administrator shall issue a Certificate 0001 for each separate lot. of Renewal to the applicant as soon as (ii) Identification numbers may be af- practicable. fixed to inventory items by any means,

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.204

including, but not limited to, etching date of notification, unless otherwise the number into the item, attaching a specified. label or tag bearing the number to the (c) Any violation of the applicable item, or sealing the item in a plastic provisions of parts 222, 223, or 224 of bag, wrapper or other container bear- this chapter, or of the Act, or of a con- ing the number. The number must re- dition of the certificate may subject main affixed to the item until the item the certificate holder to penalties pro- is sold to an ultimate user, as defined vided in the Act and to suspension, rev- in § 222.201(d). ocation, or modification of the Certifi- (iii) No renewals will be issued for cate of Exemption, as provided in sub- scrimshaw products in excess of any part D of 15 CFR part 904. quantities declared in the original application for a Certificate of Exemp- § 222.204 Administration of certificates. tion. (6) A Certification in the following (a) The Certificate of Exemption cov- language: I hereby certify that the ers the business or activity specified in foregoing information is complete, the Certificate of Exemption at the ad- true, and correct to the best of my dress described therein. No Certificate knowledge and belief. I understand of Exemption is required to cover a that this information is submitted for separate warehouse facility used by the the purpose of obtaining a renewal of certificate holder solely for storage of my Certificate of Exemption under the pre-Act endangered species parts, if the Endangered Species Act, as amended, records required by this subpart are and the Department of Commerce regu- maintained at the address specified in lations issued thereunder, and that any the Certificate of Exemption served by false statement may subject me to the the warehouse or storage facility. criminal penalties of 18 U.S.C. 1001, or (b) Certificates of Exemption issued under this subpart are not transferable. to the penalties under the Act. However, in the event of the lease, sale, (7) Signature of the applicant. or other transfer of the operations or (d) Upon receipt of an incomplete or activity authorized by the Certificate improperly executed application for re- of Exemption, the successor is not renewal, the applicant shall be notified quired to obtain a new Certificate of of the deficiency in the application for Exemption prior to commencing such renewal. If the application for renewal operations or activity. In such case, is not corrected and received by the As- the successor will be treated as a pur- sistant Administrator within 30 days chaser and must comply with the following the date of receipt of notifi- record and reporting requirements set cation, the application for renewal forth in § 222.201(d). shall be considered abandoned. (c) The Certificate of Exemption holder must notify the Assistant Ad- § 222.203 Modification, amendment, ministrator, in writing, of any change suspension, and revocation of cer- in address, in trade name of the busi- tificates. ness, or in activity specified in the cer- (a) When circumstances have changed tificate. The Assistant Administrator so that an applicant or certificate hold- must be notified within 10 days of a er desires to have any material, term, change of address, and within 30 days or condition of the application or cer- of a change in trade name. The certifi- tificate modified, the applicant or cer- cate with the change of address or in tificate holder must submit in writing trade name must be endorsed by the full justification and supporting infor- Assistant Administrator, who shall mation in conformance with the provi- provide an amended certificate to the sions of this part. person to whom it was issued. A certifi- (b) All certificates are issued subject cate holder who seeks amendment of a to the condition that the Assistant Ad- certificate may continue all authorized ministrator reserves the right to activities while awaiting action by the amend the provisions of a Certificate of Assistant Administrator. Exemption for just cause at any time. (d) A Certificate of Exemption issued Such amendments take effect on the under this subpart confers no right or

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.205 50 CFR Ch. II (10–1–02 Edition)

privilege to conduct a business or an gered species parts made in the pre- activity contrary to state or other law. vious calendar quarter, or such other Similarly, compliance with the provi- record information the Assistant Ad- sions of any state or other law affords ministrator may specify from time to no immunity under any Federal laws time. or regulations of any other Federal (ii) Quarterly reports are due on Jan- agency. uary 15, April 15, July 15, and October (e) Any person authorized to enforce 15. the Act may enter the premises of any (3) The Assistant Administrator may Certificate of Exemption holder or of authorize the record information to be any purchaser during business hours, submitted in a manner other than that including places of storage, for the purpose of inspecting or of examining any prescribed in paragraph (g)(2) of this records or documents and any endan- section when the record holder dem- gered species parts. onstrates that an alternate method of (f) The records pertaining to pre-Act reporting is reasonably necessary and endangered species parts prescribed by will not hinder the effective adminis- this subpart shall be in permanent tration or enforcement of this subpart. form and shall be retained at the address shown on the Certificate of Ex- § 222.205 Import and export require- emption or at the principal address of a ments. purchaser in the manner prescribed by (a) Any fish and wildlife subject to this subpart. the jurisdiction of the National Marine (g)(1) Holders of Certificates of Ex- Fisheries Service and is intended for emption must maintain records of all importation into or exportation from pre-Act endangered species parts they the United States, shall not be im- receive, sell, transfer, distribute or dis- ported or exported except at a port(s) pose of otherwise. Purchasers of pre- designated by the Secretary of the In- Act endangered species parts, unless terior. Shellfish and fishery products ultimate users, as defined in that are neither endangered nor threat- § 222.201(d), must similarly maintain ened species and that are imported for records of all such parts or products purposes of human or animal consump- they receive. tion or taken in waters under the juris- (2) Such records referred to in para- diction of the United States or on the graph (g)(1) of this section may consist of invoices or other commercial high seas for recreational purposes are records, which must be filed in an or- excluded from this requirement. The derly manner separate from other com- Secretary of the Interior may permit mercial records maintained and be the importation or exportation at non- readily available for inspection. Such designated ports in the interest of the records must show the name and ad- health or safety of the species for other dress of the purchaser, seller, or other reasons if the Secretary deems it ap- transferor; show the type, quantity, propriate and consistent with the pur- and identity of the part or product; pose of facilitating enforcement of the show the date of such sale or transfer; Act and reducing the costs thereof. Im- and be retained, in accordance with the porters and exporters are advised to see requirements of this subpart, for a pe- 50 CFR part 14 for importation and ex- riod of not less than 3 years following portation requirements and informa- the date of sale or transfer. Each pre- tion. Act endangered species part will be (b) No pre-Act endangered species identified by its number on the updated part shall be imported into the United inventory required to renew a Certifi- States. A Certificate of Exemption cate of Exemption. issued in accordance with the provi- (i) Each Certificate of Exemption sions of this subpart confers no right or holder must submit a quarterly report privilege to import into the United (to the address given in the certificate) States any such part. containing all record information required by paragraph (g)(2) of this sec- (c)(1) Any person exporting from the tion, on all transfers of pre-Act endan- United States any pre-Act endangered

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.301

species part must possess a valid Cer- for application, issuance, renewal, con- tificate of Exemption issued in accord- ditions, and general administration of ance with the provisions of this sub- permits issuable pursuant to parts 222, part. In addition, the exporter must 223, and 224 of this chapter. While this provide to the Assistant Adminis- section provides generic rules and pro- trator, in writing, not less than 10 days cedures applicable to all permits, other prior to shipment, the following infor- sections may provide more specific mation: The name and address of the rules and procedures with respect to foreign consignee, the intended port of certain types of permits. In such cases, exportation, and a complete descrip- the requirements in all applicable section of the parts to be exported. No tions must be satisfied. shipment may be made until these re- (2) Notwithstanding paragraph (a)(1) quirements are met by the exporter. of this section, the Assistant Adminis- (2) The exporter must send a copy of trator may approve variations from the the Certificate of Exemption, and any requirements of parts 222, 223, and 224 endorsements thereto, to the District of this chapter when the Assistant Ad- Director of Customs at the port of ex- ministrator finds that an emergency portation, which must precede or ac- exists and that the proposed variations company the shipment in order to per- will not hinder effective administra- mit the appropriate inspection prior to tion of those parts and will not be un- lading. Upon receipt, the District Di- lawful. Other sections within parts 222, rector may order such inspection, as 223, and 224 of this chapter may allow deemed necessary; the District will for a waiver or variation of specific re- clear the merchandise for export, prior quirements for emergency situations, to the lading of the merchandise. If upon certain conditions. In such cases, they are satisfied that the shipment is those conditions must be satisfied in proper and complies with the informa- order for the waiver or variation to be tion contained in the certificate and lawful. any endorsement thereto. The certifi- (b) No person shall take, import, ex- cate, and any endorsements, will be port or engage in any other prohibited forwarded to the Chief of the Office of activity involving any species of fish or Enforcement for NMFS. wildlife under the jurisdiction of the (3) No pre-Act endangered species Secretary of Commerce that has been part in compliance with the require- determined to be endangered under the ments of this subpart may be exported Act, or that has been determined to be except at a port or ports designated by threatened and for which the prohibi- the Secretary of the Interior, pursuant tions of section 9(a)(1) of the Act have to § 222.103. been applied by regulation, without a (4) Notwithstanding any provision of valid permit issued pursuant to these this subpart, it shall not be required regulations. The permit shall entitle that the Assistant Administrator au- the person to whom it is issued to en- thorizes the transportation in inter- gage in the activity specified in the state or foreign commerce of pre-Act permit, subject to the limitations of endangered species parts. the Act and the regulations in parts 222, 223, and 224 of this chapter, for the EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. period stated on the permit, unless 23, 1999, with the exception of § 222.205 para- sooner modified, suspended or revoked. graphs (c)(1) and (c)(2), which contain infor- (c) Each person intending to engage mation collection requirements and will not in an activity for which a permit is re- become effective until approval has been quired by parts 222, 223, and 224 of this given by the Office of Management and chapter or by the Act shall, before Budget. commencing such activity, obtain a valid permit authorizing such activity. Subpart C—General Permit Any person who desires to obtain per- Procedures mit privileges authorized by parts 222, 223, and 224 of this chapter must apply § 222.301 General requirements. for such permit in accordance with the (a)(1) The regulations in this subpart requirements of these sections. If the C provide uniform rules and procedures information required for each specific,

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.302 50 CFR Ch. II (10–1–02 Edition)

permitted activity is included, one ap- taking, possession, transportation, plication may be accepted for all per- sale, purchase, barter, exportation, or mits required, and a single permit may importation of fish or wildlife pursuant be issued. to such permit. Such records shall be (d)(1) Any permit issued under these kept current and shall include the regulations must be in the possession names and addresses of persons with of the person to whom it is issued (or of whom any fish or wildlife has been pur- an agent of such person) while any ani- chased, sold, bartered, or otherwise mal subject to the permit is in the pos- transferred, and the date of such trans- session of such person or agent. Spe- action, and such other information as cifically, a person or his/her agent may be required or appropriate. Such must be in possession of a permit dur- records, unless otherwise specified, ing the time of the authorized taking, shall be entered in books, legibly writ- importation, exportation, or of any ten in the English language. Such other act and during the period of any records shall be retained for 5 years transit incident to such taking, impor- from the date of issuance of the permit. tation, exportation, or to any other (j) Any person holding a permit pur- act. suant to parts 222, 223, and 224 of this (2) A duplicate copy of the issued per- chapter shall allow the Assistant Ad- mit must be physically attached to the ministrator to enter the permit hold- tank, container, package, enclosure, or er’s premises at any reasonable hour to other means of containment, in which inspect any fish or wildlife held or to the animal is placed for purposes of inspect, audit, or copy any permits, storage, transit, supervision, or care. books, or records required to be kept (e) The authorizations on the face of by these regulations or by the Act. a permit setting forth specific times, Such person shall display any permit dates, places, methods of taking, num- issued pursuant to these regulations or bers and kinds of fish or wildlife, loca- to the Act upon request by an author- tion of activity, authorize certain cir- ized officer or by any other person rely- cumscribed transactions, or otherwise ing on its existence. permit a specifically limited matter, are to be strictly construed and shall § 222.302 Procedure for obtaining per- not be interpreted to permit similar or mits. related matters outside the scope of strict construction. (a) Applications must be submitted (f) Permits shall not be altered, to the Assistant Administrator, by let- erased, or mutilated, and any permit ter containing all necessary informa- which has been altered, erased, or mu- tion, attachments, certification, and tilated shall immediately become in- signature, as specified by the regula- valid. tions in parts 222, 223, and 224 of this (g) Any permit issued under parts 222, chapter, or by the Act. In no case, 223, and 224 of this chapter shall be dis- other than for emergencies pursuant to played for inspection, upon request, to § 222.301(a)(2), will applications be ac- an authorized officer, or to any other cepted either orally or by telephone. person relying upon its existence. (b) Applications must be received by (h) Permittees may be required to the Assistant Administrator at least 90 file reports of the activities conducted calendar days prior to the date on under the permit. Any such reports which the applicant desires to have the shall be filed not later than March 31 permit made effective, unless other- for the preceding calendar year ending wise specified in the regulations or December 31, or any portion thereof, guidelines pertaining to a particular during which a permit was in force, un- permit. The National Marine Fisheries less the regulations of parts 222, 223, or Service will attempt to process appli- 224 of this chapter or the provisions of cations deemed sufficient in the short- the permit set forth other reporting re- est possible time, but does not guar- quirements. antee that the permit will be issued 90 (i) From the date of issuance of the days after notice of receipt of the ap- permit, the permittee shall maintain plication is published in the FEDERAL complete and accurate records of any REGISTER.

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.303

(c)(1) Upon receipt of an insuffi- Assistant Administrator determines ciently or improperly executed applica- that a hearing would otherwise be ad- tion, the applicant shall be notified of visable, the Assistant Administrator the deficiency in the application. If the may, within 60 days after the date of applicant fails to supply the deficient publication of the notice referred to in information or otherwise fails to cor- paragraph (b) of this section, afford to rect the deficiency within 60 days fol- such requesting party or parties an op- lowing the date of notification, the ap- portunity for a hearing. Such hearing plication shall be considered aban- shall also be open to participation by doned. any interested members of the public. (2) The sufficiency of the application Notice of the date, time, and place of shall be determined by the Assistant such hearing shall be published in the Administrator in accordance with the FEDERAL REGISTER not less than 15 requirements of this part. The Assist- ant Administrator, however, may days in advance of such hearing. Any waive any requirement for information interested person may appear at the or require any elaboration or further hearing in person or through a rep- information deemed necessary. resentative and may submit any relevant material, data, views, comments, § 222.303 Issuance of permits. arguments, or exhibits. A summary (a)(1) No permit may be issued prior record of the hearing shall be kept. to the receipt of a written application (d) Except as provided in subpart D unless an emergency pursuant to to 15 CFR part 904, as soon as prac- § 222.301(a)(2) exists, and a written vari- ticable but not later than 30 days after ation from the requirements is re- the close of the hearing. If no hearing corded by the National Marine Fish- is held, as soon as practicable but not eries Service. later than 30 days from the publication (2) No representation of an employee of the notice in the FEDERAL REGISTER, or agent of the United States shall be the Assistant Administrator shall issue construed as a permit unless it meets or deny issuance of the permit. Notice the requirements of a permit defined in of the decision of the Assistant Admin- § 222.102. istrator shall be published in the (3) Each permit shall bear a serial FEDERAL REGISTER within 10 days after number. Upon renewal, such a number the date of the issuance or denial and may be reassigned to the permittee to indicate where copies of the permit, if whom issued so long as the permittee issued, may be obtained. maintains continuity of renewal. (b) When an application for a permit (e)(1) The Assistant Administrator received by the Assistant Adminis- shall issue the permit unless: trator is deemed sufficient, the Assist- (i) Denial of the permit has been ant Administrator shall, as soon as made pursuant to subpart D to 15 CFR practicable, publish a notice in the part 904; FEDERAL REGISTER. Information re- (ii) The applicant has failed to dis- ceived by the Assistant Administrator close material or information required, as a part of the application shall be or has made false statements as to any available to the public as a matter of material fact, in connection with the public record at every stage of the pro- application; ceeding. An interested party, within 30 (iii) The applicant has failed to dem- days after the date of publication of onstrate a valid justification for the such notice, may submit to the Assist- permit or a showing of responsibility; ant Administrator written data, views, (iv) The authorization requested po- or arguments with respect to the tak- tentially threatens a fish or wildlife ing, importation, or to other action population; or proposed in the application, and may request a hearing in connection with (v) The Assistant Administrator finds the action to be taken thereon. through further inquiry or investiga- (c) If a request for a hearing is made tion, or otherwise, that the applicant is within the 30-day period referred to in not qualified. paragraph (b) of this section, or if the

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.304 50 CFR Ch. II (10–1–02 Edition)

(2) The applicant shall be notified in § 222.305 Rights of succession and writing of the denial of any permit re- transfer of permits. quest, and the reasons thereof. If au- (a)(1) Permits issued pursuant to thorized in the notice of denial, the ap- parts 222, 223, and 224 of this chapter plicant may submit further informa- are not transferable or assignable. In tion or reasons why the permit should the event that a permit authorizes cer- not be denied. Such further informa- tain activities in connection with a tion shall not be considered a new ap- business or commercial enterprise, plication. The final action by the As- which is then subject to any subse- sistant Administrator shall be considered the final administrative decision quent lease, sale or transfer, the suc- of the Department of Commerce. cessor to that enterprise must obtain a permit prior to continuing the per- (f) If a permit is issued under § 222.308, the Assistant Administrator shall pub- mitted activity, with the exceptions provided in paragraph (a)(2) of this sec- lish notice thereof in the FEDERAL tion. REGISTER, including the Assistant Ad- ministrator’s finding that such per- (2) Certain persons, other than the mit— permittee, are granted the right to (1) Was applied for in good faith; carry on a permitted activity for the (2) Will not operate to the disadvan- remainder of the term of a current per- tage of such endangered species; and mit, provided that they furnish the (3) Will be consistent with the pur- permit to the issuing officer for en- poses and policy set forth in section 2 dorsement within 90 days from the date of the Act. the successor begins to carry on the ac- (g) The Assistant Administrator may tivity. Such persons are the following: waive the 30-day period in an emer- (i) The surviving spouse, child, execu- gency situation where the health or tor, administrator, or other legal rep- life of an endangered animal is threat- resentative of a deceased permittee, ened and no reasonable alternative is and available to the applicant. Notice of (ii) The receiver or trustee in bank- any such waiver shall be published by ruptcy or a court designated assignee the Assistant Administrator in the for the benefit of creditors. FEDERAL REGISTER within 10 days fol- (b) Except as otherwise stated on the lowing the issuance of the permit. face of the permit, any person who is under the direct control of the per- § 222.304 Renewal of permits. mittee, or who is employed by or under When the permit is renewable and a contract to the permittee for purposes permittee intends to continue the ac- authorized by the permit, may carry tivity described in the permit during out the activity authorized by the per- any portion of the year ensuing its ex- mit. piration, the permittee shall, unless EFFECTIVE DATE NOTES: 1. At 64 FR 14054, otherwise notified in writing by the As- Mar. 23, 1999, part 222 was revised effective sistant Administrator, file a request Mar. 23, 1999, with the exception of § 222.305 for permit renewal, together with a paragraph (a), which contains information certified statement, verifying that the collection requirements and will not be ef- information in the original application fective until approval has been given by the is still currently correct. If the infor- Office of Management and Budget. mation is incorrect the permittee shall 2. At 67 FR 57973, Sept. 13, 2002, in § 222.305, file a statement of all changes in the paragraph (a)(1) was revised and paragraph original application, accompanied by (a)(3) was added, effective Oct. 15, 2002. For any required fee at least 30 days prior the convenience of the user the revised and to the expiration of the permit. Any added text is set forth as follows: person holding a valid renewable per- § 222.305 Rights of succession and transfer mit, who has complied with the fore- of permits. going provision of this section, may (a)(1) Except as otherwise provided in this continue such activities as were au- section, permits issued pursuant to parts 222, thorized by the expired permit until 223, and 224 of this chapter are not transfer- the renewal application is acted upon. able or assignable. In the event that a permit

100

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00100 Fmt 8010 Sfmt 8003 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.307

authorizes certain business activities in con- permits. The permittee must notify the nection with a business or commercial enter- Assistant Administrator, in writing prise, which is then subject to any subse- within 30 days, of any change in ad- quent lease, sale or transfer, the successor to dress or of any change in the trade that enterprise must obtain a permit prior to continuing the permitted activity, with the name for the business or activity speci- exceptions provided in paragraphs (a)(2) and fied in the permit. The permit with the (a)(3) of this section. change of address or in trade name must be endorsed by the Assistant Ad- * * * * * ministrator, who shall provide an amended permit to the person to whom (3) Incidental take permits issued under it was issued. § 222.307, and enhancement permits issued (c) All permits are issued subject to under § 222.308, as part of a Safe Harbor Agreement with Assurances or Candidate the condition that the National Marine Conservation Agreement with Assurances, Fisheries Service reserves the right to may be transferred in whole or in part amend the provisions of a permit for through a joint submission by the permittee just cause at any time during its term. and the proposed transferee, or in the case of Such amendments take effect on the a deceased permittee, the deceased permit- date of notification, unless otherwise tee’s legal representative and the proposed specified. transferee, provided NMFS determines in (d) When any permittee discontinues writing that: (i) The proposed transferee meets all of the the permitted activity, the permittee qualifications under parts 222, 223, or 224 (as shall, within 30 days thereof, mail the applicable) for holding a permit; permit and a request for cancellation (ii) The proposed transferee has provided to the issuing officer, and the permit adequate written assurances that it will pro- shall be deemed void upon receipt. No vide sufficient funding for the conservation refund of any part of an amount paid as plan or other agreement or plan associated a permit fee shall be made when the op- with the permit and will implement the rel- erations of the permittee are, for any evant terms and conditions of the permit, including any outstanding minimization and reason, discontinued during the tenure mitigation requirements; and of an issued permit. (iii) The proposed transferee has provided (e) Any violation of the applicable such other information as NMFS determines provisions of parts 222, 223, or 224 of is relevant to process the transfer. this chapter, or of the Act, or of a term or condition of the permit may subject * * * * * the permittee to both the penalties provided in the Act and suspension, § 222.306 Modification, amendment, revocation, or amendment of the per- suspension, cancellation, and rev- mit, as provided in subpart D to 15 CFR ocation of permits. part 904. (a) When circumstances have changed so that an applicant or a permittee de- § 222.307 Permits for incidental taking sires to have any term or condition of of species. the application or permit modified, the (a) Scope. (1) The Assistant Adminis- applicant or permittee must submit in trator may issue permits to take en- writing full justification and sup- dangered and threatened species inci- porting information in conformance dentally to an otherwise lawful activ- with the provisions of this part and the ity under section 10(a)(1)(B) of the Act. part under which the permit has been The regulations in this section apply to issued or requested. Such applications all endangered species, and those for modification are subject to the threatened species for which the prohi- same issuance criteria as original ap- bitions of section 9(a)(1) of the Act, plications. under the jurisdiction of the Secretary (b) Notwithstanding the require- of Commerce, apply. ments of paragraph (a) of this section, (2) If the applicant represents an in- a permittee may change the mailing dividual or a single entity, such as a address or trade name under which corporation, the Assistant Adminis- business is conducted without obtain- trator will issue an individual inci- ing a new permit or being subject to dental take permit. If the applicant the same issuance criteria as original represents a group or organization

101

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.307 50 CFR Ch. II (10–1–02 Edition)

whose members conduct the same or a to monitor, minimize, and mitigate similar activity in the same geo- such impacts, and the funding avail- graphical area with similar impacts on able to implement such measures; listed species for which a permit is re- (iv) The alternative actions to such quired, the Assistant Administrator taking that were considered and the will issue a general incidental take reasons why those alternatives are not permit. To be covered by a general in- being used; and cidental take permit, each individual (v) A list of all sources of data used conducting the activity must have a in preparation of the plan, including certificate of inclusion issued under reference reports, environmental as- paragraph (f) of this section. sessments and impact statements, and (b) Permit application procedures. Ap- personal communications with recog- plications should be sent to the Assist- nized experts on the species or activity ant Administrator. The Assistant Ad- who may have access to data not pub- ministrator shall determine the suffi- lished in current literature. ciency of the application in accordance (c) Issuance criteria. (1) In deter- with the requirements of this section. mining whether to issue a permit, the At least 120 days should be allowed for Assistant Administrator will consider processing. Each application must be the following: signed and dated and must include the (i) The status of the affected species following: or stocks; (1) The type of application, either: (ii) The potential severity of direct, (i) Application for an Individual Inci- indirect, and cumulative impacts on dental Take Permit under the Act; or the species or stocks and habitat as a (ii) Application for a General Inci- result of the proposed activity; dental Take Permit under the Act; (iii) The availability of effective (2) The name, address, and telephone monitoring techniques; number of the applicant. If the appli- (iv) The use of the best available cant is a partnership or a corporate en- technology for minimizing or miti- tity or is representing a group or an or- gating impacts; and ganization, the applicable details; (v) The views of the public, sci- (3) The species or stocks, by common entists, and other interested parties and scientific name, and a description knowledgeable of the species or stocks of the status, distribution, seasonal or other matters related to the applica- distribution, habitat needs, feeding tion. habits and other biological require- (2) To issue the permit, the Assistant ments of the affected species or stocks; Administrator must find that— (4) A detailed description of the pro- (i) The taking will be incidental; posed activity, including the antici- (ii) The applicant will, to the max- pated dates, duration, and specific lo- imum extent practicable, monitor, cation. If the request is for a general minimize, and mitigate the impacts of incidental take permit, an estimate of such taking; the total level of activity expected to (iii) The taking will not appreciably be conducted; reduce the likelihood of the survival (5) A conservation plan, based on the and recovery of the species in the wild; best scientific and commercial data (iv) The applicant has amended the available, which specifies the fol- conservation plan to include any meas- lowing: ures (not originally proposed by the ap- (i) The anticipated impact (i.e., plicant) that the Assistant Adminis- amount, extent, and type of antici- trator determines are necessary or ap- pated taking) of the proposed activity propriate; and on the species or stocks; (v) There are adequate assurances (ii) The anticipated impact of the that the conservation plan will be proposed activity on the habitat of the funded and implemented, including any species or stocks and the likelihood of measures required by the Assistant Ad- restoration of the affected habitat; ministrator. (iii) The steps (specialized equip- (d) Permit conditions. In addition to ment, methods of conducting activi- the general conditions set forth in this ties, or other means) that will be taken part, every permit issued under this

102

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.307

section will contain such terms and conservation plan, will comply with conditions as the Assistant Adminis- their terms and conditions, and will trator deems necessary and appro- fund and implement applicable meas- priate, including, but not limited to ures of the conservation plan. the following: (2) To issue a Certificate of Inclusion, (1) Reporting requirements or rights the Assistant Administrator must find of inspection for determining whether that: the terms and conditions are being (i) The applicant will be engaged in complied with; the activity covered by the general per- (2) The species and number of ani- mit, and mals covered; (ii) The applicant has made adequate (3) The authorized method of taking; assurances that the applicable meas- (4) The procedures to be used to han- ures of the conservation plan will be dle or dispose of any animals taken; funded and implemented. and (g) Assurances provided to permittee in (5) The payment of an adequate fee to case of changed or unforeseen cir- the National Marine Fisheries Service cumstances. The assurances in this to process the application. paragraph (g) apply only to incidental (e) Duration of permits. The duration take permits issued in accordance with of permits issued under this section paragraph (c) of this section where the will be such as to provide adequate as- conservation plan is being properly im- surances to the permit holder to com- plemented, and apply only with respect mit funding necessary for the activities to species adequately covered by the authorized by the permit, including conservation plan. These assurances conservation activities. In determining cannot be provided to Federal agencies. the duration of a permit, the Assistant This rule does not apply to incidental Administrator will consider the dura- take permits issued prior to March 25, tion of the proposed activities, as well 1998. The assurances provided in inci- as the possible positive and negative dental take permits issued prior to effects on listed species associated with March 25, 1998, remain in effect, and issuing a permit of the proposed dura- those permits will not be revised as a tion, including the extent to which the result of this rulemaking. conservation plan is likely to enhance (1) Changed circumstances provided for the habitat of the endangered species in the plan. If additional conservation or to increase the long-term surviv- and mitigation measures are deemed ability of the species. necessary to respond to changed cir- (f) Certificates of inclusion. (1) Any in- cumstances and were provided for in dividual who wishes to conduct an ac- the plan’s operating conservation pro- tivity covered by a general incidental gram, the permittee will implement take permit must apply to the Assist- the measures specified in the plan. ant Administrator for a Certificate of (2) Changed circumstances not provided Inclusion. Each application must be for in the plan. If additional conserva- signed and dated and must include the tion and mitigation measures are following: deemed necessary to respond to (i) The general incidental take per- changed circumstances and such meas- mit under which the applicant wants ures were not provided for in the plan’s coverage; operating conservation program, (ii) The name, address, and telephone NMFS will not require any conserva- number of the applicant. If the appli- tion and mitigation measures in addi- cant is a partnership or a corporate en- tion to those provided for in the plan tity, the applicable details; without the consent of the permittee, (iii) A description of the activity the provided the plan is being properly im- applicant seeks to have covered under plemented. the general incidental take permit, in- (3) Unforeseen circumstances. (i) In ne- cluding the anticipated dates, dura- gotiating unforeseen circumstances, tion, and specific location; and NMFS will not require the commit- (iv) A signed certification that the ment of additional land, water, or fi- applicant has read and understands the nancial compensation or additional re- general incidental take permit and the strictions on the use of land, water, or

103

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.308 50 CFR Ch. II (10–1–02 Edition)

other natural resources beyond the local, or Tribal government agency, or level otherwise agreed upon for the spe- a private entity, from taking addi- cies covered by the conservation plan tional actions at his or her own ex- without the consent of the permittee. pense to protect or conserve a species (ii) If additional conservation and included in a conservation plan. mitigation measures are deemed necessary to respond to unforeseen cir- § 222.308 Permits for scientific pur- cumstances, NMFS may require addi- poses or for the enhancement of tional measures of the permittee where propagation or survival of species. the conservation plan is being properly (a) Scope. The Assistant Adminis- implemented. However, such additional trator may issue permits for scientific measures are limited to modifications purposes or for the enhancement of the within any conserved habitat areas or propagation or survival of the affected to the conservation plan’s operating endangered or threatened species in ac- conservation program for the affected cordance with the regulations in parts species. The original terms of the con- 222, 223, and 224 of this chapter and servation plan will be maintained to under such terms and conditions as the the maximum extent possible. Addi- Assistant Administrator may pre- tional conservation and mitigation scribe, authorizing the taking, impor- measures will not involve the commit- tation, or other acts otherwise prohib- ment of additional land, water, or fi- ited by section 9 of the Act. Within the nancial compensation or additional re- jurisdication of a State, more restric- strictions on the use of land, water, or tive state laws or regulations in regard other natural resources otherwise to endangered species shall prevail in available for development or use under regard to taking. Proof of compliance the original terms of the conservation with applicable state laws will be re- plan without the consent of the per- quired before a permit will be issued. mittee. (b) Application procedures. Any person (iii) NMFS has the burden of dem- desiring to obtain such a permit may onstrating that unforeseen cir- make application therefor to the As- cumstances exist, using the best sci- sistant Administrator. Permits for ma- entific and commercial data available. rine mammals shall be issued in ac- These findings must be clearly docu- cordance with the provisions of part mented and based upon reliable tech- 216, subpart D of this chapter. Permits nical information regarding the status relating to sea turtles may involve the and habitat requirements of the af- Fish and Wildlife Service, in which fected species. NMFS will consider, but case the applicant shall follow the pro- not be limited to, the following factors: cedures set out in § 222.309. The fol- (A) Size of the current range of the lowing information will be used as the affected species; basis for determining whether an appli- (B) Percentage of range adversely af- cation is complete and whether a per- fected by the conservation plan; mit for scientific purposes or for en- (C) Percentage of range conserved by hancement of propagation or survival the conservation plan; of the affected species should be issued (D) Ecological significance of that by the Assistant Administrator. An apportion of the range affected by the plication for a permit shall provide the conservation plan; following information and such other (E) Level of knowledge about the af- information that the Assistant Admin- fected species and the degree of speci- istrator may require: ficity of the species’ conservation pro- (1) Title, as applicable, either— gram under the conservation plan; and (i) Application for permit for sci- (F) Whether failure to adopt addi- entific purposes under the Act; or tional conservation measures would ap- (ii) Application for permit for the en- preciably reduce the likelihood of sur- hancement of the propagation or survival and recovery of the affected spe- vival of the endangered species Under cies in the wild. the Act. (h) Nothing in this rule will be con- (2) The date of the application. strued to limit or constrain the Assist- (3) The identity of the applicant in- ant Administrator, any Federal, State, cluding complete name, address, and

104

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.308

telephone number. If the applicant is a location of capture or other taking, im- partnership or a corporate entity, set portation, exportation, and other acts forth the details. If the endangered spe- which require a permit, as specifically cies is to be utilized by a person other as possible; than the applicant, set forth the name (iv) A description of the status of the of that person and such other informa- stock of each species related insofar as tion as would be required if such person possible to the location or area of tak- were an applicant. ing; (4) A description of the purpose of the (v) A description of the manner of proposed acts, including the following: taking for each animal, including the (i) A detailed justification of the gear to be used; need for the endangered species, in- (vi) The name and qualifications of cluding a discussion of possible alter- the persons or entity which will cap- natives, whether or not under the con- ture or otherwise take the animals; trol of the applicant; and and (ii) A detailed description of how the species will be used. (vii) If the capture or other taking is (5) A detailed description of the to be done by a contractor, a statement project, or program, in which the en- as to whether a qualified member of dangered species is to be used, includ- your staff (include name(s) and quali- ing the following: fications) will supervise or observe the (i) The period of time over which the capture or other taking. Accompanying project or program will be conducted; such statement shall be a copy of the (ii) A list of the names and addresses proposed contract or a letter from the of the sponsors or cooperating institu- contractor indicating agreement to tions and the scientists involved; capture or otherwise take the animals, (iii) A copy of the formal research should a permit be granted. proposal or contract if one has been (7) A description of the manner of prepared; transportation for any live animal (iv) A statement of whether the pro- taken, imported, exported, or shipped posed project or program has broader in interstate commerce, including the significance than the individual re- following: searcher’s goals. For example, does the (i) Mode of transportation; proposed project or program respond (ii) Name of transportation company; directly or indirectly to recommenda- (iii) Length of time in transit for the tion of any national or international transfer of the animal(s) from the cap- scientific body charged with research ture site to the holding facility; or management of the endangered spe- (iv) Length of time in transit for any cies? If so, how?; and planned future move or transfer of the (v) A description of the arrange- animals; ments, if any, for the disposition of any (v) The qualifications of the common dead specimen or its skeleton or other carrier or agent used for transpor- remains in a museum or other institu- tation of the animals; tional collection for the continued benefit to science. (vi) A description of the pen, tank, (6) A description of the endangered container, cage, cradle, or other de- species which is the subject of the ap- vices used to hold the animal at both plication, including the following: the capture site and during transpor- (i) A list of each species and the num- tation; ber of each, including the common and (vii) Special care before and during scientific name, the subspecies (if ap- transportation, such as salves, anti- plicable), population group, and range; biotics, moisture; and (ii) A physical description of each (viii) A statement as to whether the animal, including the age, size, and animals will be accompanied by a vet- sex; erinarian or by another similarly (iii) A list of the probable dates of qualified person, and the qualifications capture or other taking, importation, of such person. exportation, and other acts which re- (8) Describe the contemplated care quire a permit for each animal and the and maintenance of any live animals

105

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 222.308 50 CFR Ch. II (10–1–02 Edition)

sought, including a complete descrip- propagation or survival of the affected tion of the facilities where any such species; animals will be maintained including: (ii) The numbers of mortalities (i) The dimensions of the pools or among such animals by species, by other holding facilities and the num- date, by location of capture, i.e., from ber, sex, and age of animals by species which population, and the location of to be held in each; such mortalities; (ii) The water supply, amount, and (iii) The cause(s) of any such mor- quality; tality; and (iii) The diet, amount and type, for (iv) The steps which have been taken all animals; by applicant to avoid or decrease any (iv) Sanitation practices used; such mortality. (12) A certification in the following (v) Qualifications and experience of language: I hereby certify that the the staff; foregoing information is complete, (vi) A written certification from a li- true, and correct to the best of my censed veterinarian or from a recog- knowledge and belief. I understand nized expert who are knowledgeable on that this information is submitted for the species (or related species) or group the purpose of obtaining a permit covered in the application. The certifi- under the Endangered Species Act, as cate shall verify that the veterinarian amended, and regulations promulgated has personally reviewed the amend- thereunder, and that any false statements for transporting and maintain- ment may subject me to the criminal ing the animal(s) and that, in the vet- penalties of 18 U.S.C. 1001, or to pen- erinarian’s opinion, they are adequate alties under the Act. to provide for the well-being of the ani- (13) The applicant and/or an officer mal; and thereof must sign the application. (vii) The availability in the future of (14) Assistance in completing this ap- a consulting expert or veterinarian plication may be obtained by writing meeting paragraph requirements of Chief, Endangered Species Division, Of- (b)(8)(vi) in this section. fice of Protected Resources, NMFS, (9) A statement of willingness to par- 1315 East-West Highway, Silver Spring, ticipate in a cooperative breeding pro- MD 20910 or calling the Office of Pro- gram and maintain or contribute data tected Resources at 301–713–1401. Allow to a stud book. at least 90 days for processing. (10) A statement of how the appli- (c) Issuance criteria. In determining cant’s proposed project or program will whether to issue a permit for scientific enhance or benefit the wild population. purposes or to enhance the propagation (11) For the 5 years preceding the or survival of the affected endangered date of application, the applicant shall species, the Assistant Administrator provide a detailed description of all shall specifically consider, among mortalities involving species under the other application criteria, the fol- control of or utilized by the applicant lowing: and are either presently listed as en- (1) Whether the permit was applied dangered species or are taxonomically for in good faith; related within the Order to the species (2) Whether the permit, if granted which is the subject of this application, and exercised, will not operate to the including: disadvantage of the endangered spe- (i) A list of all endangered species cies; and related species that are the subject (3) Whether the permit would be con- of this application that have been cap- sistent with the purposes and policy tured, transported, maintained, or uti- set forth in section 2 of the Act; lized by the applicant for scientific (4) Whether the permit would further purposes or for the enhancement of a bona fide and necessary or desirable propagation or survival of the affected scientific purpose or enhance the prop- species, and/or of related species that agation or survival of the endangered are captured, transported, maintained, species, taking into account the bene- or utilized by the applicant for sci- fits anticipated to be derived on behalf entific purposes or for enhancement of of the endangered species;

106

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 222.309

(5) The status of the population of appropriate apportionment of overhead the requested species and the effect of and administrative expenses of the De- the proposed action on the population, partment of Commerce. All such fees both direct and indirect; will be deposited in the Treasury to the (6) If a live animal is to be taken, credit of the appropriation which is transported, or held in captivity, the current and chargeable for the cost of applicant’s qualifications for the prop- furnishing the service. er care and maintenance of the species and the adequacy of the applicant’s fa- § 222.309 Permits for listed species of cilities; sea turtles involving the Fish and (7) Whether alternative non-endan- Wildlife Service. gered species or population stocks can (a) This section establishes specific and should be used; procedures for issuance of the following (8) Whether the animal was born in permits: scientific purposes or to en- captivity or was (or will be) taken from hance the propagation or survival of the wild; endangered or threatened species of sea (9) Provision for disposition of the turtles; zoological exhibition or edu- species if and when the applicant’s cational purposes for threatened spe- project or program terminates; cies of sea turtles; and permits that re- (10) How the applicant’s needs, pro- quires coordination with the Fish and gram, and facilities compare and relate Wildlife Service. The National Marine to proposed and ongoing projects and Fisheries Service maintains jurisdic- programs; tion for such species in the marine en- (11) Whether the expertise, facilities, vironment. The Fish and Wildlife Serv- or other resources available to the ap- ice maintains jurisdiction for such spe- plicant appear adequate to successfully cies of sea turtles in the land environ- accomplish the objectives stated in the ment. application; and (b) For permits relating to any activ- (12) Opinions or views of scientists or ity in the marine environment exclu- other persons or organizations knowl- sively, permit applicants and permit- edgeable about the species which is the tees must comply with the regulations subject of the application or of other in parts 222, 223, and 224 of this chapter. matters germane to the application. (c) For permits relating to any activ- (d) Terms and conditions. Permits ap- ity in the land environment exclu- plied for under this section shall con- sively, permit applicants must submit tain terms and conditions as the As- applications to the Wildlife Permit Of- sistant Administrator may deem ap- fice (WPO) of the U.S. Fish and Wildlife propriate, including but not limited to Service in accordance with either 50 the following: CFR 17.22(a), if the species is endan- (1) The number and kind of species gered, or 50 CFR 17.32(a), if the species covered; is threatened. (2) The location and manner of tak- (d) For permits relating to any activ- ing; ity in both the land and marine envi- (3) Port of entry or export; ronments, applicants must submit ap- (4) The methods of transportation, plications to the WPO. WPO will for- care, and maintenance to be used with ward the application to NMFS for re- live species; view and processing of those activities (5) Any requirements for reports or under its jurisdiction. Based on this re- rights of inspections with respect to view and processing, WPO will issue ei- any activities carried out pursuant to ther a permit or a letter of denial in the permit; accordance with its own regulations. (6) The transferability or assign- (e) For permits relating to any activ- ability of the permit; ity in a marine environment and that (7) The sale or other disposition of also requires a permit under the Con- the species, its progeny, or the species vention on International Trade in En- product; and dangered Species of Wild Fauna and (8) A reasonable fee covering the Flora (CITES) (TIAS 8249, July 1, 1975) costs of issuance of such permit, in- (50 CFR part 23), applicants must sub- cluding reasonable inspections and an mit applications to the WPO. WPO will

107

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 223 50 CFR Ch. II (10–1–02 Edition)

forward the application to NMFS for Subpart A—General Provisions review and processing, after which WPO will issue a combination ESA/ § 223.101 Purpose and scope. CITES permit or a letter of denial. (a) The regulations contained in this part identify the species under the ju- PART 223—THREATENED MARINE risdiction of the Secretary of Com- AND ANADROMOUS SPECIES merce that have been determined to be threatened species pursuant to section Subpart A—General Provisions 4(a) of the Act, and provide for the conservation of such species by estab- Sec. 223.101 Purpose and scope. lishing rules and procedures to gov- 223.102 Enumeration of threatened marine erning activities involving the species. and anadromous species. (b) The regulations contained in this part apply only to the threatened spe- Subpart B—Restrictions Applicable to cies enumerated in § 223.102. Threatened Marine and Anadromous (c) The provisions of this part are in Species addition to, and not in lieu of, other 223.201 Guadalupe fur seal. regulations of parts 222 through 226 of 223.202 Steller sea lion. this chapter which prescribe additional 223.203 Anadromous fish. restrictions or conditions governing 223.204 Exceptions to prohibitions relating threatened species. to anadromous fish. 223.205 Sea turtles. [64 FR 14068, Mar. 23, 1999] 223.206 Exceptions to prohibitions relating to sea turtles. § 223.102 Enumeration of threatened 223.207 Approved TEDs. marine and anadromous species. 223.209 Tribal plans. The species determined by the Sec- FIGURE 1 TO PART 223—NMFS TED retary of Commerce to be threatened FIGURE 2 TO PART 223—CAMERON TED pursuant to section 4(a) of the Act, as FIGURE 3 TO PART 223—MATAGORDA TED well as species listed under the Endan- FIGURE 4 TO PART 223—GEORGIA TED gered Species Conservation of Act of FIGURE 5 TO PART 223—NET DIAGRAM FOR THE 1969 by the Secretary of the Interior EXCLUDER PANEL OF THE PARKER SOFT TED and currently under the jurisdiction of FIGURE 6 TO PART 223—TED EXTENSION IN the Secretary of Commerce, are the SUMMER FLOUNDER TRAWL following: FIGURES 7–9b TO PART 223 [RESERVED] (a) Marine and anadromous fish. (1) FIGURE 10 TO PART 223—FLOUNDER TED Snake River spring/summer chinook FIGURE 11 TO PART 223—JONES TED salmon (Oncorhynchus tshawytscha). In- FIGURE 12a TO PART 223—ATTACHMENT OF THE cludes all natural population(s) of EXIT HOLE COVER spring/summer chinook salmon in the FIGURE 12b TO PART 223—GRID TED LEATHERBACK MODIFICATION mainstem Snake River and any of the FIGURE 13 TO PART 223—SINGLE GRID HARD following subbasins: Tucannon River, TED ESCAPE OPENING Grande Ronde River, Imnaha River, FIGURE 14a TO PART 223—MAXIMUM ANGLE OF and Salmon River. DEFLECTOR BARS WITH STRAIGHT BARS (2) Snake River fall chinook salmon ATTACHED TO THE BOTTOM OF THE FRAME (Oncorhynchus tshawytscha). Includes FIGURE 14b TO PART 223—MAXIMUM ANGLE OF all natural population(s) of fall chi- DEFLECTOR BARS WITH BENT BARS AT- nook in the mainstem Snake River and TACHED TO THE BOTTOM OF THE FRAME FIGURE 15 TO PART 223—MAXIMUM ANGLE OF any of the following subbasins: DEFLECTOR BARS WITH BARS UNATTACHED Tucannon River, Grande Ronde River, TO THE BOTTOM OF THE FRAME Imnaha River, Salmon River, and FIGURE 16 TO PART 223—ESCAPE OPENING AND Clearwater River. FLAP DIMENSIONS FOR THE DOUBLE COVER (3) Central California Coast Coho FLAP TED Salmon (Oncorhynchus kisutch). In- AUTHORITY: 16 U.S.C. 1531 et seq.; subpart B, cludes all coho salmon naturally repro- § 223.12 also issued under 16 U.S.C. 1361 et seq. duced in streams between Punta Gorda SOURCE: 43 FR 32809, July 28, 1978, unless in Humboldt County, CA, and the San otherwise noted. Redesignated at 64 FR 14068, Lorenzo River in Santa Cruz County, Mar. 23, 1999. CA.

108

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.102

(4) Southern Oregon/Northern Cali- bia River and north of Cape Blanco in fornia Coast coho salmon Curry County, OR. (Oncorhynchus kisutch). Includes all (11) Gulf sturgeon (Acipenser coho salmon naturally reproduced in oxyrinchus desotoi). streams between Cape Blanco in Curry (12) Hood Canal summer-run chum County, OR, and Punta Gorda in Hum- salmon (Oncorhynchus keta). Includes boldt County, CA. all naturally spawned populations of (5) Central California Coast steelhead summer-run chum salmon in Hood (Oncorhynchus mykiss). Includes all nat- Canal and its tributaries as well as urally spawned populations of populations in Olympic Peninsula riv- steelhead (and their progeny) in ers between Hood Canal and Dungeness streams from the Russian River to Bay, Washington; Aptos Creek, Santa Cruz County, Cali- fornia (inclusive), and the drainages of (13) Columbia River chum salmon San Francisco and San Pablo Bays (Oncorhynchus keta). Includes all natu- eastward to the Napa River (inclusive), rally spawned populations of chum Napa County, California. Excludes the salmon in the Columbia River and its Sacramento-San Joaquin River Basin tributaries in Washington and Oregon. of the Central Valley of California. (14) Upper Willamette River (6) South-Central California Coast steelhead (Oncorhynchus mykiss). In- steelhead (Oncorhynchus mykiss). In- cludes all naturally spawned popu- cludes all naturally spawned populations of winter-run steelhead in the lations of steelhead (and their progeny) Willamette River, Oregon, and its trib- in streams from the Pajaro River utaries upstream from Willamette (inclusive), located in Santa Cruz Falls to the Calapooia River, inclusive; County, California, to (but not includ- (15) Middle Columbia River steelhead ing) the Santa Maria River. (Oncorhynchus mykiss). Includes all nat- (7) Snake River Basin steelhead urally spawned populations of (Oncorhynchus mykiss). Includes all nat- steelhead in streams from above the urally spawned populations of Wind River, Washington, and the Hood steelhead (and their progeny) in River, Oregon (exclusive), upstream to, streams in the Snake River Basin of and including, the Yakima River, southeast Washington, northeast Or- Washington. Excluded are steelhead egon, and Idaho. from the Snake River Basin. (8) Lower Columbia River steelhead (16) Puget sound chinook salmon (Oncorhynchus mykiss). Includes all nat- (Oncorhynchus tshawytscha). Includes urally spawned populations of all naturally spawned populations of steelhead (and their progeny) in chinook salmon from rivers and streams and tributaries to the Colum- streams flowing into Puget Sound in- bia River between the Cowlitz and cluding the Straits of Juan De Fuca Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers, from the Elwha River eastward, includ- Oregon, inclusive. Excluded are ing rivers and streams flowing into steelhead in the upper Willamette Hood Canal, South Sound, North Sound River Basin above Willamette Falls and the Strait of Georgia in Wash- and steelhead from the Little and Big ington. White Salmon Rivers in Washington; (17) Lower Columbia River chinook (9) Central Valley, California salmon (Oncorhynchus tshawytscha). In- steelhead (Oncorhynchus mykiss). In- cludes all naturally spawned popu- cludes all naturally spawned populations of chinook salmon from the Co- lations of steelhead (and their progeny) lumbia River and its tributaries from in the Sacramento and San Joaquin its mouth at the Pacific Ocean up- Rivers and their tributaries. Excluded stream to a transitional point between are steelhead from San Francisco and Washington and Oregon east of the San Pablo Bays and their tributaries. Hood River and the White Salmon (10) Oregon Coast coho salmon River, and includes the Willamette (Oncorhynchus kisutch). Includes all River to Willamette Falls, Oregon, ex- naturally spawned populations of coho clusive of spring-run chinook salmon in salmon in streams south of the Colum- the Clackamas River.

109

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.201 50 CFR Ch. II (10–1–02 Edition)

(18) Upper Willamette River chinook Subpart B—Restrictions Applicable salmon (Oncorhynchus tshawytscha). In- to Threatened Marine and cludes all naturally spawned popu- Anadromous Species lations of spring-run chinook salmon in the Clackamas River and in the Wil- § 223.201 Guadalupe fur seal. lamette River, and its tributaries, above Willamette Falls, Oregon. (a) Prohibitions. The prohibitions of section 9 of the Act (16 U.S.C. 1538) re- (19) Ozette Lake sockeye salmon lating to endangered species apply to (Oncorhynchus nerka). Includes all nat- the Guadalupe fur seal except as pro- urally spawned populations of sockeye vided in paragraph (b) of this section. salmon in Ozette Lake and streams and (b) Exceptions. (1) The Assistant Ad- tributaries flowing into Ozette Lake, ministrator may issue permits author- Washington. izing activities which would otherwise (20) Central Valley spring-run chi- be prohibited under paragraph (a) of nook salmon (Oncorhynchus this section in accordance with the tshawytscha). Includes all naturally subject to the provisions of part 222 spawned populations of spring-run chi- subpart C—General Permit Procedures. nook salmon in the Sacramento River (2) Any Federal, State or local gov- Basin, and its tributaries, California. ernment official, employee, or des- (21) California coastal chinook salm- ignated agent may, in the course of of- on (Oncorhynchus tshawytscha). In- ficial duties, take a stranded Guada- cludes all naturally spawned popu- lupe fur seal without a permit if such lations of chinook salmon from Red- taking: wood Creek (Humboldt County, Cali- (i) Is accomplished in a humane man- fornia) through the Russian River ner; (Sonoma County, California). (ii) Is for the protection or welfare of (22) Northern California steelhead the animal, is for the protection of the (Oncorhynchus mykiss). Includes all nat- public health or welfare, or is for the urally spawned populations of salvage or disposal of a dead specimen; steelhead (and their progeny) in coast- (iii) Includes steps designed to ensure al river basins ranging from Redwood the return of the animal to its natural Creek in Humboldt County, California habitat, if feasible; and to the Gualala River, inclusive, in (iv) Is reported within 30 days to the Mendocino County, California. Regional Administrator, Southwest (b) Marine plants. Johnson’s seagrass Region, National Marine Fisheries (Halophila johnsonii). Service, 501 West Ocean Blvd., Suite (c) Marine mammals. Guadalupe fur 4200, Long Beach, CA 90802. seal (Arctocephalus townsendi); Steller (3) Any animal or specimen taken sea lion (Eumetopias jubatus), eastern under paragraph (b)(2) of this section population, which consists of all may only be retained, disposed of, or Steller sea lions from breeding colonies salvaged in accordance with directions located east of 144° W. longitude. from the Director, Southwest Region. (d) Sea turtles. Green turtle (Chelonia mydas) except for those populations [50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, Mar. 23, 1999] listed under § 224.101(c) of this chapter; Loggerhead turtle (Caretta caretta); § 223.202 Steller sea lion. Olive ridley turtle (Lepidochelys (a) General prohibitions. The prohibi- olivacea) except for those populations tions of section 9 of the Act (16 U.S.C. listed under § 224.101(c) of this chapter. 1538) and the following regulatory pro- NOTE TO § 223.201(D): Jurisdiction for sea turtles by the Department of Commerce, Na- visions shall apply to the eastern popu- tional Oceanic and Atmospheric Administra- lation of Steller sea lions: tion, National Marine Fisheries Service, is (1) No discharge of firearms. Except as limited to turtles while in the water. provided in paragraph (b) of this section, no person subject to the jurisdic- [64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999; 64 FR 14517, 14528, tion of the United States may dis- 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999; charge a firearm at or within 100 yards 65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, (91.4 meters) of a Steller sea lion. A 2000] firearm is any weapon, such as a pistol

110

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.202

or rifle, capable of firing a missile this section, whichever is greater, ex- using an explosive charge as a propel- cept on Marmot Island; and lant. (iii) No person may approach on land (2) No approach in buffer areas. Except not privately owned within one and as provided in paragraph (b) of this sec- one-half statutory miles (2.4 kilo- tion: meters) or within sight of the eastern (i) No owner or operator of a vessel shore of Marmot Island, including the may allow the vessel to approach with- Steller sea lion rookery site listed in in 3 nautical miles (5.5 kilometers) of a paragraph (a)(3) of this section, which- Steller sea lion rookery site listed in ever is greater. paragraph (a)(3) of this section; (ii) No person may approach on land (3) Listed sea lion rookery sites. Listed not privately owned within one-half Steller sea lion rookery sites consist of statutory miles (0.8 kilometers) or the rookeries in the Aleutian Islands within sight of a Steller sea lion rook- and the Gulf of Alaska listed in Table ery site listed in paragraph (a)(3) of 1.

TABLE 1 TO § 223.202—LISTED STELLER SEA LION ROOKERY SITES 1

From To Island NOAA Notes Lat. Long. Lat. Long. chart

1. Outer I...... 59°20.5 N 150°23.0 W 59°21.0 N 150°24.5 W 16681 S quadrant. 2. Sugarloaf I...... 58°53.0 N 152°02.0 W 16580 Whole island. 3. Marmot I...... 58°14.5 N 151°47.5 W 58°10.0 N 151°51.0 W 16580 SE quadrant. 4. Chirikof I...... 55°46.5 N 155°39.5 W 55°46.5 N 155°43.0 W 16580 S quadrant. 5. Chowiet I...... 56°00.5 N 156°41.5 W 56°00.5 N 156°42.0 W 16013 S quadrant. 6. Atkins I...... 55°03.5 N 159°18.5 W 16540 Whole island. 7. Chernabura I...... 54°47.5 N 159°31.0 W 54°45.5 N 159°33.5 W 16540 SE corner. 8. Pinnacle Rock ...... 54°46.0 N 161°46.0 W 16540 Whole island. 9. Clubbing Rks (N) .... 54°43.0 N 162°26.5 W 16540 Whole island. Clubbing Rks (S) ...... 54°42.0 N 162°26.5 W 16540 Whole Island. 10. Sea Lion Rks ...... 55°28.0 N 163°12.0 W 16520 Whole island. 11. Ugamak I...... 54°14.0 N 164°48.0 W 54°13.0 N 164°48.0 W 16520 E end of island. 12. Akun I...... 54°18.0N 165°32.5W 54°18.0N 165°31.5W 16547 Billings Head Bight. 13. Akutan I...... 54°03.5 N 166°00.0 W 54°05.5 N 166°05.0 W 16520 SW corner, Cape Morgan. 14. Bogoslof I...... 53°56.0 N 168°02.0 W 16500 Whole island. 15. Ogchul I...... 53°00.0 N 168°24.0 W 16500 Whole island. 16. Adugak I...... 52°55.0 N 169°10.5 W 16500 Whole island. 17. Yunaska I...... 52°42.0 N 170°38.5 W 52°41.0 N 170°34.5 W 16500 NE end. 18. Seguam I...... 52°21.0 N 172°35.0 W 52°21.0 N 172°33.0 W 16480 N coast, Saddleridge Pt. 19. Agligadak I...... 52°06.5 N 172°54.0 W 16480 Whole island. 20. Kasatochi I...... 52°10.0N 175°31.5W 52°10.5N 175°29.0W 16480 N half of island. 21. Adak I...... 51°36.5N 176°59.0W 51°38.0N 176°59.5W 16460 SW Point, Lake Point. 22. Gramp rock ...... 51°29.0 N 178°20.5 W 16460 Whole island. 23. Tag I...... 51°33.5 N 178°34.5 W 16460 Whole island. 24. Ulak I...... 51°20.0 N 178°57.0 W 51°18.5 N 178°59.5 W 16460 SE corner, Hasgox Pt. 25. Semisopochnoi ..... 51°58.5 N 179°45.5 E 51°57.0 N 179°46.0 E 16440 E quadrant, Pochnoi Pt. Semisopochnoi ...... 52°01.5 N 179°37.5 E 52°01.5 N 179°39.0 E 16440 N quadrant, Petrel Pt. 26. Amchitka I...... 51°22.5N 179°28.0E 51°21.5N 179°25.0E 16440 East Cape. 27. Amchitka I...... 51°32.5N 178°49.5E 16440 Column Rocks. 28. Ayugadak Pt...... 51°45.5 N 178°24.5 E 16440 SE coast of Rat Island. 29. Kiska I...... 51°57.5 N 177°21.0 E 51°56.5 N 177°20.0 E 16440 W central, Lief Cove. 30. Kiska I...... 51°52.5 N 177°13.0 E 51°53.5 N 177°12.0 E 16440 Cape St. Stephen. 31. Walrus I...... 57°11.0 N 169°56.0 W 16380 Whole island. 32. Buldir I...... 52°20.5 N 175°57.0 E 52°23.5 N 175°51.0 E 16420 Se point to NW point. 33. Agattu I...... 52°24.0 N 173°21.5 E 16420 Gillion Point. 34. Agattu I...... 52°23.5 N 173°43.5 E 52°22.0 N 173°41.0 E 16420 Cape Sabak. 35. Attu I...... 52°54.5N 172°28.5E 52°57.5N 172°31.5E 16681 S Quadrant.

1 Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower low water.

111

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00111 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T § 223.202 50 CFR Ch. II (10–1–02 Edition)

112

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00112 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.016 National Marine Fisheries Service/NOAA, Commerce § 223.202

113

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00113 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.017 § 223.202 50 CFR Ch. II (10–1–02 Edition)

114

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00114 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.018 National Marine Fisheries Service/NOAA, Commerce § 223.202

115

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00115 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.019 § 223.202 50 CFR Ch. II (10–1–02 Edition)

116

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00116 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.020 National Marine Fisheries Service/NOAA, Commerce § 223.202

117

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00117 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.021 § 223.202 50 CFR Ch. II (10–1–02 Edition)

118

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00118 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.022 National Marine Fisheries Service/NOAA, Commerce § 223.202

119

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00119 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.023 § 223.202 50 CFR Ch. II (10–1–02 Edition)

120

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00120 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.024 National Marine Fisheries Service/NOAA, Commerce § 223.202

121

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00121 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.025 § 223.202 50 CFR Ch. II (10–1–02 Edition)

122

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00122 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.026 National Marine Fisheries Service/NOAA, Commerce § 223.202

123

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00123 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.027 § 223.202 50 CFR Ch. II (10–1–02 Edition)

124

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00124 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.028 National Marine Fisheries Service/NOAA, Commerce § 223.202

125

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00125 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.029 § 223.202 50 CFR Ch. II (10–1–02 Edition)

126

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00126 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.030 National Marine Fisheries Service/NOAA, Commerce § 223.202

127

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00127 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.031 § 223.202 50 CFR Ch. II (10–1–02 Edition)

128

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00128 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.032 National Marine Fisheries Service/NOAA, Commerce § 223.202

129

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00129 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.033 § 223.202 50 CFR Ch. II (10–1–02 Edition)

130

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00130 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.034 National Marine Fisheries Service/NOAA, Commerce § 223.202

131

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00131 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.035 § 223.202 50 CFR Ch. II (10–1–02 Edition)

132

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00132 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.036 National Marine Fisheries Service/NOAA, Commerce § 223.202

133

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00133 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.037 § 223.202 50 CFR Ch. II (10–1–02 Edition)

134

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00134 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.038 National Marine Fisheries Service/NOAA, Commerce § 223.202

135

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00135 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.039 § 223.202 50 CFR Ch. II (10–1–02 Edition)

136

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00136 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.040 National Marine Fisheries Service/NOAA, Commerce § 223.202

137

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00137 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.041 § 223.202 50 CFR Ch. II (10–1–02 Edition)

138

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00138 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.042 National Marine Fisheries Service/NOAA, Commerce § 223.202

139

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00139 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.043 § 223.202 50 CFR Ch. II (10–1–02 Edition)

140

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00140 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.044 National Marine Fisheries Service/NOAA, Commerce § 223.203

(4) Commercial Fishing Operations. The tivity has been conducted historically incidental mortality and serious injury or traditionally in the buffer zones, and of endangered and threatened Steller there is no readily available and ac- sea lions in commercial fisheries can ceptable alternative to or site for the be authorized in compliance with sec- activity. tions 101(a)(5) and 118 of the Marine (6) Navigational transit. Paragraph Mammal Protection Act. (a)(2) of this section does not prohibit a (b) Exceptions—(1) Permits. The Assist- vessel in transit from passing through ant Administrator may issue permits a strait, narrows, or passageway listed authorizing activities that would oth- in this paragraph if the vessel proceeds erwise be prohibited under paragraph in continuous transit and maintains a (a) of this section in accordance with minimum of 1 nautical mile from the and subject to the provisions of part rookery site. The listing of a strait, 222, subpart C—General Permit Proce- narrows, or passageway does not indi- dures. cate that the area is safe for naviga- (2) Official activities. The taking of tion. The listed straits, narrows, or Steller sea lions must be reported with- passageways include the following: in 30 days to the Regional Adminis- trator, Alaska Region. Paragraph (a) of Rookery Straits, narrows, or pass this section does not prohibit or restrict a Federal, state or local govern- Akutan Island Akutan Pass between Cape Mor- gan and Unalga Island. ment official, or his or her designee, Clubbing Between Clubbing Rocks and who is acting in the course of official Rocks. Cherni Island. duties from: Outer Island ... Wildcat Pass between Rabbit and (i) Taking a Steller sea lion in a hu- Ragged Islands. mane manner, if the taking is for the protection or welfare of the animal, the (c) Penalties. (1) Any person who vio- protection of the public health and wel- lates this section or the Act is subject fare, or the nonlethal removal of nui- to the penalties specified in section 11 sance animals; or of the Act, and any other penalties pro- (ii) Entering the buffer areas to per- vided by law. form activities that are necessary for (2) Any vessel used in violation of national defense, or the performance of this section or the Endangered Species other legitimate governmental activi- Act is subject to forfeiture under sec- ties. tion 11(e)(4)(B) of the Act. (3) Subsistence takings by Alaska na- [55 FR 49210, Nov. 26, 1990, as amended at 56 tives. Paragraph (a) of this section does FR 42542, Aug. 28, 1991; 56 FR 58184, Nov. 18, not apply to the taking of Steller sea 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, lions for subsistence purposes under 53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; section 10(e) of the Act. 62 FR 24355, May 5, 1997. Redesignated and (4) Emergency situations. Paragraph amended at 64 FR 14068–14069, Mar. 23, 1999] (a)(2) of this section does not apply to an emergency situation in which com- § 223.203 Anadromous fish. pliance with that provision presents a Available guidance documents cited threat to the health, safety, or life of a in the regulatory text are listed in Ap- person or presents a significant threat pendix A to this section. to the vessel or property. (a) Prohibitions. The prohibitions of (5) Exemptions. Paragraph (a)(2) of section 9(a)(1) of the ESA (16 U.S.C. this section does not apply to any ac- 1538(a)(1)) relating to endangered spe- tivity authorized by a prior written ex- cies apply to the threatened species of emption from the Director, Alaska Re- salmonids listed in § 223.102(a)(1) gion, National Marine Fisheries Serv- through (a)(10), and (a)(12) through ice. Concurrently with the issuance of (a)(22), except as provided in paragraph any exemption, the Assistant Adminis- (b) of this section and § 223.209(a). trator will publish notice of the exemp- (b) Limits on the prohibitions. (1) The tion in the FEDERAL REGISTER. An ex- exceptions of section 10 of the ESA (16 emption may be granted only if the ac- U.S.C. 1539) and other exceptions under tivity will not have a significant ad- the Act relating to endangered species, verse affect on Steller sea lions, the ac- including regulations in part 222 of this

141

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

chapter implementing such exceptions, (4) The prohibitions of paragraph (a) also apply to the threatened species of of this section relating to threatened salmonids listed in § 223.102(a)(1) species of salmonids listed in § 223.102 through (a)(10), and (a)(12) through (a)(5) through (a)(10), and (a)(12) (a)(22). through (a)(19) do not apply to fishery (2) The prohibitions of paragraph (a) harvest activities provided that: of this section relating to threatened (i) Fisheries are managed in accord- species of salmonids listed in § 223.102 ance with a NMFS-approved Fishery (a)(5) through (a)(10), and (a)(12) Management and Evaluation Plan through (a)(19) do not apply to activi- (FMEP) and implemented in accord- ties specified in an application for a ance with a letter of concurrence from permit for scientific purposes or to en- NMFS. NMFS will approve an FMEP hance the conservation or survival of only if it clearly defines its intended the species, provided that the applica- scope and area of impact and sets forth tion has been received by the Assistant the management objectives and per- Administrator for Fisheries, NOAA formance indicators for the plan. The (AA), no later than October 10, 2000. plan must adequately address the fol- The prohibitions of paragraph (a) of lowing criteria: this section apply to these activities (A) Define populations within af- upon the AA’s rejection of the applica- fected listed ESUs, taking into account tion as insufficient, upon issuance or spatial and temporal distribution, ge- denial of a permit, or March 7, 2001, netic and phenotypic diversity, and whichever occurs earliest. other appropriate identifiably unique (3) The prohibitions of paragraph (a) biological and life history traits. Popu- of this section relating to threatened lations may be aggregated for manage- species of salmonids listed in § 223.102 ment purposes when dictated by infor- (a)(4) through (a)(10), and (a)(12) mation scarcity, if consistent with sur- through (a)(19) do not apply to any em- vival and recovery of the listed ESU. In ployee or designee of NMFS, the United identifying management units, the States Fish and Wildlife Service, any plan shall describe the reasons for Federal land management agency, the using such units in lieu of population Idaho Department of Fish and Game units, describe how the management (IDFG), Washington Department of units are defined, given biological and Fish and Wildlife (WDFW), the Oregon life history traits, so as to maximize Department of Fish and Wildlife consideration of the important biologi- (ODFW), California Department of Fish cal diversity contained within the list- and Game (CDFG), or of any other gov- ed ESU, respond to the scale and com- ernmental entity that has co-manage- plexity of the ESU, and help ensure ment authority for the listed consistent treatment of listed salmonids, when the employee or des- salmonids across a diverse geographic ignee, acting in the course of his or her and jurisdictional range. official duties, takes a threatened (B) Utilize the concepts of ‘‘viable’’ salmonid without a permit if such ac- and ‘‘critical’’ salmonid population tion is necessary to: thresholds, consistent with the con- (i) Aid a sick, injured, or stranded cepts contained in the technical docu- salmonid, ment entitled ‘‘Viable Salmonid Popu- (ii) Dispose of a dead salmonid, or lations (NMFS, 2000b).’’ The VSP paper (iii) Salvage a dead salmonid which provides a framework for identifying may be useful for scientific study. the biological requirements of listed (iv) Each agency acting under this salmonids, assessing the effects of limit on the take prohibitions of para- management and conservation actions, graph (a) of this section is to report to and ensuring that such actions provide NMFS the numbers of fish handled and for the survival and recovery of listed their status, on an annual basis. A des- species. Proposed management actions ignee of the listed entities is any indi- must recognize the significant dif- vidual the Federal or state fishery ferences in risk associated with viable agency or other co-manager has au- and critical population threshold thorized in writing to perform the list- states and respond accordingly to mini- ed functions. mize the long-term risks to population

142

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

persistence. Harvest actions impacting of assumptions, management strate- populations that are functioning at or gies, or objectives that data show are above the viable threshold must be de- needed. signed to maintain the population or (G) Provide for effective enforcement management unit at or above that and education. Coordination among in- level. For populations shown with a volved jurisdictions is an important high degree of confidence to be above element in ensuring regulatory effec- critical levels but not yet at viable lev- tiveness and coverage. els, harvest management must not ap- (H) Include restrictions on resident preciably slow the population’s and anadromous species fisheries that achievement of viable function. Har- minimize any take of listed species, in- vest actions impacting populations cluding time, size, gear, and area re- that are functioning at or below crit- strictions. ical threshold must not be allowed to (I) Be consistent with plans and con- appreciably increase genetic and demo- ditions established within any Federal graphic risks facing the population and court proceeding with continuing juris- must be designed to permit the popu- diction over tribal harvest allocations. lation’s achievement of viable func- (ii) The state monitors the amount of tion, unless the plan demonstrates that take of listed salmonids occurring in the likelihood of survival and recovery its fisheries and provides to NMFS on a of the entire ESU in the wild would not regular basis, as defined in NMFS’ let- be appreciably reduced by greater risks ter of concurrence for the FMEP, a re- to that individual population. port summarizing this information, as (C) Set escapement objectives or well as the implementation and effec- maximum exploitation rates for each tiveness of the FMEP. The state shall management unit or population based provide NMFS with access to all data on its status and on a harvest program and reports prepared concerning the that assures that those rates or objec- implementation and effectiveness of tives are not exceeded. Maximum ex- the FMEP. ploitation rates must not appreciably (iii) The state confers with NMFS on reduce the likelihood of survival and its fishing regulation changes affecting recovery of the ESU. Management of listed ESUs to ensure consistency with fisheries where artificially propagated the approved FMEP. Prior to approving fish predominate must not compromise a new or amended FMEP, NMFS will the management objectives for com- publish notification in the FEDERAL mingled naturally spawned popu- REGISTER announcing its availability lations. for public review and comment. Such (D) Display a biologically based ra- an announcement will provide for a tionale demonstrating that the harvest comment period on the draft FMEP of management strategy will not appre- not less than 30 days. ciably reduce the likelihood of survival (iv) NMFS provides written concur- and recovery of the ESU in the wild, rence of the FMEP which specifies the over the entire period of time the pro- implementation and reporting require- posed harvest management strategy af- ments. NMFS’ approval of a plan shall fects the population, including effects be a written approval by NMFS South- reasonably certain to occur after the west or Northwest Regional Adminis- proposed actions cease. trator, as appropriate. On a regular (E) Include effective monitoring and basis, NMFS will evaluate the effec- evaluation programs to assess compli- tiveness of the program in protecting ance, effectiveness, and parameter vali- and achieving a level of salmonid pro- dation. At a minimum, harvest moni- ductivity commensurate with con- toring programs must collect catch and servation of the listed salmonids. If it effort data, information on is not, NMFS will identify ways in escapements, and information on bio- which the program needs to be altered logical characteristics, such as age, fe- or strengthened. If the responsible cundity, size and sex data, and migra- agency does not make changes to re- tion timing. spond adequately to the new informa- (F) Provide for evaluating moni- tion, NMFS will publish notification in toring data and making any revisions the FEDERAL REGISTER announcing its

143

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00143 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

intention to withdraw the limit for ac- viable but the sole objective of the cur- tivities associated with that FMEP. rent collection program is to enhance Such an announcement will provide for the propagation or survival of the list- a comment period of not less than 30 ed ESU; or if the donor population is days, after which NMFS will make a shown with a high degree of confidence final determination whether to with- to be above critical threshold although draw the limit so that the prohibitions not yet functioning at viable levels, would then apply to those fishery har- and the collection will not appreciably vest activities. A template for devel- slow the attainment of viable status oping FMEPs is available from NMFS for that population. Northwest Region’s website (C) Taking into account health, (www.nwr.noaa.gov). abundances, and trends in the donor (v) The prohibitions of paragraph (a) population, broodstock collection proof this section relating to threatened grams reflect appropriate priorities. species of steelhead listed in § 223.102 The primary purpose of broodstock col- (a)(5) through (a)(9), (a)(14), and (a)(15) do not apply to fisheries managed sole- lection programs of listed species is to ly by the states of Oregon, Washington, reestablish indigenous salmonid popu- Idaho, and California until January 8, lations for conservation purposes. Such 2001. programs include restoration of simi- (5) The prohibitions of paragraph (a) lar, at-risk populations within the of this section relating to threatened same ESU, and reintroduction of at- species of salmonids listed in § 223.102 risk populations to underseeded habi- (a)(5) through (a)(10), and (a)(12) tat. After the species’ conservation through (a)(19) do not apply to activity needs are met and when consistent associated with artificial propagation with survival and recovery of the ESU, programs provided that: broodstock collection programs may be (i) A state or Federal Hatchery and authorized by NMFS such for sec- Genetics Management Plan (HGMP) ondary purposes, as to sustain tribal, has been approved by NMFS as meeting recreational, and commercial fisheries. the following criteria: (D) The HGMP includes protocols to (A) The HGMP has clearly stated address fish health, broodstock collec- goals, performance objectives, and per- tion, broodstock spawning, rearing and formance indicators that indicate the release of juveniles, deposition of purpose of the program, its intended hatchery adults, and catastrophic risk results, and measurements of its per- management. formance in meeting those results. (E) The HGMP evaluates, minimizes, Goals shall address whether the pro- and accounts for the propagation program is intended to meet conservation gram’s genetic and ecological effects objectives, contribute to the ultimate on natural populations, including dis- sustainability of natural spawning pop- ease transfer, competition, predation, ulations, and/or intended to augment and genetic introgression caused by the tribal, recreational, or commercial straying of hatchery fish. fisheries. Objectives should enumerate the results desired from the program (F) The HGMP describes inter- that will be used to measure the pro- relationships and interdependencies gram’s success or failure. with fisheries management. The com- (B) The HGMP utilizes the concepts bination of artificial propagation proof viable and critical salmonid popu- grams and harvest management must lation threshold, consistent with the be designed to provide as many benefits concepts contained in the technical and as few biological risks as possible document entitled ‘‘Viable Salmonid for the listed species. For programs Populations’’ (NMFS, 2000b). Listed whose purpose is to sustain fisheries, salmonids may be purposefully taken HGMPs must not compromise the abil- for broodstock purposes only if the ity of FMEPs or other management donor population is currently at or plans to conserve listed salmonids. above the viable threshold and the col- (G) Adequate artificial propagation lection will not impair its function; if facilities exist to properly rear progeny the donor population is not currently of naturally spawned broodstock, to

144

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00144 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

maintain population health and diver- the responsible agency does not make sity, and to avoid hatchery-influenced changes to respond adequately to the selection or domestication. new information, NMFS will publish (H) Adequate monitoring and evalua- notification in the FEDERAL REGISTER tion exist to detect and evaluate the announcing its intention to withdraw success of the hatchery program and the limit on activities associated with any risks potentially impairing the re- that program. Such an announcement covery of the listed ESU. will provide for a comment period of no (I) The HGMP provides for evaluating less than 30 days, after which NMFS monitoring data and making any revi- will make a final determination wheth- sions of assumptions, management er to withdraw the limit so that take strategies, or objectives that data show prohibitions, likeall other activity not are needed; within a limit, would then apply to (J) NMFS provides written concur- that program. A template for devel- rence of the HGMP which specifies the oping HGMPs is available from NMFS implementation and reporting require- Northwest Region’s website ments. For Federally operated or fund- (www.nwr.noaa.gov). ed hatcheries, the ESA section 7 con- (6) The prohibitions of paragraph (a) sultation will achieve this purpose. of this section relating to threatened (K) The HGMP is consistent with species of salmonids listed in § 223.102 plans and conditions set within any (a)(7), (a)(8), (a)(10), and (a)(12) through Federal court proceeding with con- (a)(19) do not apply to actions under- tinuing jurisdiction over tribal harvest taken in compliance with a resource allocations. management plan developed jointly by (ii) The state monitors the amount of the States of Washington, Oregon and/ take of listed salmonids occurring in or Idaho and the Tribes (joint plan) its hatchery program and provides to within the continuing jurisdiction of NMFS on a regular basis a report sum- United States v. Washington or United marizing this information, and the im- States v. Oregon, the on-going Federal plementation and effectiveness of the court proceedings to enforce and imple- HGMP as defined in NMFS’ letter of ment reserved treaty fishing rights, concurrence. The state shall provide provided that: NMFS with access to all data and re- (i) The Secretary has determined pur- ports prepared concerning the imple- suant to 50 CFR 223.209 and the govern- mentation and effectiveness of the ment-to-government processes therein HGMP. that implementing and enforcing the (iii) The state confers with NMFS on joint tribal/state plan will not appre- a regular basis regarding intended col- ciably reduce the likelihood of survival lections of listed broodstock to ensure and recovery of affected threatened congruity with the approved HGMP. ESUs. (iv) Prior to final approval of an (ii) The joint plan will be imple- HGMP, NMFS will publish notification mented and enforced within the param- in the FEDERAL REGISTER announcing eters set forth in United States v. its availability for public review and Washington orUnited States v. Oregon. comment for a period of at least 30 (iii) In making that determination days. for a joint plan, the Secretary has (v) NMFS’ approval of a plan shall be taken comment on how any fishery a written approval by NMFS South- management plan addresses the cri- west or Northwest Regional Adminis- teria in § 223.203(b)(4), or on how any trator, as appropriate. hatchery and genetic management plan (vi) On a regular basis, NMFS will addresses the criteria in § 223.203(b)(5). evaluate the effectiveness of the HGMP (iv) The Secretary shall publish no- in protecting and achieving a level of tice in the FEDERAL REGISTER of any salmonid productivity commensurate determination whether or not a joint with the conservation of the listed plan, will appreciably reduce the likeli- salmonids. If the HGMP is not effec- hood of survival and recovery of af- tive, the NMFS will identify to the ju- fected threatened ESUs, together with risdiction ways in which the program a discussion of the biological analysis needs to be altered or strengthened. If underlying that determination.

145

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00145 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

(v) On a regular basis, NMFS will agency personnel, or are in accord with evaluate the effectiveness of the joint a permit issued by the Agency. plan in protecting and achieving a (v) The Agencies provide NMFS an- level of salmonid productivity com- nually, for its review and approval, a mensurate with conservation of the report listing all scientific research ac- listed salmonids. If the plan is not ef- tivities it conducts or permits that fective, then NMFS will identify to the may incidentally take threatened jurisdiction ways in which the joint salmonids during the coming year. plan needs to be altered or strength- Such reports shall also contain the ened. If the responsible agency does not amount of incidental take of threat- make changes to respond adequately to ened salmonids occurring in the pre- the new information, NMFS will pub- vious year’s scientific research activi- lish notification in the FEDERAL REG- ties and a summary of the results of ISTER announcing its intention to with- such research. draw the limit on activities associated (vi) Electrofishing in any body of with that joint plan. Such an an- water known or suspected to contain nouncement will provide for a com- threatened salmonids is conducted in ment period of no less than 30 days, accordance with NMFS ‘‘Guidelines for after which NMFS will make a final de- Electrofishing Waters Containing termination whether to withdraw the Salmonids Listed Under the Endan- limit so that take prohibitions would gered Species Act’’ (NMFS, 2000a). then apply to that joint plan as to all (vii) NMFS’ approval of a research other activity not within a limit. program shall be a written approval by (7) The prohibitions of paragraph (a) NMFS Northwest or Southwest Re- of this section relating to threatened gional Administrator. species of salmonids listed in (8) The prohibitions of paragraph (a) § 223.102(a)(5) through (a)(10), and (a)(12) of this section relating to threatened through (a)(19) do not apply to sci- species of salmonids listed in entific research activities provided § 223.102(a)(5) through (a)(10), and that: (a)(12), through (a)(19) do not apply to (i) Scientific research activities in- habitat restoration activities, as de- volving purposeful take is conducted fined in paragraph (b)(8)(iv) of this sec- by employees or contractors of the tion, provided that the activity is part ODFW, WDFW (Agencies), IDFG, or of a watershed conservation plan, and: CDFG (Agencies), or as a part of a monitoring and research program over- (i) The watershed conservation plan seen by or coordinated with that Agen- has been certified by the State of cy. Washington, Oregon, Idaho, or Cali- fornia (State) to be consistent with the (ii) The Agencies provide for NMFS’ state’s watershed conservation plan review and approval a list of all sci- guidelines. entific research activities involving direct take planned for the coming year, (ii) The State’s watershed conserva- including an estimate of the total dition plan guidelines have been found by rect take that is anticipated, a descrip- NMFS to provide for plans that: tion of the study design, including a (A) Take into account the potential justification for taking the species and severity of direct, indirect, and cumu- a description of the techniques to be lative impacts of proposed activities in used, and a point of contact. light of the status of affected species (iii) The Agencies annually provide and populations. to NMFS the results of scientific re- (B) Will not reduce the likelihood of search activities directed at threatened either survival or recovery of listed salmonids, including a report of the di- species in the wild. rect take resulting from the studies (C) Ensure that any taking will be in- and a summary of the results of such cidental. studies. (D) Minimize and mitigate any ad- (iv) Scientific research activities verse impacts. that may incidentally take threatened (E) Provide for effective monitoring salmonids are either conducted by and adaptive management.

146

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

(F) Use the best available science and authorized officer access to the diver- technology, including watershed anal- sion facility for purposes of inspection ysis. and determination of continued com- (G) Provide for public and scientific pliance with the criteria. review and input. (iii) On a case by case basis, NMFS or (H) Include any measures that NMFS an Authorized Officer will review and determines are necessary or appro- approve a juvenile fish screen design priate. and construction plan and schedule (I) Include provisions that clearly that the water diverter proposes for identify those activities that are part screen installation. The plan and of plan implementation. schedule will describe interim oper- (J) Control risk to listed species by ation measures to avoid take of threat- ensuring funding and implementation ened salmonids. NMFS may require a of the above plan components. commitment of compensatory mitiga- (iii) NMFS will periodically review tion if implementation of the plan and state certifications of Watershed Con- schedule is terminated prior to comple- servation Plans to ensure adherence to tion. If the plan and schedule are not approved watershed conservation plan met, or if a schedule modification is guidelines. made that is not approved by NMFS or (iv) ‘‘Habitat restoration activity’’ is Authorized Officer, or if the screen in- defined as an activity whose primary stallation deviates from the approved purpose is to restore natural aquatic or design, the water diversion will be sub- riparian habitat conditions or proc- ject to take prohibitions and mitiga- esses. ‘‘Primary purpose’’ means the tion. activity would not be undertaken but (iv) This limit on the prohibitions of for its restoration purpose. paragraph (a) of this section does not (v) Prior to approving watershed con- encompass any impacts of reduced servation plan guidelines under para- flows resulting from the diversion or graph (b)(8)(ii) of this section, NMFS impacts caused during installation of will publish notification in the the diversion device. These impacts are FEDERAL REGISTER announcing the subject to the prohibition on take of availability of the proposed guidelines listed salmonids. for public review and comment. Such (10) The prohibitions of paragraph (a) an announcement will provide for a of this section relating to threatened comment period on the draft guidelines species of salmonids listed in § 223.102 of no less than 30 days. (a)(5) through (a)(10), and (a)(12) (9) The prohibitions of paragraph (a) through (a)(19) do not apply to routine of this section relating to threatened road maintenance activities provided species of salmonids listed in that: § 223.102(a)(5) through (a)(10), and (a)(12) (i) The activity results from routine through (a)(19) do not apply to the road maintenance activity conducted physical diversion of water from a by ODOT employees or agents that stream or lake, provided that: complies with ODOT’s Transportation (i) NMFS’ engineering staff or any re- Maintenance Management System source agency or tribe NMFS des- Water Quality and Habitat Guide ignates (authorized officer) has agreed (July, 1999); or by employees or agents in writing that the diversion facility is of a state, county, city or port that screened, maintained, and operated in complies with a program substantially compliance with Juvenile Fish Screen similar to that contained in the ODOT Criteria, National Marine Fisheries Guide that is determined to meet or ex- Service, Northwest Region, Revised ceed the protections provided by the February 16, 1995, with Addendum of ODOT Guide; or by employees or May 9, 1996, or in California with agents of a state, county, city or port NMFS’ Southwest Region ‘‘Fish that complies with a routine road Screening Criteria for Anadromous maintenance program that meets prop- Salmonids, January 1997’’ or with any er functioning habitat conditions as de- subsequent revision. scribed further in subparagraph (ii) fol- (ii) The owner or manager of the di- lowing. NMFS’ approval of state, city, version allows any NMFS engineer or county, or port programs that are

147

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

equivalent to the ODOT program, or of other activity not within a limit. Such any amendments, shall be a written ap- an announcement will provide for a proval by NMFS Northwest or South- comment period of no less than 30 days, west Regional Administrator, which- after which NMFS will make a final de- ever is appropriate. Any jurisdiction termination whether to subject the ac- desiring its routine road maintenance tivities to the ESA section 9(a)(1) pro- activities to be within this limit must hibitions. first commit in writing to apply man- (iii) Prior to implementing any agement practices that result in pro- changes to a program within this limit tections equivalent to or better than the jurisdiction provides NMFS a copy those provided by the ODOT Guide, de- of the proposed change for review and tailing how it will assure adequate approval as within this limit. training, tracking, and reporting, and (iv) Prior to approving any state, describing in detail any dust abate- city, county, or port program as within ment practices it requests to be cov- this limit, or approving any sub- ered. stantive change in a program within (ii) NMFS finds the routine road this limit, NMFS will publish notifica- maintenance activities of any state, tion in the FEDERAL REGISTER an- city, county, or port to be consistent nouncing the availability of the pro- with the conservation of listed gram or the draft changes for public re- salmonids’ habitat when it contributes, view and comment. Such an announce- as does the ODOT Guide, to the attainment will provide for a comment pe- ment and maintenance of properly riod of not less than 30 days. functioning condition (PFC). NMFS de- (v) Pesticide and herbicide spraying fines PFC as the sustained presence of is not included within this limit, even natural habitat-forming processes that if in accord with the ODOT guidance. are necessary for the long-term sur- (11) The prohibitions of paragraph (a) vival of salmonids through the full of this section relating to threatened range of environmental variation. Ac- species of salmonids listed in § 223.102 tions that affect salmonid habitat (a)(5) through (a)(10), and (a)(12) must not impair properly functioning through (a)(19) do not apply to activi- habitat, appreciably reduce the func- ties within the City of Portland, Or- tioning of already impaired habitat, or egon Parks and Recreation Depart- retard the long-term progress of im- ment’s (PP&R) Pest Management Pro- paired habitat toward PFC. Periodi- gram (March 1997), including its Water- cally, NMFS will evaluate an approved ways Pest Management Policy updated program for its effectiveness in main- December 1, 1999, provided that: taining and achieving habitat function (i) Use of only the following chemi- that provides for conservation of the cals is included within this limit on the listed salmonids. Whenever warranted, take prohibitions: Round Up, Rodeo, NMFS will identify to the jurisdiction Garlon 3A, Surfactant LI–700, ways in which the program needs to be Napropamide, Cutrine Plus, and altered or strengthened. Changes may Aquashade. be identified if the program is not pro- (ii) Any chemical use is initiated in tecting desired habitat functions, or accord with the priorities and decision where even with the habitat character- processes of the Department’s Pest istics and functions originally tar- Management Policy, including the Wa- geted, habitat is not supporting popu- terways Pest Management Policy, up- lation productivity levels needed to dated December 1, 1999. conserve the ESU. If any jurisdiction (iii) Any chemical use within a 25 ft. within the limit does not make (7.5 m) buffer complies with the buffer changes to respond adequately to the application constraints contained in new information in the shortest PP&R’s Waterways Pest Management amount of time feasible, but not longer Policy (update December 1, 1999). than one year, NMFS will publish noti- (iv) Prior to implementing any fication in the FEDERAL REGISTER an- changes to this limit, the PP&R pro- nouncing its intention to withdraw the vides NMFS with a copy of the pro- limit so that take prohibitions would posed change for review and approval then apply to the program as to all as within this limit.

148

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

(v) Prior to approving any sub- tivities to the ESA section 9(a)(1) pro- stantive change in a program within hibitions. this limit, NMFS will publish notifica- (12) The prohibitions of paragraph (a) tion in the FEDERAL REGISTER an- of this section relating to threatened nouncing the availability of the pro- species of salmonids listed in § 223.102 gram or the draft changes for public re- (a)(5) through (a)(10), and (a)(12) view and comment. Such an announce- through (a)(19) do not apply to munic- ment will provide for a comment pe- ipal, residential, commercial, and in- riod of no less than 30 days. dustrial (MRCI) development (vi) NMFS’ approval of amendments (including redevelopment) activities shall be a written approval by NMFS provided that: Northwest Regional Administrator. (i) Such development occurs pursuant (vii) NMFS finds the PP&R Pest to city, county, or regional govern- Management Program activities to be ment ordinances or plans that NMFS consistent with the conservation of has determined are adequately protec- listed salmonids’ habitat by contrib- tive of listed species; or within the ju- uting to the attainment and mainte- risdiction of the Metro regional gov- nance of properly functioning condi- ernment in Oregon and pursuant to or- tion (PFC). NMFS defines PFC as the dinances that Metro has found comply sustained presence of a watershed’s with its Urban Growth Management natural habitat-forming processes that Functional Plan (Functional Plan) fol- are necessary for the long-term sur- lowing a determination by NMFS that vival of salmonids through the full the Functional Plan is adequately pro- range of environmental variation. Ac- tective. NMFS approval or determinations that affect salmonid habitat tions about any MRCI development or- must not impair properly functioning dinances or plans, including the Func- habitat, appreciably reduce the functional Plan, shall be a written approval tioning of already impaired habitat, or by NMFS Northwest or Southwest Re- retard the long-term progress of im- gional Administrator, whichever is ap- paired habitat toward PFC. Periodi- propriate. NMFS will apply the fol- cally, NMFS will evaluate the effec- lowing 12 evaluation considerations tiveness of an approved program in when reviewing MRCI development or- maintaining and achieving habitat dinances or plans to assess whether function that provides for conservation they adequately conserve listed of the listed salmonids. Whenever war- salmonids by maintaining and restor- ranted, NMFS will identify to the ju- ing properly functioning habitat condi- risdiction ways in which the program needs to be altered or strengthened. tions: Changes may be identified if the pro- (A) MRCI development ordinance or gram is not protecting desired habitat plan ensures that development will functions, or where even with the habi- avoid inappropriate areas such as un- tat characteristics and functions origi- stable slopes, wetlands, areas of high nally targeted, habitat is not sup- habitat value, and similarly con- porting population productivity levels strained sites. needed to conserve the ESU. If any ju- (B) MRCI development ordinance or risdiction within the limit does not plan adequately avoids stormwater dis- make changes to respond adequately to charge impacts to water quality and the new information in the shortest quantity or to the hydrograph of the amount of time feasible, but not longer watershed, including peak and base than 1 year, NMFS will publish notifi- flows of perennial streams. cation in the FEDERAL REGISTER an- (C) MRCI development ordinance or nouncing its intention to withdraw the plan provides adequately protective ri- limit so that take prohibitions would parian area management requirements then apply to the program as to all to attain or maintain PFC around all other activity not within a limit. Such rivers, estuaries, streams, lakes, deep- an announcement will provide for a water habitats, and intermittent comment period of no less than 30 days, streams. Compensatory mitigation is after which NMFS will make a final de- provided, where necessary, to offset un- termination whether to subject the ac- avoidable damage to PFC due to MRCI

149

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

development impacts to riparian man- ment or MRCI expansion area at suffi- agement areas. cient detail to demonstrate the width (D) MRCI development ordinance or and vegetation condition of riparian plan avoids stream crossings by roads, set-backs; information to demonstrate utilities, and other linear development the success of stormwater management wherever possible, and, where crossings and other conservation measures; and a must be provided, minimize impacts summary of any flood damage, mainte- through choice of mode, sizing, and nance problems, or other issues. placement. (iii) NMFS finds the MRCI develop- (E) MRCI development ordinance or ment activity to be consistent with the plan adequately protects historical conservation of listed salmonids’ habi- stream meander patterns and channel tat when it contributes to the attain- migration zones and avoids hardening ment and maintenance of PFC. NMFS of stream banks and shorelines. defines PFC as the sustained presence (F) MRCI development ordinance or of a watershed’s habitat-forming proc- plan adequately protects wetlands and esses that are necessary for the long- wetland functions, including isolated term survival of salmonids through the wetlands. full range of environmental variation. (G) MRCI development ordinance or Actions that affect salmonid habitat plan adequately preserves the hydro- must not impair properly functioning logic capacity of permanent and inter- habitat, appreciably reduce the func- mittent streams to pass peak flows. tioning of already impaired habitat, or (H) MRCI development ordinance or retard the long-term progress of im- plan includes adequate provisions for paired habitat toward PFC. Periodi- landscaping with native vegetation to cally, NMFS will evaluate an approved reduce need for watering and applica- program for its effectiveness in main- tion of herbicides, pesticides, and fer- taining and achieving habitat function tilizer. that provides for conservation of the (I) MRCI development ordinance or listed salmonids. Whenever warranted, plan includes adequate provisions to NMFS will identify to the jurisdiction prevent erosion and sediment run-off ways in which the program needs to be during construction. altered or strengthened. Changes may (J) MRCI development ordinance or be identified if the program is not pro- plan ensures that water supply de- tecting desired habitat functions, or mands can be met without impacting where even with the habitat character- flows needed for threatened salmonids istics and functions originally tar- either directly or through groundwater geted, habitat is not supporting popu- withdrawals and that any new water lation productivity levels needed to diversions are positioned and screened conserve the ESU. If any jurisdiction in a way that prevents injury or death within the limit does not make of salmonids. changes to respond adequately to the (K) MRCI development ordinance or new information in the shortest plan provides necessary enforcement, amount of time feasible, but not longer funding, reporting, and implementa- than 1 year, NMFS will publish notifi- tion mechanisms and formal plan eval- cation in the FEDERAL REGISTER an- uations at intervals that do not exceed nouncing its intention to withdraw the 5 years. limit so that take prohibitions would (L) MRCI development ordinance and then apply to the program as to all plan complies with all other state and other activity not within a limit. Such Federal environmental and natural re- an announcement will provide for a source laws and permits. comment period of no less than 30 days, (ii) The city, county or regional gov- after which NMFS will make a final de- ernment provides NMFS with annual termination whether to subject the ac- reports regarding implementation and tivities to the ESA section 9(a)(1) pro- effectiveness of the ordinances, includ- hibitions. ing: any water quality monitoring in- (iv) Prior to approving any city, formation the jurisdiction has avail- county, or regional government ordi- able; aerial photography (or some other nances or plans as within this limit, or graphic display) of each MRCI develop- approving any substantive change in

150

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

an ordinance or plan within this limit, uting to the attainment and mainte- NMFS will publish notification in the nance of PFC. NMFS defines PFC as FEDERAL REGISTER announcing the the sustained presence of a watershed’s availability of the ordinance or plan or natural habitat-forming processes that the draft changes for public review and are necessary for the long-term sur- comment. Such an announcement will vival of salmonids through the full provide for a comment period of no less range of environmental variation. Ac- than 30 days. tions that affect salmonid habitat (13) The prohibitions of paragraph (a) must not impair properly functioning of this section relating to threatened habitat, appreciably reduce the func- species of salmonids listed in § 223.102 tioning of already impaired habitat, or (a)(12), (a)(13), (a)(16), (a)(17), and (a) retard the long-term progress of im- (19) do not apply to non-Federal forest paired habitat toward PFC. Programs management activities conducted in must meet this biological standard in the State of Washington provided that: order for NMFS to find they qualify for (i) The action is in compliance with a habitat-related limit. NMFS uses the forest practice regulations adopted and best available science to make these implemented by the Washington Forest determinations. NMFS may review and Practices Board that NMFS has found revise previous findings as new sci- are at least as protective of habitat entific information becomes available. functions as are the regulatory ele- NMFS will evaluate the effectiveness ments of the Forests and Fish Report of the program in maintaining and dated April 29, 1999, and submitted to achieving habitat function that pro- the Forest Practices Board by a con- vides for conservation of the listed sortium of landowners, tribes, and salmonids. If the program is not ade- state and Federal agencies. quate, NMFS will identify to the juris- (ii) All non-regulatory elements of diction ways in which the program the Forests and Fish Report are being needs to be altered or strengthened. implemented. Changes may be identified if the pro- (iii) Actions involving use of herbi- gram is not protecting desired habitat cides, pesticides, or fungicides are not functions or where even with the habi- included within this limit. tat characteristics and functions origi- (iv) Actions taken under alternative nally targeted, habitat is not sup- plans are included in this limit pro- porting population productivity levels vided that the Washington Department needed to conserve the ESU. If Wash- of Natural Resources (WDNR) finds ington does not make changes to re- that the alternate plans protect phys- spond adequately to the new informa- ical and biological processes at least as tion, NMFS will publish notification in well as the state forest practices rules the FEDERAL REGISTER announcing its and provided that NMFS, or any re- intention to withdraw the limit on ac- source agency or tribe NMFS des- tivities associated with the program. ignates, has the opportunity to review Such an announcement will provide for the plan at every stage of the develop- a comment period of no less than 30 ment and implementation. A plan may days, after which NMFS will make a be excluded from this limit if, after final determination whether to subject such review, WDNR determines that the activities to the ESA section 9(a)(1) the plan is not likely to adequately take prohibitions. protect listed salmon. (vii) NMFS approval of regulations (v) Prior to determining that regula- shall be a written approval by NMFS tions adopted by the Forest Practice Northwest Regional Administrator. Board are at least as protective as the (14) The prohibitions of paragraph (a) elements of the Forests and Fish Re- of this section relating to threatened port, NMFS will publish notification in species of salmonids listed in § 223.102 the FEDERAL REGISTER announcing the (a)(20) through (a)(22) do not apply to availability of the Report and regula- activities specified in an application tions for public review and comment. for a permit for scientific purposes or (vi) NMFS finds the activities to be to enhance the conservation or sur- consistent with the conservation of vival of the species, provided that the listed salmonids’ habitat by contrib- application has been received by the

151

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

Assistant Administrator for Fisheries, spatial and temporal distribution, ge- NOAA (AA), no later than April 9, 2002. netic and phenotypic diversity, and The prohibitions of paragraph (a) of other appropriate identifiably unique this section apply to these activities biological and life history traits. Popu- upon the AA’s rejection of the applica- lations may be aggregated for manage- tion as insufficient, upon issuance or ment purposes when dictated by infor- denial of a permit, or September 9, mation scarcity, if consistent with sur- 2002, whichever occurs earliest. vival and recovery of the listed ESU. In (15) The prohibitions of paragraph (a) identifying management units, the of this section relating to threatened plan shall describe the reasons for species of salmonids listed in § 223.102 using such units in lieu of population (a)(3), and (a)(20) through (a)(22) do not units, describe how the management apply to any employee or designee of units are defined, given biological and NMFS, the United States Fish and life history traits, so as to maximize Wildlife Service, any Federal land consideration of the important biologi- management agency, the California cal diversity contained within the list- Department of Fish and Game (CDFG), ed ESU, respond to the scale and com- or of any other governmental entity plexity of the ESU, and help ensure that has co-management authority for consistent treatment of listed the listed salmonids, when the em- salmonids across a diverse geographic ployee or designee, acting in the course and jurisdictional range. of his or her official duties, takes a (B) Utilize the concepts of ‘‘viable’’ threatened salmonid without a permit and ‘‘critical’’ salmonid population if such action is necessary to: thresholds, consistent with the con- (i) Aid a sick, injured, or stranded cepts contained in NMFS’s technical salmonid, report entitled ‘‘Viable Salmonid Pop- (ii) Dispose of a dead salmonid, or ulations and the Recovery of ESUs’’ (iii) Salvage a dead salmonid which (NMFS, 2000b). This report provides a may be useful for scientific study. framework for identifying the biologi- (iv) Each agency acting under this cal requirements of listed salmonids, limit on the take prohibitions of para- assessing the effects of management graph (a) of this section is to report to and conservation actions, and ensuring NMFS the numbers of fish handled and that such actions provide for the sur- their status, on an annual basis. A des- vival and recovery of listed species. ignee of the listed entities is any indi- Proposed management actions must vidual the Federal or state fishery recognize the significant differences in agency or other co-manager has au- risk associated with viable and critical thorized in writing to perform the list- population threshold states and re- ed functions. spond accordingly to minimize the (16) The prohibitions of paragraph (a) long-term risks to population persist- of this section relating to threatened ence. Harvest actions impacting popu- species of salmonids listed in § 223.102 lations that are functioning at or (a)(3), and (a)(20) through (a)(22) do not above the viable threshold must be de- apply to fishery harvest activities pro- signed to maintain the population or vided that: management unit at or above that (i) Fisheries are managed in accord- level. For populations shown with a ance with a NMFS-approved Fishery high degree of confidence to be above Management and Evaluation Plan critical levels but not yet at viable lev- (FMEP) and implemented in accord- els, harvest management must not ap- ance with a letter of concurrence from preciably slow the population’s NMFS. NMFS will approve an FMEP achievement of viable function. Har- only if it clearly defines its intended vest actions impacting populations scope and area of impact and sets forth that are functioning at or below crit- the management objectives and per- ical threshold must not be allowed to formance indicators for the plan. The appreciably increase genetic and demo- plan must adequately address the fol- graphic risks facing the population and lowing criteria: must be designed to permit the popu- (A) Define populations within af- lation’s achievement of viable func- fected listed ESUs, taking into account tion, unless the plan demonstrates that

152

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

the likelihood of survival and recovery its fisheries and provides to NMFS on a of the entire ESU in the wild would not regular basis, as defined in NMFS’ let- be appreciably reduced by greater risks ter of concurrence for the FMEP, a re- to that individual population. port summarizing this information, as (C) Set escapement objectives or well as the implementation and effec- maximum exploitation rates for each tiveness of the FMEP. The state shall management unit or population based provide NMFS with access to all data on its status and on a harvest program and reports prepared concerning the that assures that those rates or objec- implementation and effectiveness of tives are not exceeded. Maximum ex- the FMEP. ploitation rates must not appreciably (iii) The state confers with NMFS on reduce the likelihood of survival and its fishing regulation changes affecting recovery of the ESU. Management of listed ESUs to ensure consistency with fisheries where artificially propagated the approved FMEP. Prior to approving fish predominate must not compromise a new or amended FMEP, NMFS will the management objectives for com- publish notification in the FEDERAL mingled naturally spawned popu- REGISTER announcing its availability lations. for public review and comment. Such (D) Display a biologically based ra- an announcement will provide for a tionale demonstrating that the harvest comment period on the draft FMEP of management strategy will not appre- not less than 30 days. ciably reduce the likelihood of survival (iv) NMFS provides written concur- and recovery of the ESU in the wild, rence of the FMEP which specifies the over the entire period of time the pro- implementation and reporting require- posed harvest management strategy af- ments. NMFS’ approval of a plan shall fects the population, including effects reasonably certain to occur after the be a written approval by the NMFS’ proposed actions cease. Southwest Regional Administrator. On (E) Include effective monitoring and a regular basis, NMFS will evaluate evaluation programs to assess compli- the effectiveness of the program in pro- ance, effectiveness, and parameter vali- tecting and achieving a level of dation. At a minimum, harvest moni- salmonid productivity commensurate toring programs must collect catch and with conservation of the listed effort data, information on salmonids. If the program is deficient, escapements, and information on bio- NMFS will identify ways in which the logical characteristics, such as age, fe- program needs to be altered or cundity, size and sex data, and migra- strengthened. If the responsible agency tion timing. does not make changes to respond ade- (F) Provide for evaluating moni- quately to the new information, NMFS toring data and making any revisions will publish notification in the of assumptions, management strate- FEDERAL REGISTER announcing its in- gies, or objectives that data show are tention to withdraw the limit for ac- needed. tivities associated with that FMEP. (G) Provide for effective enforcement Such an announcement will provide for and education. Coordination among in- a comment period of not less than 30 volved jurisdictions is an important days, after which NMFS will make a element in ensuring regulatory effec- final determination whether to with- tiveness and coverage. draw the limit so that the prohibitions (H) Include restrictions on resident would then apply to those fishery har- and anadromous species fisheries that vest activities. A template for devel- minimize any take of listed species, in- oping FMEPs is available from NMFS’ cluding time, size, gear, and area re- Southwest Region web site (http:// strictions. swr.nmfs.noaa.gov). (I) Be consistent with plans and con- (v) The prohibitions of paragraph (a) ditions established within any Federal of this section relating to threatened court proceeding with continuing juris- species listed in § 223.102 (a)(20) do not diction over tribal harvest allocations. apply to fishery harvest activities (ii) The state monitors the amount of managed solely by the State of Cali- take of listed salmonids occurring in fornia until July 8, 2002.

153

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

(17) The prohibitions of paragraph (a) lar, at-risk populations within the of this section relating to threatened same ESU, and reintroduction of at- species of salmonids listed in § 223.102 risk populations to underseeded habi- (a)(3) and (a)(20) through (a)(22) do not tat. After the species’ conservation apply to activity associated with artifi- needs are met and when consistent cial propagation programs provided with survival and recovery of the ESU, that: broodstock collection programs may be (i) A state or Federal Hatchery and authorized by NMFS for secondary pur- Genetics Management Plan (HGMP) poses such as to sustain tribal, rec- has been approved by NMFS as meeting reational, and commercial fisheries. the following criteria: (D) The HGMP includes protocols to (A) The HGMP has clearly stated address fish health, broodstock collec- goals, performance objectives, and performance indicators that indicate the tion, broodstock spawning, rearing and purpose of the program, its intended release of juveniles, deposition of results, and measurements of its per- hatchery adults, and catastrophic risk formance in meeting those results. management. Goals shall address whether the pro- (E) The HGMP evaluates, minimizes, gram is intended to meet conservation and accounts for the propagation pro- objectives, contribute to the ultimate gram’s genetic and ecological effects sustainability of natural spawning pop- on natural populations, including dis- ulations, and/or is intended to augment ease transfer, competition, predation, tribal, recreational, or commercial and genetic introgression caused by the fisheries. Objectives should enumerate straying of hatchery fish. the results desired from the program (F) The HGMP describes inter- that will be used to measure the pro- relationships and interdependencies gram’s success or failure. with fisheries management. The com- (B) The HGMP utilizes the concepts bination of artificial propagation proof viable and critical salmonid popu- grams and harvest management must lation threshold, consistent with the be designed to provide as many benefits concepts contained in NMFS’ technical and as few biological risks as possible report entitled: ‘‘Viable Salmonid Pop- for the listed species. For those pro- ulations and Recovery of ESUs’’ grams of which the purpose is to sus- (NMFS, 2000b). Listed salmonids may tain fisheries, HGMPs must not com- be purposefully taken for broodstock purposes only if the donor population promise the ability of FMEPs or other is currently at or above the viable management plans to conserve listed threshold and the collection will not salmonids. impair its function; if the donor popu- (G) The HGMP provides for adequate lation is not currently viable but the artificial propagation facilities to sole objective of the current collection properly rear progeny of naturally program is to enhance the propagation spawned broodstock, to maintain popu- or survival of the listed ESU; or if the lation health and diversity, and to donor population is shown with a high avoid hatchery-influenced selection or degree of confidence to be above crit- domestication. ical threshold although not yet func- (H) The HGMP provides for adequate tioning at viable levels, and the collec- monitoring and evaluation to detect tion will not appreciably slow the at- and evaluate the success of the hatch- tainment of viable status for that pop- ery program and any risks potentially ulation. impairing the recovery of the listed (C) Broodstock collection programs ESU. reflect appropriate priorities taking (I) The HGMP provides for evaluating into account health, abundances, and monitoring data and making any revi- trends in the donor population. The sions of assumptions, management primary purpose of broodstock collection programs of listed species is to re- strategies, or objectives that data show establish indigenous salmonid popu- are needed; lations for conservation purposes. Such (J) NMFS provides written concur- programs include restoration of simi- rence of the HGMP which specifies the

154

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

implementation and reporting require- grams managed solely by the State of ments. For federally operated or fund- California until July 8, 2002. ed hatcheries, the ESA section 7 con- (18) The prohibitions of paragraph (a) sultation will achieve this purpose. of this section relating to threatened (ii) The state monitors the amount of species of salmonids listed in § take of listed salmonids occurring in 223.102(a)(3) and (a)(20) through (a)(22) its hatchery program and provides to do not apply to scientific research ac- NMFS on a regular basis a report sum- tivities provided that: marizing this information, and the im- (i) Scientific research activities in- plementation and effectiveness of the volving purposeful take are conducted HGMP as defined in NMFS’ letter of by employees or contractors of CDFG concurrence. The state shall provide or as a part of a monitoring and re- NMFS with access to all data and research program overseen by or coordi- ports prepared concerning the imple- nated with CDFG. mentation and effectiveness of the (ii) CDFG provides for NMFS’ review HGMP. and approval a list of all scientific re- (iii) The state confers with NMFS on search activities involving direct take a regular basis regarding intended col- planned for the coming year, including lections of listed broodstock to ensure an estimate of the total direct take consistency with the approved HGMP. that is anticipated, a description of the (iv) Prior to final approval of an study design, including a justification HGMP, NMFS will publish notification for taking the species and a description in the FEDERAL REGISTER announcing of the techniques to be used, and a its availability for public review and point of contact. comment for a period of at least 30 (iii) CDFG annually provides to days. NMFS the results of scientific research (v) NMFS’ approval of an HGMP shall activities directed at threatened be a written approval by NMFS’ South- salmonids, including a report of the di- west Regional Administrator. rect take resulting from the studies (vi) On a regular basis, NMFS will and a summary of the results of such evaluate the effectiveness of the HGMP studies. in protecting and achieving a level of (iv) Scientific research activities salmonid productivity commensurate that may incidentally take threatened with the conservation of the listed salmonids are either conducted by salmonids. If the HGMP is not effec- CDFG personnel, or are in accord with tive, NMFS will identify to the respon- a permit issued by the CDFG. sible agency ways in which the pro- (v) CDFG provides NMFS annually, gram needs to be altered or strength- for its review and approval, a report ened. If the responsible agency does not listing all scientific research activities make changes to respond adequately to it conducts or permits that may inci- the new information, NMFS will pub- dentally take threatened salmonids lish notification in the FEDERAL REG- during the coming year. Such reports ISTER announcing its intention to with- shall also contain the amount of inci- draw the limit on activities associated dental take of threatened salmonids with that program. Such an announce- occurring in the previous year’s sci- ment will provide for a comment pe- entific research activities and a sum- riod of not less than 30 days, after mary of the results of such research. which NMFS will make a final deter- (vi) Electrofishing in any body of mination whether to withdraw the water known or suspected to contain limit so that take prohibitions would threatened salmonids is conducted in then apply to that program. A tem- accordance with NMFS’ Guidelines for plate for developing HGMPs is avail- Electrofishing Waters Containing able from NMFS Northwest Region’s Salmonids Listed Under the Endan- web site (www.nwr.noaa.gov). gered Species Act (NMFS 2000a). (vii) The prohibitions of paragraph (vii) NMFS’ approval of a research (a) of this section relating to threat- program shall be a written approval by ened species listed in § 223.102 (a)(20) do NMFS’ Southwest Regional Adminis- not apply to artificial propagation pro- trator.

155

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00155 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

(19) The prohibitions of paragraph (a) under paragraph (b)(19)(ii) of this sec- of this section relating to threatened tion, NMFS will publish notification in species of salmonids listed in § the FEDERAL REGISTER announcing the 223.102(a)(3) and (a)(20) through (a)(22) availability of the proposed guidelines do not apply to habitat restoration ac- for public review and comment. Such tivities, as defined in paragraph an announcement will provide for a (b)(19)(iv), provided that the activity is comment period on the draft guidelines part of a watershed conservation plan, of not less than 30 days. and: (20) The prohibitions of paragraph (a) (i) The watershed conservation plan of this section relating to threatened has been certified by the State of Cali- species of salmonids listed in § fornia to be consistent with the state’s 223.102(a)(3) and (a)(20) through (a)(22) watershed conservation plan guide- do not apply to the physical diversion lines. of water from a stream or lake, pro- (ii) The State’s watershed conserva- vided that: tion plan guidelines have been found by (i) NMFS’ engineering staff or any re- NMFS to provide for plans that: source agency or tribe NMFS des- (A) Take into account the potential ignates (authorized officer) has agreed severity of direct, indirect, and cumu- in writing that the diversion facility is lative impacts of proposed activities in screened, maintained, and operated in light of the status of affected species compliance with NMFS’ Southwest Re- that are listed as threatened. gion ‘‘Fish Screening Criteria for (B) Will not reduce the likelihood of Anadromous Salmonids, January 1997’’ either survival or recovery of listed or with any subsequent revision. species in the wild. (ii) The owner or manager of the di- (C) Ensure that any taking will be in- version allows any NMFS engineer or cidental. authorized officer access to the diver- (D) Minimize and mitigate any ad- sion facility for purposes of inspection verse impacts. and determination of continued com- (E) Provide for effective monitoring and adaptive management. pliance with the criteria. (F) Use the best available science and (iii) On a case-by-case basis, NMFS or technology, including watershed anal- an Authorized Officer will review and ysis. may approve a juvenile fish screen de- (G) Provide for public and scientific sign and construction plan and sched- review and input. ule that the water diverter proposes for (H) Include any measures that NMFS screen installation. The plan and determines are necessary or appro- schedule will describe interim oper- priate. ation measures to avoid take of threat- (I) Include provisions that clearly ened salmonids. NMFS may require a identify those activities that are part commitment of compensatory mitiga- of plan implementation. tion if implementation of the plan and (J) Control risk to listed species by schedule is terminated prior to comple- ensuring funding and implementation tion. If the plan and schedule are not of the above plan components. met, or if a schedule modification is (iii) NMFS will periodically review made that is not approved by NMFS or state certifications of watershed con- the Authorized Officer, or if the screen servation plans to ensure adherence to installation deviates from the approved approved watershed conservation plan design, the water diversion will be sub- guidelines. ject to take prohibitions and mitiga- (iv) ‘‘Habitat restoration activity’’ is tion. defined as an activity whose primary (iv) This limit on the prohibitions of purpose is to restore natural aquatic or paragraph (a) of this section does not riparian habitat conditions or proc- include any impacts or take caused by esses. ‘‘Primary purpose’’ means the reduced flows resulting from the diver- activity would not be undertaken but sion or impacts caused during installa- for its restoration purpose. tion of the diversion device. These im- (v) Prior to approving state water- pacts are subject to the prohibition on shed conservation plan guidelines take of listed salmonids.

156

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00156 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

(21) The prohibitions of paragraph (a) ready impaired habitat, or retard the of this section relating to threatened long-term progress of impaired habitat species of salmonids listed in § 223.102 toward PFC. Periodically, NMFS will (a)(3) and (a)(20) through (a)(22) do not evaluate an approved program for its apply to routine road maintenance ac- effectiveness in maintaining and tivities provided that: achieving habitat function that pro- (i) The activity results from routine vides for conservation of the listed road maintenance conducted by em- salmonids. Whenever warranted, NMFS ployees or agents of the State of Cali- will identify ways in which the pro- fornia, or any county, city or port in gram needs to be altered or strength- California, that complies with a pro- ened. Changes may be identified if the gram substantially similar to that con- program is not protecting desired habi- tained in the Oregon Department of tat functions, or where even with the Transportation’s (ODOT) Transpor- tation Maintenance Management Sys- habitat characteristics and functions tem Water Quality and Habitat Guide originally targeted, habitat is not sup- (July, 1999) or that is determined to porting population productivity levels meet or exceed the protections pro- needed to conserve the threatened vided by the ODOT Guide; or by em- ESUs. If any jurisdiction within the ployees or agents of the State of Cali- limit does not make changes to re- fornia or any county, city or port in spond adequately to the new informa- California that complies with a routine tion in the shortest amount of time road maintenance program that meets feasible, but not longer than 1 year, proper functioning habitat conditions NMFS will publish notification in the as described further in paragraph FEDERAL REGISTER announcing its in- (a)(21)(ii) of this section. NMFS’ ap- tention to withdraw the limit so that proval of state, city, county, or port take prohibitions would then apply to programs that are equivalent to the the program. Such an announcement ODOT program, or of any amendments, will provide for a comment period of shall be a written approval by NMFS’ not less than 30 days, after which Southwest Regional Administrator. NMFS will make a final determination Any jurisdiction desiring its routine whether to subject the activities to the road maintenance activities to be con- ESA section 9(a)(1) prohibitions. sidered within this limit must first (iii) Prior to implementing any commit in writing to apply manage- changes to a program within this limit ment practices that result in protec- the jurisdiction provides NMFS a copy tions equivalent to or better than those provided by the ODOT Guide, de- of the proposed change for review and tailing how it will assure adequate approval as to being within this limit. training, tracking, and reporting, and (iv) Prior to approving any State of describing in detail any dust abate- California, city, county, or port pro- ment practices it requests to be cov- gram as being within this limit, or ap- ered. proving any substantive change in a (ii) NMFS finds the routine road program as being within this limit, maintenance activities of the State of NMFS will publish notification in the California, or any city, county, or port, FEDERAL REGISTER announcing the to be consistent with the conservation availability of the program or the draft of threatened salmonids’ habitat when changes for public review and com- it contributes to the attainment and ment. Such an announcement will pro- maintenance of properly functioning vide for a comment period of not less condition (PFC). NMFS defines PFC as than 30 days. the sustained presence of natural habi- (v) Pesticide and herbicide spraying tat-forming processes that are nec- is not included within this limit, even essary for the long-term survival of if in accord with the ODOT guidance. salmonids through the full range of en- (22) The prohibitions of paragraph (a) vironmental variation. Actions that af- of this section relating to threatened fect salmonid habitat must not impair properly functioning habitat, appre- species of salmonids listed in § 223.102 ciably reduce the functioning of al- (a)(3) and (a)(20) through (a)(22) do not

157

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 223.203 50 CFR Ch. II (10–1–02 Edition)

apply to municipal, residential, com- (F) The MRCI development ordinance mercial, and industrial (MRCI) devel- or plan adequately protects wetlands opment (including redevelopment) ac- and wetland functions, including iso- tivities provided that: lated wetlands. (i) Such development occurs pursuant (G) The MRCI development ordinance to city, county, or regional govern- or plan adequately preserves the hydro- ment ordinances or plans that NMFS logic capacity of permanent and inter- has determined are adequately protec- mittent streams to pass peak flows. tive of threatened species by maintain- (H) The MRCI development ordinance ing or restoring properly functioning or plan includes adequate provisions habitat conditions. NMFS approval or for landscaping with native vegetation determinations about any MRCI devel- to reduce need for watering and appli- opment ordinances or plans shall be a cation of herbicides, pesticides, and written approval by the NMFS South- fertilizer. west Regional Administrator. NMFS (I) The MRCI development ordinance will apply the following 12 evaluation or plan includes adequate provisions to considerations when reviewing MRCI prevent erosion and sediment run-off development ordinances or plans to as- during construction. sess whether they adequately conserve (J) The MRCI development ordinance threatened salmonids by maintaining or plan ensures that water supply de- and restoring properly functioning mands can be met without impacting habitat conditions: flows needed for threatened salmonids (A) The MRCI development ordinance either directly or through groundwater or plan ensures that development will withdrawals and that any new water avoid inappropriate areas such as un- diversions are positioned and screened stable slopes, wetlands, areas of high in a way that prevents injury or death habitat value, and similarly con- of salmonids. (K) The MRCI development ordinance strained sites. or plan provides necessary enforce- (B) The MRCI development ordinance ment, funding, reporting, and imple- or plan adequately avoids stormwater mentation mechanisms and formal discharge impacts to water quality and plan evaluations at intervals that do quantity or to the hydrograph of the not exceed 5 years. watershed, including peak and base (L) The MRCI development ordinance flows of perennial streams. and plan complies with all other state (C) The MRCI development ordinance and Federal environmental and natural or plan provides adequately protective resource laws and permits. riparian area management require- (ii) The city, county or regional gov- ments to attain or maintain PFC ernment provides NMFS with annual around all rivers, estuaries, streams, reports regarding implementation and lakes, deepwater habitats, and inter- effectiveness of the ordinances, includ- mittent streams. Compensatory miti- ing: any water quality monitoring in- gation is provided, where necessary, to formation the jurisdiction has avail- offset unavoidable damage to properly able; aerial photography (or some other functioning habitat conditions caused graphic display) of each MRCI develop- by MRCI development impacts to ripar- ment or MRCI expansion area at suffi- ian management areas. cient detail to demonstrate the width (D) The MRCI development ordinance and vegetation condition of riparian or plan avoids stream crossings by set-backs; information to demonstrate roads, utilities, and other linear devel- the success of stormwater management opment wherever possible, and, where and other conservation measures; and a crossings must be provided, minimizes summary of any flood damage, mainte- impacts through choice of mode, sizing, nance problems, or other issues. and placement. (iii) NMFS finds the MRCI develop- (E) The MRCI development ordinance ment activity to be consistent with the or plan adequately protects historical conservation of threatened salmonids’ stream meander patterns and channel habitat when it contributes to the at- migration zones and avoids hardening tainment and maintenance of properly of stream banks and shorelines. functioning habitat conditions. For

158

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.203

this purpose, NMFS defines properly (c) Affirmative Defense. In connection functioning habitat conditions as the with any action alleging a violation of sustained presence of a watershed’s the prohibitions of paragraph (a) of habitat-forming processes that are nec- this section with respect to the threat- essary for the long-term survival of ened species of salmonids listed in § salmonids through the full range of en- 223.102 (a)(3), (a)(5) through (a)(10) and vironmental variation. To contribute (a)(12) through (a)(22), any person to the attainment and maintenance of claiming the benefit of any limit listed properly functioning habitat condi- in paragraph (b) of this section or § tions, activities that affect salmonid 223.209(a) shall have a defense where habitat must not impair properly func- the person can demonstrate that the tioning habitat, appreciably reduce the limit is applicable and was in force, functioning of already impaired habi- and that the person fully complied tat, or retard the long-term progress of impaired habitat toward achieving with the limit at the time of the al- properly functioning habitat condi- leged violation. This defense is an af- tions. Periodically, NMFS will evalu- firmative defense that must be raised, ate an approved program for its effec- pleaded, and proven by the proponent. tiveness in maintaining and achieving If proven, this defense will be an abso- habitat function that provides for con- lute defense to liability under section servation of the listed salmonids. 9(a)(1)(G) of the ESA with respect to Whenever warranted, NMFS will iden- the alleged violation. tify to the jurisdiction ways in which (d) Severability. The provisions of this the program needs to be altered or section and the various applications strengthened. Changes may be identi- thereof are distinct and severable from fied if the program is not protecting one another. If any provision or the ap- desired habitat functions, or where plication thereof to any person or cir- even with the habitat characteristics cumstances is stayed or determined to and functions originally targeted, habi- be invalid, such stay or invalidity shall tat is not supporting population pro- not affect other provisions, or the ap- ductivity levels needed to conserve the plication of such provisions to other threatened species. If any jurisdiction persons or circumstances, which can be within the limit does not make given effect without the stayed or in- changes to respond adequately to the valid provision or application. new information in the shortest amount of time feasible, but not longer APPENDIX A TO §223.203—LIST OF than 1 year, NMFS will publish notifi- GUIDANCE DOCUMENTS cation in the FEDERAL REGISTER announcing its intention to withdraw the The following is a list of documents cited limit so that take prohibitions would in the regulatory text. Copies of these docu- then apply to the program. Such an an- ments may be obtained upon request from nouncement will provide for a com- the Northwest or Southwest Regional Ad- ment period of not less than 30 days, ministrators (see Table 1 in § 600.502 of this after which NMFS will make a final de- title). 1. Oregon Department of Transportation termination whether to subject the ac- (ODOT) Maintenance Management System tivities to the ESA section 9(a)(1) pro- Water Quality and Habitat Guide (July, hibitions. 1999). (iv) Prior to approving any city, 2. Guidelines for Electrofishing Waters county, or regional government ordi- Containing Salmonids Listed Under the En- nances or plans as being within this dangered Species Act. limit, or approving any substantive 3. Fish Screening Criteria for Anadromous change in an ordinance or plan as being Salmonids, National Marine Fisheries Serv- within this limit, NMFS will publish ice, Southwest Region, 1997. notification in the FEDERAL REGISTER 4. Viable Salmonid Populations and the announcing the availability of the ordi- Recovery of Evolutionarily Significant nance or plan or the draft changes for Units. (June 2000). public review and comment. Such an [65 FR 42475, July 10, 2000, as amended at 67 announcement will provide for a com- FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, ment period of not less than 30 days. 2002]

159

VerDate 0ct<31>2002 05:27 Nov 21, 2002 Jkt 197209 PO 00000 Frm 00159 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.204 50 CFR Ch. II (10–1–02 Edition)

§ 223.204 Exceptions to prohibitions (i) Research and monitoring involv- relating to anadromous fish. ing directed take of coho salmon is (a) The following exceptions to the conducted by CDFG personnel (in Cali- prohibitions of § 223.203(a) of this part fornia) and ODFW personnel (in Or- apply to the Southern Oregon/Northern egon); California Coast (SONCC) coho salmon. (ii) The CDFG and ODFW, respec- (1) Take of SONCC coho salmon with- tively, provide NMFS with a list of all in 3 miles (approximately 5 km) of the research and monitoring activities in- coast, and in the bay, estuarine or volving coho salmon directed take freshwater fisheries regulated under planned for the coming year for NMFS’ the sole authority of the State of Or- review and approval. This report shall egon is not prohibited, if the take re- include an estimate of the total di- sults from a fisheries harvest program rected take that is anticipated, a de- conducted in accordance with the Or- scription of the study design, including egon Coastal Salmon Restoration Ini- a justification for taking the species tiative of March 1997 (OCSRI). NMFS and a description of the techniques to must have issued a written concur- be used, and a point of contact; rence that the fisheries regulations are (iii) The CDFG and ODFW, respec- consistent with the OCSRI, using infor- tively, provide NMFS annually with mation provided through the April 1997 the results of research and monitoring Memorandum of Agreement (MOA) be- studies directed at SONCC coho salm- tween the State of Oregon and NMFS. on, including a report of the directed (2) Incidental take of SONCC coho take resulting from the studies; salmon in ocean fisheries within 3 (iv) The CDFG and ODFW, provide miles (approximately 5 km) of the NMFS annually with a list of all re- coast that are regulated under the sole search and monitoring studies per- authority of the State of California is mitted that may allow incidental take not prohibited, provided that the ocean of listed coho salmon during the com- salmon fishing regulations adopted by ing year and report the level of inci- the California Fish and Game Commis- dental take of listed coho salmon from sion and CDFG for recreational and the previous year’s research and moni- commercial fisheries within 3 miles toring activities, for NMFS’ review and (approximately 5 km) of the coast are approval. consistent with the Pacific Fishery (v) The research and monitoring ac- Management Council’s Fishery Man- tivities do not include the use of agement Plan for Ocean Salmon Fish- electrofishing in any body of water eries and the annual ocean salmon fish- known or suspected to contain coho ing regulations issued by the Secretary salmon. of Commerce for the Federal EEZ. (5) Incidental take of the SONCC (3) Take of SONCC coho salmon in a coho salmon in Oregon resulting from a hatchery program regulated under the habitat restoration activity is not pro- sole authority of the State of Oregon is hibited, provided that: not prohibited, if the take results from (i) The activity is conducted pursu- a hatchery program conducted in ac- ant to a watershed action or restora- cordance with the OCSRI, and the take tion plan that has been affirmed by the is counted against the total allocation state in writing as consistent with of harvest-related mortality as speci- NMFS’ approved state watershed plan fied in the OCSRI. NMFS must have guidelines set forth in § 222.307(c) of issued a written concurrence stating this chapter. NMFS shall also concur that the hatchery program is con- in writing that the plan is consistent sistent with the OCSRI including the with the state watershed plan guide- hatchery and genetic management plan lines; or adopted pursuant to the OCSRI, using (ii) Until a watershed action or res- information provided through the toration plan is approved by both Or- MOA. egon and NMFS as described in para- (4) Take of SONCC coho salmon in graph (a)(5)(i) of this section, or until fisheries research and monitoring ac- August 18, 1999, whichever occurs first, tivities conducted in California and Or- the ODFW has made a written finding egon is not prohibited provided that: that the activity is consistent with

160

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00160 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.205

state restoration activity guidelines notice of tow-time or other restriction that NMFS has agreed, in writing, specified in, or issued under, meet the standards set forth in § 223.206(d)(3) or (d)(4); § 222.307(c) of this chapter. (4) Possess fish or wildlife taken in (6) Incidental take of the SONCC violation of paragraph (b) of this sec- coho salmon in California resulting tion; from a habitat restoration activity, as (5) Fail to follow any of the sea turtle defined in paragraph (a)(6)(iii) of this handling and resuscitation require- section, is not prohibited, provided ments specified in § 223.206(d)(1); that California has a program in effect (6) Possess a sea turtle in any man- that NMFS finds will assure tech- ner contrary to the handling and resus- nically supported watershed assess- citation requirements of § 223.206(d)(1); ments and coordinated long-term mon- (7) Fail to comply immediately, in itoring strategies for watershed protec- the manner specified at § 600.730 (b) tion plans and activities and: through (d) of this Title, with instruc- (i) The activity is conducted pursu- tions and signals specified therein ant to a watershed protection plan that issued by an authorized officer, includ- CDFG has affirmed, in writing, is con- ing instructions and signals to haul sistent with NMFS’ approved state wa- back a net for inspection; tershed plan guidelines set forth in (8) Refuse to allow an authorized offi- § 222.307(c) of this chapter for Califor- cer to board a vessel, or to enter an nia’s Watershed Protection Program. area where fish or wildlife may be NMFS must concur, in writing, that found, for the purpose of conducting a the plan is consistent with those guide- boarding, search, inspection, seizure, lines; or investigation, or arrest in connection (ii) Until a watershed protection or with enforcement of this section; restoration plan is certified by the (9) Destroy, stave, damage, or dispose State of California and NMFS as de- of in any manner, fish or wildlife, gear, scribed in paragraph (a)(6)(i) of this cargo, or any other matter after a com- section, or until August 18, 1999, which- munication or signal from an author- ever occurs first, when NMFS has made ized officer, or upon the approach of a written finding that the activity is such an officer or of an enforcement consistent with State of California con- vessel or aircraft, before the officer has servation guidelines previously found an opportunity to inspect same, or in to meet the standards set forth in contravention of directions from the § 222.307(c) of this chapter by NMFS. officer; [64 FR 14069, Mar. 23, 1999] (10) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, § 223.205 Sea turtles. prevent, or interfere with an author- (a) The prohibitions of section 9 of ized officer in the conduct of any the Act (16 U.S.C. 1538) relating to en- boarding, search, inspection, seizure, dangered species apply to threatened investigation, or arrest in connection species of sea turtle, except as provided with enforcement of this section; in § 223.206. (11) Interfere with, delay, or prevent (b) Except as provided in § 223.206, it by any means, the apprehension of an- is unlawful for any person subject to other person, knowing that such person the jurisdiction of the United States to committed an act prohibited by this do any of the following: section; (1) Own, operate, or be on board a (12) Resist a lawful arrest for an act vessel, except if that vessel is in com- prohibited by this section; pliance with all applicable provisions (13) Make a false statement, oral or of § 223.206(d); written, to an authorized officer or to (2) Fish for, catch, take, harvest, or the agency concerning the fishing for, possess, fish or wildlife while on board catching, taking, harvesting, landing, a vessel, except if that vessel is in com- purchasing, selling, or transferring fish pliance with all applicable provisions or wildlife, or concerning any other of § 223.206(d); matter subject to investigation under (3) Fish for, catch, take, harvest, or this section by such officer, or required possess, fish or wildlife contrary to any to be submitted under this part 223;

161

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00161 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.206 50 CFR Ch. II (10–1–02 Edition)

(14) Sell, barter, trade or offer to sell, Wildlife Service, the U.S. Coast Guard, barter, or trade, a TED that is not an or any other Federal land or water approved TED; management agency, or any agent or (15) Fail to comply with the restric- employee of a state agency responsible tions set forth in § 223.206(d)(2)(v) re- for fish and wildlife who is designated garding pound net leaders; or by his or her agency for such purposes, (16) Attempt to do, solicit another to may, when acting in the course of his do, or cause to be done, any of the fore- or her official duties, take such speci- going. mens without a permit if such taking (c) In connection with any action al- is necessary to aid a sick, injured, or leging a violation of this section, any person claiming the benefit of any ex- stranded specimen or dispose of a dead emption, exception, or permit under specimen or salvage a dead specimen this subpart B has the burden of prov- which may be useful for scientific ing that the exemption, exception, or study. Whenever possible, live speci- permit is applicable, was granted, and mens shall be returned to their aquatic was valid and in force at the time of environment as soon as possible. Every the alleged violation. Further, any per- action shall be reported in writing to son claiming that a modification made the Assistant Administrator within 30 to a TED that is the subject of such an days, and reports of further occurrence action complies with the requirements shall be made as deemed appropriate of § 223.207 (c) or (d) has the burden of by the Assistant Administrator until proving such claim. the specimen is either returned to its [64 FR 14069, Mar. 23, 1999, as amended at 67 environment or disposed of. Reports FR 41203, June 17, 2002] shall be mailed by registered or certified mail, return receipt requested, to § 223.206 Exceptions to prohibitions the Assistant Administrator and shall relating to sea turtles. contain the following information: (a) Permits—(1) Scientific research, edu- (1) Name and position of the official cation, zoological exhibition, or species or employee involved; enhancement permits. The Assistant Ad- (2) Description of the specimen(s) in- ministrator may issue permits author- volved; izing activities which would otherwise (3) Date and location of disposal; be prohibited under § 223.205(a) for sci- (4) Circumstances requiring the ac- entific or educational purposes, for zoological exhibition, or to enhance the tion; propagation or survival of threatened (5) Method of disposal; species of sea turtles, in accordance (6) Disposition of the specimen(s), in- with and subject to the conditions of cluding, where the specimen(s) has part 222, subpart C—General Permit been retained in captivity, a descrip- Procedures. tion of the place and means of confine- (2) Incidental-take permits. The Assist- ment, and the measures taken for its ant Administrator may issue permits maintenance and care; and authorizing activities that would oth- (7) Such other information as the As- erwise be prohibited under § 223.205(a) sistant Administrator may require. in accordance with section 10(a)(1)(B) (c) Exception for research or conserva- of the Act (16 U.S.C. 1539(a)(1)(B)), and tion. Any employee or agent of the Na- in accordance with, and subject to, the tional Marine Fisheries Service, the implementing regulations in part 222 of Fish and Wildlife Service, or a state this chapter. Such permits may be fish and wildlife agency operating a issued for the incidental taking of conservation program pursuant to the threatened and endangered species of terms of a Cooperative Agreement with sea turtles. (b) Exception for injured, dead, or the National Marine Fisheries Service stranded specimens. If any member of or the Fish and Wildlife Service in ac- any threatened species of sea turtle is cordance with section 6(c) of the Act, found injured, dead, or stranded, any designated by his or her agency for agent or employee of the National Ma- such purposes, may, when acting in the rine Fisheries Service, the Fish and course of his or her official duties, take

162

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00162 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.206

any threatened species to carry out sci- (reflex test) periodically to see if there entific research or conservation pro- is a response. grams. All such takings shall be re- (2) Sea turtles being resuscitated ported within 30 days of the taking to must be shaded and kept damp or the Assistant Administrator who may moist but under no circumstance be request additional reports of the tak- placed into a container holding water. ing and research at the Assistant Ad- A water-soaked towel placed over the ministrator’s discretion. head, carapace, and flippers is the most (d) Exception for incidental taking. The effective method in keeping a turtle prohibitions against taking in moist. § 223.205(a) do not apply to the inci- (3) Sea turtles that revive and be- dental take of any member of a threat- come active must be released over the ened species of sea turtle (i.e., a take stern of the boat only when fishing or not directed toward such member) dur- scientific collection gear is not in use, ing fishing or scientific research activi- when the engine gears are in neutral ties, to the extent that those involved position, and in areas where they are are in compliance with all applicable unlikely to be recaptured or injured by requirements of paragraphs (d)(1) vessels. Sea turtles that fail to respond through (d)(5) of this section, or in to the reflex test or fail to move within compliance with the terms and condi- 4 hours (up to 24, if possible) must be tions of an incidental take permit returned to the water in the same man- issued pursuant to paragraph (a)(2) of ner as that for actively moving turtles. this section. (C) A turtle is determined to be dead (1) Handling and resuscitation require- if the muscles are stiff (rigor mortis) ments. (i) Any specimen taken inciden- and/or the flesh has begun to rot; oth- tally during the course of fishing or erwise the turtle is determined to be scientific research activities must be comatose or inactive and resuscitation handled with due care to prevent in- attempts are necessary. jury to live specimens, observed for ac- (ii) Notwithstanding the provisions of tivity, and returned to the water ac- paragraph (d)(1)(i) of this section, a cording to the following procedures: person aboard a pelagic longline vessel (A) Sea turtles that are actively in the Atlantic issued an Atlantic per- moving or determined to be dead as de- mit for highly pelagic species under 50 scribed in paragraph (d)(1)(i)(C) of this CFR 635.4, must follow the handling section must be released over the stern and resuscitation requirements in 50 of the boat. In addition, they must be CFR 635.21. released only when fishing or scientific (iii) Any specimen taken incidentally collection gear is not in use, when the during the course of fishing or sci- engine gears are in neutral position, entific research activities must not be and in areas where they are unlikely to consumed, sold, landed, offloaded, be recaptured or injured by vessels. transshipped, or kept below deck. (B) Resuscitation must be attempted (2) Gear requirements—(i) TED require- on sea turtles that are comatose, or in- ment for shrimp trawlers. Any shrimp active, as determined in paragraph trawler that is in the Atlantic Area or (d)(1) of this section, by: Gulf Area must have an approved TED (1) Placing the turtle on its bottom installed in each net that is rigged for shell (plastron) so that the turtle is fishing. A net is rigged for fishing if it right side up and elevating its is in the water, or if it is shackled, hindquarters at least 6 inches (15.2 cm) tied, or otherwise connected to any for a period of 4 up to 24 hours. The trawl door or board, or to any tow rope, amount of the elevation depends on the cable, pole or extension, either on size of the turtle; greater elevations board or attached in any manner to the are needed for larger turtles. Periodi- shrimp trawler. Exceptions to the TED cally, rock the turtle gently left to requirement for shrimp trawlers are right and right to left by holding the provided in paragraph (d)(2)(ii) of this outer edge of the shell (carapace) and section. lifting one side about 3 inches (7.6 cm) (ii) Exemptions from the TED require- then alternate to the other side. Gent- ment—(A) Alternative tow-time restric- ly touch the eye and pinch the tail tions. A shrimp trawler is exempt from

163

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00163 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.206 50 CFR Ch. II (10–1–02 Edition)

the TED requirements of paragraph to any trawl door or board, or to any (d)(2)(i) of this section if it complies tow rope, cable, pole or extension, ei- with the alternative tow-time restric- ther on board or attached in any man- tions in paragraph (d)(3)(i) of this sec- ner to the summer flounder trawler. tion and if it: Exceptions to the TED requirement for (1) Has on board no power or mechan- summer flounder trawlers are provided ical-advantage trawl retrieval system in paragraph (d)(2)(iii)(B) of this sec- (i.e., any device used to haul any part tion. of the net aboard); (2) Any approved hard TED or special (2) Is a bait shrimper that retains all hard TED installed in a summer floun- live shrimp on board in a container der trawl must be installed in a TED with a circulating seawater system, if extension. The TED extension is a cy- it does not possess more than 32 pounds lindrical piece of webbing distinct from (14.5 kg) of dead shrimp on board, and the main trawl’s body, wings, codend, if it has on board a valid original state and any other net extension(s). The bait-shrimp license (if in a state that TED extension must be constructed of requires such a license); webbing no larger than 3.5 inch (8.9 cm) (3) Has only a pusher-head trawl, stretched mesh. The TED extension skimmer trawl, or wing net rigged for must extend at least 24 inches (61.0 cm) fishing; but not more than 36 inches (91.4 cm) (4) Is in an area during a period for forward of the leading edge of the TED which tow-time restrictions apply and aft of the trailing edge of the grid. under paragraphs (d)(3) (ii) or (iii) of (B) Exemptions from the TED require- this section, if it complies with all ap- ment. Any summer flounder trawler plicable provisions imposed under north of 35°46.1′ N. lat. (Oregon Inlet, those paragraphs. NC) from January 15 through March 15 (B) Exempted gear or activities. The fol- annually is exempt from the TED re- lowing fishing gear or activities are ex- quirement of paragraph (d)(2)(iii)(A) of empted from the TED requirements of this section, unless the Assistant Ad- paragraph (d)(2)(i) of this section: ministrator determines that TED use (1) A single test net (try net) with a is necessary to protect sea turtles or headrope length of 12 ft (3.6 m) or less ensure compliance, pursuant to the and with a footrope length of 15 ft (4.6 procedures of paragraph (d)(4) of this m) or less, if it is either pulled imme- section. diately in front of another net or is not (C) Monitoring. Summer flounder connected to another net in any way, if trawlers must carry onboard a NMFS- no more than one test net is used at a approved observer if requested by the time, and if it is not towed as a pri- Southeast Regional Administrator or mary net; the Northeast Regional Administrator. (2) A beam or roller trawl, if the A written notification will be sent to frame is outfitted with rigid vertical the address specified for the vessel in bars, and if none of the spaces between either the NMFS or state fishing per- the bars, or between the bars and the mit application, or to the address spec- frame, exceeds 4 inches (10.2 cm); and ified for registration or documentation (3) A shrimp trawler fishing for, or purposes, or upon written notification possessing, royal red shrimp, if royal otherwise served on the owner or oper- red shrimp constitutes at least 90 per- ator of the vessel. Owners and opera- cent (by weight) of all shrimp either tors must comply with the terms and found on board, or offloaded from that conditions specified in such written no- shrimp trawler. tification. All NMFS-approved observ- (iii) Gear requirement—summer floun- ers will report any violations of this der trawlers—(A) TED requirement. (1) section, or other applicable regulations Any summer flounder trawler in the and laws. Information collected by ob- summer flounder fishery-sea turtle pro- servers may be used for enforcement tection area must have an approved purposes. TED installed in each net that is (D) Additional sea turtle conservation rigged for fishing. A net is rigged for measures. The Assistant Administrator fishing if it is in the water, or if it is may impose other such restrictions shackled, tied, or otherwise connected upon summer flounder trawlers as the

164

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00164 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.206

Assistant Administrator deems nection zone must comply with the terms essary or appropriate to protect sea and conditions specified in such writ- turtles and ensure compliance, pursu- ten request, as well as provide informa- ant to the procedures of paragraph tion on trawling hours, gear modifica- (d)(4) of this section. Such measures tions, and turtle captures. may include, but are not limited to, a (C) Notification. NMFS will imme- requirement to use TEDs in areas other diately announce specific area closures than summer flounder fishery-sea tur- on the NOAA weather radio channel, in tle protection area, a requirement to newspapers, and other media. Specific use limited tow-times, and closure of area closures will be effective upon fil- the fishery. ing for public inspection at the Office (iv) Gear requirement—leatherback con- of the Federal Register. Owners and op- servation zone—(A) Leatherback surveys. erators of shrimp trawl vessels in the From January 1 through June 30 of leatherback conservation zone are re- each year, weekly aerial surveys will sponsible for monitoring the NOAA be conducted in the leatherback con- weather radio channel for closure an- servation zone by NMFS or state nouncements. Shrimp trawlers may agents, contingent upon weather condi- also call the Southeast Regional Office tions. If sighting rates of greater than at (813) 570–5312 to receive updated area 10 leatherback turtles per 50 nautical closure information. miles (92.6 km) of trackline are ob- (v) Gear requirement—pound net lead- served, the aerial surveys of that area ers—(A) Restrictions on pound net lead- will be replicated within 24 hours, or as ers. During the time period of May 8 soon as practicable thereafter. through June 30 of each year, any (B) TED requirements and registration. pound net leader in the waters de- If surveys pursuant to paragraph scribed in paragraph (d)(2)(v)(B) of this (d)(2)(iv)(A) of this section indicate a section must have a mesh size less than sighting rate within the leatherback 12 inches (30.5 cm) stretched mesh and conservation zone of greater than 10 may not employ stringers. Any pound leatherback sea turtles per 50 nautical net leader with stretched mesh meas- miles (92.6 km) of trackline, NMFS will uring 12 inches (30.5 cm) or greater or close an area of the leatherback con- any pound net leader with stringers servation zone encompassing all, or a must be removed from the waters de- portion of, inshore waters and offshore scribed in paragraph (d)(2)(v)(B) of this waters 10 nautical miles (18.5 km) sea- section prior to May 8 of each year and ward of the COLREGS demarcation may not be reset until July 1 of each line, bounded by 1° lat. coinciding with year unless that date is extended by the trackline, within the leatherback the AA pursuant to paragraph conservation zone. This closure will be (d)(2)(v)(E) of this section. for a 2-week period. Within such a (B) Regulated waters. The restrictions closed area, fishing by any shrimp on pound net leaders described in para- trawler required to have a NMFS-ap- graph (d)(2)(v)(A) of this section apply proved TED in each net rigged for fish- to the following waters: the Virginia ing is prohibited, unless the TED in- waters of the mainstem Chesapeake stalled is one described at § Bay from the Maryland-Virginia State 223.207(a)(7)(ii)(B) or § line (approximately 37° 55′ N. lat., 75° 223.207(c)(1)(iv)(B), and the owner or op- 55′ W. long.) to the COLREGS line at erator of the shrimp trawl has notified the mouth of the Chesapeake Bay; the the Southeast Regional Administrator James River downstream of the Hamp- of his or her intention to fish in that ton Roads Bridge Tunnel (I–64; approxi- area, in accordance with the procedure mately 36° 59.55′ N. lat., 76° 18.64′ W. provided in paragraph (d)(5) of this sec- long.); the York River downstream of tion. If requested in writing from the the Coleman Memorial Bridge (Route Southeast Regional Administrator, 17; approximately 37° 14.55′ N. lat, 76° owners and operators of shrimp trawl- 30.40′ W. long.); and the Rappahannock ers in the leatherback conservation River downstream of the Robert Opie zone must carry NMFS-approved ob- Norris Jr. Bridge (Route 3; approxi- servers aboard such vessel(s). A shrimp mately 37° 37.44′ N. lat, 76° 25.40′ W. trawler in the leatherback conserva- long.).

165

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00165 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.206 50 CFR Ch. II (10–1–02 Edition)

(C) Reporting requirement. At any time under this subparagraph, for an addi- during the year, if a turtle is taken live tional 30 days, but not beyond July 30, and uninjured in a pound net oper- to protect threatened sea turtles. ation, in the pound or in the leader, the (3) Tow-time restrictions—(i) Duration operator of vessel must report the inci- of tows. If tow-time restrictions are uti- dent to the NMFS Northeast Regional lized pursuant to paragraph (d)(2)(ii), Office, (978) 281–9388 or fax (978) 281– (d)(3)(ii), or (d)(3)(iii) of this section, a 9394, within 24 hours of returning from shrimp trawler must limit tow times. the trip in which the incidental take The tow time is measured from the occurred. The report shall include a de- time that the trawl door enters the scription of the turtle’s condition at water until it is removed from the the time of release and the measures water. For a trawl that is not attached taken as required in paragraph (d)(1) of to a door, the tow time is measured this section. At any time during the from the time the codend enters the year, if a turtle is taken in a pound net water until it is removed from the operation, and is determined to be in- water. Tow times may not exceed: jured, or if a turtle is captured dead, (A) 55 minutes from April 1 through the operator of the vessel shall imme- October 31; and diately notify NMFS Northeast Re- (B) 75 minutes from November 1 gional Office and the appropriate reha- through March 31. bilitation or stranding network, as de- (ii) Alternative—special environmental termined by NMFS Northeast Regional conditions. The Assistant Adminis- Office. trator may allow compliance with tow- (D) Monitoring. Pound net fishing op- time restrictions, as an alternative to erations must be observed by a NMFS- the TED requirement of paragraph approved observer if requested by the (d)(2)(i) of this section, if the Assistant Northeast Regional Administrator. All Administrator determines that the NMFS-approved observers will report presence of algae, seaweed, debris or any violations of this section, or other other special environmental conditions applicable regulations and laws. Infor- in a particular area makes trawling mation collected by observers may be with TED-equipped nets impracticable. used for law enforcement purposes. (iii) Substitute—ineffectiveness of (E) Expedited modification of restric- TEDs. The Assistant Administrator tions and effective dates. From May 8 to may require compliance with tow-time June 30 of each year, if NMFS receives restrictions, as a substitute for the information that one sea turtle is en- TED requirement of paragraph (d)(2)(i) tangled alive or that one sea turtle is of this section, if the Assistant Admin- entangled dead, and NMFS determines istrator determines that TEDs are inef- that the entanglement contributed to fective in protecting sea turtles. its death, in pound net leaders that are (iv) Notice; applicability; conditions. in compliance with the restrictions de- The Assistant Administrator will pub- scribed in paragraph (d)(2)(v)(A) of this lish notification concerning any tow- section on pound net leaders in the wa- time restriction imposed under para- ters identified in paragraph (d)(2)(v)(B) graph (d)(3)(ii) or (iii) of this section in of this section, the AA may issue a the FEDERAL REGISTER and will an- final rule modifying the restrictions on nounce it in summary form on channel pound net leaders as necessary to pro- 16 of the marine VHF radio. A notifica- tect threatened sea turtles. Such modi- tion of tow-time restrictions will in- fications may include, but are not lim- clude findings in support of these re- ited to, reducing the maximum allow- strictions as an alternative to, or as able mesh size of pound net leaders and substitute for, the TED requirements. prohibiting the use of pound net lead- The notification will specify the effec- ers regardless of mesh size. In addition, tive dates, the geographic area where if information indicates that a signifi- tow-time restrictions apply, and any cant level of sea turtle strandings will applicable conditions or restrictions likely continue beyond June 30, the AA that the Assistant Administrator de- may issue a final rule extending the ef- termines are necessary or appropriate fective date of the restrictions, includ- to protect sea turtles and ensure coming any additional restrictions imposed pliance, including, but not limited to, a

166

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00166 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.206

requirement to carry observers, to reg- trator will take such action if the As- ister vessels in accordance with proce- sistant Administrator determines that dures at paragraph (d)(5) of this sec- restrictions are necessary to avoid un- tion, or for all shrimp trawlers in the authorized takings that may be likely area to synchronize their tow times so to jeopardize the continued existence that all trawl gear remains out of the of a listed species. The Assistant Ad- water during certain times. A notifica- ministrator may withdraw or modify a tion withdrawing tow-time restrictions determination concerning unauthor- will include findings in support of that ized takings or any restriction on fish- action. ing activities if the Assistant Adminis- (v) Procedures. The Assistant Admin- trator determines that such action is istrator will consult with the appro- warranted. priate fishery officials (state or Fed- (iii) Notice; applicability; conditions. eral) where the affected shrimp fishery The Assistant Administrator will pub- is located in issuing a notification con- lish a notification of a determination cerning tow-time restrictions. An concerning unauthorized takings or a emergency notification can be effective notification concerning the restriction for a period of up to 30 days and may be of fishing activities in the FEDERAL renewed for additional periods of up to REGISTER. The Assistant Administrator 30 days each if the Assistant Adminis- will provide as much advance notice as trator finds that the conditions neces- possible, consistent with the require- sitating the imposition of tow-time re- ments of the Act, and will announce strictions continue to exist. The As- the notification in summary form on sistant Administrator may invite com- channel 16 of the marine VHF radio. ments on such an action, and may Notification of a determination con- withdraw or modify the action by fol- cerning unauthorized takings will in- lowing procedures similar to those for clude findings in support of that deter- implementation. The Assistant Admin- mination; specify the fishery, including istrator will implement any permanent the target species and gear used by the tow-time restriction through rule- fishery, the area, and the times, for making. which incidental takings are not au- (4) Limitations on incidental takings thorized; and include such other condi- during fishing activities—(i) Limitations. tions and restrictions as the Assistant The exemption for incidental takings Administrator determines are nec- of sea turtles in paragraph (d) of this essary or appropriate to protect sea section does not authorize incidental turtles and ensure compliance. Notifi- takings during fishing activities if the cation of restriction of fishing activi- takings: ties will include findings in support of (A) Would violate the restrictions, the restriction, will specify the time terms, or conditions of an incidental and area where the restriction is appli- take statement or biological opinion; cable, and will specify any applicable (B) Would violate the restrictions, conditions or restrictions that the As- terms, or conditions of an incidental sistant Administrator determines are take permit; or necessary or appropriate to protect sea (C) May be likely to jeopardize the turtles and ensure compliance. Such continued existence of a species listed conditions and restrictions may in- under the Act. clude, but are not limited to, limita- (ii) Determination; restrictions on fish- tions on the types of fishing gear that ing activities. The Assistant Adminis- may be used, tow-time restrictions, al- trator may issue a determination that teration or extension of the periods of incidental takings during fishing ac- time during which particular tow-time tivities are unauthorized. Pursuant requirements apply, requirements to thereto, the Assistant Administrator use TEDs, registration of vessels in ac- may restrict fishing activities in order cordance with procedures at paragraph to conserve a species listed under the (d)(5) of this section, and requirements Act, including, but not limited to, re- to provide observers. Notification of strictions on the fishing activities of withdrawal or modification will in- vessels subject to paragraph (d)(2) of clude findings in support of that ac- this section. The Assistant Adminis- tion.

167

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00167 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.206 50 CFR Ch. II (10–1–02 Edition)

(iv) Procedures. The Assistant Admin- ters of the Pacific Ocean from August istrator will consult with the appro- 15 through November 15 in the area priate fisheries officials (state or Fed- bounded by straight lines connecting eral) where the fishing activities are the following coordinates in the order located in issuing notification of a de- listed: termination concerning unauthorized (A) Point Sur (36°18.5′ N) to 34°27′ N takings or notification concerning the 123°35’ W′; restriction of fishing activities. An (B) 34°27′ N 123°35′ W to 34°27′ N 129° emergency notification will be effec- W; tive for a period of up to 30 days and (C) 34°27′ N 129° W to 45° N 129° W; may be renewed for additional periods (D) 45° N 129° W to the point 45° N of up to 30 days each. The Assistant intersects the Oregon coast. Administrator may invite comments (ii) [Reserved] on such action, and may withdraw or modify the action by following proce- (7) Restrictions applicable to gillnet dures similar to those for implementa- fisheries in North Carolina. No person tion. The Assistant Administrator will may fish with gillnet fishing gear implement any permanent determina- which has a stretched mesh size larger tion or restriction through rule- than 4 1/4 inches (10.8 cm), annually making. from September 1 through December 15, in the inshore waters of Pamlico (5) Registration. If the Assistant Ad- ministrator imposes restrictions under Sound, North Carolina, and all contiguous tidal waters, bounded on the paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), ° or (d)(4)(ii) of this section, the Assist- north by 35 46.3’ N. lat., on the south by 35°00’ N. lat., and on the west by ant Administrator may require the ° owner and operator of a vessel to reg- 76 30’ W. long. ister before entering an area where, (8) Restrictions applicable to large-mesh and during the time when, the restric- gillnet fisheries in the mid-Atlantic re- tions apply. If registration is required, gion. No person may fish (including, the vessel’s owner and operator must but not limited to, setting, hauling submit the following information to back, or leaving in the ocean) with, or the NMFS Regional Office: possess any gillnet with a stretched (i) The name and official number (or mesh size larger than 8 inches (20.3 registration number) of the vessel; cm), unless all gillnets are covered (ii) The names, mailing and street ad- with canvas or other similar material dresses, and telephone numbers of the and lashed or otherwise securely fas- vessel owner and operator; tened to the deck or the rail, and all (iii) The permit number or other buoys larger than 6 inches (15.24 cm) in identification of relevant state or Fed- diameter, high flyers, and anchors are eral fishing permit(s); disconnected. This restriction is effec- (iv) Where and when the vessel in- tive starting on March 15, 2002, in the tends to fish; Atlantic Exclusive Economic Zone (as (v) Where and when the vessel will defined in 50 CFR 600.10) during the fol- depart on any fishing trip, with suffi- lowing time periods and in the fol- cient specificity to allow for an ob- lowing areas: server to embark on the trip; and (i) Waters north of 33°51.0′ N (North (vi) Any changes in the information Carolina/South Carolina border at the submitted under paragraphs (d)(5)(i) coast) and south of 35°46.0′ N (Oregon through (d)(5)(v) of this section. Fail- Inlet) at any time; ure to do so immediately will void the (ii) Waters north of 35°46.0′ N (Oregon registration, rendering unlawful any Inlet) and south of 36°22.5′ N (Currituck subsequent entry of the fishing vessel Beach Light, NC) from March 16 into the area where and during the through January 14; time when the restrictions apply. (iii) Waters north of 36°22.5′ N (6) Restrictions applicable to the (Currituck Beach Light, NC) and south California/Oregon drift gillnet fishery— of 37°34.6′ N (Wachapreague Inlet, VA) (i) Pacific leatherback conservation from April 1 through January 14; and area. No person may fish with, set, or (iv) Waters north of 37°34.6′ N haul back drift gillnet gear in U.S. wa- (Wachapreague Inlet, VA) and south of

168

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00168 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.207

37°56.0′ N (Chincoteague, VA) from bination of the following materials, April 16 through January 14. with minimum dimensions as follows: (e) Exception for incidental taking. The (i) Solid steel rod with a minimum prohibitions against taking in outside diameter of 1⁄4 inch (0.64 cm); § 223.205(a) do not apply to the inci- (ii) Fiberglass or aluminum rod with dental take of any member of a threat- a minimum outside diameter of 1⁄2 inch ened species of sea turtle (i.e., a take (1.27 cm); or not directed toward such member) dur- (iii) Steel or aluminum tubing with a ing fishing or scientific research activi- minimum outside diameter of 1⁄2 inch ties, to the extent that those involved (1.27 cm) and a minimum wall thick- are in compliance with all applicable ness of 1⁄8 inch (0.32 cm) (also known as requirements of paragraphs (d)(1) schedule 40 tubing). through (d)(8) of this section, or in (2) Method of attachment. A hard TED compliance with the terms and condi- must be sewn into the trawl around the tions of an incidental take permit entire circumference of the TED with issued pursuant to paragraph (a)(2) of heavy twine. this section. (3) Angle of deflector bars. (i) The angle of the deflector bars must be be- [64 FR 14070, Mar. 23, 1999, as amended at 64 tween 30° and 55° from the normal, hor- FR 55863, Oct. 15, 1999; 66 FR 1603, Jan. 9, 2001; 66 FR 44551, Aug. 24, 2001; 66 FR 50354, Oct. 3, izontal flow through the interior of the 2001; 66 FR 52362, Oct. 15, 2001; 66 FR 67496, trawl, except as provided in paragraph Dec. 31, 2001; 67 FR 13101, Mar. 21, 2002; 67 FR (a)(3)(ii) of this section. 41203, June 17, 2002; 67 FR 56934, Sept. 6, 2002] (ii) For any shrimp trawler fishing in the Gulf SFSTCA or the Atlantic EFFECTIVE DATE NOTES: 1. At 64 FR 14070, Mar. 23, 1999, newly redesignated § 223.206 was SFSTCA, a hard TED with the position revised. Paragraph (d)(5) contains informa- of the escape opening at the bottom of tion collection requirements and will not be- the net when the net is in its deployed come effective until approval has been given position, the angle of the deflector bars by the Office of Management and Budget. from the normal, horizontal flow 2. At 67 FR 13101, Mar. 21, 2002, § 223.206 was through the interior of the trawl, at amended by suspending paragraph (d) intro- any point, must not exceed 55°, and: ductory text and adding paragraphs (d)(8) (A) If the deflector bars that run and (e), effective Mar. 15, 2002 through 240 days after Mar. 15, 2002 (Nov. 12, 2002). from top to bottom are attached to the 3. At 67 FR 41203, June 17, 2002, § 223.206 was bottom frame of the TED, the angle of amended by adding paragraph (d)(2)(v). Para- the bottom-most 4 inches (10.2 cm) of graph (d)(2)(v)(C) contains information col- each deflector bar, measured along the lection requirements and will not become ef- bars, must not exceed 45° (Figures 14a fective until approval has been given by the and 14b to this part); Office of Management and Budget. (B) If the deflector bars that run from top to bottom are not attached to § 223.207 Approved TEDs. the bottom frame of the TED, the Any netting, webbing, or mesh that angle of the imaginary lines con- may be measured to determine compli- necting the bottom frame of the TED ance with this section is subject to to the bottom end of each deflector bar measurement, regardless of whether it which runs from top to bottom must is wet or dry. Any such measurement not exceed 45° (Figure 15 to this part). will be of the stretched mesh size. (4) Space between bars. The space be- (a) Hard TEDs. Hard TEDs are TEDs tween deflector bars and between the with rigid deflector grids and are cat- deflector bars and the frame must not egorized as ‘‘hooped hard TEDs,’’ such exceed 4 inches (10.2 cm). as the NMFS and Cameron TEDs (5) Direction of bars. The deflector (Figures 1 & 2 to this part), or ‘‘single- bars must run from top to bottom of grid hard TEDs,’’ such as the the TED, as the TED is positioned in Matagorda and Georgia TEDs (Figures the net, except that up to four of the 3 & 4 to this part). Hard TEDs com- bottom bars and two of the top bars, plying with the following generic de- including the frame, may run from side sign criteria are approved TEDs: to side of the TED. (1) Construction materials. A hard TED (6) Position of escape opening. The en- must be constructed of one or a com- tire width of the escape opening from

169

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00169 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.207 50 CFR Ch. II (10–1–02 Edition)

the trawl must be centered on and im- (148 cm) piece of webbing no smaller mediately forward of the frame at ei- than 11⁄2 inch (4 cm) stretch mesh and ther the top or bottom of the net when no larger than 1 5⁄8 inch (4.2 cm) stretch the net is in its deployed position. The mesh. The 133-inch (338 cm) edge of the escape opening must be at the top of cover is attached to the forward edge of the net when the slope of the deflector the opening (83-inch (211 cm) edge) with bars from forward to aft is upward, and a sewing sequence of 3:2. The cover must be at the bottom when such slope must overlap 5 inches (13 cm) of the is downward. For a single-grid TED, exit hole on each side. The side of the the escape opening must be cut hori- cover is attached, maintaining the 5- zontally along the same plane as the inch (13 cm) overlap, to the side of the TED, and may not be cut in a fore-and- opening by sewing 28 inches (71 cm) of aft direction. the cover to 26 inches (66 cm) of the (7) Size of escape opening—(i) Hooped opening forward of the TED frame and hard TED. On a hooped hard TED, the by sewing 15 inches (38 cm) of the ex- escape opening must not be smaller tension behind the TED frame. The than 25 inches by 25 inches (63.5 cm by cover may extend no more than 24 63.5 cm) in the Gulf Area, or 30 inches inches (61 cm) behind the posterior by 30 inches (76.2 cm by 76.2 cm) in the edge of the TED frame. The circum- Atlantic Area. A door frame may not ference of the exit opening must be 142 be used over the escape opening; how- inches (361 cm) when stretched. If an ever, a webbing flap may be used as accelerator funnel is used with a sin- provided in paragraph (e)(4)(iv)(C) of gle-grid hard TED, modified as above, this section. it must have a minimum circumference (ii) Single-grid hard TED—(A) Escape of 142 inches (361 cm). opening for standard single-grid hard TED. On a single-grid hard TED, the (2) Double cover flap TED opening. A cut in the trawl webbing for the escape single-grid hard TED escape opening opening cannot be narrower than the shall be enlarged to allow leatherback outside width of the grid minus 4 turtles to escape by cutting an exit inches (10.2 cm) on both sides of the hole in the extension forward of the grid, when measured as a straight line TED frame 20 inches (51 cm) deep, on width. (Figure 13 to this part illus- each side, by 56 inches (142 cm) across. trates the dimensions of this cut.) The Excess webbing is removed by cutting resulting escape opening in the net across 1⁄2 mesh forward of the TED webbing must measure at least 32 frame. The exit hole cover is made by inches (81.3 cm) in horizontal taut cutting two equal size rectangular pan- length and, simultaneously, 10 inches els of webbing with mesh sizes no (25.4 cm) in vertical taut height in the smaller than 11⁄2 inch (4 cm) stretch Gulf Area; or 35 inches (88.9 cm) in hor- mesh and no larger than 1 5⁄8 inch (4.2 izontal taut length and, simulta- cm) stretch mesh. Each panel must be neously, 12 inches (30.5 cm) in vertical no less than 58 inches (147 cm) wide. taut height in the Atlantic Area. The The 58-inch (147 cm) edges of each panel vertical measurement must be taken at are attached to the forward edge of the the midpoint of the horizontal meas- opening (56-inch (142 cm) edge) with a urement. sewing sequence of 3:2. When both pan- (B) Escape opening for leatherback tur- els are attached, they may overlap tles—(1) Standard leatherback opening. A each other by no more than 15 inches single-grid hard TED escape opening (38 cm). The panels may only be sewn shall be enlarged to allow leatherback together along the leading edge of the turtles to escape by cutting an exit cut. The panels may not overlap the es- hole in the extension forward of the cape hole cut by more than 3 meshes on TED frame 26 inches (66 cm) deep, on either side. The outer edges of the pan- each side, by 83 inches (211 cm) across els may be attached in the same row of (Figures 12a and 12b to this part). Ex- meshes forward and aft. The end of cess webbing is removed by cutting each panel may not extend more than 6 across 1⁄2 mesh forward of the TED inches (15 cm) past the posterior edge frame. The exit hole cover is made by of the grid. Accelerator funnels and cutting a 133-inch (388 cm) by 58-inch chafing webbing may not be used with

170

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00170 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.207

this TED. (Figure 16 of this part illus- expanded polyvinyl chloride or ex- trates the escape opening and flap di- panded ethylene vinyl acetate floats, mensions for the double cover flap each no smaller than 6.75 inches (17.2 TED.) cm) in diameter by 8.75 inches (22.2 cm) (8) Size of hoop or grid—(i) Hooped in length, must be attached. hard TED. (A) An oval front hoop on a (B) For hard TEDs with a circum- hard TED must have an inside hori- ference of less than 120 inches (304.8 zontal measurement of at least 32 cm), a minimum of either one round, inches (81.3 cm) and an inside vertical aluminum or hard plastic float, no measurement of at least 20 inches (50.8 smaller than 9.8 inches (25.0 cm) in di- cm) in the Gulf Area, or an inside hori- ameter, or one expanded polyvinyl zontal measurement of at least 35 chloride or expanded ethylene vinyl ac- inches (88.9 cm) and an inside vertical etate float, no smaller than 6.75 inches measurement of at least 30 inches (76.2 (17.2 cm) in diameter by 8.75 inches cm) in the Atlantic Area. (22.2 cm) in length, must be attached. (B) A circular front hoop on a hard (ii) Float buoyancy requirements. TED must have an inside diameter of Floats of any size and in any combina- at least 32 inches (81.3 cm) in the Gulf tion must be attached such that the Area or 35 inches (88.9 cm) in the At- combined buoyancy of the floats, as lantic Area. marked on the floats, equals or exceeds (ii) Single-grid hard TED. A single- the weight of the hard TED, as marked grid hard TED must have an inside hor- on the TED. The buoyancy of the floats izontal and vertical measurement of at and the weight of the TED must be least 28 inches (71.1 cm) in the Gulf clearly marked on the floats and the Area or 30 inches (76.2 cm) in the At- TED as follows: lantic Area. The required inside meas- (A) Float buoyancy markings. Mark- urements must be at the mid-point of ings on floats must be made in clearly the deflector grid. legible raised or recessed lettering by (9) Flotation. Floats must be attached the original manufacturer. The mark- to the top one-half of all hard TEDs ing must identify the buoyancy of the with bottom escape openings. The float in water, expressed in grams or floats may be attached either outside kilograms, and must include the met- or inside the net, but not to a flap. ric unit of measure. The marking may Floats attached inside the net must be additionally include the buoyancy in behind the rear surface of the TED. English units. The marking must iden- Floats must be attached with heavy tify the nominal buoyancy for the twine or rope. Floats must be con- manufactured float. structed of aluminum, hard plastic, ex- (B) TED weight markings. The mark- panded polyvinyl chloride, or expanded ing must be made by the original TED ethylene vinyl acetate unless otherwise manufacturer and must be permanent specified. The requirements of this and clearly legible. The marking must paragraph may be satisfied by compli- identify the in-air, dry weight of the ance with either the dimension require- TED, expressed in grams or kilograms, ments of paragraph (a)(9)(i) of this sec- and must include the metric unit of tion, or the buoyancy requirements of measure. The marking may addition- paragraph (a)(9)(ii) of this section, or ally include the weight in English the buoyancy-dimension requirements units. The marked weight must rep- of paragraph (a)(9)(iii) of this section. resent the actual weight of the indi- If roller gear is used pursuant to para- vidual TED as manufactured. Pre- graph (d)(5) of this section, the roller viously manufactured TEDs may be gear must be included in the circum- marked upon return to the original ference measurement of the TED or the manufacturer. Where a TED is com- total weight of the TED. prised of multiple detachable compo- (i) Float dimension requirements. (A) nents, the weight of each component For hard TEDs with a circumference of must be separately marked. 120 inches (304.8 cm) or more, a min- (iii) Buoyancy-dimension requirements. imum of either one round, aluminum Floats of any size and in any combina- or hard plastic float, no smaller than tion, provided that they are marked 9.8 inches (25.0 cm) in diameter, or two pursuant to paragraph (a)(9)(ii)(A) of

171

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00171 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.207 50 CFR Ch. II (10–1–02 Edition)

this section, must be attached such at the bottom into two or more rectan- that the combined buoyancy of the gles, each with a maximum height of 10 floats equals or exceeds the following inches (25.4 cm) and a maximum width values: of 141⁄2 inches (36.8 cm). This TED must (A) For floats constructed of alu- comply with paragraphs (a)(2), (a)(3), minum or hard plastic, regardless of (a)(6), and (a)(7)(ii) of this section with the size of the TED grid, the combined respect to the method of attachment, buoyancy must equal or exceed 14 lb the angle of the deflector bars, the po- (6.4 kg); sition of the escape opening, and the (B) For floats constructed of ex- size of the escape opening, except that panded polyvinyl chloride or expanded the deflector bars must be positioned ethylene vinyl acetate, where the cir- in the net to deflect turtles to the es- cumference of the TED is 120 inches cape opening in the top of the trawl. (304.8 cm) or more, the combined buoy- This TED may not be configured with a ancy must equal or exceed 20 lb (9.1 bottom escape opening. Installation of kg); or an accelerator funnel is not permitted (C) For floats constructed of ex- with this TED. panded polyvinyl chloride or expanded (2) Jones TED (Figure 11 to this part). ethylene vinyl acetate, where the cir- The Jones TED must be constructed of cumference of the TED is less than 120 at least 11⁄4 inch (3.2 cm) outside diame- inches (304.8 cm), the combined buoy- ter aluminum or steel pipe, and the ancy must equal or exceed 10 lb (4.5 pipe must have a wall thickness of at kg). least 1⁄8 inch (0.3 cm). It must be gen- (b) Special Hard TEDs. Special hard erally oval in shape with a flattened TEDs are hard TEDs which do not meet bottom. The deflector bars must be at- all of the design and construction cri- tached to the frame at a 45° angle from teria of the generic standards specified the horizontal positioning downward in paragraph (a) of this section. The and each bar must be attached at only following special hard TEDs are ap- one end to the frame. The deflector proved TEDs: bars must be attached and lie in the (1) Flounder TED (Figure 10 to this same plane as the frame. The space be- part). The Flounder TED is approved tween the ends of the bottom deflector for use only in the Atlantic summer bars and the bottom frame bar must be flounder bottom trawl fishery. The no more than 3 inches (7.6 cm). The Flounder TED is not an approved TED spacing between the bottom three de- for use by shrimp trawlers. The Floun- flector bars on each side must be no der TED must be constructed of at greater than 21⁄2 inches (6.4 cm). The least 11⁄4 inch (3.2 cm) outside diameter spacing between all other deflector aluminum or steel pipe with a wall bars must not exceed 31⁄2 inches (8.9 cm) thickness of at least 1⁄8 inch (0.3 cm). It and spacing between ends of opposing must have a rectangular frame with deflector bars also must not exceed 31⁄2 outside dimensions which can be no inches (8.9 cm). This TED must comply less than 51 inches (129.5 cm) in length with paragraphs (a)(2), (a)(3), (a)(6), and 32 inches (81.3 cm) in width. It (a)(7)(ii), (a)(8)(ii), and (a)(9) of this sec- must have at least five vertical deflec- tion with respect to the method of attor bars, with bar spacings of no more tachment, the angle of the deflector than 4 inches (10.2 cm). The vertical bars, the position of the escape open- bars must be connected to the top of ing, the size of the escape opening, the the frame and to a single horizontal size of the grid, and flotation. bar near the bottom. The horizontal (c) Soft TEDs. Soft TEDs are TEDs bar must be connected at both ends to with deflector panels made from poly- the sides of the frame and parallel to propylene or polyethylene netting. The the bottom bar of the frame. There following soft TEDs are approved must be a space no larger than 10 TEDs: inches (25.4 cm) between the horizontal (1) Parker TED. The Parker TED is a bar and the bottom bar of the frame. soft TED, consisting of a single tri- One or more additional vertical bars angular panel, composed of webbing of running from the bottom bar to the two different mesh sizes, that forms a horizontal bar must divide the opening complete barrier inside a trawl and

172

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00172 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.207

that angles toward an escape opening across a straight row of meshes. For a in the top of the trawl. two-seam trawl or a four-seam, ta- (i) Excluder Panel. (Figure 5 to this pered-wing trawl, the row of meshes for part) The excluder panel of the Parker attachment to the trawl must run the TED must be constructed of a single entire width of the bottom body panel, triangular piece of 8-inch (20.3 cm) from seam to seam. For a four-seam, stretched mesh webbing and two trape- straight-wing trawl, the row of meshes zoidal pieces of 4-inch (10.2-cm) for attachment to the trawl must run stretched mesh webbing. The webbing the entire width of the bottom body must consist of number 48 (3-mm thick) panel and half the height of each wing or larger polypropylene or poly- panel of the trawl. Every mesh of the ethylene webbing that is heat-set knot- leading edge of the excluder panel must ted or braided. The leading edge of the be evenly sewn to this row of meshes; 8-inch (20.3-cm) mesh panel must be 36 meshes may not be laced to the trawl. meshes wide. The 8-inch (20.3-cm) mesh The row of meshes for attachment to panel must be tapered on each side the trawl must contain the following with all-bar cuts to converge on an number of meshes, depending on the apex, such that the length of each side stretched mesh size used in the trawl: is 36 bars. The leading edges of the 4- (1) For a mesh size of 21⁄4 inches (5.7 inch (10.2-cm) mesh panels must be 8 cm), 152–168 meshes; meshes wide. The edges of the 4-inch (2) For a mesh size of 21⁄8 inches (5.4 (10.2-cm) mesh panels must be cut with cm), 161–178 meshes; all-bar cuts running parallel to each (3) For a mesh size of 2 inches (5.1 other, such that the length of the inner cm), 171–189 meshes; edge is 72 bars and the length of the (4) For a mesh size of 17⁄8 inches (4.8 outer edge is 89 bars and the resulting cm), 182–202 meshes; fore-and-aft edge is 8 meshes deep. The (5) For a mesh size of 13⁄4 inches (4.4 two 4-inch (10.2-cm) mesh panels must cm), 196–216 meshes; be sewn to the 8-inch (20.3-cm) mesh (6) For a mesh size of 15⁄8 inches (4.1 panel to create a single triangular ex- cm), 211–233 meshes; cluder panel. The 72-bar edge of each 4- (7) For a mesh size of 11⁄2 inches (3.8 inch (10.2-cm) mesh panel must be se- cm), 228–252 meshes; curely joined with twine to one of the (8) For a mesh size of 13⁄8 inches (3.5 36-bar edges of the 8-inch (20.3-cm) cm), 249–275 meshes; and mesh panel, tied with knots at each (9) For a mesh size of 11⁄4 inches (3.2 knot of the 4-inch (10.2-cm) webbing cm), 274–302 meshes. and at least two wraps of twine around (B) Apex attachment. The apex of the each bar of 4-inch (10.2-cm) mesh and triangular excluder panel must be at- the adjoining bar of the 8-inch (20.3-cm) tached to the inside of the top body mesh. The adjoining fore-and-aft edges panel of the trawl at the centerline of of the two 4-inch (10.2-cm) mesh panels the trawl. The distance, measured aft must be sewn together evenly. along the centerline of the top body (ii) Limitations on which trawls may panel from the same row of meshes for have a Parker TED installed. The Parker attachment of the excluder panel to TED must not be installed or used in a the bottom body panel of the trawl, to two-seam trawl with a tongue, nor in a the apex attachment point must con- triple-wing trawl (a trawl with a tain the following number of meshes, tongue along the headrope and a sec- depending on the stretched mesh size ond tongue along the footrope). The used in the trawl: Parker TED may be installed and used (1) For a mesh size of 21⁄4 inches (5.7 in any other trawl if the taper of the cm), 78–83 meshes; body panels of the trawl does not ex- (2) For a mesh size of 21⁄8 inches (5.4 ceed 4b1p and if it can be properly in- cm), 83–88 meshes; stalled in compliance with paragraph (3) For a mesh size of 2 inches (5.1 (c)(1)(iii) of this section. cm), 87–93 meshes; (iii) Panel installation—(A) Leading (4) For a mesh size of 17⁄8 inches (4.8 edge attachment. The leading edge of cm), 93–99 meshes; the excluder panel must be attached to (5) For a mesh size of 13⁄4 inches (4.4 the inside of the bottom of the trawl cm), 100–106 meshes;

173

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00173 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.207 50 CFR Ch. II (10–1–02 Edition)

(6) For a mesh size of 15⁄8 inches (4.1 rear point of the escape opening. One cm), 107–114 meshes; row of steel chain not larger than 3⁄16 (7) For a mesh size of 11⁄2 inches (3.8 inch (4.76 mm) may be sewn evenly to cm), 114–124 meshes; the back edge of the flap. The stretched (8) For a mesh size of 13⁄8 inches (3.5 length of the chain must not exceed 96 cm), 127–135 meshes; and inches (244 cm). A Parker TED using (9) For a mesh size of 11⁄4 inches (3.2 the escape opening described in this cm), 137–146 meshes. paragraph meets the requirements of (C) Side attachment. The sides of the § 223.206(d)(2)(iv)(B). excluder panel must be attached evenly (2) [Reserved] to the inside of the trawl from the out- (d) Allowable modifications to hard side attachment points of the excluder TEDs and special hard TEDs. Unless panel’s leading edge to the apex of the otherwise prohibited in paragraph (b) excluder panel. Each side must be sewn of this section, only the following with the same sewing sequence, and, if modifications may be made to an ap- the sides of the excluder panel cross proved hard TED or an approved spe- rows of bars in the trawl, the crossings cial hard TED: must be distributed evenly over the (1) Floats. In addition to floats re- length of the side attachment. quired pursuant to paragraph (a)(9) of (iv) Escape opening. The escape open- this section, floats may be attached to ing for the Parker soft TED must the top one-half of the TED, either out- match one of the following specifica- side or inside the net, but not to a flap. tions: Floats attached inside the net must be (A) Longitudinal cut. A slit at least 56 behind the rear surface at the top of inches (1.4 m) in taut length must be the TED. cut along the centerline of the top (2) Accelerator funnel. An accelerator body panel of the trawl net imme- funnel may be installed in the trawl, if diately forward of the apex of the panel it is made of net webbing material with webbing. The slit must not be covered a stretched mesh size not greater than or closed in any manner. The edges and 15⁄8 inches (4.1 cm), if it has an inside end points of the slit must not be rein- horizontal opening of at least 39 inches forced in any way; for example, by at- (99.1 cm) when measured in a taut posi- taching additional rope or webbing or tion, if it is inserted in the net imme- by changing the orientation of the web- diately forward of the TED, and if its bing. rear edge does not extend past the bars (B) Leatherback escape opening. A hor- of the TED. The trailing edge of the ac- izontal cut extending from the attach- celerator funnel may be attached to ment of one side of the deflector panel the TED on the side opposite the es- to the trawl to the attachment of the cape opening if not more than 1⁄3 of the other side of the deflector panel to the circumference of the funnel is at- trawl must be made in a single row of tached, and if the inside horizontal meshes across the top of the trawl and opening of at least 39 inches (99.1 cm) is measure at least 96 inches (244 cm) in maintained. In a bottom-opening TED, taut width. All trawl webbing above only the top 1⁄3 of the circumference of the deflector panel between the 96-inch the funnel may be attached to the (244-cm) cut and edges of the deflector TED. In a top-opening TED, only the panel must be removed. A rectangular bottom 1⁄3 of the circumference of the flap of nylon webbing not larger than 2- funnel may be attached to the TED. inch (5.1-cm) stretched mesh may be (3) Webbing flap. A webbing flap may sewn to the forward edge of the escape be used to cover the escape opening opening. The width of the flap must under the following conditions: No de- not be larger than the width of the for- vice holds it closed or otherwise re- ward edge of the escape opening. The stricts the opening; it is constructed of flap must not extend more than 12 webbing with a stretched mesh size no inches (30.4 cm) beyond the rear point larger than 15⁄8 inches (4.1 cm); it lies of the escape opening. The sides of the on the outside of the trawl; it is at- flap may be attached to the top of the tached along its entire forward edge trawl but must not be attached farther forward of the escape opening; it is not aft than the row of meshes through the attached on the sides beyond the row of

174

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00174 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 223.207

meshes that lies 6 inches (15.2 cm) be- front face of the grid. The axle rod and hind the posterior edge of the grid; and support rods must lie entirely behind it does not extend more than 24 inches the plane of the face of the TED grid. (61.0 cm) beyond the posterior edge of (ii) A single roller consisting of hard the grid, except for trawlers fishing in plastic tubing shall be tightly tied to the Gulf SFSTCA or Atlantic SFSTCA the back face of the TED grid with rope with a hard TED with the position of or heavy twine passed through the cen- the escape opening at the bottom of ter of the roller tubing. The roller shall the net when the net is in its deployed lie flush against the TED. The max- position, in which case the webbing imum outside diameter of the roller flap must not extend beyond the pos- shall be 31⁄2 inches (8.0 cm), the min- terior edge of the grid. imum outside diameter of the roller (4) Chafing webbing. A single piece of shall be 2 inches (5.1 cm), and the max- nylon webbing, with a twine size no imum length of the roller shall be 12 smaller than size 36 (2.46 mm in diame- inches (30.4 cm). The roller must lie enter), may be attached outside of the es- tirely behind the plane of the face of cape opening webbing flap to prevent the grid. chafing on bottom opening TEDs. This (e) Revision of generic design criteria, webbing may be attached along its and approval of TEDs, of allowable modi- leading edge only. This webbing may fications of hard TEDs, and of special not extend beyond the trailing edge or hard TEDs. (1) The Assistant Adminis- sides of the existing escape opening trator may revise the generic design webbing flap, and it must not interfere criteria for hard TEDs set forth in or otherwise restrict the turtle escape paragraph (a) of this section, may ap- opening. prove special hard TEDs in addition to (5) Roller gear. Roller gear may be at- those listed in paragraph (b) of this tached to the bottom of a TED to pre- section, may approve allowable modi- vent chafing on the bottom of the TED fications to hard TEDs in addition to and the trawl net. When a webbing flap those authorized in paragraph (d) of is used in conjunction with roller gear, this section, or may approve other the webbing flap must be of a length TEDs, by regulatory amendment, if, such that no part of the webbing flap according to a NMFS-approved sci- can touch or come in contact with any entific protocol, the TED demonstrates part of the roller gear assembly or the a sea turtle exclusion rate of 97 percent means of attachment of the roller gear or greater (or an equivalent exclusion assembly to the TED, when the trawl rate). Two such protocols have been net is in its normal, horizontal posi- published by NMFS (52 FR 24262, June tion. Roller gear must be constructed 29, 1987; and 55 FR 41092, October 9, according to one of the following de- 1990) and will be used only for testing sign criteria: relating to hard TED designs. Testing (i) A single roller consisting of hard under any protocol must be conducted plastic shall be mounted on an axle under the supervision of the Assistant rod, so that the roller can roll freely Administrator, and shall be subject to about the axle. The maximum diame- all such conditions and restrictions as ter of the roller shall be 6 inches (15.24 the Assistant Administrator deems ap- cm), and the maximum width of the propriate. Any person wishing to par- axle rod shall be 12 inches (30.4 cm). ticipate in such testing should contact The axle rod must be attached to the the Director, Southeast Fisheries TED by two support rods. The max- Science Center, NMFS, 75 Virginia imum clearance between the roller and Beach Dr., Miami, FL 33149–1003. the TED shall not exceed 1 inch (2.5 (2) Upon application, the Assistant cm) at the center of the roller. The Administrator may issue permits, sub- support rods and axle rod must be ject to such conditions and restrictions made from solid steel or solid alu- as the Assistant Administrator deems minum rod no larger than 1⁄2 inch (1.28 appropriate, authorizing public or pri- cm) in diameter. The attachment of vate experimentation aimed at improv- the support rods to the TED shall be ing shrimp retention efficiency of ex- such that there are no protrusions isting approved TEDs and at devel- (lips, sharp edges, burrs, etc.) on the oping additional TEDs, or conducting

175

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00175 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T § 223.209 50 CFR Ch. II (10–1–02 Edition)

fishery research, that would otherwise (b) Consideration of a Tribal Plan. (1) A be subject to § 223.206(d)(2). Applica- Tribal Plan may include but is not lim- tions should be made to the Southeast ited to plans that address fishery har- Regional Administrator (see § 222.102 vest, artificial production, research, or definition of ‘‘Southeast Regional Ad- water or land management, and may be ministrator’’). developed by one tribe or jointly with [64 FR 14073, Mar. 23, 1999, as amended at 64 other tribes. The Secretary will con- FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; sult on a government-to-government 66 FR 24288, May 14, 2001] basis with any tribe that so requests EFFECTIVE DATE NOTE: At 64 FR 14073, Mar. and will provide to the maximum ex- 23, 1999, § 223.207 was added. Paragraphs tent practicable technical assistance in (a)(9)(ii) (A) and (B) contain information col- examining impacts on listed salmonids lection requirements and will not become ef- and other salmonids as tribes develop fective until approved by the Office of Man- agement and Budget. Tribal resource management plans that meet the management responsibilities § 223.209 Tribal plans. and needs of the tribes. A Tribal Plan (a) Limits on the prohibitions. The pro- must specify the procedures by which hibitions of § 223.203(a) of this subpart the tribe will enforce its provisions. relating to threatened species of (2) Where there exists a Federal court salmonids listed in § 223.102 do not proceeding with continuing jurisdic- apply to any activity undertaken by a tion over the subject matter of a Tribal tribe, tribal member, tribal permittee, Plan, the plan may be developed and tribal employee, or tribal agent in implemented within the ongoing Fed- compliance with a Tribal resource eral Court proceeding. In such cir- management plan (Tribal Plan), pro- cumstances, compliance with the Trib- vided that the Secretary determines al Plan’s terms shall be determined that implementation of such Tribal within that Federal Court proceeding. Plan will not appreciably reduce the (3) The Secretary shall seek com- likelihood of survival and recovery of ment from the public on the Sec- the listed salmonids. In making that retary’s pending determination wheth- determination the Secretary shall use er or not implementation of a Tribal the best available biological data Plan will appreciably reduce the likeli- (including any tribal data and analysis) hood of survival and recovery of the to determine the Tribal Plan’s impact listed salmonids. on the biological requirements of the (4) The Secretary shall publish notifi- species, and will assess the effect of the cation in the FEDERAL REGISTER of any Tribal Plan on survival and recovery, determination regarding a Tribal Plan consistent with legally enforceable and the basis for that determination. tribal rights and with the Secretary’s trust responsibilities to tribes. [65 FR 42485, July 10, 2000]

FIGURE 1 TO PART 223—NMFS TED

[60 FR 15519, Mar. 24, 1995]

176

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00176 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.045 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 3

FIGURE 2 TO PART 223—CAMERON TED

[52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

FIGURE 3 TO PART 223—MATAGORDA TED

[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

177

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00177 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.046 EC01JY91.047 Pt. 223, Fig. 4 50 CFR Ch. II (10–1–02 Edition)

FIGURE 4 TO PART 223—GEORGIA TED

[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]

178

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00178 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.048 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 5

FIGURE 5 TO PART 223—NET DIAGRAM FOR THE EXCLUDER PANEL OF THE PARKER SOFT TED

[63 FR 17958, Apr. 13, 1998]

179

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00179 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER13AP98.001 Pt. 223, Fig. 6 50 CFR Ch. II (10–1–02 Edition)

FIGURE 6 TO PART 223—TED EXTENSION IN SUMMER FLOUNDER TRAWL

[64 FR 55864, Oct. 15, 1999]

FIGURES 7–9b TO PART 223 [RESERVED]

180

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00180 Fmt 8010 Sfmt 8002 Y:\SGML\197209T.XXX 197209T ER15OC99.001 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 10

FIGURE 10 TO PART 223—FLOUNDER TED

[58 FR 54069, Oct. 20, 1993]

181

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00181 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.056 Pt. 223, Fig. 11 50 CFR Ch. II (10–1–02 Edition)

FIGURE 11 TO PART 223—JONES TED

[58 FR 54070, Oct. 20, 1993]

182

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00182 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.057 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 12a

FIGURE 12a TO PART 223—ATTACHMENT OF THE EXIT HOLE COVER

[59 FR 25830, May 18, 1994]

183

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00183 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.058 Pt. 223, Fig. 12b 50 CFR Ch. II (10–1–02 Edition)

FIGURE 12b TO PART 223—GRID TED LEATHERBACK MODIFICATION

[59 FR 25831, May 18, 1994]

184

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00184 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.059 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 13

FIGURE 13 TO PART 223—SINGLE GRID HARD TED ESCAPE OPENING

[60 FR 15520, Mar. 24, 1995]

185

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00185 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.060 Pt. 223, Figs. 14a and 14b 50 CFR Ch. II (10–1–02 Edition)

FIGURES 14a AND 14b TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH STRAIGHT BARS ATTACHED TO THE BOTTOM OF THE FRAME AND MAXIMUM ANGLE OF DEFLECTOR BARS WITH BENT BARS ATTACHED TO THE BOTTOM OF THE FRAME

[61 FR 66946, Dec. 19, 1996]

186

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00186 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER19DE96.002 National Marine Fisheries Service/NOAA, Commerce Pt. 223, Fig. 15

FIGURE 15 TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH BARS UNATTACHED TO THE BOTTOM OF THE FRAME

[61 FR 66947, Dec. 19, 1996]

187

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00187 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER19DE96.003 Pt. 223, Fig. 16 50 CFR Ch. II (10–1–02 Edition)

FIGURE 16 TO PART 223—ESCAPE OPENING AND FLAP DIMENSIONS FOR THE DOUBLE COVER FLAP TED

[66 FR 24289, May 14, 2001]

188

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00188 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER14MY01.006 National Marine Fisheries Service/NOAA, Commerce § 224.101

PART 224—ENDANGERED MARINE egon side) and the west end of the Pea- AND ANADROMOUS SPECIES cock jetty (north jetty, Washington side) upstream to Chief Joseph Dam in Sec. Washington, and the Chiwawa River 224.101 Enumeration of endangered marine (spring run), Methow River (spring and anadromous species. run), Twisp River (spring run), 224.102 Permits for endangered marine and Chewuch River (spring run), White anadromous species. River (spring run), and Nason Creek 224.103 Special prohibitions for endangered marine mammals. (spring run) hatchery stocks (and their 224.104 Special requirements for fishing ac- progeny); Sacramento River winter-run tivities to protect endangered sea tur- chinook salmon (Oncorhynchus tles. tshawytscha). AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C. (b) Marine mammals. Blue whale 1361 et seq. (Balaenoptera musculus); Bowhead whale (Balaena mysticetus); Caribbean SOURCE: 64 FR 14066, Mar. 23, 1999, unless otherwise noted. monk seal (Monachus tropicalis); Chi- nese river dolphin (Lipotes vexillifer); § 224.101 Enumeration of endangered Cochito (Phocoena sinus); Fin or marine and anadromous species. finback whale (Balaenoptera physalus); The marine and anadromous species Hawaiian monk seal (Monachus determined by the Secretary of Com- schauinslandi); Humpback whale merce to be endangered pursuant to (Megaptera novaeangliae); Indus River section 4(a) of the Act, as well as spe- dolphin (Platanista minor); Mediterra- cies listed under the Endangered Spe- nean monk seal (Monachus monachus); cies Conservation Act of 1969 by the Right whales (Eubalaena spp.); Saimaa Secretary of the Interior and currently seal (Phoca hispida saimensis); Sei whale under the jurisdiction of the Secretary (Balaenoptera borealis); Sperm whale of Commerce, are the following: (Physeter catodon); Western North Pa- (a) Marine and anadromous fish. cific (Korean) gray whale (Eschrichtius Shortnose sturgeon (Acipenser robustus); Steller sea lion, western pop- brevirostrum); Totoaba (Cynoscian ulation, (Eumetopias jubatus), which macdonaldi); Snake River sockeye consists of Stellar sea lions from breed- salmon (Oncorhynchus nerka); Southern ing colonies located west of 144° W. lon- California steelhead (Oncorhynchus gitude. mykiss), which includes all naturally spawned populations of steelhead (and (c) Sea turtles. Green turtle (Chelonia their progeny) in streams from the mydas) breeding colony populations in Santa Maria River, San Luis Obispo Florida and on the Pacific coast of County, CA (inclusive) to the U.S. - Mexico; Hawksbill turtle (Eretmochelys Mexico Border; Upper Columbia River imbricata); Kemp’s ridley turtle steelhead (Oncorhynchus mykiss), in- (Lepidochelys kempii); Leatherback tur- cluding the Wells Hatchery stock and tle (Dermochelys coriacea); Olive ridley all naturally spawned populations of turtle (Lepidochelys olivacea) breeding steelhead (and their progeny) in colony population on the Pacific coast streams in the Columbia River Basin of Mexico. upstream from the Yakima River, Washington, to the U.S. - Canada Bor- NOTE TO § 224.101(C): Jurisdiction for sea turtles by the Department of Commerce, Na- der; Upper Columbia River spring-run tional Oceanic and Atmospheric Administra- chinook salmon (Oncorhynchus tion, National Marine Fisheries Service, is tshawytscha), including all naturally limited to turtles while in the water. spawned populations of chinook salmon (d) Marine invertebrates. White aba- in Columbia River tributaries up- lone (Haliotis sorenseni). stream of the Rock Island Dam and downstream of Chief Joseph Dam in [64 FR 14066, Mar. 23, 1999, as amended 64 FR Washington (excluding the Okanogan 14328, Mar. 24, 1999; 65 FR 20918, Apr. 19, 2000; River), the Columbia River from a 65 FR 69481, Nov. 17, 2000; 66 FR 29055, May 29, straight line connecting the west end 2001; 67 FR 21598, May 1, 2002] of the Clatsop jetty (south jetty, Or-

189

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 224.102 50 CFR Ch. II (10–1–02 Edition)

§ 224.102 Permits for endangered ma- within inland waters of the state, any rine and anadromous species. of the acts in paragraphs (b)(1)(i) No person shall take, import, export, through (b)(1)(iii) of this section with or engage in any activity prohibited by respect to humpback whales (Megaptera section 9 of the Act involving any ma- novaeangliae): rine species that has been determined (i) Approach, by any means, includ- to be endangered under the Endangered ing by interception (i.e., placing a ves- Species Conservation Act of 1969 or the sel in the path of an oncoming hump- Act, and that is under the jurisdiction back whale so that the whale surfaces of the Secretary, without a valid per- within 100 yards (91.4 m) of the vessel), mit issued pursuant to part 222, sub- within 100 yards (91.4 m) of any hump- part C of this chapter. back whale; (ii) Cause a vessel or other object to § 224.103 Special prohibitions for en- approach within 100 yards (91.4 m) of a dangered marine mammals. humpback whale; or (a) Approaching humpback whales in (iii) Disrupt the normal behavior or Hawaii. Except as provided in part 222, prior activity of a whale by any other subpart C, of this chapter (General Per- act or omission, as described in para- mit Procedures), it is unlawful for any graph (a)(4) of this section. person subject to the jurisdiction of (2) Exceptions. The following excep- the United States to commit, to at- tions apply to this paragraph (b), but tempt to commit, to solicit another to any person who claims the applica- commit, or to cause to be committed, bility of an exception has the burden of within 200 nautical miles (370.4 km) of proving that the exception applies: the Islands of Hawaii, any of the fol- (i) Paragraph (b)(1) of this section lowing acts with respect to humpback does not apply if an approach is au- whales ( ): Megaptera novaeangliae thorized by the National Marine Fish- (1) Operate any aircraft within 1,000 eries Service through a permit issued feet (300 m) of any humpback whale; under part 222, subpart C, of this chap- (2) Approach, by any means, within ter (General Permit Procedures) or 100 yard (90 m) of any humpback whale; through a similar authorization. (3) Cause a vessel or other object to approach within 100 yd (90 m) of a (ii) Paragraph (b)(1) of this section humpback whale; or does not apply to the extent that a ves- (4) Disrupt the normal behavior or sel is restricted in her ability to ma- prior activity of a whale by any other neuver and, because of the restriction, act or omission. A disruption of normal cannot comply with paragraph (b)(1) of behavior may be manifested by, among this section. other actions on the part of the whale, (iii) Paragraph (b)(1) of this section a rapid change in direction or speed; es- does not apply to commercial fishing cape tactics such as prolonged diving, vessels lawfully engaged in actively underwater course changes, underwater setting, retrieving or closely tending exhalation, or evasive swimming pat- commercial fishing gear. For purposes terns; interruptions of breeding, nurs- of this paragraph (b), commercial fishing, or resting activities, attempts by a ing means taking or harvesting fish or whale to shield a calf from a vessel or fishery resources to sell, barter, or human observer by tail swishing or by trade. Commercial fishing does not in- other protective movement; or the clude commercial passenger fishing op- abandonment of a previously fre- erations (i.e. charter operations or quented area. sport fishing activities). (b) Approaching humpback whales in (iv) Paragraph (b)(1) of this section Alaska—(1) Prohibitions. Except as pro- does not apply to state, local, or Fed- vided under paragraph (b)(2) of this sec- eral government vessels operating in tion, it is unlawful for any person sub- the course of official duty. ject to the jurisdiction of the United (v) Paragraph (b)(1) of this section States to commit, to attempt to com- does not affect the rights of Alaska Na- mit, to solicit another to commit, or to tives under 16 U.S.C. 1539(e). cause to be committed, within 200 nau- (vi) These regulations shall not take tical miles (370.4 km) of Alaska, or precedence over any more restrictive

190

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 224.104

conflicting Federal regulation per- of this chapter (General Permit Proce- taining to humpback whales, including dures) or through a similar authoriza- the regulations at 36 CFR 13.65 that tion. pertain specifically to the waters of (ii) Paragraphs (b)(1) and (b)(2) of this Glacier Bay National Park and Pre- section do not apply where compliance serve. would create an imminent and serious (3) General measures. Notwithstanding threat to a person, vessel, or aircraft. the prohibitions and exceptions in (iii) Paragraphs (b)(1) and (b)(2) of paragraphs (b)(1) and (2) of this section, this section do not apply when ap- to avoid collisions with humpback proaching to investigate a right whale whales, vessels must operate at a slow, entanglement or injury, or to assist in safe speed when near a humpback the disentanglement or rescue of a whale. ‘‘Safe speed’’ has the same right whale, provided that permission meaning as the term is defined in 33 is received from the National Marine U.S.C. 2006 and the International Regu- Fisheries Service or designee prior to lations for Preventing Collisions at Sea the approach. 1972 (see 33 U.S.C. 1602), with respect to (iv) Paragraphs (b)(1) and (b)(2) of avoiding collisions with humpback this section do not apply to an aircraft whales. unless the aircraft is conducting whale (c) Approaching North Atlantic right watch activities. whales—(1) Prohibitions. Except as pro- (v) Paragraph (b)(2) of this section vided under paragraph (b)(3) of this sec- does not apply to the extent that a ves- tion, it is unlawful for any person sub- sel is restricted in her ability to ma- ject to the jurisdiction of the United neuver and, because of the restriction, States to commit, attempt to commit, cannot comply with paragraph (b)(2) of to solicit another to commit, or cause this section. to be committed any of the following (d) Special prohibitions relating to en- acts: dangered Steller sea lion protection. The (i) Approach (including by intercep- regulatory provisions set forth in part tion) within 500 yards (460 m) of a right 223 of this chapter, which govern whale by vessel, aircraft, or any other threatened Steller sea lions, shall also means; apply to the western population of (ii) Fail to undertake required right Steller sea lions, which consists of all whale avoidance measures specified Steller sea lions from breeding colonies under paragraph (b)(2) of this section. located west of 144° W. long. (2) Right whale avoidance measures. [64 FR 14066, Mar. 23, 1999, as amended at 66 Except as provided under paragraph FR 29509, May 31, 2001] (b)(3) of this section, the following avoidance measures must be taken if § 224.104 Special requirements for within 500 yards (460 m) of a right fishing activities to protect endan- whale: gered sea turtles. (i) If underway, a vessel must steer a (a) Shrimp fishermen in the south- course away from the right whale and eastern United States and the Gulf of immediately leave the area at a slow Mexico who comply with rules for safe speed. threatened sea turtles specified in (ii) An aircraft must take a course § 223.206 of this chapter will not be sub- away from the right whale and imme- ject to civil penalties under the Act for diately leave the area at a constant incidental captures of endangered sea airspeed. turtles by shrimp trawl gear. (3) Exceptions. The following excep- (b) Summer flounder fishermen in tions apply to this section, but any the Summer flounder fishery-sea turtle person who claims the applicability of protection area who comply with rules an exception has the burden of proving for threatened sea turtles specified in that the exception applies: § 223.206 of this chapter will not be sub- (i) Paragraphs (b)(1) and (b)(2) of this ject to civil penalties under the Act for section do not apply if a right whale incidental captures of endangered sea approach is authorized by the National turtles by summer flounder gear. Marine Fisheries Service through a (c) Special prohibitions relating to permit issued under part 222, subpart C, leatherback sea turtles are provided at

191

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 226 50 CFR Ch. II (10–1–02 Edition)

§ 223.206 (d)(2)(iv) and § 223.206 (d)(6) of AND DAMS/RESERVOIRS REPRESENTING THE this chapter. UPSTREAM EXTENT OF CRITICAL HABITAT (d) Special handling and resuscita- TABLE 7 TO PART 226—HYDROLOGIC UNITS AND tion requirements are specified at COUNTIES CONTAINING CRITICAL HABITAT § 223.206 (d)(1). FOR PUGET SOUND CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UP- [64 FR 14066, Mar. 23, 1999, as amended at 66 STREAM EXTENT OF CRITICAL HABITAT. FR 44552, Aug. 24, 2001; 66 FR 67496, Dec. 31, TABLE 8 TO PART 226 —HYDROLOGIC UNITS AND 2001] COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER CHINOOK PART 225 [Reserved] SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. PART 226—DESIGNATED CRITICAL TABLE 9 TO PART 226 —HYDROLOGIC UNITS AND HABITAT COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER CHINOOK Sec. SALMON, AND DAMS/RESERVOIRS REP- 226.101 Purpose and scope. RESENTING THE UPSTREAM EXTENT OF 226.201 Critical habitat for Hawaiian monk CRITICAL HABITAT. seals. TABLE 10 TO PART 226—HYDROLOGIC UNITS 226.202 Critical habitat for Steller sea lions. AND COUNTIES CONTAINING CRITICAL HABI- 226.203 Critical habitat for Northern right TAT FOR UPPER COLUMBIA RIVER SPRING- whales. RUN CHINOOK SALMON, AND DAMS/RES- 226.204 Critical habitat for Sacramento win- ERVOIRS REPRESENTING THE UPSTREAM ter-run chinook salmon. EXTENT OF CRITICAL HABITAT. 226.205 Critical habitat for Snake River TABLE 11 TO PART 226—HYDROLOGIC UNITS sockeye salmon, Snake River fall chi- AND COUNTIES CONTAINING CRITICAL HABI- nook salmon, and Snake River spring/ TAT FOR CENTRAL VALLEY CALIFORNIA summer chinook salmon. SPRING-RUN CHINOOK SALMON, AND DAMS/ 226.206 [Reserved] RESERVOIRS REPRESENTING THE UP- 226.207 Critical habitat for leatherback tur- STREAM EXTENT OF CRITICAL HABITAT. tle. TABLE 12 TO PART 226 —HYDROLOGIC UNITS 226.208 Critical habitat for green turtle. AND COUNTIES CONTAINING CRITICAL HABI- 226.209 Critical habitat for hawksbill turtle. TAT FOR CALIFORNIA COASTAL CHINOOK 226.210 Central California Coast Coho Salm- SALMON, AND DAMS/RESERVOIRS REP- on (Oncorhynchus kisutch), Southern Or- RESENTING THE UPSTREAM EXTENT OF egon/Northern California Coasts Coho CRITICAL HABITAT. Salmon (Oncorhynchus kisutch). 226.212 Critical habitat designation for 19 TABLE 13 TO PART 226—HYDROLOGIC UNITS evolutionary significant units of salmon AND COUNTIES CONTAINING CRITICAL HABI- and steelhead in Washington, Oregon, TAT FOR HOOD CANAL SUMMER-RUN CHUM Idaho, and California. SALMON, AND DAMS/RESERVOIRS REP- 226.213 Critical habitat for Johnson’s RESENTING THE UPSTREAM EXTENT OF seagrass. CRITICAL HABITAT. TABLE 14 TO PART 226—HYDROLOGIC UNITS TABLE 1 TO PART 226—MAJOR STELLER SEA AND COUNTIES CONTAINING CRITICAL HABI- LION ROOKERY SITES TAT FOR COLUMBIA RIVER CHUM SALMON, TABLE 2 TO PART 226—MAJOR STELLER SEA AND DAMS/RESERVOIRS REPRESENTING THE LION HAULOUT SITES IN ALASKA UPSTREAM EXTENT OF CRITICAL HABITAT. TABLE 3 TO PART 226—HYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE TABLE 15 TO PART 226—HYDROLOGIC UNITS RIVER SOCKEYE SALMON AND SNAKE RIVER AND COUNTIES CONTAINING CRITICAL HABI- SPRING/SUMMER AND FALL CHINOOK SALM- TAT FOR OREGON COAST COHO SALMON, ON AND DAMS/RESERVOIRS REPRESENTING THE TABLE 4 TO PART 226 [RESERVED] UPSTREAM EXTENT OF CRITICAL HABITAT. TABLE 5 TO PART 226—HYDROLOGIC UNITS AND TABLE 16 TO PART 226—HYDROLOGIC UNITS COUNTIES CONTAINING CRITICAL HABITAT AND COUNTIES CONTAINING CRITICAL HABI- FOR CENTRAL CALIFORNIA COAST COHO TAT FOR SOUTHERN CALIFORNIA SALMON, TRIBAL LANDS WITHIN THE STEELHEAD, AND DAMS/RESERVOIRS REP- RANGE OF THE ESU, AND DAMS/RES- RESENTING THE UPSTREAM EXTENT OF ERVOIRS REPRESENTING THE UPSTREAM CRITICAL HABITAT. EXTENT OF CRITICAL HABITAT TABLE 17 TO PART 226.—HYDROLOGIC UNITS TABLE 6 TO PART 226—HYDROLOGIC UNITS AND AND COUNTIES CONTAINING CRITICAL HABI- COUNTIES CONTAINING CRITICAL HABITAT TAT FOR SOUTH-CENTRAL CALIFORNIA FOR SOUTHERN OREGON/NORTHERN CALI- COAST STEELHEAD, AND DAMS/RESERVOIRS FORNIA COASTS COHO SALMON, TRIBAL REPRESENTING THE UPSTREAM EXTENT OF LANDS WITHIN THE RANGE OF THE ESU, CRITICAL HABITAT.

192

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.201

TABLE 18 TO PART 226—HYDROLOGIC UNITS dangered and threatened species under AND COUNTIES CONTAINING CRITICAL HABI- the jurisdiction of the Secretary of TAT FOR CENTRAL CALIFORNIA COAST Commerce. Those species are enumer- STEELHEAD, AND DAMS/RESERVOIRS REP- ated at § 223.102 of this chapter, if RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. threatened and at § 224.101 of this chap- TABLE 19 TO PART 226—HYDROLOGIC UNITS ter, if endangered. For regulations per- AND COUNTIES CONTAINING CRITICAL HABI- taining to the designation of critical TAT FOR CENTRAL VALLEY STEELHEAD, habitat, see part 424 of this title, and AND DAMS/RESERVOIRS REPRESENTING THE for regulations pertaining to prohibi- UPSTREAM EXTENT OF CRITICAL HABITAT. tions against the adverse modification TABLE 20 TO PART 226—HYDROLOGIC UNITS or destruction of critical habitat, see AND COUNTIES CONTAINING CRITICAL HABI- part 402 of this title. Maps and charts TAT FOR UPPER COLUMBIA RIVER identifying designated critical habitat STEELHEAD, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF that are not provided in this section CRITICAL HABITAT. may be obtained upon request to the TABLE 21 TO PART 226—HYDROLOGIC UNITS Office of Protected Resources (see AND COUNTIES CONTAINING CRITICAL HABI- § 222.102, definition of ‘‘Office of Pro- TAT FOR SNAKE RIVER BASIN STEELHEAD, tected Resources’’). AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. [64 FR 14067, Mar. 23, 1999] TABLE 22 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABI- § 226.201 Critical habitat for Hawaiian TAT FOR LOWER COLUMBIA RIVER monk seals. STEELHEAD, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF HAWAIIAN MONK SEAL CRITICAL HABITAT. TABLE 23 TO PART 226—HYDROLOGIC UNITS (Monachus schauinslandi) AND COUNTIES CONTAINING CRITICAL HABI- TAT FOR UPPER WILLAMETTE RIVER All beach areas, sand spits and islets, STEELHEAD, AND DAMS/RESERVOIRS REP- including all beach crest vegetation to RESENTING THE UPSTREAM EXTENT OF its deepest extent inland, lagoon wa- CRITICAL HABITAT. ters, inner reef waters, and ocean wa- TABLE 24 TO PART 226—HYDROLOGIC UNITS ters out to a depth of 20 fathoms AND COUNTIES CONTAINING CRITICAL HABI- around the following: TAT FOR MIDDLE COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REP- Kure Atoll (28°24′ N, 178°20′ W) RESENTING THE UPSTREAM EXTENT OF Midway Islands, except Sand Island and its CRITICAL HABITAT. harbor (28°14′ N, 177°22′ W) Pearl and Hermes Reef (27°55′ N, 175° W) AUTHORITY: 16 U.S.C. 1533. Lisianski Island (26°46′ N, 173°58′ W) § 226.101 Purpose and scope. Laysan Island (25°46′ N, 171°44′ W) Maro Reef (25°25′ N, 170°35′ W) The regulations contained in this Gardner Pinnacles (25°00′ N, 168°00′ W) part identify those habitats designated French Frigate Shoals (23°45′ N, 166°00′ W) by the Secretary of Commerce as crit- Necker Island (23°34′ N, 164°42′ W) ical under section 4 of the Act, for en- Nihoa Island (23°03.5′ N, 161°55.5′ W).

193

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 226.201 50 CFR Ch. II (10–1–02 Edition)

194

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00194 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.000 National Marine Fisheries Service/NOAA, Commerce § 226.201

195

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00195 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.001 § 226.201 50 CFR Ch. II (10–1–02 Edition)

196

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00196 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.002 National Marine Fisheries Service/NOAA, Commerce § 226.201

197

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00197 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.003 § 226.201 50 CFR Ch. II (10–1–02 Edition)

198

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00198 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.004 National Marine Fisheries Service/NOAA, Commerce § 226.201

199

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00199 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.005 § 226.201 50 CFR Ch. II (10–1–02 Edition)

200

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00200 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.006 National Marine Fisheries Service/NOAA, Commerce § 226.201

[53 FR 18990, May 26, 1988. Redesignated at 64 FR 14067, Mar. 23, 1999]

201

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00201 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.007 § 226.202 50 CFR Ch. II (10–1–02 Edition)

§ 226.202 Critical habitat for Stellar lands (connected by the shortest lines); sea lions. bounded on the west by a line connecting Cape Kumlik (56°38″/157°27′W) STELLER SEA LION (Eumetopias jubatus) and the southwestern tip of Tugidak Is- (a) Alaska rookeries, haulouts, and as- land (56°24′N/154°41′W) and bounded in sociated areas. In Alaska, all major the east by a line connecting Cape Steller sea lion rookeries identified in Douglas (58°51′N/153°15′W) and the Table 1 and major haulouts identified northernmost tip of Shuyak Island in Table 2 and associated terrestrial, (58°37′N/152°22′W). air, and aquatic zones. Critical habitat (2) Critical habitat includes the includes a terrestrial zone that extends Bogoslof area in the Bering Sea shelf 3,000 feet (0.9 km) landward from the and consists of the area between baseline or base point of each major 170°00′W and 164°00′W, south of straight rookery and major haulout in Alaska. lines connecting 55°00′N/170°00′W and Critical habitat includes an air zone 55°00′N/168°00′W; 55°30′N/168°00′W and that extends 3,000 feet (0.9 km) above ° ′ ° ′ ° ′ ° ′ the terrestrial zone of each major rook- 55 30 N/166 00 W; 56 00 N/166 00 W and ° ′ ° ′ ery and major haulout in Alaska, 56 00 N/164 00 W and north of the Aleu- measured vertically from sea level. tian Islands and straight lines between Critical habitat includes an aquatic the islands connecting the following zone that extends 3,000 feet (0.9 km) coordinates in the order listed: seaward in State and Federally man- 52°49.2′N/169°40.4′W aged waters from the baseline or 52°49.8′N/169°06.3′W basepoint of each major rookery and 53°23.8′N/167°50.1′W major haulout in Alaska that is east of 53°18.7′N/167°51.4′W 144° W. longitude. Critical habitat in- 53°59.0′N/166°17.2′W cludes an aquatic zone that extends 20 54°02.9′N/166°03.0′W nm (37 km) seaward in State and Fed- 54°07.7′N/165°40.6′W erally managed waters from the base- 54°08.9′N/165°38.8′W line or basepoint of each major rookery 54°11.9′N/165°23.3′W and major haulout in Alaska that is 54°23.9′N/164°44.0′W west of 144° W. longitude. (3) Critical habitat includes the (b) California and Oregon rookeries and Seguam Pass area and consists of the associated areas. In California and Or- area between 52°00′N and 53°00′N and be- egon, all major Steller sea lion rook- tween 173°30′W and 172°30′W. eries identified in Table 1 and associated air and aquatic zones. Critical [58 FR 45278, Aug. 27, 1993. Redesignated and habitat includes an air zone that ex- amended at 64 FR 14067, Mar. 23, 1999] tends 3,000 feet (0.9 km) above areas historically occupied by sea lions at § 226.203 Critical habitat for Northern each major rookery in California and right whales. Oregon, measured vertically from sea NORTHERN RIGHT WHALE (Eubalaena level. Critical habitat includes an aquatic zone that extends 3,000 feet (0.9 glacialis) km) seaward in State and Federally (a) Great South Channel. The area managed waters from the baseline or bounded by 41°40′ N/69°45′ W; 41°00′ N/ basepoint of each major rookery in 69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/ California and Oregon. 68°31′ W. (c) Three special aquatic foraging areas (b) Cape Cod Bay, Massachusetts. The in Alaska. Three special aquatic for- area bounded by 42°04.8′ N/70°10′ W; aging areas in Alaska, including the ° ′ ° ′ ° ′ ° ′ ° ′ Shelikof Strait area, the Bogoslof area, 42 12 N/70 15 W; 42 12 N/70 30 W; 41 46.8 ° ′ and the Seguam Pass area. N/70 30 W and on the south and east by (1) Critical habitat includes the the interior shore line of Cape Cod, Shelikof Strait area in the Gulf of Massachusetts. Alaska and consists of the area be- (c) Southeastern United States. The tween the Alaska Peninsula and coastal waters between 31°15′ N and Tugidak, Sitkinak, Aiaktilik, Kodiak, 30°15′ N from the coast out 15 nautical Raspberry, Afognak and Shuyak Is- miles; and the coastal waters between

202

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.205

30°15′ N and 28°00′ N from the coast out which are incorporated by reference. 5 nautical miles (Figure 8 to part 226). This incorporation by reference was approved by the Director of the Federal [59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999] Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the § 226.204 Critical habitat for Sac- USGS publication and maps may be ob- ramento winter-run chinook salm- tained from the USGS, Map Sales, Box on. 25286, Denver, CO 80225. Copies may be The following waterways, bottom and inspected at NMFS, Endangered Spe- water of the waterways and adjacent cies Branch, Environmental and Tech- riparian zones: The Sacramento River nical Services Division, 911 NE. 11th from Keswick Dam, Shasta County Avenue, room 620, Portland, OR 97232, (River Mile 302) to Chipps Island (River NMFS, Office of Protected Resources, Mile 0) at the westward margin of the 1335 East-West Highway, Silver Spring, Sacramento-San Joaquin Delta, all wa- MD 20910, or at the Office of the Fed- ters from Chipps Island westward to eral Register, 800 North Capitol Street, Carquinez Bridge, including Honker NW., suite 700, Washington, DC. Bay, Grizzly Bay, Suisun Bay, and (a) Snake River Sockeye Salmon Carquinez Strait, all waters of San (Oncorhynchus nerka). The Columbia Pablo Bay westward of the Carquinez River from a straight line connecting Bridge, and all waters of San Francisco the west end of the Clatsop jetty (south Bay (north of the San Francisco/Oak- jetty, Oregon side) and the west end of land Bay Bridge) from San Pablo Bay the Peacock jetty (north jetty, Wash- to the Golden Gate Bridge. ington side) and including all Columbia River estuarine areas and river reaches [58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. Mar. 23, 1999] upstream to the confluence of the Co- lumbia and Snake Rivers; all Snake § 226.205 Critical habitat for Snake River reaches from the confluence of River sockeye salmon, Snake River the Columbia River upstream to the fall chinook salmon, and Snake confluence of the Salmon River; all River spring/summer chinook salm- Salmon River reaches from the con- on. fluence of the Snake River upstream to The following areas consisting of the Alturas Lake Creek; Stanley, Redfish, water, waterway bottom, and adjacent Yellow Belly, Pettit, and Alturas riparian zone of specified lakes and Lakes (including their inlet and outlet river reaches in hydrologic units pres- creeks); Alturas Lake Creek, and that ently or historically accessible to list- portion of Valley Creek between Stan- ed Snake River salmon (except reaches ley Lake Creek and the Salmon River. above impassable natural falls, and Critical habitat is comprised of all Dworshak and Hells Canyon Dams). river lakes and reaches presently or Adjacent riparian zones are defined as historically accessible (except reaches those areas within a horizontal dis- above impassable natural falls, and tance of 300 feet (91.4 m) from the nor- Dworshak and Hells Canyon Dams) to mal line of high water of a stream Snake River sockeye salmon in the fol- channel (600 feet or 182.8 m, when both lowing hydrologic units: Lower Salm- sides of the stream channel are in- on, Lower Snake, Lower Snake-Asotin, cluded) or from the shoreline of a Lower Snake-Tucannon, Middle Salm- standing body of water. The complete on-Chamberlain, Middle Salmon-Pan- text delineating critical habitat for ther, and Upper Salmon. Critical habi- each species follows. Hydrologic units tat borders on or passes through the (table 3) are those defined by the De- following counties in Oregon: Clatsop, partment of the Interior (DOI), U.S. Columbia, Gillium, Hood River, Mor- Geological Survey (USGS) publication, row, Multnomah, Sherman, Umatilla, ‘‘Hydrologic Unit Maps, United States Wallowa, Wasco; the following counties Geological Survey Water Supply Paper in Washington: Asotin, Benton, Clark, 2294, 1987’’, and the following DOI, Columbia, Cowlitz, Franklin, Garfield, USGS, 1:500,000 scale hydrologic unit Klickitat, Pacific, Skamania, map: State of Oregon, 1974; State of Wahkiakum, Walla, Whitman; and the Washington, 1974; State of Idaho, 1974, following counties in Idaho: Blaine,

203

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 226.206 50 CFR Ch. II (10–1–02 Edition)

Custer, Idaho, Lemhi, Lewis, Nez Canyon Dam; the Palouse River from Perce. its confluence with the Snake River (b) Snake River Spring/Summer Chinook upstream to Palouse Falls; the Clear- Salmon (Oncorhynchus tshawytscha). Ge- water River from its confluence with ographic Boundaries. Critical habitat the Snake River upstream to its con- is designated to include the Columbia fluence with Lolo Creek; the North River from a straight line connecting Fork Clearwater River from its con- the west end of the Clatsop jetty (south fluence with the Clearwater River up- jetty, Oregon side) and the west end of stream to Dworshak Dam. Critical the Peacock jetty (north jetty, Wash- habitat also includes river reaches ington side) and including all Columbia presently or historically accessible River estuarine areas and river reaches (except reaches above impassable nat- proceeding upstream to the confluence ural falls, and Dworshak and Hells Can- of the Columbia and Snake Rivers; all yon Dams) to Snake River fall chinook Snake River reaches from the con- salmon in the following hydrologic fluence of the Columbia River up- units; Clearwater, Hells Canyon, stream to Hells Canyon Dam. Critical Imnaha, Lower Grande Ronde, Lower habitat also includes river reaches North Fork Clearwater, Lower Salmon, presently or historically accessible Lower Snake, Lower Snake-Asotin, (except reaches above impassable nat- Lower Snake-Tucannon, and Palouse. ural falls (including Napias Creek Critical habitat borders on or passes Falls) and Dworshak and Hells Canyon through the following counties in Or- Dams) to Snake River spring/summer egon: Baker, Clatsop, Columbia, chinook salmon in the following hydro- Gillium, Hood River, Morrow, Mult- logic units: Hells Canyon, Imnaha, nomah, Sherman, Umatilla, Wallowa, Lemhi, Little Salmon, Lower Grande Wasco; the following counties in Wash- Ronde, Lower Middle Fork Salmon, ington: Adams, Asotin, Benton, Clark, Lower Salmon, Lower Snake-Asotin, Columbia, Cowlitz, Franklin, Garfield, Lower Snake-Tucannon, Middle Salm- Klickitat, Lincoln, Pacific, Skamania, on-Chamberlain, Middle Salmon-Pan- Spokane, Wahkiakum, Walla, Whit- ther, Pahsimeroi, South Fork Salmon, man; and the following counties in Upper Middle Fork Salmon, Upper Idaho: Adams, Benewah, Clearwater, Grande Ronde, Upper Salmon, Idaho, Latah, Lewis, Nez Perce, Sho- Wallowa. Critical habitat borders on or shone, Valley. passes through the following counties [58 FR 68551, Dec. 28, 1993, as amended at 63 in Oregon: Baker, Clatsop, Columbia, FR 1393, Jan. 9, 1998. Redesignated and Gillium, Hood River, Morrow, Mult- amended at 64 FR 14067, Mar. 23, 1999; 64 FR nomah, Sherman, Umatilla, Union, 57403, Oct. 25, 1999] Wallowa, Wasco; the following counties in Washington: Asotin, Benton, Clark, § 226.206 [Reserved] Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, § 226.207 Critical habitat for leatherback turtle. Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, LEATHERBACK SEA TURTLE Blaine, Custer, Idaho, Lemhi, Lewis, (DERMOCHELYS CORIACEA) Nez Perce, Valley. (c) Snake River Fall Chinook Salmon The waters adjacent to Sandy Point, (Oncorhynchus tshawytscha). The Co- St. Croix, U.S. Virgin Islands, up to lumbia River from a straight line con- and inclusive of the waters from the necting the west end of the Clatsop hundred fathom curve shoreward to the jetty (south jetty, Oregon side) and the level of mean high tide with boundaries west end of the Peacock jetty (north at 17°42′12″ North and 64°50′00″ West. jetty, Washington side) and including [44 FR 17711, Mar. 23, 1979. Redesignated and all Columbia River estuarine areas and amended at 64 FR 14067, Mar. 23, 1999] river reaches proceeding upstream to the confluence of the Columbia and § 226.208 Critical habitat for green tur- Snake Rivers; the Snake River, all tle. river reaches from the confluence of (a) Culebra Island, Puerto Rico—Wa- the Columbia River, upstream to Hells ters surrounding the island of Culebra

204

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.210

from the mean high water line seaward erence. This incorporation by reference to 3 nautical miles (5.6 km). These wa- was approved by the Director of the ters include Culebra’s outlying Keys Federal Register in accordance with 5 including Cayo Norte, Cayo Ballena, U.S.C. 552(a) and 1 CFR part 51. Copies Cayos Geniquı´, Isla Culebrita, Arrecife of the USGS publication and maps may Culebrita, Cayo de Luis Pen˜ a, Las be obtained from the USGS, Map Sales, Hermanas, El Mono, Cayo Lobo, Cayo Box 25286, Denver, CO 80225. Copies may Lobito, Cayo Botijuela, Alcarraza, Los be inspected at NMFS, Protected Re- Gemelos, and Piedra Steven. sources Division, 525 NE Oregon (b) [Reserved] Street—Suite 500, Portland, OR 97232– [63 FR 46701, Sept. 2, 1998. Redesignated and 2737, or NMFS, Office of Protected Re- amended at 64 FR 14067, Mar. 23, 1999] sources, 1315 East-West Highway, Sil- ver Spring, MD 20910, or at the Office of § 226.209 Critical habitat for hawksbill the Federal Register, 800 North Capitol turtle. Street, NW., Suite 700, Washington, (a) Mona and Monito Islands, Puerto DC. Rico—Waters surrounding the islands (a) Central California Coast Coho Salm- of Mona and Monito, from the mean on (Oncorhynchus kisutch). Critical high water line seaward to 3 nautical habitat is designated to include all miles (5.6 km). river reaches accessible to listed coho (b) [Reserved] salmon from Punta Gorda in northern [63 FR 46701, Sept. 2, 1998. Redesignated and California south to the San Lorenzo amended at 64 FR 14067, Mar. 23, 1999] River in central California, including Arroyo Corte Madera Del Presidio and § 226.210 Central California Coast Corte Madera Creek, tributaries to San Coho Salmon (Oncorhynchus kisutch), Southern Oregon/North- Francisco Bay. Critical habitat con- ern California Coasts Coho Salmon sists of the water, substrate, and adja- (Oncorhynchus kisutch). cent riparian zone of estuarine and Critical habitat is designated to in- riverine reaches (including off-channel clude all river reaches accessible to habitats) in hydrologic units and coun- listed coho within the range of the ties identified in Table 5 of this part. ESUs listed, except for reaches on In- Accessible reaches are those within the dian lands defined in Tables 5 and 6 to historical range of the ESU that can this part. Critical habitat consists of still be occupied by any life stage of the water, substrate, and adjacent ri- coho salmon. Inaccessible reaches are parian zone of estuarine and riverine those above specific dams identified in reaches in hydrologic units and coun- Table 5 of this part or above long- ties identified in Tables 5 and 6 to this standing, naturally impassable barriers part for all of the coho ESUs listed in (i.e., natural waterfalls in existence for this section. Accessible reaches are at least several hundred years). those within the historical range of the (b) Southern Oregon/Northern Cali- ESUs that can still be occupied by any fornia Coasts Coho Salmon life stage of coho salmon. Inaccessible (Oncorhynchus kisutch). Critical habitat reaches are those above longstanding, is designated to include all river naturally impassable barriers (i.e., nat- reaches accessible to listed coho salm- ural waterfalls in existence for at least on between Cape Blanco, Oregon, and several hundred years) and specific Punta Gorda, California. Critical habi- dams within the historical range of tat consists of the water, substrate, each ESU identified in Tables 5 and 6 and adjacent riparian zone of estuarine to this part. Hydrologic units are those and riverine reaches (including off- defined by the Department of the Inte- channel habitats) in hydrologic units rior (DOI), U.S. Geological Survey and counties identified in Table 6 of (USGS) publication, ‘‘Hydrologic Unit this part. Accessible reaches are those Maps,’’ Water Supply Paper 2294, 1987, within the historical range of the ESU and the following DOI, USGS, 1:500,000 that can still be occupied by any life scale hydrologic unit maps: State of stage of coho salmon. Inaccessible Oregon, 1974 and State of California, reaches are those above specific dams 1978 which are incorporated by ref- identified in Table 6 of this part or

205

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 226.212 50 CFR Ch. II (10–1–02 Edition)

above longstanding, naturally impass- (a) Puget Sound Chinook Salmon able barriers (i.e., natural waterfalls in (Oncorhynchus tshawytscha) geographic existence for at least several hundred boundaries. Critical habitat is des- years). ignated to include all marine, estuarine and river reaches accessible to [64 FR 24061, May 5, 1999] listed chinook salmon in Puget Sound. Puget Sound marine areas include § 226.212 Critical habitat designation for 19 evolutionary significant units South Sound, Hood Canal, and North of salmon and steelhead in Wash- Sound to the international boundary at ington, Oregon, Idaho, and Cali- the outer extent of the Strait of Geor- fornia. gia, Haro Strait, and the Strait of Juan De Fuca to a straight line extending Critical habitat is designated to in- north from the west end of Freshwater clude all river reaches accessible to Bay, inclusive. Excluded are areas listed salmon or steelhead within the above specific dams identified in Table range of the ESUs listed, except for 7 to this part or above longstanding, reaches on Indian lands. Critical habi- naturally impassable barriers (i.e., nat- tat consists of the water, substrate, ural waterfalls in existence for at least and adjacent riparian zone of estuarine several hundred years). and riverine reaches in hydrologic (b) Lower Columbia River Chinook units and counties identified in Tables Salmon (Oncorhynchus tshawytscha) geo- 7 through 24 to this part for all of the graphic boundaries. Critical habitat is salmon and steelhead ESUs listed in designated to include all river reaches this section. Accessible reaches are accessible to listed chinook salmon in those within the historical range of the Columbia River tributaries between ESUs that can still be occupied by any the Grays and White Salmon Rivers in life stage of salmon or steelhead. Inac- Washington and the Willamette and cessible reaches are those above long- Hood Rivers in Oregon, inclusive. Also standing, naturally impassable barriers included are river reaches and estua- (i.e., natural waterfalls in existence for rine areas in the Columbia River from at least several hundred years) and spe- a straight line connecting the west end cific dams within the historical range of the Clatsop jetty (south jetty, Or- of each ESU identified in Tables 7 egon side) and the west end of the Pea- through 24 to this part. Hydrologic cock jetty (north jetty, Washington units are those defined by the Depart- side) upstream to the Dalles Dam. Ex- ment of the Interior (DOI), U.S. Geo- cluded are areas above specific dams logical Survey (USGS) publication, identified in Table 8 to this part or ‘‘Hydrologic Unit Maps,’’ Water Supply above longstanding, naturally impass- Paper 2294, 1987, and the following DOI, able barriers (i.e., natural waterfalls in USGS, 1:500,000 Scale Hydrologic Unit existence for at least several hundred Maps: State of Oregon (1974), State of years). Washington (1974), State of California (c) Upper Willamette River chinook (1978), and State of Idaho (1981), which salmon (Oncorhynchus tshawytscha) geo- are incorporated by reference. This in- graphic boundaries. Critical habitat is corporation by reference was approved designated to include all river reaches by the Director of the Federal Register accessible to listed chinook salmon in in accordance with 5 U.S.C. 552(a) and 1 the Clackamas River and the Willam- CFR part 51. Copies of the USGS ette River and its tributaries above publicaion and maps may be obtained Willamette Falls. Also included are from the USGS, Map Sales, Box 25286, river reaches and estuarine areas in the Denver, CO 80225. Copies may be in- Columbia River from a straight line spected at NMFS, Protected Resources connecting the west end of the Clatsop Division, 525 NE Oregon Street-Suite jetty (south jetty, Oregon side) and the 500, Portland, OR 97232-2737, or NMFS, west end of the Peacock jetty (north Office of Protected Resources, 1315 jetty, Washington side) upstream to, East-West Highway, Silver Spring, MD and including, the Willamette River in 20910, or at the Office of the Federal Oregon. Excluded are areas above spe- Register, 800 North Capitol Street, cific dams identified in Table 9 to this NW., Suite 700, Washington, DC. part or above longstanding, naturally

206

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.212

impassable barriers (i.e., natural wa- 12 to this part or above longstanding, terfalls in existence for at least several naturally impassable barriers (i.e., nat- hundred years). ural waterfalls in existence for at least (d) Upper Columbia River Spring-run several hundred years). Chinook salmon (Oncorhynchus (g) Hood Canal Summer-run Chum tshawytscha) geographic boundaries. Salmon (Oncorhynchus keta) geographic Critical habitat is designated to in- boundaries. Critical habitat is des- clude all river reaches accessible to ignated to include all river reaches ac- listed chinook salmon in Columbia cessible to listed chum salmon River tributaries upstream of the Rock (including estuarine areas and tribu- Island Dam and downstream of Chief taries) draining into Hood Canal as Joseph Dam in Washington, excluding well as Olympic Peninsula rivers be- the Okanogan River. Also included are tween and including Hood Canal and river reaches and estuarine areas in the Dungeness Bay, Washington. Also in- Columbia River from a straight line cluded are estuarine/marine areas of connecting the west end of the Clatsop Hood Canal, Admiralty Inlet, and the jetty (south jetty, Oregon side) and the Straits of Juan De Fuca to the inter- west end of the Peacock jetty (north national boundary and as far west as a jetty, Washington side) upstream to straight line extending north from Chief Joseph Dam in Washington. Ex- Dungeness Bay. Excluded are areas cluded are areas above specific dams above specific dams identified in Table identified in Table 10 to this part or 13 to this part or above longstanding, above longstanding, naturally impass- naturally impassable barriers (i.e., nat- able barriers (i.e., natural waterfalls in ural waterfalls in existence for at least existence for at least several hundred several hundred years). years). (h) Columbia River Chum Salmon (e) Central Valley Spring-run chinook (Oncorhynchus keta) geographic bound- salmon (Oncorhynchus tshawytscha) geo- aries. Critical habitat is designated to graphic boundaries. Critical habitat is include all river reaches accessible to designated to include all river reaches listed chum salmon (including estua- accessible to listed chinook salmon in rine areas and tributaries) in the Co- the Sacramento River and its tribu- lumbia River downstream from Bonne- taries in California. Also included are ville Dam, excluding Oregon tribu- river reaches and estuarine areas of the taries upstream of Milton Creek at Sacramento-San Joaquin Delta, all wa- river km 144 near the town of St. Hel- ters from Chipps Island westward to ens. Excluded are areas above specific Carquinez Bridge, including Honker dams identified in Table 14 to this part Bay, Grizzly Bay, Suisun Bay, and or above longstanding, naturally im- Carquinez Strait, all waters of San passable barriers (i.e., natural water- Pablo Bay westward of the Carquinez falls in existence for at least several Bridge, and all waters of San Francisco hundred years). Bay (north of the San Francisco/Oak- (i) Ozette Lake Sockeye Salmon land Bay Bridge) from San Pablo Bay (Oncorhynchus nerka) geographic bound- to the Golden Gate Bridge. Excluded aries. Critical habitat is designated to are areas above specific dams identified include all lake areas and river reaches in Table 11 to this part or above long- accessible to listed sockeye salmon in standing, naturally impassable barriers Ozette Lake, located in Clallam Coun- (i.e., natural waterfalls in existence for ty, Washington. Excluded are areas at least several hundred years). above longstanding, naturally impass- (f) California Coastal Chinook Salmon able barriers (i.e., natural waterfalls in (Oncorhynchus tshawytscha) geographic existence for at least several hundred boundaries. Critical habitat is des- years). ignated to include all river reaches and (j) Oregon Coast coho salmon estuarine areas accessible to listed chi- (Oncorhynchus kisutch) geographic nook salmon from Redwood Creek boundaries. Critical habitat is des- (Humboldt County, California) to the ignated to include all river reaches and Russian River (Sonoma County, Cali- estuarine areas accessible to listed fornia), inclusive. Excluded are areas coho salmon from coastal streams above specific dams identified in Table south of the Columbia River and north

207

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 226.212 50 CFR Ch. II (10–1–02 Edition)

of Cape Blanco, Oregon. Excluded are ramento and San Joaquin Rivers and areas above specific dams identified in their tributaries in California. Also in- Table 15 to this part or above long- cluded are river reaches and estuarine standing, naturally impassable barriers areas of the Sacramento-San Joaquin (i.e., natural waterfalls in existence for Delta, all waters from Chipps Island at least several hundred years). westward to Carquinez Bridge, includ- (k) Southern California steelhead ing Honker Bay, Grizzly Bay, Suisun (Oncorhynchus mykiss) geographic Bay, and Carquinez Strait, all waters boundaries. Critical habitat is des- of San Pablo Bay westward of the ignated to include all river reaches and Carquinez Bridge, and all waters of San estuarine areas accessible to listed Francisco Bay (north of the San Fran- steelhead in coastal river basins from cisco/Oakland Bay Bridge) from San the Santa Maria River to Malibu Pablo Bay to the Golden Gate Bridge. Creek, California (inclusive). Excluded Excluded are areas of the San Joaquin are areas above specific dams identified River upstream of the Merced River in Table 16 to this part or above long- confluence and areas above specific standing, naturally impassable barriers dams identified in Table 19 to this part (i.e., natural waterfalls in existence for or above longstanding, naturally im- at least several hundred years). passable barriers (i.e., natural water- (l) South-Central California Coast falls in existence for at least several steelhead (Oncorhynchus mykiss) geo- hundred years). graphic boundaries. Critical habitat is (o) Upper Columbia River steelhead designated to include all river reaches (Oncorhynchus mykiss) geographic and estuarine areas accessible to listed boundaries. Critical habitat is des- steelhead in coastal river basins from ignated to include all river reaches ac- the Pajaro River (inclusive) to, but not cessible to listed steelhead in Columbia including, the Santa Maria River, Cali- River tributaries upstream of the fornia. Excluded are areas above spe- Yakima River, Washington, and down- cific dams identified in Table 17 to this stream of Chief Joseph Dam. Also in- part or above longstanding, naturally cluded are river reaches and estuarine impassable barriers (i.e., natural wa- areas in the Columbia River from a terfalls in existence for at least several straight line connecting the west end hundred years). of the Clatsop jetty (south jetty, Or- (m) Central California Coast steelhead egon side) and the west end of the Pea- (Oncorhynchus mykiss) geographic cock jetty (north jetty, Washington boundaries. Critical habitat is des- side) upstream to Chief Joseph Dam in ignated to include all river reaches and Washington. Excluded are areas above estuarine areas accessible to listed specific dams identified in Table 20 to steelhead in coastal river basins from this part or above longstanding, natu- the Russian River to Aptos Creek, Cali- rally impassable barriers (i.e., natural fornia (inclusive), and the drainages of waterfalls in existence for at least sev- San Francisco and San Pablo Bays. eral hundred years). Also included are all waters of San (p) Snake River Basin steelhead Pablo Bay westward of the Carquinez (Oncorhynchus mykiss) geographic Bridge and all waters of San Francisco boundaries. Critical habitat is des- Bay from San Pablo Bay to the Golden ignated to include all river reaches ac- Gate Bridge. Excluded is the Sac- cessible to listed steelhead in the ramento-San Joaquin River Basin of Snake River and its tributaries in the California Central Valley as well as Idaho, Oregon, and Washington. Also areas above specific dams identified in included are river reaches and estua- Table 18 to this part or above long- rine areas in the Columbia River from standing, naturally impassable barriers a straight line connecting the west end (i.e., natural waterfalls in existence for of the Clatsop jetty (south jetty, Or- at least several hundred years). egon side) and the west end of the Pea- (n) Central Valley steelhead cock jetty (north jetty, Washington (Oncorhynchus mykiss) geographic side) upstream to the confluence with boundaries. Critical habitat is des- the Snake River. Excluded are areas ignated to include all river reaches ac- above specific dams identified in Table cessible to listed steelhead in the Sac- 21 to this part or above longstanding,

208

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.213

naturally impassable barriers (i.e., west end of the Peacock jetty (north Napias Creek Falls and other natural jetty, Washington side) upstream to waterfalls in existence for at least sev- the Yakima River in Washington. Ex- eral hundred years). cluded are areas above specific dams (q) Lower Columbia River steelhead identified in Table 24 to this part or (Oncorhynchus mykiss) geographic above longstanding, naturally impass- boundaries. Critical habitat is des- able barriers (i.e., natural waterfalls in ignated to include all river reaches ac- existence for at least several hundred cessible to listed steelhead in Columbia years). River tributaries between the Cowlitz [65 FR 7777, Feb. 16, 2000] and Wind Rivers in Washington and the Willamette and Hood Rivers in Oregon, § 226.213 Critical habitat for Johnson’s inclusive. Also included are river seagrass. reaches and estuarine areas in the Co- Critical habitat is designated to in- lumbia River from a straight line con- clude substrate and water in the fol- necting the west end of the Clatsop lowing ten portions of the Indian River jetty (south jetty, Oregon side) and the Lagoon and Biscayne Bay within the west end of the Peacock jetty (north current range of Johnson’s seagrass. jetty, Washington side) upstream to (a) A portion of the Indian River, the Hood River in Oregon. Excluded are Florida, north of Sebastian Inlet Chan- areas above specific dams identified in nel, defined by the following coordi- Table 22 to this part or above long- nates: standing, naturally impassable barriers (i.e., natural waterfalls in existence for Northwest corner: 27°51′15.03″N, at least several hundred years). 80°27′55.49″W ° ′ ″ ° ′ ″ (r) Upper Willamette River steelhead Northeast corner: 27 51 16.57 N, 80 27 53.05 W Southwest corner: 27°51′08.85″N, (Oncorhynchus mykiss) geographic 80°27′50.48″W boundaries. Critical habitat is des- Southeast corner: 27°51′11.58″N, ignated to include all river reaches ac- 80°27′47.35″W cessible to listed steelhead in the Wil- lamette River and its tributaries above (b) A portion of the Indian River, Willamette Falls upstream to, and in- Florida, south of the Sebastian Inlet cluding, the Calapooia River. Also in- Channel, defined by the following co- cluded are river reaches and estuarine ordinates: areas in the Columbia River from a Northwest corner: 27°51′01.32″N, straight line connecting the west end 80°27′46.10″W of the Clatsop jetty (south jetty, Or- Northeast corner: 27°51′02.69″N, 80°27′45.27″W egon side) and the west end of the Pea- Southwest corner: 27°50′59.08″N, ° ′ ″ cock jetty (north jetty, Washington 80 27 41.84 W Southeast corner: 27°51′01.07″N, side) upstream to, and including, the 80°27′40.50″W Willamette River in Oregon. Excluded are areas above specific dams identified (c) A portion of the Indian River La- in Table 23 to this part or above long- goon in the vicinity of the Fort Pierce standing, naturally impassable barriers Inlet. This site is located on the north (i.e., natural waterfalls in existence for side of the entrance channel just west at least several hundred years). of a small mangrove vegetated island (s) Middle Columbia River steelhead where the main entrance channel bifur- (Oncorhynchus mykiss) geographic cates to the north. The area is defined boundaries. Critical habitat is des- by the following coordinates: ignated to include all river reaches ac- Northwest corner: 27°28′06.00″N, cessible to listed steelhead in Columbia 80°18′48.89″W River tributaries (except the Snake Northeast corner: 27°28′04.43″N, 80°18′42.25″W River) between Mosier Creek in Oregon Southwest corner: 27°28′02.86″N, and the Yakima River in Washington 80°18′49.06″W (inclusive). Also included are river Southeast corner: 27°28′01.46″N, ° ′ ″ reaches and estuarine areas in the Co- 80 18 42.42 W lumbia River from a straight line con- (d) A portion of the Indian River La- necting the west end of the Clatsop goon, Florida, north of the St. Lucie jetty (south jetty, Oregon side) and the Inlet, from South Nettles Island to the

209

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 226.213 50 CFR Ch. II (10–1–02 Edition)

Florida Oceanographic Institute, de- Southeast corner: 26°40′33.00″N, fined by the following coordinates and 80°02′35.00″W excluding the Federally-marked navi- (h) A portion of Lake Worth Lagoon, gation channel of the Intracoastal Wa- Florida, located just north of the Boyn- terway (ICW): ton Inlet, on the west side of the ICW, Northwest corner: 27°16′44.04″N, defined by the following coordinates 80°14′00.00″W and excluding the Federally-marked Northeast corner: 27°16′44.04″N, 80°12′51.33″W navigation channel of the ICW: Southwest corner: 27°12′49.70″N, Northwest corner: 26°33′28.00″N, 80°11′46.80″W 80°02′54.00″W Southeast corner: 27°12′49.70″N, Northeast corner: 26°33′30.00″N, 80°03′04.00″W 80°11′02.50″W Southwest corner: 26°32′50.00″N, (e) Hobe Sound beginning at State 80°03′11.00″W Road 708 (27°03′49.90″N, 80°07′20.57″W) Southeast corner: 26°32′50.00″N, and extending south to 27°00′00.00″N, 80°02′58.00″W 80°05′32.54″W and excluding the feder- (i) A portion of northeast Lake ally-marked navigation channel of the Wyman, Boca Raton, Florida, defined ICW. by the following coordinates and ex- (f) Jupiter Inlet at a site located just cluding the Federally-marked naviga- west of the entrance to Zeek’s Marina tion channel of the ICW: on the south side of Jupiter Inlet and Northwest corner: 26°22′27.00″N, defined by the following coordinates 80°04′23.00″W (note a south central point was in- Northeast corner: 26°22′27.00″N, 80°04′18.00″W cluded to better define the shape of the Southwest corner: 26°22′05.00″N, southern boundary): 80°04′16.00″W Southeast corner: 26°22′05.00″N, Northwest corner: 26°56′43.34″N, 80°04′18.00″W 80°04′47.84″W Northeast corner: 26°56′40.93″N, 80°04′42.61″W (j) A portion of Northern Biscayne Southwest corner: 26°56′40.73″N, Bay, Florida, defined by the following: 80°04′48.65″W The northern boundary of Biscayne South central point: 26°56′38.11″N, Bay Aquatic Preserve, NE 163rd Street, ° ′ ″ 80 04 45.83 W and including all parts of the Biscayne Southeast corner: 26°56′38.31″N, 80°04′42.41″W Bay Aquatics Preserve as defined in 18- 18.002 of the Florida Administrative (g) A portion of Lake Worth, Florida, Code (F.A.C.) excluding the Oleta just north of Bingham Island defined River, Miami River and Little River by the following coordinates and ex- beyond their mouths, the federally- cluding the Federally-marked naviga- marked navigation channel of the ICW, tion channel of the ICW: and all existing federally authorized Northwest corner: 26°40′44.00″N, navigation channels, basins, and berths 80°02′39.00″W at the Port of Miami to the currently Northeast corner: 26°40′40.00″N, 80°02′34.00″W documented southernmost range of Southwest corner: 26°40′32.00″N, Johnson’s seagrass, Central Key Bis- 80°02′44.00″W cayne (25°45′N).

210

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 226.213

211

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00211 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.000 § 226.213 50 CFR Ch. II (10–1–02 Edition)

212

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00212 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.001 National Marine Fisheries Service/NOAA, Commerce § 226.213

213

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00213 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.002 § 226.213 50 CFR Ch. II (10–1–02 Edition)

214

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00214 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.003 National Marine Fisheries Service/NOAA, Commerce § 226.213

215

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00215 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.004 § 226.213 50 CFR Ch. II (10–1–02 Edition)

216

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00216 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.005 National Marine Fisheries Service/NOAA, Commerce § 226.213

217

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00217 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.006 § 226.213 50 CFR Ch. II (10–1–02 Edition)

218

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00218 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER05AP00.007 National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 1

[65 FR 17795, Apr. 5, 2000]

TABLE 1 TO PART 226—MAJOR STELLAR SEA LION ROOKERY SITES

Major Steller sea lion rookery sites are shoreline at mean lower-low water to the identified in the following table. Where two second set of coordinates. Where only one set sets of coordinates are given, the baseline of coordinates is listed, that location is the extends in a clockwise direction from the base point. first set of geographic coordinates along the

219

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T ER05AP00.008 Pt. 226, Table 1 50 CFR Ch. II (10–1–02 Edition)

Boundaries to— State/region/site Latitude Longitude Latitude Longitude

Alaska: Western Aleutians: Agattu I.: Cape Sabak 1 ...... 52 23.5N ...... 173 43.5E ...... 52 22.0N ...... 173 41.0E Gillon Point 1 ...... 52 24.0N ...... 173 21.5E. Attu I.1 ...... 52 54.5N ...... 172 28.5E ...... 52 57.5N ...... 172 31.5E Buldir I.1 ...... 52 20.5N ...... 175 57.0E ...... 52 23.5N ...... 172 51.0E Central Aleutians: Adak I.1 ...... 51 36.5N ...... 176 59.0W ...... 51 38.0N ...... 176 59.5W Agligadak I.1 ...... 52 06.5N ...... 172 54.0W. Amchitka I.:1 Column Rock 1 ...... 51 32.5N ...... 178 49.5E. East Cape 1 ...... 51 22.5N ...... 179 28.0E ...... 51 21.5N ...... 179 25.0E Ayugadak I.1 ...... 51 45.5N ...... 178 24.5E. Gramp Rock 1 ...... 51 29.0N ...... 178 20.5W. Kasatochi I.1 ...... 52 10.0N ...... 175 31.5W ...... 52 10.5N ...... 175 29.0W Kiska I.: Lief Cove 1 ...... 51 57.5N ...... 177 21.0E ...... 51 56.5N ...... 177 20.0E Cape St. Stephen 1 ...... 51 52.5N ...... 177 13.0E ...... 51 53.5N ...... 177 12.0E Seguam I./Saddleridge 1 ...... 52 21.0N ...... 172 35.0W ...... 52 21.0N ...... 172 33.0W Semisopochnoi I.: Pochnoi Pt 1 ...... 51 58.5N ...... 179 45.5E ...... 51 57.0N ...... 179 46.0E Petrel Pt 1 ...... 52 01.5N ...... 179 37.5E ...... 52 01.5E ...... 179 39.0E Tag I.1 ...... 51 33.5N ...... 178 34.5W. Ulak I.1 ...... 51 20.0N ...... 178 57.0W ...... 51 18.5N ...... 178 59.5W Yunaska I.1 ...... 52 42.0N ...... 170 38.5W ...... 52 41.0N ...... 170 34.5W Eastern Aleutian: Adugak I.1 ...... 52 55.0N ...... 169 10.5W. Akun I./Billings Head 1 ...... 54 18.0N ...... 165 32.5W ...... 54 18.0N ...... 165 31.5W Akutan I./Cape Morgan 1 ...... 54 03.5N ...... 166 00.0W ...... 54 05.5N ...... 166 05.0W Bogoslof I.12 ...... 53 56.0N ...... 168 02.0W. Ogchul I.1 ...... 53 00.0N ...... 168 24.0W. Sea Lion Rocks. (Amak) 1 ...... 55 28.0N ...... 163 12.0W. Ugamak I.1 ...... 54 14.0N ...... 164 48.0W ...... 54 13.0N ...... 164 48.0W Bering Sea: Walrus I.1 ...... 57 11.0N ...... 169 56.0W. Western Gulf of Alaska: Atkins I.1 ...... 55 03.5N ...... 159 18.5W. Chernabura I.1 ...... 54 47.5N ...... 159 31.0W ...... 54 45.5N ...... 159 33.5W Clubbing Rocks (N) 1 ...... 54 43.0N ...... 162 26.5W. Clubbing Rocks (S) 1 ...... 54 42.0N ...... 162 26.5W. Pinnacle Rock 1 ...... 54 46.0N ...... 161 46.0W. Central Gulf of Alaska: Chirikof I.1 ...... 55 46.5N ...... 155 39.5W ...... 55 46.5N ...... 155 43.0W Chowiet I.1 ...... 56 00.5N ...... 156 41.5W ...... 56 00.5N ...... 156 42.0W Marmot I.1 ...... 58 14.5N ...... 151 47.5W ...... 58 10.0N ...... 151 51.0W Outer I.1 ...... 59 20.5N ...... 150 23.0W ...... 59 21.0N ...... 150 24.5W Sugarloaf I.1 ...... 58 53.0N ...... 152 02.0W. Eastern Gulf of Alaska: Seal Rocks 1 ...... 60 10.0N ...... 146 50.0W. Fish I.1 ...... 59 53.0N ...... 147 20.5W. Southeast Alaska: Forrester I...... 54 51.0N ...... 133 32.0W ...... 54 52.5N ...... 133 35.5W Hazy I ...... 55 52.0N ...... 134 34.0W ...... 55 51.5N ...... 134 35.0W White Sisters ...... 57 38.0N ...... 136 15.5W. Oregon: Rogue Reef: Pyramid Rock ...... 42 26.4N ...... 124 28.1W. Orford Reef: Long Brown Rock ...... 42 47.3N ...... 124 36.2W. Seal Rock ...... 42 47.1N ...... 124 35.4W. California: Ano Nuevo I...... 37 06.3N ...... 122 20.3W. Southeast Farallon I...... 37 41.3N ...... 123 00.1W. Sugarloaf I. & Cape Mendocino ...... 40 26.0N ...... 124 24.0W. 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas. [58 FR 45278, Aug. 27, 1993]

220

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00220 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 2

TABLE 2 TO PART 226—MAJOR STELLAR SEA LION HAULOUT SITES IN ALASKA

Major Steller sea lion haulout sites in along the shoreline at mean lower-low water Alaska are identified in the following table. to the second set of coordinates. Where only Where two sets of coordinates are given, the one set of coordinates is listed, that location baseline extends in a clockwise direction is the basepoint. from the first set of geographic coordinates

Boundaries to— State/region/site Latitude Longitude Latitude Longitude

Alaska: Western Aleutians: Alaid I.1 ...... 52 45.0N ...... 173 56.5E ...... 52 46.5N ...... 173 51.5E Attu/Chirikof Pt.1 ...... 52 30.0N ...... 173 26.7E ...... Shemya I.1 ...... 52 44.0N ...... 174 09.0E ...... Central Aleutians: Amatignak I.1 ...... 51 13.0N ...... 179 08.0E ...... Amlia I: East 1 ...... 52 05.0N ...... 172 58.5W ...... 52 06.0N ...... 172 57.0W Sviech. Harbor 1 ...... 52 02.0N ...... 173 23.0W ...... Amukta I. & Rocks 1 ...... 52 31.5N ...... 171 16.5W ...... 52 26.5N ...... 171 16.5W Anagaksik I.1 ...... 51 51.0N ...... 175 53.5W ...... Atka I.1 ...... 52 23.5N ...... 174 17.0W ...... 52 24.5N ...... 174 07.5W Bobrof I.1 ...... 51 54.0N ...... 177 27.0W ...... Chagulak I.1 ...... 52 34.0N ...... 171 10.5W ...... Chuginadak I.1 ...... 52 46.5N ...... 169 44.5W ...... 52 46.5N ...... 169 42.0W Great Sitkin I.1 ...... 52 06.0N ...... 176 10.5W ...... 52 07.0N ...... 176 08.5W Kagamil I.1 ...... 53 02.5N ...... 169 41.0W ...... Kanaga I: North Cape 1 ...... 51 56.5N ...... 177 09.0W ...... Ship Rock 1 ...... 51 47.0N ...... 177 22.5W ...... Kavalga I.1 ...... 51 34.5N ...... 178 51.5W ...... 51 34.5N ...... 178 49.5W Kiska I./Sirius Pt.1 ...... 52 08.5N ...... 177 36.5E ...... Kiska I./Sobaka & Vega 1 ...... 51 50.0N ...... 177 20.0E ...... 51 48.5N ...... 177 20.5E Little Sitkin I.1 ...... 51 59.5N ...... 178 30.0E ...... Little Tanaga I.1 ...... 51 50.5N ...... 176 13.0W ...... 51 49.0N ...... 176 13.0W Sagigik I.1 ...... 52 00.5N ...... 173 08.0W ...... Seguam I: South 1 ...... 52 19.5N ...... 172 18.0W ...... 52 15.0N ...... 172 37.0W Finch Pt.1 ...... 52 23.5N ...... 172 25.5W ...... 52 23.5N ...... 172 24.0W Segula I.1 ...... 52 00.0N ...... 178 06.5E ...... 52 03.5N ...... 178 09.0E Tanaga I.1 ...... 51 55.0N ...... 177 58.5W ...... 51 55.0N ...... 177 57.0W Tanadak I. (Amlia) 1 ...... 52 04.5N ...... 172 57.0W ...... Tanadak I. (Kiska) 1 ...... 51 57.0N ...... 177 47.0E ...... Ugidak I.1 ...... 51 35.0N ...... 178 30.5W ...... Uliaga I.1 ...... 53 04.0N ...... 169 47.0W ...... 53 05.0N ...... 169 46.0W Unalga & Dinkum Rocks 1 ...... 51 34.0N ...... 179 04.0W ...... 51 34.5N ...... 179 03.0W Eastern Aleutians: Akutan I./Reef-Lava 1 ...... 54 10.5N ...... 166 04.5W ...... 54 07.5N ...... 166 06.5W Amak I.1 ...... 55 24.0N ...... 163 07.0W ...... 55 26.0N ...... 163 10.0W Cape Sedanka & Island 1 ...... 53 50.5N ...... 166 05.0W ...... Emerald I.1 ...... 53 17.5N ...... 167 51.5W ...... Old Man Rocks 1 ...... 53 52.0N ...... 166 05.0W ...... Polivnoi Rock 1 ...... 53 16.0N ...... 167 58.0W ...... Tanginak I.1 ...... 54 13.0N ...... 165 19.5W ...... Tigalda I.1 ...... 54 08.5N ...... 164 58.5W ...... Umnak I./Cape Aslik 1 ...... 53 25.0N ...... 168 24.5W ...... Bering Sea: Cape Newenham 1 ...... 58 39.0N ...... 162 10.5W ...... Hall I.1 ...... 60 37.0N ...... 173 00.0W ...... Round I.1 ...... 58 36.0N ...... 159 58.0W ...... St. Paul I: Northeast Point 1 ...... 57 15.0N ...... 170 06.5W ...... Sea Lion Rock 1 ...... 57 06.0N ...... 170 17.5W ...... St. George I: S Rookery 1 ...... 56 33.5N ...... 169 40.0W ...... Dalnoi Point 1 ...... 56 36.0N ...... 169 46.0W ...... St. Lawrence I: S Punuk I.1 ...... 64 04.0N ...... 168 51.0W ...... SW Cape 1 ...... 63 18.0N ...... 171 26.0W ...... Western Gulf of Alaska: Bird I. 1 ...... 54 40.5N ...... 163 18.0W ......

221

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 2 50 CFR Ch. II (10–1–02 Edition)

Boundaries to— State/region/site Latitude Longitude Latitude Longitude

Castle Rock 1 ...... 55 17.0N ...... 159 30.0W ...... Caton I.1 ...... 54 23.5N ...... 162 25.5W ...... Jude I.1 ...... 55 16.0N ...... 161 06.0W ...... Lighthouse Rocks 1 ...... 55 47.5N ...... 157 24.0W ...... Nagai I.1 ...... 54 52.5N ...... 160 14.0W ...... 54 56.0N ...... 160 15.0W Nagai Rocks 1 ...... 55 50.0N ...... 155 46.0W ...... Sea Lion Rocks (Unga) 1 ...... 55 04.5N ...... 160 31.0W ...... South Rock 1 ...... 54 18.0N ...... 162 43.5W ...... Spitz I.1 ...... 55 47.0N ...... 158 54.0W ...... The Whaleback 1 ...... 55 16.5N ...... 160 06.0W ...... Central Gulf of Alaska: Cape Barnabas 1 ...... 57 10.0N ...... 152 55.0W ...... 57 07.5N ...... 152 55.0W Cape Chiniak 1 ...... 57 35.0N ...... 152 09.0W ...... 57 37.5N ...... 152 09.0W Cape Gull 12 ...... 58 13.5N ...... 154 09.5W ...... 58 12.5N ...... 154 10.5W Cape Ikolik 12 ...... 57 17.0N ...... 154 47.5W ...... Cape Kuliak 12 ...... 58 08.0N ...... 154 12.5W ...... Cape Sitkinak 1 ...... 56 32.0N ...... 153 52.0W ...... Cape Ugat 12 ...... 57 52.0N ...... 153 51.0W ...... Gore Point 1 ...... 59 12.0N ...... 150 58.0W ...... Gull Point 1 ...... 57 21.5N ...... 152 36.5W ...... 57 24.5N ...... 152 39.0W Latax Rocks 1 ...... 58 42.0N ...... 152 28.5W ...... 58 40.5N ...... 152 30.0W Long I.1 ...... 57 45.5N ...... 152 16.0W ...... Nagahut Rocks 1 ...... 59 06.0N ...... 151 46.0W ...... Puale Bay 12 ...... 57 41.0N ...... 155 23.0W ...... Sea Lion Rocks (Marmot) 1 ...... 58 21.0N ...... 151 48.5W ...... Sea Otter I.1 ...... 58 31.5N ...... 152 13.0W ...... Shakun Rock 12 ...... 58 33.0N ...... 153 41.5W ...... Sud I.1 ...... 58 54.0N ...... 152 12.5W ...... Sutwik I.1 ...... 56 32.0N ...... 157 14.0W ...... 56 32.0N ...... 157 20.0W Takli I. 12 ...... 58 03.0N ...... 154 27.5W ...... 58 03.0N ...... 154 30.0W Two-headed I.1 ...... 56 54.5N ...... 153 33.0W ...... 56 53.5N ...... 153 35.5W Ugak I.1 ...... 57 23.0N ...... 152 15.5W ...... 57 22.0N ...... 152 19.0W Ushagat I. 1 ...... 58 55.0N ...... 152 22.0W ...... Eastern Gulf of Alaska: Cape Fairweather ...... 58 47.5N ...... 137 56.3W ...... Cape St. Elias 1 ...... 59 48.0N ...... 144 36.0W ...... Chiswell Islands 1 ...... 59 36.0N ...... 149 34.0W ...... Graves Rock ...... 58 14.5N ...... 136 45.5W. Hook Point 1 ...... 60 20.0N ...... 146 15.5W ...... Middleton I.1 ...... 59 26.5N ...... 146 20.0W ...... Perry I.1 ...... 60 39.5N ...... 147 56.0W ...... Point Eleanor 1 ...... 60 35.0N ...... 147 34.0W ...... Point Elrington 1 ...... 59 56.0N ...... 148 13.5W ...... Seal Rocks 1 ...... 60 10.0N ...... 146 50.0W ...... The Needle 1 ...... 60 07.0N ...... 147 37.0W ...... Southeast Alaska: Benjamin I...... 58 33.5N ...... 134 54.5W ...... Biali Rock ...... 56 43.0N ...... 135 20.5W ...... Biorka I...... 56 50.0N ...... 135 34.0W ...... Cape Addington ...... 55 26.5N ...... 133 49.5W ...... Cape Cross ...... 57 55.0N ...... 136 34.0W. Cape Ommaney ...... 56 10.5N ...... 134 42.5W. Coronation I...... 55 56.0N ...... 134 17.0W. Gran Point ...... 59 08.0N ...... 135 14.5W. Lull Point ...... 57 18.5N ...... 134 48.5W. Sunset I...... 57 30.5N ...... 133 35.0W ...... Timbered I...... 55 42.0N ...... 133 48.0W ...... 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas. [58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]

222

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00222 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 5

TABLE 3 TO PART 226—HYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMON

Hydrologic unit number Hydrologic unit name Spring/summer chinook Sockeye salmon salmon Fall chinook salmon

Hells Canyon ...... 17060101 17060101 Imnaha ...... 17060102 17060102 Lower Snake—Asotin ...... 17060103 17060103 17060103 Upper Grande Ronde ...... 17060104 ...... Wallowa ...... 17060105 ...... Lower Grande Ronde ...... 17060106 17060106 Lower Snake—Tucannon ...... 17060107 17060107 17060107 Palouse ...... 17060108 Lower Snake ...... 17060110 17060110 17060110 Upper Salmon ...... 17060201 17060201 ...... Pahsimeroi ...... 17060202 ...... Middle Salmon—Panther ...... 17060203 17060203 ...... Lemhi ...... 17060204 ...... Upper Middle Fork Salmon ...... 17060205 ...... Lower Middle Fork Salmon ...... 17060206 ...... Middle Salmon—Chamberlain ...... 17060207 17060207 ...... South Fork Salmon ...... 17060208 ...... Lower Salmon ...... 17060209 17060209 17060209 Little Salmon ...... 17060210 ...... Clearwater ...... 17060306 Lower North Fork Clearwater ...... 17060308 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS); State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974. [58 FR 68552, Dec. 28, 1993]

TABLE 4 [RESERVED]

TABLE 5 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST COHO SALMON, TRIBAL LANDS WITH- IN THE RANGE OF THE ESU, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT

Hydrologic Hydrologic Counties and tribal lands contained in hy- unit name unit No. drologic unit and within the range of Dams (reservoirs) ESU12

San Lorenzo-Soquel .. 18060001 Santa Cruz (CA), San Mateo (CA) ...... Newell Dam (Loch Lomond). San Francisco Coastal 18050006 San Mateo (CA). South. San Pablo Bay ...... 18050002 Marin (CA), Napa (CA) ...... Phoenix Dam (Phoenix Lake). Tomales-Drake Bays .. 18050005 Marin (CA), Sonoma (CA) ...... Peters Dam (Kent Lake); Seeger Dam (Nicasio Reservoir). Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA). Russian ...... 18010110 Sonoma (CA), Mendocino (CA)— Warm Springs Dam (Lake Sonoma); Coy- Cloverdale Rancheria; Coyote Valley ote Dam (Lake Mendocino). Rancheria; Dry Creek Rancheria; Guidiville Rancheria; Hopland Rancheria; Lytton Rancheria; Pinoleville Rancheria; Stewarts Point Rancheria. Gualala-Salmon ...... 18010109 Sonoma (CA), Mendocino (CA). Big-Navarro-Garcia .... 18010108 Mendocino (CA)—Manchester/Point Arena Rancheria;.

1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. 2 Tribal lands are specifically excluded from critical habitat for this ESU. [64 FR 24061, May 5, 1999]

223

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00223 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 6 50 CFR Ch. II (10–1–02 Edition)

TABLE 6 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTHERN OREGON/NORTHERN CALIFORNIA COASTS COHO SALMON, TRIBAL LANDS WITHIN THE RANGE OF THE ESU, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties and tribal lands contained in hy- Hydrologic unit name unit No. drologic unit and within the range of Dams (reservoirs) ESU12

Mattole ...... 18010107 Humboldt (CA), Mendocino (CA). South Fork Eel...... 18010106 Mendocino (CA), Humboldt (CA)— Laytonville Rancheria; Sherwood Valley Rancheria. Lower Eel ...... 18010105 Mendocino (CA), Humboldt (CA), Trinity (CA). Middle Fork Eel ...... 18010104 Mendocino (CA), Trinity (CA), Glenn (CA), Lake (CA)—Round Valley Reservation. Upper Eel ...... 18010103 Mendocino (CA), Glenn (CA), Lake (CA) ... Scott Dam (Lake Pillsbury). Mad-Redwood ...... 18010102 Humboldt (CA), Trinity (CA)—Big Lagoon Rancheria; Blue Lake Rancheria. Smith ...... 18010101 Del Norte (CA), Curry (OR)—Elk Valley Rancheria; Smith River Rancheria. South Fork Trinity ...... 18010212 Humboldt (CA), Trinity (CA). Trinity ...... 18010211 Humboldt (CA), Trinity (CA)—Hoopa Valley Lewiston Dam (Lewiston Reservoir). Reservation. Salmon ...... 18010210 Siskiyou (CA). Lower Klamath ...... 18010209 Del Norte (CA), Humboldt (CA), Siskiyou (CA)—Karuk Reservation; Resighini Rancheria; Yurok Reservation. Scott ...... 18010208 Siskiyou (CA)—Quartz Valley Reservation. Shasta ...... 18010207 Siskiyou (CA) ...... Dwinnell Dam (Dwinnell Reservoir). Upper Klamath ...... 18010206 Siskiyou (CA), Jackson (OR) ...... Irongate Dam (Irongate Reservoir). Chetco ...... 17100312 Curry (OR), Del Norte (CA). Illinois ...... 17100311 Curry (OR), Josephine (OR), Del Norte Selmac Lake Dam (Lake Selmac). (CA). Lower Rogue ...... 17100310 Curry (OR), Josephine (OR), Jackson (OR). Applegate ...... 17100309 Josephine (OR), Jackson (OR), Siskiyou Applegate Dam (Applegate Reservoir). (CA). Middle Rogue ...... 17100308 Josephine (OR), Jackson (OR) ...... Emigrant Lake Dam (Emigrant Lake). Upper Rogue...... 17100307 Jackson (OR), Klamath (OR), Douglas Agate Lake Dam (Agate Lake); Fish Lake (OR). Dam (Fish Lake); Willow Lake Dam (Willow Lake); Lost Creek Dam (Lost Creek Reservoir). Sixes ...... 17100306 Curry (OR). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. 2 Tribal lands are specifically excluded from critical habitat for this ESU. [64 FR 24061, May 5, 1999]

TABLE 7 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR PUGET SOUND CHINOOK SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Strait of Georgia ...... 17110002 Skagit (WA), Whatcom (WA) ...... Sand Juan Islands ...... 17110003 San Juan (WA) ...... Nooksack ...... 17110004 Skagit (WA), Whatcom (WA) ...... Upper Skagit ...... 17110005 Skagit (WA), Whatcom (WA) ...... Sauk ...... 17110006 Snohomish (WA), Skagit (WA) ...... Lower Skagit ...... 17110007 Skagit (WA), Snohomish (WA) ...... Stillaguamish ...... 17110008 Snohomish (WA), Skagit (WA) ...... Skykomish ...... 17110009 King (WA), Snohomish (WA) ...... Snoqualmie ...... 17110010 King (WA), Snohomish (WA) ...... Tolt Dam Snohomish ...... 17110011 Snohomish (WA) ...... Lake Washington ...... 17110012 King (WA), Snohomish (WA) ...... Landsburg Diversion Duwamish ...... 17110013 King (WA) ...... Puyallup ...... 17110014 King (WA), Pierce (WA) ...... Nisqually ...... 17110015 Pierce (WA), Thurston (WA) ...... Alder Dam Deschutes ...... 17110016 Lewis (WA), Thurston (WA) ......

224

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 9

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Skokomish ...... 17110017 Grays Harbor (WA), Jefferson (WA), Mason (WA). Hood Canal...... 17110018 Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA). Puget Sound ...... 17110019 Island (WA), Jefferson (WA), King (WA), Kitsap (WA), Mason (WA), Pierce (WA), Skagit (WA), Sno- homish (WA), Thurston (WA). Dungeness-Elwha ...... 17110020 Clallam (WA), Jefferson (WA) ...... Elwha Dam 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7779, Feb. 16, 2000]

TABLE 8 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER CHINOOK SALMON, AND DAMS/RES- ERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Condit Dam, The Dalles Dam Skamania (WA), Wasco (OR). Lower Columbia-Sandy ...... 17080001 Clackamas (OR), Clark (WA), Mult- Bull Run Dam 2 nomah (OR), Skamania (WA). Lewis ...... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Lewis (WA), Skamania (WA), Wahkiakum (WA). Upper Cowlitz...... 17080004 Lewis (WA), Pierce (WA), Skamania (WA), Yakima (WA). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (OR). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7780, Feb. 16, 2000]

TABLE 9 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER CHINOOK SALMON, AND DAMS/RES- ERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Lower Columbia-Sandy ...... 17080001 Clark (WA) ...... Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Middle Fork Willamette ...... 17090001 Douglas (OR), Lane (OR) ...... Coast Fork Willamette ...... 17090002 Douglas (OR), Lane (OR) ...... Cottage Grove Dam, Dorena Dam Upper Willamette ...... 17090003 Benton (OR), Lane (OR), Lincoln Fern Ridge Dam (OR), Linn (OR), Polk (OR). McKenzie ...... 17090004 Lane (OR), Linn (OR) ...... Blue River Dam North Santiam ...... 17090005 Clackamas (OR), Linn (OR) Marion Big Cliff Dam (OR). South Santiam ...... 17090006 Linn (OR) ...... Green Peter Dam Middle Willamette ...... 17090007 Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR).

225

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 10 50 CFR Ch. II (10–1–02 Edition)

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Yamhill ...... 17090008 Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR). Molalla-Pudding ...... 17090009 Clackamas (OR), Marion (OR) ...... Tualatin ...... 17090010 Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7780, Feb. 16, 2000]

TABLE 10 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER COLUMBIA RIVER SPRING-RUN CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABI- TAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Chief Joseph...... 17020005 Chelan (WA), Douglas (WA), Chief Joseph Okanogan (WA). Similkameen ...... 17020007 Okanogan (WA) ...... Methow ...... 17020008 Okanogan (WA) ...... Upper Columbia-Entiat ...... 17020010 Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA). Wenatchee ...... 17020011 Chelan (WA) ...... Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Grant (WA), Franklin (WA), Kittitas (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR) .... 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7781, Feb. 16, 2000]

TABLE 11 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY CALIFORNIA SPRING-RUN CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABI- TAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

226

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00226 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 13

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Lower Yuba ...... 18020107 Yuba (CA) ...... Lower Bear ...... 18020108 Placer (CA), Sutter (CA), Yuba (CA) Camp Far West Dam Lower Sacramento...... 18020109 Sacramento (CA), Solano (CA), Sutter (CA), Placer (CA), Yolo (CA). Sacramento-Upper Clear ...... 18020112 Shasta (CA) ...... Keswick Dam, Whiskeytown Dam Upper Elder-Upper Thomes ...... 18020114 Tehama (CA) ...... Upper Cow-Battle ...... 18020118 Shasta (CA), Tehama (CA) ...... Mill-Big Chico ...... 18020119 Butte (CA), Shasta (CA), Tehama (CA). Upper Butte ...... 18020120 Butte (CA), Tehama (CA) ...... Upper Yuba ...... 18020125 Nevada (CA), Yuba (CA) ...... Englebright Dam Suisun Bay ...... 18050001 Contra Costa (CA), Napa (CA), So- lano (CA). San Pablo Bay ...... 18050002 Alameda (CA), Contra Costa (CA), Marin (CA), Napa (CA), San Mateo (CA), Solano (CA), Sonoma (CA). San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), Marin (CA), San Francisco (CA), San Mateo (CA). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7781, Feb. 16, 2000]

TABLE 12 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CALIFORNIA COASTAL CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Mad-Redwood ...... 18010102 Humboldt (CA), Trinity (CA) ...... Upper Eel ...... 18010103 Glenn (CA), Lake (CA), Mendocino Scott Dam (CA), Trinity (CA). Middle Fork Eel...... 18010104 Humboldt (CA), Mendocino (CA), Trinity (CA). Lower Eel ...... 18010105 Humboldt (CA), Mendocino (CA) .... South Fork Eel ...... 18010106 Humboldt (CA), Mendocino (CA) .... Mattole ...... 18010107 Humboldt (CA), Mendocino (CA) .... Big-Navarro-Garcia ...... 18010108 Mendocino (CA) ...... Gualala-Salmon ...... 18010109 Mendocino (CA), Sonoma (CA) ...... Russian ...... 18010110 Mendocino (CA), Sonoma (CA) ...... Coyote Dam, Warm Springs Dam Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA) ...... 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7782, Feb. 16, 2000]

TABLE 13 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR HOOD CANAL SUMMER-RUN CHUM SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Skokomish ...... 17110017 Mason (WA) ...... Cushman Dam Hood Canal...... 17110018 Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA). Puget Sound ...... 17110019 Island (WA), Jefferson (WA), Kitsap (WA). Dungeness-Elwha ...... 17110020 Clallam (WA), Jefferson (WA) ......

227

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00227 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 14 50 CFR Ch. II (10–1–02 Edition)

TABLE 14 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR COLUMBIA RIVER CHUM SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Lower Columbia - Sandy ...... 17080001 Clark (WA), Skamania (WA), Mult- Bonneville Dam nomah (OR). Lewis ...... 17080002 Cowlitz (WA), Clark (WA), Merwin Dam Skamania (WA). Lower Columbia - Clatskanie ...... 17080003 Wahkiakum (WA), Lewis (WA), Cowlitz (WA), Skamania (WA), Clatsop (OR), Columbia (OR). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Pacific (WA), Wahkiakum (WA), Lewis (WA), Clatsop (OR). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR), Washington (OR). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7782, Feb. 16, 2000]

TABLE 15 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR OREGON COAST COHO SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

1 Hydrologic Unit name Hydrologic Counties within Hydrologic Unit Dams/Reservoirs Unit number and within the range of ESUX

Necanicum ...... 17100201 Clatsop (OR), Tillamook (OR) ...... Nehalem ...... 17100202 Clatsop (OR), Columbia (OR), Tillamook (OR), Washington (OR). Wilson-Trask-Nestucca ...... 17100203 Lincoln (OR), Polk (OR), Tillamook McGuire Dam (OR), Washington (OR), Yamhill (OR). Siletz-Yaquina ...... 17100204 Benton (OR), Lincoln (OR), Polk (OR), Tillamook (OR). Alsea ...... 17100205 Benton (OR), Lane (OR), Lincoln (OR). Siuslaw ...... 17100206 Benton (OR), Douglas (OR), Lane (OR). Siltcoos ...... 17100207 Douglas (OR), Lane (OR) ...... North Umpqua ...... 17100301 Douglas (OR), Lane (OR) ...... Cooper Creek Dam, Soda Springs Dam South Umpqua ...... 17100302 Coos (OR), Douglas (OR), Jose- Ben Irving Dam, Galesville Dam, phine (OR). Win Walker Reservoir Umpqua ...... 17100303 Coos (OR), Douglas (OR), Lane (OR). Coos ...... 17100304 Coos (OR), Douglas (OR) ...... Lower Pony Creek Dam Coquille ...... 17100305 Coos (OR), Curry (OR), Douglas (OR). Sixes ...... 17100306 Coos (OR), Curry (OR) ...... 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7782, Feb. 16, 2000]

TABLE 16 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTHERN CALIFORNIA STEELHEAD, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Cuyama ...... 18060007 San Luis Obispo (CA), Santa Bar- bara (CA).

228

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00228 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 18

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Santa Maria ...... 18060008 San Luis Obispo (CA), Santa Bar- Vaquero Dam bara (CA). San Antonio ...... 18060009 Santa Barbara (CA) ...... Santa Ynez ...... 18060010 Santa Barbara (CA) ...... Bradbury Dam Santa Barbara Coastal ...... 18060013 Santa Barbara (CA), Ventura (CA) Ventura ...... 18070101 Santa Barbara (CA), Ventura (CA) Casitas Dam, Robles Dam Santa Clara ...... 18070102 Los Angeles (CA), Santa Barbara Santa Felicia Dam (CA), Ventura (CA). Santa Monica Bay ...... 18070104 Los Angeles (CA), Ventura (CA) ..... Rindge Dam 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7783, Feb. 16, 2000]

TABLE 17 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTH-CENTRAL CALIFORNIA COAST STEELHEAD, AND DAMS/RES- ERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Pajaro ...... 18060002 Monterey (CA), San Benito (CA), Chesbro Reservoir, North Fork Santa Clara (CA), Santa Cruz Pacheco Reservoir (CA). Estrella ...... 18060004 Monterey (CA), San Luis Obispo (CA). Salinas ...... 18060005 Monterey (CA), San Benito (CA), Nacimiento Reservoir, Salinas Dam, San Luis Obispo (CA). San Antonio Reservoir Central Coastal ...... 18060006 Monterey (CA), San Luis Obispo Lopez Dam, Whale Rock Reservoir (CA). Alisal-Elkhorn Sloughs ...... 18060011 Monterey (CA), San Benito (CA) ..... Carmel ...... 18060012 Monterey (CA) ...... 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7783, Feb. 16, 2000]

TABLE 18 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Russian ...... 18010110 Mendocino (CA), Sonoma (CA) ...... Coyote Dam, Warm Springs Dam Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA) ...... Suisun Bay ...... 18050001 Contra Costa (CA), Napa (CA), So- lano (CA). San Pablo Bay ...... 18050002 Alameda (CA), Contra Costa (CA), Phoenix Dam, San Pablo Dam Marin (CA), Napa (CA), San Francisco (CA), Solano (CA), Sonoma (CA). Coyote ...... 18050003 Alameda (CA), San Mateo (CA), Almaden Reservoir, Anderson Res- Santa Clara (CA). ervoir, Calero Reservoir, Guadalupe Reservoir, Searsville Lake, Stevens Creek Reservoir, Vasona Reservoir San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), Calaveras Reservoir, Chabot Dam, San Francisco (CA), San Mateo Crystal Springs Reservoir, Del (CA), Santa Clara (CA). Valle Reservoir, San Antonio Reservoir Tomales-Drake Bays ...... 18050005 Marin (CA), Sonoma (CA) ...... Peters Dam, Seeger Dam, Soulejule Dam San Francisco Coastal South ...... 18050006 San Mateo (CA) ...... Pilarcitos Dam San Lorenzo-Soquel ...... 18060001 San Mateo (CA), Santa Cruz (CA) .. Newell Dam 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries.

229

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00229 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 19 50 CFR Ch. II (10–1–02 Edition)

[65 FR 7783, Feb. 16, 2000]

TABLE 19 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY STEELHEAD, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Sacramento-Lower Cow-Lower Clear 18020101 Shasta (CA), Tehama (CA) ...... Lower Cottonwood ...... 18020102 Shasta (CA), Tehama (CA) ...... Sacramento-Lower Thomes...... 18020103 Butte (CA), Glenn (CA), Tehama Black Butte Dam (CA). Sacramento-Stone Corral...... 18020104 Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA), Yolo (CA). Lower Butte...... 18020105 Butte (CA), Colusa (CA), Glenn Centerville Dam (CA), Sutter (CA). Lower Feather ...... 18020106 Butte (CA), Sutter (CA), Yuba (CA) Oroville Dam Lower Yuba ...... 18020107 Yuba (CA) ...... Lower Bear ...... 18020108 Placer (CA), Sutter (CA), Yuba (CA) Camp Far West Dam Lower Sacramento ...... 18020109 Placer (CA), Sacramento (CA), So- Monticello Dam lano (CA), Sutter (CA), Yolo (CA). Lower Cache ...... 18020110 Yolo (CA) ...... Lower American ...... 18020111 Placer (CA), Sacramento (CA), Sut- Nimbus Dam ter (CA). Sacramento-Upper Clear ...... 18020112 Shasta (CA) ...... Keswick Dam, Whiskeytown Dam Cottonwood Headwaters ...... 18020113 Shasta (CA), Tehama (CA) ...... Upper Elder-Upper Thomes ...... 18020114 Tehama (CA) ...... Upper Cow-Battle ...... 18020118 Shasta (CA), Tehama (CA) ...... Mill-Big Chico ...... 18020119 Butte (CA), Shasta (CA), Tehama (CA). Upper Butte ...... 18020120 Butte (CA), Tehama (CA) ...... Honcut Headwaters ...... 18020124 Butte (CA), Yuba (CA) ...... Upper Yuba ...... 18020125 Yuba (CA), Nevada (CA) ...... Englebright Dam Upper Coon-Upper Auburn ...... 18020127 Placer (CA) ...... Middle San Joaquin-Lower Merced- 18040002 Calaveras (CA), Merced (CA), San Crocker Diversion Dam, La Grange Lower Stanislaus. Joaquin (CA), Stanislaus (CA). Dam San Joaquin Delta ...... 18040003 Alameda (CA), Contra Costa (CA), Sacramento (CA), San Joaquin (CA). Lower Calaveras-Mormon Slough .... 18040004 Calaveras (CA), San Joaquin (CA), Stanislaus (CA). Lower Consumnes-Lower 18040005 Amador (CA), Sacramento (CA), Comanche Dam Mokelumne. San Joaquin (CA). Upper Stanislaus ...... 18040010 Calaveras (CA), San Joaquin (CA), Goodwin Dam Tuolumne (CA). Upper Calaveras ...... 18040011 Calaveras (CA) ...... New Hogan Dam Panoche-San Luis Reservoir ...... 18040014 San Joaquin (CA), Stanislaus (CA) Suisun Bay ...... 18050001 Contra Costa (CA), Solano (CA) ..... San Pablo Bay ...... 18050002 Contra Costa (CA), Marin (CA), San Francisco (CA), Solano (CA), Sonoma (CA). San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), San Francisco (CA), San Mateo (CA). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7784, Feb. 16, 2000]

TABLE 20 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Chief Joseph...... 17020005 Chelan (WA), Douglas (WA), Chief Joseph Dam Okanogan (WA). Okanogan ...... 17020006 Okanogan (WA) ...... Similkameen ...... 17020007 Okanogan (WA) ......

230

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00230 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 226, Table 21

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Methow ...... 17020008 Okanogan (WA) ...... Upper Columbia-Entiat ...... 17020010 Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA). Wenatchee ...... 17020011 Chelan (WA) ...... Moses Coulee ...... 17020012 Douglas (WA), Grant (WA) ...... Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Franklin (WA), Grant (WA), Kittitas (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR) .... 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7784, Feb. 16, 2000]

TABLE 21 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SNAKE RIVER BASIN STEELHEAD, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Hells Canyon...... 17060101 Adams (ID), Idaho (ID), Wallowa Hells Canyon Dam (OR). Imnaha ...... 17060102 Baker (OR), Union (OR), Wallowa (OR). Lower Snake-Asotin...... 17060103 Asotin (WA), Garfield (WA), Nez Perce (ID), Wallowa (OR). Upper Grande Ronde ...... 17060104 Umatilla (OR), Union (OR), Wallowa (OR). Wallowa ...... 17060105 Union (OR), Wallowa (OR) ...... Lower Grande Ronde ...... 17060106 Asotin (WA), Columbia (WA), Gar- field (WA), Union (OR), Wallowa (OR). Lower Snake-Tucannon ...... 17060107 Asotin (WA), Columbia (WA), Gar- field (WA), Whitman (WA). Palouse ...... 17060108 Franklin (WA), Whitman (WA) ...... Lower Snake...... 17060110 Columbia (WA), Franklin (WA), Walla Walla (WA). Upper Salmon ...... 17060201 Blaine (ID), Custer (ID), Lemhi (ID) Pahsimeroi ...... 17060202 Custer (ID), Lemhi (ID) ...... Middle Salmon-Panther ...... 17060203 Custer (ID), Lemhi (ID) ...... Lemhi ...... 17060204 Lemhi (ID) ...... Upper Middle Fork Salmon ...... 17060205 Boise (ID), Custer (ID), Lemhi (ID), Valley (ID). Lower Middle Fork Salmon ...... 17060206 Idaho (ID), Lemhi (ID), Valley (ID) .. Middle Salmon-Chamberlain ...... 17060207 Idaho (ID), Lemhi (ID), Valley (ID) .. South Fork Salmon ...... 17060208 Idaho (ID), Valley (ID) ...... Lower Salmon ...... 17060209 Idaho (ID), Lewis (ID), Nez Perce (ID). Little Salmon ...... 17060210 Adams (ID), Idaho (ID) ...... Upper Selway ...... 17060301 Idaho (ID) ...... Lower Selway ...... 17060302 Idaho (ID) ...... Lochsa ...... 17060303 Clearwater (ID), Idaho (ID) ...... Middle Fork Clearwater ...... 17060304 Idaho (ID) ...... South Fork Clearwater ...... 17060305 Idaho (ID) ...... Clearwater ...... 17060306 Clearwater (ID), Idaho (ID), Latah (ID), Lewis (ID), Nez Perce (ID), Whitman (WA). Lower North Fork Clearwater ...... 17060308 Clearwater (ID) ...... Dworshak Dam

231

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00231 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T Pt. 226, Table 22 50 CFR Ch. II (10–1–02 Edition)

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR) .... 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7785, Feb. 16, 2000]

TABLE 22 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Middle Columbia-Hood ...... 17070105 Hood River (OR), Skamania (WA) .. Lower Columbia-Sandy ...... 17080001 Clackamas (OR), Clark (WA), Mult- Bull Run Dam 2 nomah (OR), Skamania (WA). Lewis ...... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Skamania (WA), Wahkiakum (WA). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (OR). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7786, Feb. 16, 2000]

TABLE 23 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Lower Columbia-Sandy ...... 17080001 Clark (WA) ...... Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Upper Willamette ...... 17090003 Benton (OR), Linn (OR), Polk (OR) North Santiam ...... 17090005 Clackamas (OR), Linn (OR), Marion Big Cliff Dam (OR). South Santiam ...... 17090006 Linn (OR) ...... Green Peter Dam Middle Willamette ...... 17090007 Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR). Yamhill ...... 17090008 Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR).

232

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00232 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 228

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Molalla-Pudding ...... 17090009 Clackamas (OR), Marion (OR) ...... Tualatin ...... 17090010 Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR). Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7786, Feb. 16, 2000]

TABLE 24 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR MIDDLE COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT

Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs

Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Franklin (WA) ...... Upper Yakima ...... 17030001 Kittitas (WA), Yakima (WA) ...... Naches ...... 17030002 Kittitas (WA), Yakima (WA) ...... Lower Yakima...... 17030003 Benton (WA), Klickitat (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Gilliam (OR), Morrow (OR), Umatilla (OR), Benton (WA), Klickitat (WA), Sherman (OR), Walla Walla (WA), Yakima (WA). Walla Walla ...... 17070102 Umatilla (OR), Wallowa (OR), Co- lumbia (WA), Walla Walla (WA). Umatilla ...... 17070103 Morrow (OR), Umatilla (OR), Union (OR). Willow ...... 17070104 Morrow (OR), Gilliam (OR) ...... Middle Columbia-Hood ...... 17070105 Hood River (OR), Sherman (OR), Condit Dam Wasco (OR), Klickitat (WA), Skamania (WA). Klickitat ...... 17070106 Klickitat (WA), Yakima (WA) ...... Upper John Day...... 17070201 Crook (OR), Grant (OR), Harney (OR), Wheeler (OR),. North Fork John Day ...... 17070202 Grant (OR), Morrow (OR), Umatilla (OR), Union (OR), Wheeler (OR). Middle Fork John Day ...... 17070203 Grant (OR) ...... Lower John Day...... 17070204 Crook (OR), Gilliam (OR), Grant (OR), Jefferson (OR), Morrow (OR), Sherman (OR), Wasco (OR), Wheeler (OR). Lower Deschutes ...... 17070306 Hood River (OR), Jefferson (OR), Pelton Dam Sherman (OR), Wasco (OR). Trout ...... 17070307 Crook (OR), Jefferson (OR), Wasco (OR). Lower Columbia-Sandy...... 17080001 Multnomah (OR), Clark (WA), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR) .... 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7786, Feb. 16, 2000]

PART 228—NOTICE AND HEARING 228.3 Scope of regulations. 228.4 Notice of hearing. ON SECTION 103(d) REGULATIONS 228.5 Notification by interested persons. 228.6 Presiding officer. Sec. 228.7 Direct testimony submitted as written 228.1 Basis and purpose. documents. 228.2 Definitions. 228.8 Mailing address.

233

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00233 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 228.1 50 CFR Ch. II (10–1–02 Edition)

228.9 Inspection and copying of documents. § 228.2 Definitions. 228.10 Ex parte communications. 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 the Assistant Administrator’s rep- fact in final agenda. resentative; 228.15 Waiver of right to participate. (2) A person who has notified the As- 228.16 Conduct of the hearing. sistant Administrator by specified 228.17 Direct testimony. dates of his or her intent to participate 228.18 Cross-examination. in the hearing pursuant to §§ 228.5 and 228.19 Oral and written arguments. 228.14(b). 228.20 Recommended decision, certification (b) Witness means, for the purpose of of the transcript and submission of com- this part, any person who submits writ- ments on the recommended decision. ten direct testimony on the proposed 228.21 Assistant Administrator’s decision. regulations. A person may be both a AUTHORITY: 16 U.S.C. 1361 et seq. party and a witness.

SOURCE: 65 FR 39560, June 27, 2000, unless otherwise noted. § 228.3 Scope of regulations. The procedural regulations in this § 228.1 Basis and purpose. part govern the practice and procedure (a) Sections 101(a)(2), 101(a)(3)(A), and in hearings held under section 103(d) of 101(b) of the Marine Mammal Protec- the Act. These hearings will be gov- tion Act of 1972 (16 U.S.C. 1371(a)(2), erned by the provisions of 5 U.S.C. 556 1371(a)(3)(A), and 1371(b)) and these reg- and section 557 of the Administrative Procedure Act. The regulations shall ulations authorize the Assistant Ad- be construed to secure the just, speedy ministrator of the National Marine and inexpensive determination of all Fisheries Service, to: issues raised with respect to any waiv- (1) Impose regulations governing the er or regulation proposed pursuant to taking of marine mammals incidental section 103(d) of the Act with full pro- to commercial fishing operations; tection for the rights of all persons af- (2) Waive the moratorium and to fected thereby. adopt regulations with respect to the taking and importing of animals from § 228.4 Notice of hearing. each species of marine mammals under (a) A notice of hearing on any pro- the Assistant Administrator’s jurisdic- posed regulations shall be published in tion; the FEDERAL REGISTER, together with (3) Prescribe regulations governing the Assistant Administrator’s proposed the taking of depleted marine mam- determination to waive the morato- mals by any Indian, Aleut or Eskimo, rium pursuant to section 101(a)(3)(A) of respectively. In prescribing regulations the Act (16 U.S.C. 1371(a)(3)(A)), where to carry out the provisions of said sec- applicable. tions, the Act refers the Assistant Ad- (b) The notice shall state: ministrator to section 103 (16 U.S.C. (1) The nature of the hearing; 1373). In accordance with section 103(d), (2) The place and date of the hearing. regulations must be made on the The date shall not be less than 60 days record after opportunity for an agency after publication of notice of the hear- hearing on such regulations and, in the ing; case of a waiver, on the determination (3) The legal authority under which by the Assistant Administrator to the hearing is to be held; waive the moratorium pursuant to sec- (4) The proposed regulations and tion 101(a)(3)(A) of the Act (16 U.S.C. waiver, where applicable, and a sum- 1371(a)(3)(A)). mary of the statements required by (b) The purpose of this part is to es- section 103(d) of the Act (16 U.S.C. tablish rules of practice and procedure 1373(d)); for all hearings conducted pursuant to (5) Issues of fact which may be in- section 103(d) of the Act. volved in the hearing;

234

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 228.7

(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 sub- proceeding, 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 the presiding officer’s own motion § 228.5 Notification by interested per- withdraw as presiding officer in a pro- sons. ceeding if the presiding officer deems Any person desiring to participate as himself or herself to be disqualified. a party shall notify the Assistant Ad- (e) A presiding officer may be re- ministrator, by certified mail, on or be- quested to withdraw at any time prior fore the date specified in the notice. to the recommended decision. Upon the filing by an interested person in good § 228.6 Presiding officer. faith of a timely and sufficient affi- (a) Upon publication of the notice of davit alleging the presiding officer’s hearing pursuant to § 228.4, the Assist- personal bias, malice, conflict of inter- ant Administrator shall appoint a pre- est or other basis which might result in siding officer pursuant to 5 U.S.C. 3105. prejudice to a party, the hearing shall No individual who has any conflict of recess. The Assistant Administrator interest, financial or otherwise, shall shall immediately determine the mat- serve as presiding officer in such pro- ter as a part of the record and decision ceeding. in the proceeding, after making such (b) The presiding officer, in any pro- investigation or holding such hearings, ceeding under this subpart, shall have or both, as the Assistant Administrator power to: may deem appropriate in the cir- (1) Change the time and place of the cumstances. hearing and adjourn the hearing; (2) Evaluate direct testimony sub- § 228.7 Direct testimony submitted as mitted pursuant to these regulations, written documents. make a preliminary determination of (a) Unless otherwise specified, all di- the issues, conduct a prehearing con- rect testimony, including accom- ference to determine the issues for the panying exhibits, must be submitted to hearing agenda, and cause to be pub- the presiding officer in writing no later lished in the FEDERAL REGISTER a final than the dates specified in the notice of hearing agenda; the hearing (§ 228.4), the final hearing (3) Rule upon motions, requests and agenda (§ 228.12), or within 15 days after admissibility of direct testimony; the conclusion of the prehearing con- (4) Administer oaths and affirma- ference (§ 228.14) as the case may be. All tions, question witnesses and direct direct testimony shall be in affidavit witnesses to testify; form and exhibits constituting part of

235

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 228.8 50 CFR Ch. II (10–1–02 Edition)

such testimony, referred to in the affi- or any document forming part of the davit and made a part thereof, must be record of such a hearing may be in- attached to the affidavit. Direct testi- spected and/or copied in the Office of mony submitted with exhibits must the Assistant Administrator, National state the issue to which the exhibit re- Marine Fisheries Service, 1315 East- lates; if no such statement is made, the West Highway, Silver Spring, MD presiding officer shall determine the 20910–unless the file is in the care and relevance of the exhibit to the issues custody of the presiding officer, in published in the FEDERAL REGISTER. which case the presiding officer shall (b) The direct testimony submitted notify the parties as to where and when shall contain: the record may be inspected. (1) A concise statement of the witness’ 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 shall be assigned a number and contacted. All communications shall stamped with that number and the be available for public viewing at the docket number. place(s) specified in the notice of hear- (f) Contemporaneous with the publi- ing. cation of the notice of hearing, the As- (c) The presiding office shall not con- sistant Administrator’s direct testi- sult any person or party on any fact in mony in support of the proposed regu- issue or on the merits of the matter lations and waiver, where applicable, unless notice and opportunity is given shall be available for public inspection for all parties to participate. as specified in the notice of hearing. The Assistant Administrator may sub- § 228.11 Prehearing conference. mit additional direct testimony during (a) After an examination of all the di- the time periods allowed for submis- rect testimony submitted pursuant to sion of such testimony by witnesses. § 228.7, the presiding officer shall make a preliminary determination of issues § 228.8 Mailing address. of fact which may be addressed at the Unless otherwise specified in the no- hearing. tice of hearing, all direct testimony (b) The presiding officer’s prelimi- shall be addressed to the Presiding Of- nary determination shall be made ficer, c/o Assistant Administrator, Na- available at the place or places pro- tional Marine Fisheries Service, 1315 vided in the notice of the hearing East-West Highway, Silver Spring, MD (§ 228.4(b)(8)) at least 5 days before the 20910. All affidavits and exhibits shall prehearing conference. be clearly marked with the docket (c) The purpose of the prehearing number of the proceedings. conference shall be to enable the presiding officer to determine, on the § 228.9 Inspection and copying of doc- basis of the direct testimony submitted uments. and prehearing discussions: Any document in a file pertaining to (1) Whether the presiding officer’s any hearing authorized by this subpart preliminary determination of issues of

236

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 228.15

fact for the hearing has omitted any may include proposed findings and con- significant issues; clusions, arguments or briefs. (2) What facts are not in dispute; (b) A person need not be a party to (3) Which witnesses may appear at submit any written comments. the hearing; and (c) Promptly after expiration of the (4) The nature of the interest of each period for receiving written comments, party and which parties’ interests are the presiding officer shall make a rec- adverse. ommended decision based on the (d) Only parties may participate in record, which in this case shall consist the hearing conference and a party of the direct testimony and written may appear in person or be represented comments submitted. He shall transfer by counsel. to the Assistant Administrator his rec- (e) Parties who do not appear at the ommended decision, the record and a prehearing conference shall be bound certificate stating that the record con- by the conference’s determinations. tains all the written direct testimony and comments submitted. The Assist- § 228.12 Final agenda of the hearing. ant Administrator shall then make a (a) After the prehearing conference, final decision in accordance with these the presiding officer shall prepare a regulations (§ 228.21). 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 conference. A copy of the final agenda (a) Direct testimony to rebut testi- shall be mailed to all parties. mony offered during the time period (b) The final agenda shall list: specified in the notice of hearing may (1) All the issues which the hearing be submitted pursuant to these regula- shall address, the order in which those tions within fifteen days after the con- issues shall be presented, and the di- clusion of the prehearing conference rect testimony submitted which bears unless the presiding officer otherwise on the issues; and specifies in the final agenda. (2) A final date for submission of di- (b) If the final agenda presents issues rect testimony on issues of fact not in- not included in the notice of the hear- cluded in the notice of hearing if such ing published pursuant to § 228.4: issues are presented. The final agenda (1) Any person interested in partici- may also specify a final date for sub- pating at the hearing on such issues mission of direct testimony to rebut presented shall notify the Assistant testimony previously submitted during Administrator by certified mail of an the time specified in the notice of the intent to participate not later than 10 hearing. days after publication of the final (c) The presiding officer shall publish agenda. Such person may present di- with the final agenda a list of wit- rect testimony or cross-examine witnesses who may appear at the hearing, nesses only on such issues presented a list of parties, the nature of the in- unless that person previously notified terest of each party, and which parties’ the Assistant Administrator pursuant interests are adverse on the issues pre- to § 228.5; and sented. (2) Additional written direct testimony concerning such issues may be § 228.13 Determination to cancel the submitted within the time provided in hearing. the final agenda. Such direct testi- (a) If the presiding officer concludes mony will comply with the require- that no issues of fact are presented by ments of § 228.7. the direct testimony submitted, the presiding officer shall publish such § 228.15 Waiver of right to participate. conclusion and notice in the FEDERAL Persons who fail to notify the Assist- REGISTER that a hearing shall not be ant Administrator pursuant to §§ 228.5 held and shall also publish a date for and 228.14 shall be deemed to have filing written comments on the pro- waived their right to participate as posed regulations. Written comments parties in any part of the hearing.

237

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 228.16 50 CFR Ch. II (10–1–02 Edition)

§ 228.16 Conduct of the hearing. (e) All motions and requests shall be (a) The hearing shall be held at the addressed to, and ruled on by, the pre- time and place fixed in the notice of siding officer, if made prior to his cer- the hearing, unless the presiding offi- tification of the transcript or by the cer changes the time or place. If a Assistant Administrator if made there- change occurs, the presiding officer after. shall publish the change in the FEDERAL REGISTER and shall expedi- § 228.17 Direct testimony. tiously notify all parties by telephone (a) Only direct testimony submitted or by mail: Provided, that if that by affidavit as provided in these regu- change in time or place of hearing is lations and introduced at the hearing made less than 5 days before the date by a witness shall be considered part of previously fixed for the hearing, the the record. Such direct testimony shall presiding officer shall also announce, not be read into evidence but shall be- or cause to be announced, the change come a part of the record subject to ex- at the time and place previously fixed for the hearing. clusion of irrelevant and immaterial (b) The presiding officer shall, at the parts thereof; commencement of the hearing, intro- (b) The witness introducing direct duce into the record: the notice of testimony shall: hearing as published in the FEDERAL (1) State his or her name, address and REGISTER; all subsequent documents occupation; published in the FEDERAL REGISTER; (2) State qualifications for intro- 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 respect to direct testimony submitted (4) Submit to appropriate cross and as rebuttal testimony or in response to direct examination. Cross-examination new issues presented by the prehearing shall be by a party whose interests are conference, the presiding officer shall adverse on the issue presented, to the determine the relevancy of such testi- witness’, if the witness is a party, or to mony. the interests of the party who pre- (c) The hearing shall be publicly consented the witness. ducted and reported verbatim by an of- (c) A party shall be deemed to have ficial reporter. waived the right to introduce direct (d) If a party objects to the admission testimony if such party fails to present or rejection of any direct testimony or a witness to introduce the direct testi- to any other ruling of the presiding of- mony. ficer during the hearing, he or she shall (d) Official notice may be taken of state briefly the grounds of such objec- such matters as are judicially noticed tion, whereupon an automatic excep- by the courts of the United States: tion will follow if the objection is over- Provided, that parties shall be given ruled by the presiding officer. The adequate notice, by the presiding offi- transcript shall not include argument cer, at the hearing, of matters so no- or debate thereon except as ordered by ticed and shall be given adequate op- the presiding officer. The ruling by the portunity to show that such facts are presiding officer on any objection shall inaccurate or are erroneously noticed. be a part of the transcript and shall be subject to review at the same time and § 228.18 Cross-examination. in the same manner as the Assistant Administrator’s final decision. Only (a) The presiding officer may: objections made before the presiding (1) Require the cross-examiner to officer may subsequently be relied outline the intended scope of the cross- upon in the proceedings. examination;

238

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 228.20

(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 extent necessary for the expeditious submission of comments. The rec- disposition of the proceeding. ommended decision may be reviewed (b) The presiding officer shall an- and/or copied in the office of the As- nounce at the hearing a reasonable pe- sistant Administrator, National Ma- riod of time within which any inter- rine Fisheries Service, 1315 East-West ested person may file with the pre- Highway, Silver Spring, MD 20910. siding officer any written comments on (d) Within 20 days after the notice of the proposed regulations and waiver, receipt of the recommended decision including proposed findings and conclu- has been published in the FEDERAL sions and written arguments or briefs, REGISTER, any interested person may which are based upon the record and file with the Assistant Administrator

239

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 228.21 50 CFR Ch. II (10–1–02 Edition)

any written comments on the rec- 229.11 Confidential fisheries data. ommended decision. All comments, in- 229.12 Consultation with the Secretary of cluding recommendations from or con- the Interior. sultation with the Marine Mammal Subpart B—Takes of Endangered and Commission, must be submitted during Threatened Marine Mammals the 20-day period to the Assistant Ad- ministrator at the previously men- 229.20 Issuance of permits. tioned address. Subpart C—Take Reduction Plan § 228.21 Assistant Administrator’s deci- Regulations and Emergency Regulations sion. 229.30 Basis. (a) Upon receipt of the recommended 229.31 Pacific Offshore Cetacean Take Re- decision and transcript and after the duction Plan. 20-day period for receiving written 229.32 Atlantic large whale take reduction comments on the recommended deci- plan regulations. sion has passed, the Assistant Adminis- 229.33 Harbor Porpoise Take Reduction Plan trator shall make a final decision on Implementing Regulations—Gulf of the proposed regulations and waiver, Maine. where applicable. The Assistant Ad- 229.34 Harbor Porpoise Take Reduction Plan—Mid-Atlantic. ministrator’s decision may affirm, modify, or set aside, in whole or in FIGURE 1 TO PART 229—DRIFT GILLNET PINGER CONFIGURATION AND EXTENDER REQUIRE- part, the recommended findings, con- MENTS clusions and decision of the presiding officer. The Assistant Administrator AUTHORITY: 16 U.S.C. 1361 et seq. may also remand the hearing record to SOURCE: 60 FR 45100, Aug. 30, 1995, unless the presiding officer for a fuller devel- otherwise noted. opment of the record. (b) The Assistant Administrator’s de- Subpart A—General Provisions cision shall include: (1) A statement containing a descrip- § 229.1 Purpose and scope. tion of the history of the proceeding; (a) The regulations in this part im- (2) Findings on the issues of fact with plement sections 101(a)(5)(E) and 118 of the reasons therefor; and the Marine Mammal Protection Act of (3) Rulings on issues of law. 1972, as amended (16 U.S.C. 1371(a)(5)(E) (4) The Assistant Administrator’s de- and 1387) that provide for exceptions cision shall be published in the for the taking of marine mammals in- FEDERAL REGISTER. If the waiver is ap- cidental to certain commercial fishing proved, the final adopted regulations operations from the Act’s general mor- shall be promulgated with the decision. atorium on the taking of marine mammals. PART 229—AUTHORIZATION FOR (b) Section 118 of the Act, rather COMMERCIAL FISHERIES UNDER than sections 103 and 104, governs the THE MARINE MAMMAL PROTEC- incidental taking of marine mammals TION ACT OF 1972 in the course of commercial fishing operations by persons using vessels of the Subpart A—General Provisions United States, other than vessels fishing for yellowfin tuna in the eastern Sec. tropical Pacific Ocean purse seine fish- 229.1 Purpose and scope. 229.2 Definitions. ery, and vessels that have valid fishing 229.3 Prohibitions. permits issued in accordance with sec- 229.4 Requirements for Category I and II tion 204(b) of the Magnuson Fishery fisheries. Conservation and Management Act (16 229.5 Requirements for Category III fish- U.S.C. 1824(b)). eries. (c) The regulations of Subpart B also 229.6 Reporting requirements. govern the incidental taking by com- 229.7 Monitoring of incidental mortalities and serious injuries. mercial fishers of marine mammals 229.8 Publication of List of Fisheries. from species or stocks designated 229.9 Emergency regulations. under the Act as depleted on the basis 229.10 Penalties. of their listing as threatened species or

240

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.2

endangered species under the Endan- the National Oceanic and Atmospheric gered Species Act of 1973 (16 U.S.C. 1531 Administration. et seq.). Authorization Certificate means a doc- (d) The regulations of this part do ument issued by the Assistant Admin- not apply to the incidental taking of istrator, or designee, under the author- California sea otters or to Northwest ity of section 118 of the Act that au- treaty Indian tribal members exer- thorizes the incidental, but not inten- cising treaty fishing rights. tional, taking of marine mammals in (e) Authorizations under subpart A of Category I or II fisheries. this part are exemptions only from the Breaking strength means the highest taking prohibitions under the Act and tensile force which an object can with- not those under the Endangered Spe- stand before breaking. cies Act of 1973. To be exempt from the Bridle means the lines connecting a taking prohibitions under the Endan- gillnet to an anchor or buoy line. gered Species Act, specific authorization under subpart B of this part is re- Buoy line means a line connecting quired. fishing gear in the water to a buoy at (f) Authorizations under this part do the surface of the water. not apply to the intentional lethal tak- Category I fishery means a commer- ing of marine mammals in the course cial fishery determined by the Assist- of commercial fishing operations ex- ant Administrator to have frequent in- cept as provided for under §§ 229.4(k) cidental mortality and serious injury and 229.5(f). of marine mammals. A commercial (g) The purposes of the regulations in fishery that frequently causes mor- this part are to: tality or serious injury of marine mam- (1) Reduce the incidental mortality mals is one that is by itself responsible or serious injury of marine mammals for the annual removal of 50 percent or occurring in the course of commercial more of any stock’s potential biologi- fishing operations below the potential cal removal level. biological removal level for a par- Category II fishery means a commer- ticular stock, and cial fishery determined by the Assist- (2) Reduce the incidental mortality ant Administrator to have occasional or serious injury of marine mammals incidental mortality and serious injury occurring in the course of commercial of marine mammals. A commercial fishing operations to insignificant lev- fishery that occasionally causes mor- els approaching a zero mortality and tality or serious injury of marine mam- serious injury rate by the statutory mals is one that, collectively with deadline of April 30, 2001. other fisheries, is responsible for the [60 FR 45100, Aug. 30, 1995, as amended at 64 annual removal of more than 10 per- FR 9086, Feb. 24, 1999] cent of any marine mammal stock’s potential biological removal level and § 229.2 Definitions. that is by itself responsible for the an- In addition to the definitions con- nual removal of between 1 and 50 per- tained in the Act and § 216.3 of this cent, exclusive, of any stock’s poten- chapter, and unless the context other- tial biological removal level. In the ab- wise requires, in this part 229: sence of reliable information indi- Act or MMPA means the Marine cating the frequency of incidental mor- Mammal Protection Act of 1972, as tality and serious injury of marine amended (16 U.S.C. 1361 et seq.). mammals by a commercial fishery, the American lobster or lobster means Assistant Administrator will deter- Homarus americanus. mine whether the incidental serious in- Anchored gillnet means any gillnet jury or mortality is ‘‘occasional’’ by gear, including a sink gillnet or stab evaluating other factors such as fishing net, that is set anywhere in the water techniques, gear used, methods used to column and which is anchored, secured deter marine mammals, target species, or weighted to the bottom of the sea. seasons and areas fished, qualitative Also called a set gillnet. data from logbooks or fisher reports, Assistant Administrator means the As- stranding data, and the species and dis- sistant Administrator for Fisheries of tribution of marine mammals in the

241

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.2 50 CFR Ch. II (10–1–02 Edition)

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 Fishery has the same meaning as in mortality and serious injury of marine section 3 of the Magnuson Fishery Con- mammals. A commercial fishery that servation and Management Act (16 has a remote likelihood of causing inci- U.S.C. 1802). dental mortality and serious injury of Fishing trip means any time spent marine mammals is one that collec- away from port actively engaged in tively with other fisheries is respon- commercial fishing operations. The end sible for the annual removal of: of a fishing trip will be the time of a (1) Ten percent or less of any marine fishing vessel’s return to port or the re- mammal stock’s potential biological turn of a fisher from tending gear in a removal level, or nonvessel fishery. (2) More than 10 percent of any ma- Fishing vessel or vessel means any ves- rine mammal stock’s potential biologi- sel, boat, ship, or other craft that is cal removal level, yet that fishery by itself is responsible for the annual re- used for, equipped to be used for, or of moval of 1 percent or less of that a type normally used for, fishing. stock’s potential biological removal Float-line means the rope at the top level. In the absence of reliable infor- of a gillnet from which the mesh por- mation indicating the frequency of in- tion of the net is hung. cidental mortality and serious injury Gillnet means fishing gear consisting of marine mammals by a commercial of a wall of webbing (meshes) or nets, fishery, the Assistant Administrator designed or configured so that the web- will determine whether the incidental bing (meshes) or nets are placed in the serious injury or mortality is ‘‘remote’’ water column, usually held approxi- by evaluating other factors such as mately vertically, and are designed to fishing techniques, gear used, methods capture fish by entanglement, gilling, used to deter marine mammals, target or wedging. The term ‘‘gillnet’’ in- species, seasons and areas fished, quali- cludes gillnets of all types, including tative data from logbooks or fisher re- but not limited to sink gillnets, other ports, stranding data, and the species anchored gillnets (e.g. stab and set and distribution of marine mammals in nets), and drift gillnets. Gillnets may the area or at the discretion of the As- or may not be attached to a vessel. sistant Administrator. Groundline, with reference to lobster Commercial fishing operation means trap gear, means a line connecting lob- the catching, taking, or harvesting of ster traps in a lobster trap trawl, and, fish from the marine environment (or with reference to gillnet gear, means a other areas where marine mammals line connecting a gillnet or gillnet bri- occur) that results in the sale or barter dle to an anchor or buoy line. of all or part of the fish harvested. The Incidental means, with respect to an term includes licensed commercial pas- act, a non-intentional or accidental act senger fishing vessel (as defined in that results from, but is not the pur- § 216.3 of this chapter) activities and pose of, carrying out an otherwise law- aquaculture activities. ful action. Depleted species means any species or Injury means a wound or other phys- population that has been designated as ical harm. Signs of injury to a marine depleted under the Act and is listed in mammal include, but are not limited § 216.15 of this chapter or part 18, sub- to, visible blood flow, loss of or damage part E of this title, or any endangered to an appendage or jaw, inability to use or threatened species of marine mam- one or more appendages, asymmetry in mal. the shape of the body or body position,

242

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.2

noticeable swelling or hemorrhage, lac- Minimum population estimate means eration, puncture or rupture of eyeball, an estimate of the number of animals listless appearance or inability to de- in a stock that: fend itself, inability to swim or dive (1) Is based on the best available sci- upon release from fishing gear, or signs entific information on abundance, in- of equilibrium imbalance. Any animal corporating the precision and varia- that ingests fishing gear, or any ani- bility associated with such informa- mal that is released with fishing gear tion; and entangling, trailing or perforating any (2) Provides reasonable assurance part of the body will be considered in- that the stock size is equal to or great- jured regardless of the absence of any er than the estimate. wound or other evidence of an injury. Mudhole means waters off New Jersey Interaction means coming in contact bounded as follows: From the point with fishing gear or catch. An inter- 40°30′ N. latitude where it intersects action may be characterized by a ma- with the shoreline of New Jersey east rine mammal entangled, hooked, or to its intersection with 73°20′ W. lon- otherwise trapped in fishing gear, re- gitude, then south to its intersection gardless of whether injury or mortality with 40°05′ N. latitude, then west to its occurs, or situations where marine intersection with the shoreline of New mammals are preying on catch. Catch Jersey. means fish or shellfish that has been Negligible impact has the same mean- hooked, entangled, snagged, trapped or ing as in § 228.3 of this chapter. otherwise captured by commercial fish- Net productivity rate means the an- ing gear. nual per capita rate of increase in a means a gillnet Large mesh gillnet stock resulting from additions due to constructed with a mesh size of 7 reproduction, less losses due to mor- inches (17.78 cm) to 18 inches (45.72 cm). tality. Lead-line means the rope, weighted or Neutrally buoyant line means line otherwise, to which the bottom edge of with a specific gravity near that of sea a gillnet is attached. water, so that the line neither sinks to List of Fisheries means the most re- the ocean floor nor floats at the sur- cent final list of commercial fisheries face, but remains close to the bottom. published in the FEDERAL REGISTER by the Assistant Administrator, cat- Night means any time between one egorized according to the likelihood of half hour before sunset and one half incidental mortality and serious injury hour after sunrise. of marine mammals during commercial NMFS means the National Marine fishing operations. Fisheries Service. Lobster trap means any trap, pot or Nonvessel fishery means a commercial other similar type of enclosure that is fishing operation that uses fixed or placed on the ocean bottom and is de- other gear without a vessel, such as signed to or is capable of catching lob- gear used in set gillnet, trap, beach sters. This definition includes but is seine, weir, ranch, and pen fisheries. not limited to lobster pots, black sea Observer means an individual author- bass pots and scup pots. ized by NMFS, or a designated con- Lobster trap trawl means two or more tractor, to record information on ma- lobster traps attached to a single rine mammal interactions, fishing op- groundline. erations, marine mammal life history Mesh size means the distance between information, and other scientific data, inside knot to inside knot. Mesh size is and collect biological specimens during measured as described in § 648.80(f)(1) of commercial fishing activities. this title. Operator, with respect to any vessel, Mid-Atlantic coastal waters means wa- means the master, captain, or other in- ters bounded by the line defined by the dividual in charge of that vessel. following points: The southern shore- Potential biological removal level means line of Long Island, New York at the maximum number of animals, not 72°30′W, then due south to 33°51′N lat., including natural mortalities, that thence west to the North Carolina/ may be removed from a marine mam- South Carolina border. mal stock while allowing that stock to

243

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.2 50 CFR Ch. II (10–1–02 Edition)

reach or maintain its optimum sustain- from the northern shoreline of Dela- able population. The potential biologi- ware at 38°47′ N. latitude (the latitude cal removal level is the product of the that corresponds with Cape Henlopen, following factors: DE), east to its intersection with 72°30′ (1) The minimum population esti- W. longitude, south to the 33°51′ N. lati- mate of the stock; tude (the latitude that corresponds (2) One-half the maximum theo- with the North Carolina/South Caro- retical or estimated net productivity lina border), and then west to its inter- rate of the stock at a small population section with the shoreline of the North size; and Carolina/South Carolina border. (3) A recovery factor of between 0.1 Spotter plane means a plane that is and 1.0. deployed for the purpose of locating Qualified individual means an indi- schools of target fish for a fishing ves- vidual ascertained by NMFS to be rea- sel that intends to set fishing gear on sonably able, though training or expe- them. rience, to identify a right whale. Such Stowed means nets that are unavail- individuals include, but are not limited able for use and that are stored in ac- to, NMFS staff, U.S. Coast Guard and cordance with the regulations found in Navy personnel trained in whale identi- § 648.81(e) of this title. fication, scientific research survey per- Strategic stock means a marine mam- sonnel, whale watch operators and nat- mal stock: uralists, and mariners trained in whale (1) For which the level of direct species identification through human-caused mortality exceeds the disentanglement training or some potential biological removal level; other training program deemed adequate by NMFS. (2) Which, based on the best available scientific information, is declining and Regional Fishery Management Council means a regional fishery management is likely to be listed as a threatened council established under section 302 of species under the Endangered Species the Magnuson Fishery Conservation Act of 1973 within the foreseeable fu- and Management Act. ture; Reliable report means a credible right (3) Which is listed as a threatened whale sighting report based upon which species or endangered species under the a DAM zone would be triggered. Endangered Species Act of 1973; or Serious injury means any injury that (4) Which is designated as depleted will likely result in mortality. under the Marine Mammal Protection Shark gillnetting means to fish a Act of 1972, as amended. gillnet in waters south of the South Strikenet or to fish with strikenet gear Carolina/Georgia border with webbing means a gillnet that is designed so of 5 inches or greater stretched mesh. that, when it is deployed, it encircles Sink gillnet or stab net means any or encloses an area of water either with gillnet, anchored or otherwise, that is the net or by utilizing the shoreline to designed to be, or is fished on or near complete encirclement, or to fish with the bottom in the lower third of the such a net and method. water column. Take Reduction Plan means a plan de- Sinking line means rope that sinks veloped to reduce the incidental mor- and does not float at any point in the tality and serious injury of marine water column. Polypropylene rope is mammals during commercial fishing not sinking line unless it contains a operations in accordance with section lead core. 118 of the Marine Mammal Protection Small mesh gillnet means a gillnet Act of 1972, as amended. constructed with a mesh size of greater Take Reduction Team means a team than 5 inches (12.7 cm) to less than 7 established to recommend methods of inches (17.78 cm). reducing the incidental mortality and Southern Mid-Atlantic waters means serious injury of marine mammals due all state and Federal waters off the to commercial fishing operations, in States of Delaware, Maryland, Vir- accordance with section 118 of the Ma- ginia, and North Carolina, bounded on rine Mammal Protection Act of 1972, as the north by a line extending eastward amended.

244

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.3

Tended gear or tend means fishing (b) It is prohibited to assault, harm, gear that is physically attached to a harass (including sexually harass), op- vessel in a way that is capable of har- pose, impede, intimidate, impair, or in vesting fish, or to fish with gear at- any way influence or interfere with an tached to the vessel. observer, or attempt the same. This Tie-down refers to twine used be- prohibition includes, but is not limited tween the floatline and the lead line as to, any action that interferes with an a way to create a pocket or bag of net- observer’s responsibilities, or that cre- ting to trap fish alive. ates an intimidating, hostile, or offen- To strikenet for sharks means to fish sive environment. with strikenet gear in waters south of (c) It is prohibited to provide false in- the South Carolina/Georgia border with formation when registering for an Au- webbing of 5 inches or greater thorization Certificate, applying for re- stretched mesh. newal of the Authorization Certificate, U.S. waters means both state and reporting the injury or mortality of Federal waters to the outer boundaries any marine mammal, or providing in- of the U.S. exclusive economic zone formation to any observer. along the east coast of the United (d) It is prohibited to tamper with or States from the Canadian/U.S. border destroy observer equipment in any southward to a line extending eastward way. from the southernmost tip of Florida (e) It is prohibited to retain any ma- on the Florida shore. rine mammal incidentally taken in Vessel owner or operator means the commercial fishing operations unless owner or operator of: authorized by NMFS personnel, by des- (1) A fishing vessel that engages in a ignated contractors or an official ob- commercial fishing operation; or server, or by a scientific research per- (2) Fixed or other commercial fishing mit that is in the possession of the ves- gear that is used in a nonvessel fishery. sel operator. Vessel of the United States has the (f) It is prohibited to intentionally same meaning as in section 3 of the lethally take any marine mammal in Magnuson Fishery Conservation and the course of commercial fishing oper- Management Act (16 U.S.C. 1802). ations unless imminently necessary in Waters off New Jersey means all state self-defense or to save the life of a per- and Federal waters off New Jersey, son in immediate danger, and such tak- bounded on the north by a line extending is reported in accordance with the ing eastward from the southern shore- requirements of § 229.6. line of Long Island, NY at 40°40′ N. lati- (g) It is prohibited to violate any reg- tude, on the south by a line extending ulation in this part or any provision of eastward from the northern shoreline section 118 of the Act. of Delaware at 38°47′ N. latitude (the (h) It is prohibited to fish with lob- latitude that corresponds with Cape ster trap gear in the areas and for the Henlopen, DE), and on the east by the times specified in § 229.32 (b)(2) and 72°30′ W. longitude. This area includes (c)(2) through (c)(8) unless the lobster the Mudhole. trap gear complies with the closures, Weak link means a breakable compo- marking requirements, modifications, nent of gear that will part when sub- and restrictions specified in § 229.32 ject to a certain tension load. (b)(3)(i), (b)(3)(ii), and (c)(1) through [60 FR 45100, Aug. 30, 1995, as amended at 62 (c)(9). FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, (i) It is prohibited to fish with an- 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. chored gillnet gear in the areas and for 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1141, the times specified in § 229.32(b)(2) and Jan. 9, 2002; 67 FR 1313, Jan. 10, 2002] (d)(2) through(d)(7) unless that gillnet gear complies with the closures, mark- § 229.3 Prohibitions. ing requirements, modifications, and (a) It is prohibited to take any ma- restrictions specified in § 229.32(b)(3)(i), rine mammal incidental to commercial (b)(3)(ii), and (d)(1) through (d)(8). fishing operations except as otherwise (j) It is prohibited to fish with drift provided in part 216 of this chapter or gillnet gear in the areas and for the in this part 229. times specified in § 229.32 (d)(7) and

245

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.3 50 CFR Ch. II (10–1–02 Edition)

(e)(1) unless the drift gillnet gear com- tag certificate or net tags upon the re- plies with the restrictions specified in quest of an authorized officer. § 229.32 (e)(1). (q) Net tag requirement. Beginning on (k) It is prohibited to fish with January 1, 2000, all gillnets fished, gillnet gear in the areas and for the hauled, possessed, or deployed during times specified in § 229.32(b)(2), (f)(1)(i), the times and areas specified below and (f)(1)(ii) unless the gear complies must have one tag per net, with one with the closures, marking require- tag secured to every other bridle of ments, modifications, and other re- every net and with one tag secured to strictions specified in § 229.32(b)(3)(i), every other bridle of every net within a (b)(3)(ii), and (f)(2) through (f)(3)(iii). string of nets. This applies to small (l) It is prohibited to fish with, set, mesh and large mesh gillnet gear in haul back, possess on board a vessel New Jersey waters from January 1 unless stowed, or fail to remove sink through April 30 or in southern Mid-At- gillnet gear or gillnet gear capable of lantic waters from February 1 through catching multispecies, from the areas April 30. The owner or operator of fish- and for the times specified in § 229.33 ing vessels must indicate to NMFS the (a)(1) through (a)(6), except with the number of gillnet tags that they are re- use of pingers as provided in § 229.33 questing up to the maximum number of (d)(1) through (d)(4). This prohibition nets allowed in those paragraphs and does not apply to the use of a single pe- must include a check for the cost of lagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) of this title). the tags. Vessel owners and operators will be given notice with instructions (m) It is prohibited to fish with, set, haul back, possess on board a vessel informing them of the costs associated unless stowed, or fail to remove any with this tagging requirement and di- gillnet gear from the areas and for the rections for obtaining tags. Tag num- times as specified in § 229.34 (b)(1) (ii) or bers will be unique for each vessel and (iii) or (b)(2)(ii). recorded on a certificate. The vessel (n) It is prohibited to fish with, set, operator must produce the certificate haul back, possess on board a vessel and all net tags upon request by an au- unless stowed, or fail to remove any thorized officer. large mesh or small mesh gillnet gear [60 FR 45100, Aug. 30, 1995, as amended at 62 from the areas and for the times speci- FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, fied in § 229.34 (c)(1) through (c)(4) un- 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. less the gear complies with the speci- 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1313, fied gear restrictions set forth in those Jan. 10, 2002]

provisions. EFFECTIVE DATE NOTE: At 67 FR 59477, (o) Beginning on January 1, 1999, it is Sept. 23, 2002, § 229.3 was amended by revising prohibited to fish with, set, or haul paragraph (k), effective Oct. 23, 2002. For the back sink gillnets or gillnet gear, or convenience of the user, the revised text is leave such gear in closed areas where set for as follows: pingers are required, as specified under § 229.33 (c)(1) through (c)(4), unless a § 229.3 Prohibitions. person on board the vessel during fishing operations possesses a valid pinger * * * * * certification training certificate issued (k) It is prohibited to fish with gillnet gear by NMFS. in the areas and for the times specified in (p) Beginning on January 1, 2000, it is § 229.32(f)(1) through (f)(4), unless the gear or prohibited to fish with, set, haul back, the person with gillnet gear complies with or possess any large mesh or small the gear marking requirements specified in mesh gillnet gear in Mid-Atlantic wa- § 229.32(f)(2), the requirements for observer ters in the areas and during the times coverage as specified in § 229.32(f)(3), and the specified under § 229.34(d), unless the closures, requirements, and other restric- gear is properly tagged in compliance tions as specified in § 229.32(f)(4). with that provision and unless a net tag certificate is on board the vessel. It * * * * * is prohibited to refuse to produce a net

246

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.4

§ 229.4 Requirements for Category I (iii) For a vessel fishery, vessel name, and II fisheries. length, home port; U.S. Coast Guard (a) General. (1) For a vessel owner or documentation number or state reg- crew members to lawfully incidentally istration number, and if applicable; take marine mammals in the course of state commercial vessel license num- a commercial fishing operation in a ber and for a nonvessel fishery, a de- Category I or II fishery, the owner or scription of the gear and state commer- authorized representative of a fishing cial license number, if applicable. vessel or nonvessel fishing gear must (iv) A list of all Category I and II have in possession a valid Certificate of fisheries in which the fisher may ac- Authorization. The owner of a fishing tively engage during the calendar year. vessel or nonvessel fishing gear is re- (v) 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 fected fisher. NMFS will make addi- FEDERAL 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,

247

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.4 50 CFR Ch. II (10–1–02 Edition)

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

248

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.6

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

249

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.7 50 CFR Ch. II (10–1–02 Edition)

§ 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

250

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.9

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

251

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.10 50 CFR Ch. II (10–1–02 Edition)

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

252

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.20

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

253

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.30 50 CFR Ch. II (10–1–02 Edition)

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 sions of 15 CFR part 904, suspend or re- FEDERAL 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

254

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

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 specifications set forth under paragraph (c)(1) of [64 FR 9088, Feb. 24, 1999] 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 [62 FR 51813, Oct. 3, 1997, as amended at 63 FR of 36 feet (10.9 m) below the surface of 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999] the water. (c) Pingers. (1) For the purposes of § 229.32 Atlantic large whale take re- this paragraph (c), a pinger is an acous- duction plan regulations. tic deterrent device which, when im- (a)(1) Regulated waters. The regula- mersed in water, broadcasts a 10 kHz (± tions in this section apply to all U.S. 2 kHz) sound at 132 dB (± 4 dB) re 1 waters in the Atlantic except for the micropascal at 1 m, lasting 300 milli- areas exempted in paragraph (a)(2) of seconds (+ 15 milliseconds), and repeat- this section. ing every 4 seconds (+ .2 seconds); and (2) Exempted waters. The regulations remains operational to a water depth in this section do not apply to waters of at least 100 fathoms (600 ft or 182.88 landward of the first bridge over any m). embayment, harbor, or inlet and to wa- (2) While at sea, operators of drift ters landward of the following lines: gillnet vessels with gillnets onboard must carry enough pingers on the ves- Rhode Island sel to meet the requirements set forth ° ′ ° ′ ° ′ ° ′ under paragraphs (c)(3) through(6) of 41 27.99 N 71 11.75 W TO 41 28.49 N 71 14.63 W (Sakonnet River) this section. 41° 26.96′ N 71° 21.34′ W TO 41° 26.96′ 71° 25.92″ (3) Floatline. Pingers shall be at- W (Narragansett Bay) tached within 30 ft (9.14 m) of the 41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° 30.85′ floatline and spaced no more than 300 W (Pt. Judith Pond Inlet) ft (91.44 m) apart. 41° 21.31′ 71° 38.30′ W TO 41° 21.30′ N 71° 38.33′ (4) Leadline. Pingers shall be attached W (Ninigret Pond Inlet) within 36 ft (10.97 m) of the leadline and 41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° 43.10′ spaced no more than 300 ft (91.44 m) W (Quonochontaug Pond Inlet) ° ′ ° ′ ° ′ ° ′ apart. 41 19.66 N 71 45.75 W TO 41 19.66 N 71 45.78 W (Weekapaug Pond Inlet) (5) Staggered Configuration. Pingers attached within 30 ft (9.14 m) of the New York floatline and within 36 ft (10.97 m) of West of the line from the Northern fork of the leadline shall be staggered such the eastern end of Long Island, NY (Orient that the horizontal distance between Pt.) to Plum Island to Fisher’s Island to them is no more than 150 ft (45.5 m). Watch Hill, RI. (Long Island Sound)

255

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

41° 11.40′ N 72° 09.70′ W TO 41° 04.50′ N 71° ant Administrator under paragraph (g) 51.60;min; W (Gardiners Bay) of this section. ° ′ ° ′ ° ′ ° ′ 40 50.30 72 28.50 W TO 40 50.36 N 72 28.67 (i) Color code. Specified gear in the W (Shinnecock Bay Inlet) 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ Southeast U.S. Observer Area must be W (Moriches Bay Inlet) marked with the appropriate color code 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ to designate gear types and areas as W (Fire Island Inlet) follows: ° ′ ° ′ ° ′ ° ′ 40 34.40 N 73 34.55 W TO 40 35.08 N 73 35.22 (A) Gear type code—Gillnet gear. W (Jones Inlet) Gillnet gear must be marked with a New Jersey green marking. 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ (B) Area code. Gear set in the South- W (Barnegat Inlet) east U.S. Observer Area must be 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ marked with a blue marking. W (Beach Haven to Brigantine Inlet) (ii) Markings. All specified gear in ° ′ ° ′ ° ′ ° ′ 38 56.20 N 74 51.70 W TO 38 56.20 N 74 51.90 specified areas must be marked with W (Cape May Inlet) 39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ two color codes, one designating the W (Delaware Bay) gear type, the other indicating the area where the gear is set. Each color of the Maryland/Virginia two-color code must be permanently 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ marked on or along the line or lines W (Ocean City Inlet) specified under (f)(2) of this section. 37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ Each color mark of the color codes W (Chincoteague to Ship Shoal Inlet) must be clearly visible when the gear is 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W (Little Inlet) hauled or removed from the water. 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.50′ Each mark must be at least 4 inches W (Smith Island Inlet) (10.2 cm) long. The two color marks must be placed within 6 inches (15.2 North Carolina to Florida cm) of each other. If the color of the All marine and tidal waters landward of rope is the same as or similar to a the 72 COLREGS demarcation line color code, a white mark may be sub- (International Regulations for Preventing stituted for that color code. In mark- Collisions at Sea, 1972), as depicted or noted on nautical charts published by the National ing or affixing the color code, the line Oceanic and Atmospheric Administration may be dyed, painted, or marked with (Coast Charts 1:80,000 scale), and as described thin colored whipping line, thin colored in 33 CFR part 80. plastic, or heat-shrink tubing, or other (b) Gear marking requirements. (1) material; or a thin line may be woven Specified gear consists of lobster trap into or through the line; or the line gear and gillnet gear set in specified may be marked as approved in writing areas. by the Assistant Administrator (AA). (2) Specified areas. The following (4) Requirements for other specified areas are specified for gear marking areas. Any person who owns or fishes purposes: CCB Restricted Area, with specified gear in the other speci- Stellwagen Bank/Jeffreys Ledge Re- fied areas must mark that gear in ac- stricted Area, Northern Nearshore Lob- cordance with (b)(4)(i) and (b)(4)(ii) of ster Waters Area, GSC Restricted Lob- this section, unless otherwise required ster Area, GSC Restricted Gillnet Area, by the Assistant Administrator under GSC Sliver Restricted Area, Southern paragraph (g) of this section. For the Nearshore Lobster Waters Area, Off- purposes of the following gear marking shore Lobster Waters Area, Other requirements only, lobster trap gear Northeast Gillnet Waters Area, and set in the CCB Restricted Area during Southeast U.S. Observer Area. the winter restricted period, the Fed- (3) Requirements for Southeast U.S. Ob- eral-water portion of the CCB Re- server Area. Any person who owns or stricted Area during the off-peak pe- fishes with specified fishing gear in the riod, and the Stellwagen Bank/Jeffreys Southeast U.S. Observer Area must Ledge Restricted Area shall comply mark that gear in accordance with with the requirements for the Northern (b)(3)(i) and (b)(3)(ii) of this section, un- Nearshore Lobster Waters Area. Lob- less otherwise required by the Assist- ster gear set in the GSC Restricted

256

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

Lobster Area shall comply with the re- ant Administrator may revise these requirements for the Offshore Lobster quirements in accordance with para- Waters Area. Similarly, anchored graph (g) of this section. gillnet gear set in the CCB Restricted (i) No line floating at the surface. No area, Stellwagen Bank/Jeffreys Ledge person may fish with lobster trap gear Restricted Area, GSC Restricted that has any portion of the buoy line Gillnet Area, and GSC Silver Re- that is directly connected to the gear stricted Area shall comply with the re- at the ocean bottom floating at the quirements for gillnet gear in the surface at any time. If more than one Other Northeast Gillnet Waters Area. buoy is attached to a single buoy line (i) Color code. Specified gear must be or if a high flyer and a buoy are used marked with the appropriate colors to together on a single buoy line, floating designate gear-types and areas as fol- line may be used between these objects. lows: (ii) No wet storage of gear. Lobster (A) Lobster trap gear in the Northern traps must be hauled out of the water Nearshore Lobster Waters Area must at least once every 30 days. be marked with a red marking. (2) Cape Cod Bay Restricted Area—(i) (B) Lobster trap gear in the Southern Area. The CCB restricted area consists Nearshore Lobster Waters Area must of the CCB right whale critical habitat be marked with an orange marking. area specified under 50 CFR 226.203(b) (C) Lobster trap gear in the Offshore unless the Assistant Administrator Lobster Waters Area must be marked changes that area in accordance with with a black marking. paragraph (g) of this section. (D) Gillnet gear in the Other North- (ii) Area-specific gear requirements dur- east Gillnet Waters Area must be ing the winter restricted period. No per- marked with a green marking. son may fish with lobster trap gear in (ii) Markings. All specified gear in the CCB Restricted Area during the specified areas must be marked with winter restricted period unless that one color code (see paragraph (4)(i) of person’s gear complies with the gear this section) which indicates the gear marking requirements in paragraph (b) type and general area where the gear is of this section, the universal lobster set. Each color code must be perma- trap gear requirements in (c)(1) of this nently affixed on or along the line or section, and the area-specific require- lines. Each color code must be clearly ments listed below for the winter re- visible when the gear is hauled or restricted period. The Assistant Adminis- moved from the water. Each mark trator may revise these requirements must be at least 4 inches (10.2 cm) long. in accordance with paragraph (g) of The mark must be placed along the this section. buoy line midway in the water column. (A) Winter restricted period. The win- (5) Changes to requirements. If the As- ter restricted period for the CCB Re- sistant Administrator revises the gear stricted Area is from January 1 marking requirements in accordance through May 15 of each year unless the with paragraph (g) of this section, the Assistant Administrator changes that gear must be marked in compliance area in accordance with paragraph (g) with those requirements. of this section. (c) Restrictions applicable to lobster (B) Weak links. All buoy lines shall be trap gear in regulated waters—(1) Uni- attached to the main buoy with a weak versal lobster trap gear requirements. link meeting the following specifica- In addition to the area-specific meas- tions: ures listed in (c)(2) through (c)(8) of (1) The breaking strength of the weak this section, all lobster trap gear in link must not exceed 500 lb (226.7 kg). regulated waters, including the North- (2) The weak link must be chosen ern Inshore State Lobster Waters Area, from the following list of combinations must comply with the universal gear approved by the NMFS gear research requirements listed here1. The Assist- program: swivels, plastic weak links, rope of appropriate diameter, hog 1 Fishers are also encouraged to maintain their buoy lines to be as knot-free as pos- tanglement threat and are thus preferable to sible. Splices are not considered to be an en- knots.

257

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

rings, rope stapled to a buoy stick, or gear complies with the requirements other materials or devices approved in for the Northern Nearshore Lobster writing by the Assistant Adminis- Waters Area in (c)(7) of this section. trator. The Assistant Administrator may re- (C) Single traps and multiple-trap vise these requirements in accordance trawls. Single traps and three-trap with paragraph (g) of this section. trawls are prohibited. All traps must (3) Great South Channel Restricted Lob- be set in either a two-trap string or in ster Area—(i) Area. The GSC Restricted a trawl of four or more traps. A two- Lobster Area consists of the GSC right trap string must have no more than whale critical habitat area specified one buoy line. under 50 CFR 226.203(a) unless the As- (D) Sinking buoy lines. All buoy lines sistant Administrator changes that must be comprised of sinking line ex- area in accordance with paragraph (g) cept the bottom portion of the line, of this section. which may be a section of floating line (ii) Closure during the spring restricted not to exceed one-third the overall period—(A) Spring restricted period. The length of the buoy line. spring restricted period for the GSC (E) Sinking ground line. All ground Restricted Lobster Area is from April 1 lines must be comprised entirely of through June 30 of each year unless the sinking line. Assistant Administrator revises this (iii) Area-specific gear requirements period in accordance with paragraph during the other restricted period. No per- (g) of this section. son may fish with lobster trap gear in (B) Closure. During the spring re- the CCB Restricted Area during the stricted period, no person may fish other restricted period unless that per- with or set lobster trap gear in this son’s gear complies with the gear Area unless the Assistant Adminis- marking requirements in paragraph (b) trator specifies gear modifications or of this section and the universal lob- alternative fishing practices in accord- ster trap gear requirements in (c)(1) of ance with paragraph (g) of this section this section as well as the area-specific and the gear or practices comply with requirements listed below for the other those specifications. restricted period. The Assistant Ad- (iii) Area-specific gear requirements for ministrator may revise these require- the other restricted period. No person ments in accordance with paragraph (g) may fish with lobster trap gear in the of this section. GSC Restricted Lobster Area unless (A) Other restricted period. The other that person’s gear complies with the restricted period for the CCB Re- gear marking requirements in para- stricted Area is from May 16 through graph (b) of this section, the universal December 31 of each year unless the lobster trap gear requirements in (c)(1) Assistant Administrator revises that of this section, and the area-specific re- period in accordance with paragraph quirements listed here for the other re- (g) of this section. stricted period. The Assistant Adminis- (B) Gear requirements—(1) State-water trator may revise these requirements portion. No person may fish with lob- in accordance with paragraph (g) of ster trap gear in the state-water por- this section. tion of the CCB Restricted Area during (A) Other restricted period. The other the other restricted period unless that restricted period for the GSC Re- person’s gear complies with the restricted Lobster Area is July 1 through quirements for the Northern Inshore March 31, unless the Assistant Admin- State Lobster Waters Area listed in istrator revises the timing in accord- (c)(6) of this section. The Assistant Ad- ance with paragraph (g) of this section. ministrator may revise these require- (B) Weak links. All buoy lines must be ments in accordance with paragraph (g) attached to the main buoy with a weak of this section. link meeting the specifications listed (2) Federal-water portion. No person in subparagraph (c)(5)(ii)(A) below for may fish with lobster trap gear in the the Offshore Lobster Waters Area. federal-water portion of the CCB Re- (4) Stellwagen Bank/Jeffreys Ledge Re- stricted Area during the other restricted Area—(i) Area. The Stellwagen stricted period unless that person’s Bank/Jeffreys Ledge Restricted Area

258

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

includes all federal waters of the Gulf quirements in accordance with para- of Maine, except those designated as graph (g) of this section. right whale critical habitat under 50 (A) Weak links on all buoy lines. All CFR 226.203(b), that lie south of 43°15’ buoy lines must be attached to the N. lat. and west of 70° W long. The As- main buoy with a weak link meeting sistant Administrator may change that the following specifications: area in accordance with paragraph (g) (1) The weak link must be chosen of this section. from the following list of combinations (ii) Area-specific gear requirements. No approved by the NMFS gear research person may fish with lobster trap gear program: swivels, plastic weak links, in the Stellwagen Bank/Jeffreys Ledge rope of appropriate diameter, hog Restricted Area unless that person’s rings, rope stapled to a buoy stick, or gear complies with the gear marking other materials or devices approved in requirements in paragraph (b) of this writing by the Assistant Adminis- section, the universal lobster trap gear trator. requirements in (c)(1) of this section, (2) The breaking strength of these and the requirements listed for the weak links may not exceed 2,000 lb Northern Nearshore Lobster Waters (906.9 kg). Area in (c)(7) of this section. The As- (3) Weak links must be designed such sistant Administrator may revise these that the bitter end of the buoy line is requirements in accordance with para- clean and free of any knots when the graph (g) of this section. link breaks. Splices are not considered (5) Offshore Lobster Waters Area—(i) to be knots for the purposes of this pro- Area. The Offshore Lobster Waters vision. Area includes all waters bounded by (B) [Reserved] straight lines connecting the following (6) Northern Inshore State Lobster Wa- points in the order stated (including ters Area—(i) Area. The Northern the area known as the Area 2/3 Overlap Inshore State Lobster Waters Area in- in the American Lobster Fishery regu- cludes the state waters of Rhode Is- lations at 50 CFR 697.18 but not includ- land, Massachusetts, New Hampshire, ing the GSC Restricted Lobster Area): and Maine but does not include waters exempted under (a)(2) of this section. Latitude Longitude Point (°N) (°W) (ii) Area-specific gear requirements. No person may fish with lobster trap gear A ...... 43° 58′ 67° 22′ in the Northern Inshore State Lobster ° ′ ° ′ B ...... 43 41 68 00 Waters Area unless that person’s gear C ...... 43° 12′ 69° 00′ D ...... 42° 49′ 69° 40′ complies with the universal lobster E ...... 42° 15.5′ 69° 40′ trap gear requirements in (c)(1) of this F ...... 42° 10′ 69° 56′ section and at least one of the options K ...... 41° 10′ 69° 6.5′ N ...... 40° 45.5′ 71° 34′ on the Lobster Take Reduction Tech- M ...... 40° 27.5′ 72° 14′ nology List in (c)(9) of this section. The U ...... 40° 12.5′ 72° 48.5′ Assistant Administrator may revise V ...... 39° 50′ 73° 01′ this requirement in accordance with X ...... 38° 39.5′ 73° 40′ Y ...... 38° 12′ 73° 55′ paragraph (g) of this section. Z ...... 37° 12′ 74° 44′ (7) Northern Nearshore Lobster Waters ZA ...... 35° 34′ 74° 51′ Area—(i) Area. The Northern Nearshore ZB ...... 35° 14.5′ 75° 31′1 Lobster Waters Area includes all Fed- 1 From Point ZB east to the EEZ boundary, thence along eral waters of EEZ Nearshore Manage- the seaward EEZ boundary to Point A. ment Area 1, Area 2, and the Outer (ii) Area-specific gear requirements. No Cape Lobster Management Area as de- person may fish with lobster trap gear fined in the American Lobster Fishery in the Offshore Lobster Waters Area regulations at 50 CFR 697.18, with the unless that person’s gear complies with exception of the CCB Restricted Area the gear marking requirements in and the Stellwagen Bank/Jeffreys paragraph (b) of this section, the uni- Ledge Restricted Area. versal lobster trap gear requirements (ii) Area-specific gear requirements. No in (c)(1) of this section, and the gear re- person may fish with lobster trap gear quirements listed here. The Assistant in the Northern Nearshore Lobster Wa- Administrator may revise these re- ters Area unless that person’s gear

259

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

complies with the gear marking re- the universal lobster trap gear require- quirements in paragraph (b) of this sec- ments in paragraph (c)(1) of this section, the universal lobster trap gear re- tion, and the following gear require- quirements in (c)(1) of this section, and ments for this area, which the Assist- the gear requirements listed below for ant Administrator may revise in ac- this area. The Assistant Administrator cordance with paragraph (g) of this sec- may revise these requirements in action: cordance with paragraph (g) of this sec- (1) Buoy Line Weak Links. All buoy tion. lines must be attached to the main (A) Weak Links. All buoy lines must buoy with a weak link placed as close be attached to the main buoy with a to each individual buoy as operation- weak link meeting the following speci- ally feasible that meets the following fications: specifications: (1) The weak link must be chosen (i) The weak link must be chosen from the following list of combinations from the following list of combinations approved by the NMFS gear research approved by the NMFS gear research program: swivels, plastic weak links, program: swivels, plastic weak links, rope of appropriate diameter, hog rope of appropriate diameter, hog rings, rope stapled to a buoy stick, or rings, rope stapled to a buoy stick, or other materials or devices approved in other materials or devices approved in writing by the Assistant Adminis- writing by the Assistant Adminis- trator. trator. (2) The breaking strength of these (ii) The breaking strength of this weak links must not exceed 600 lb (272.4 weak link may not exceed 600 lb (272.4 kg). kg). (3) Weak links must be designed such (iii) Weak links must be designed that the bitter end of the buoy line is such that the bitter end of the buoy clean and free of any knots when the line is clean and free of knots when the link breaks. Splices are not considered link breaks. Splices are not considered to be knots for the purposes of this pro- to be knots for the purpose of this provision. vision. (B) Single traps and multiple-trap (2) [Reserved] trawls. Single traps are prohibited. All traps must be set in trawls of two or (9) Lobster Take Reduction Technology more traps. All trawls up to and in- List. The following gear modification cluding five traps must have no more options comprise the Lobster Take Re- than one buoy line. duction Technology List: (8) Southern Nearshore Lobster Waters (i) Through December 31, 2002, all Area—(i) Area. The Southern Nearshore buoy lines must be 7/16 inches (1.11 cm) Lobster Waters Area includes all state or less in diameter. and federal waters which fall within (ii) All buoys must be attached to the EEZ Nearshore Management Area 4 buoy line with a weak link meeting the and EEZ Nearshore Management Area following specifications: 5 as described in the American Lobster (A) The weak link must be chosen Fishery regulations in 50 CFR 697.18. from the following list of combinations (ii) Area-specific gear requirements for approved by the NMFS gear research the restricted period—(A) Restricted pe- program: swivels, plastic weak links, riod. The restricted period for Southern rope of appropriate diameter, hog Nearshore Lobster Waters is year rings, rope stapled to a buoy stick, or round unless the Assistant Adminis- other materials or devices approved in trator revises this period in accordance writing by the Assistant Adminis- with paragraph (g) of this section. trator. (B) Gear requirements. No person may (B) The breaking strength of these fish with lobster trap gear in the weak links must not exceed 600 lb (272.4 Southern Nearshore Lobster Waters kg). Area during the restricted period un- (C) Weak links must be designed such less that person’s gear complies with that the bitter end of the buoy line is the gear marking requirements speci- clean and free of any knots when the fied in paragraph (b) of this section, link breaks. Splices are not considered

260

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

to be knots for the purposes of this pro- tices comply with those specifications. vision. The AA may waive this closure for the (iii) All buoy lines must be comprised remaining portion of the winter re- entirely of sinking and/or neutrally stricted period in any year through a buoyant line. notification in the Federal Register if (iv) All ground lines must be com- NMFS determines that right whales prised entirely of sinking and/or neu- have left the critical habitat and are trally buoyant line. unlikely to return for the remainder of (d) Restrictions applicable to anchored the season. gillnet gear—(1) Universal anchored (iii) Area-specific gear requirements for gillnet gear requirements. In addition to the other restricted period—(A) Other re- the area-specific measures listed in stricted period. The other restricted pe- (d)(2) through (d)(7) of this section, all riod for the CCB Restricted Area is anchored gillnet gear in regulated wa- from May 16 through December 31 of ters must comply with the universal each year unless the AA revises that gear requirements listed here 2. The AA period in accordance with paragraph may revise these requirements in ac- (g) of this section. cordance with paragraph (g) of this sec- (B) No person may fish with anchored tion. gillnet gear in the CCB Restricted Area (i) No line floating at the surface. No during the other restricted period un- person may fish with anchored gillnet less that person’s gear complies with gear that has any portion of the buoy the gear marking requirements speci- line that is directly connected to the fied in paragraph (b) of this section, gear on the ocean bottom floating at the universal anchored gillnet gear re- the surface at any time. If more than quirements specified in (d)(1) of this one buoy is attached to a single buoy section, and the area-specific require- line or if a high flyer and a buoy are ments listed in (d)(6)(ii) of this section used together on a single buoy line, for the Other Northeast Gillnet Waters floating line may be used between Area. The AA may revise these require- these objects. ments in accordance with paragraph (g) (ii) No wet storage of gear. Anchored of this section. gillnet gear must be hauled out of the (3) Great South Channel Restricted water at least once every 30 days. Gillnet Area—(i) Area. The GSC Re- (2) Cape Cod Bay Restricted Area—(i) stricted Gillnet Area consists of the The CCB Restricted Area consists Area. area bounded by lines connecting the of the CCB right whale critical habitat following four points: 41°02.2′ N/69°02′ W, area specified under 50 CFR 226.203(b), 41°43.5′ N/69°36.3′ W, 42°10′ N/68°31′ W, unless the AA changes the boundaries and 41°38′ N/68°13′ W. This area includes in accordance with paragraph (g) of most of the GSC right whale critical this section. habitat area specified under 50 CFR (ii) Closure during the winter restricted 226.203(a), with the exception of the period—(A) Winter restricted period. The sliver along the western boundary de- winter restricted period for this area is from January 1 through May 15 of each scribed in (d)(4)(i) here. The AA may year, unless the AA revises the timing revise these boundaries in accordance in accordance with paragraph (g) of with paragraph (g) of this section. this section. (ii) Closure during the spring restricted (B) Closure. During the winter re- period—(A) Spring restricted period. The stricted period, no person may fish spring restricted period for the GSC with anchored gillnet gear in the CCB Restricted Gillnet Area is from April 1 Restricted Area unless the AA specifies through June 30 of each year unless the gear restrictions or alternative fishing AA revises that period in accordance practices in accordance with paragraph with paragraph (g) of this section. (g) of this section and the gear or prac- (B) Closure. During the spring restricted period, no person may set or fish with anchored gillnet gear in the 2 Fishers are also encouraged to maintain their buoy lines to be as knot-free as pos- GSC Restricted Gillnet Area unless the sible. Splices are not considered to be an en- AA specifies gear restrictions or alter- tanglement threat and are thus preferable to native fishing practices in accordance knots. with paragraph (g) of this section and

261

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

the gear or practices comply with (ii) Area-specific gear requirements. No those specifications. person may fish with anchored gillnet (iii) Area-specific gear requirements for gear in the Stellwagen Bank/Jeffreys the other restricted period—(A) Other re- Ledge Restricted Area unless that gear stricted period. The other restricted pe- complies with the gear marking re- riod for the GSC Restricted Gillnet quirements specified in paragraph (b) Area is from July 1 though March 31 of of this section, the universal anchored each year unless the AA revises that gillnet gear requirements specified in period in accordance with paragraph (d)(1) of this section, and the area-spe- (g) of this section. cific requirements listed in (d)(6)(ii) of (B) During the other restricted pe- this section for the Other Northeast riod, no person may fish with anchored Gillnet Waters Area. The AA may re- gillnet gear in the GSC Restricted vise these requirements in accordance Gillnet Area unless that person’s gear with paragraph (g) of this section. complies with the gear marking re- (6) Other Northeast Gillnet Waters quirements specified in paragraph (b) Area—(i) Area. The Other Northeast of this section, the universal anchored Gillnet Waters Area consists of all U.S. gillnet gear requirements specified in waters west of the U.S./Canada border (d)(1) of this section, and the area-spe- and north of a line extending due east cific requirements listed in (d)(6)(ii) of from the Virginia/North Carolina bor- this section for the Other Northeast der with the exception of the CCB Re- Gillnet Waters Area. The AA may restricted Area, Stellwagen Bank/Jef- vise these requirements in accordance freys Ledge Restricted Area, GSC Re- with paragraph (g) of this section. stricted Gillnet Area, GSC Sliver Re- stricted Area, Mid-Atlantic Coastal (4) Great South Channel Sliver Re- Waters Area, and exempted waters list- stricted Area—(i) Area. The GSC Sliver ed in (a)(2) of this section. Restricted Area consists of the area (ii) Area-specific gear requirements. No bounded by lines connecting the fol- person may fish with anchored gillnet lowing points: 41°02.2′ N/69°02′ W, 41°43.5′ gear in the Other Northeast Gillnet N/69°36.3′ W, 41°40′ N/69°45′ W, and 41°00′ ° ′ Waters Area unless that person’s gear N/69 05 W. The AA may revise these complies with the gear marking re- boundaries in accordance with para- quirements specified in paragraph (b) graph (g) of this section. of this section, the universal anchored (ii) Area-specific gear requirements. No gillnet gear requirements specified in person may fish with anchored gillnet (d)(1) of this section, and the area-spe- gear in the GSC Sliver Restricted Area cific requirements listed below. The unless that gear complies with the gear AA may revise these requirements in marking requirements specified in accordance with paragraph (g) of this paragraph (b) of this section, the uni- section. versal anchored gillnet gear require- (A) Buoy line weak links. All buoy ments specified in (d)(1) of this section, lines must be attached to the main and the area-specific requirements list- buoy with a weak link meeting the fol- ed in subparagraph (d)(6)(ii) of this sec- lowing specifications: tion for the Other Northeast Gillnet (1) The weak link must be chosen Waters Area. The AA may revise these from the following list of combinations requirements in accordance with para- approved by the NMFS gear research graph (g) of this section. program: swivels, plastic weak links, (5) Stellwagen Bank/Jeffreys Ledge Re- rope of appropriate diameter, hog stricted Area—(i) Area. The Stellwagen rings, rope stapled to a buoy stick, or Bank/Jeffreys Ledge Restricted Area other materials or devices approved in includes all Federal waters of the Gulf writing by the AA. of Maine, except those designated as (2) The breaking strength of these right whale critical habitat under 50 weak links must not exceed 1100 lb CFR 226.203(b), that lie south of 43°15′ (498.8 kg). N. lat. and west of 70° W long. The AA (3) Weak links must be designed such may change these boundaries in ac- that the bitter end of the buoy line is cordance with paragraph (g) of this sec- clean and free of any knots when the tion. link breaks. Splices are not considered

262

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

to be knots for the purposes of this pro- hog rings, rope stapled to a buoy stick, vision. or other materials or devices approved (B) Net panel weak links. All net pan- in writing by the Assistant Adminis- els must contain weak links meeting trator. the following specifications: (2) The breaking strength of these (1) Weak links must be inserted in weak links may not exceed 1,100 lb the center of the floatline (headrope) of (498.8 kg). each net panel in a net string. (3) Weak links must be designed such (2) The breaking strength of these that the bitter end of the buoy line is weak links must not exceed 1100 lb clean and free of any knots when the (498.8 kg). link breaks. Splices are not considered (C) Anchoring System. All anchored to be knots for the purposes of this pro- gillnet strings containing 20 or fewer vision. net panels must be securely anchored (B) Net panel weak links. All net pan- with one of the following anchoring els must contain weak links that meet systems: the following specifications: (1) Anchors with the holding power of (1) Weak links must be inserted in at least a 22 lb (10.0 kg) Danforth-style the center of the floatline of each 50- anchor at each end of the net string, fathom (300-ft or 91.4-m) net panel in a (2) Dead weights weighing at least 50 net string or every 25 fathoms for lb (22.7 kg) at each end of the net longer panels. string, or (2) The breaking strength of these (3) A lead line weighing at least 100 lb weak links may not exceed 1,100 lb (45.4 kg) per 300 ft (91.4 m) for each net (498.8 kg). panel in the net string. (C) Tending/anchoring. All gillnets (7) Mid-Atlantic Coastal Waters Area— must return to port with the vessel or (i) Area. The Mid-Atlantic Coastal Wa- be anchored at each end with an anchor ters Area consists of all U.S. waters capable of the holding power of at least bounded by the line defined by the fol- a 22-lb (10.0-kg) Danforth-style anchor. lowing points: The southern shore of (8) Gillnet Take Reduction Technology Long Island, NY, at 72° 30′ W. long., List. The following gear characteristics then due south to 33° 51′ N. lat., thence comprise the Gillnet Take Reduction west to the North Carolina-South Caro- Technology List: lina border, as defined in § 229.2. (i) All buoy lines are attached to the (ii) Area-specific gear requirements. buoy line with a weak link having a From December 1 through March 31, no maximum breaking strength of up to person may fish with anchored gillnet 1,100 lb (498.8 kg). Weak links may in- gear in the Mid-Atlantic Coastal Wa- clude swivels, plastic weak links, rope ters Area unless that person’s gear of appropriate diameter, hog rings, complies with the gear marking re- rope stapled to a buoy stick, or other quirements specified in paragraph (b) materials or devices approved in writ- of this section, the universal anchored ing by the Assistant Administrator. gillnet gear requirements specified in (ii) Weak links with a breaking paragraph (d)(1) of this section, and the strength of up to 1,100 lb (498.8 kg) following area-specific requirements, must be inserted in the center of the which the Assistant Administrator floatline (headrope) of each 50 fathom may revise in accordance with para- net panel or every 25 fathoms for graph (g) of this section: longer panels. (A) Buoy line weak links. All buoy (iii) All buoy lines must be comprised lines must be attached to the main entirely of sinking and/or neutrally buoy with a weak link placed as close buoyant line. to each individual buoy as operation- (e) Restrictions applicable to mid-Atlan- ally feasible that meets the following tic driftnet gear—(1) Restrictions. From specifications: December 1 through March 31 of the (1) The weak link must be chosen following year, no person may fish with from the following list of combinations driftnet gear at night in the mid-Atlan- approved by the NMFS gear research tic coastal waters area unless that gear program: Swivels, plastic weak links, is tended. During that time, all rope of appropriate breaking strength, driftnet gear set by that vessel in the

263

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

mid-Atlantic coastal waters area must southeast U.S. observer area unless an be removed from the water and stowed observer is on board that vessel during on board the vessel before a vessel re- the trip. turns to port. The Assistant Adminis- (ii) Closure. Except as provided under trator may revise these requirements paragraph (f)(3)(iii) of this section, no in accordance with paragraph (g) of person may fish with shark gillnet gear this section. in the southeast U.S. restricted area (f) Restrictions applicable to shark during the closed period. The closed pe- gillnet gear—(1) Management areas—(i) riod for this area is from November 15 Southeast U.S. restricted area. The through March 31 of the following year, southeast U.S. restricted area consists unless the Assistant Administrator of the area from 32°00′ N lat. (near Sa- changes that closed period in accord- vannah, GA) south to 27°51′ N lat. (near ance with paragraph (g) of this section. Sebastian Inlet, FL), extending from (iii) Special provision for strikenets. ° ′ the shore eastward to 80 00 W long., Fishing for sharks with strikenet gear unless the Assistant Administrator is exempt from the restriction under changes that area in accordance with paragraph (f)(3)(ii) of this section if: paragraph (g) of this section. (A) No nets are set at night or when (ii) Southeast U.S. observer area. The visibility is less than 500 yards (460 m). southeast U.S. observer area consists (B) Each set is made under the obser- of the southeast U.S. restricted area vation of a spotter plane. and an additional area along the coast south to 26°46.5′ N lat. (near West Palm (C) No net is set within 3 nautical Beach, FL) and extending from the miles of a right, humpback, fin or shore eastward out to 80°00′ W long., minke whale. unless the Assistant Administrator (D) If a right, humpback, fin or changes that area in accordance with minke whale moves within 3 nautical paragraph (g) of this section. miles of the set gear, the gear is re- (2) Gear marking requirements. From moved immediately from the water. November 15 through March 31 of the (g) Other provisions. In addition to following year, no person may fish with any other emergency authority under gillnet gear in the southeast U.S. ob- the Marine Mammal Protection Act, server area unless that gear is marked the Endangered Species Act, the Mag- according to the gear marking code nuson-Stevens Fishery Conservation specified under paragraph (b) of this and Management Act, or other appro- section. All buoy lines must be marked priate authority, the Assistant admin- within 2 ft (0.6 m) of the top of the istrator may take action under this buoy line and midway along the length section in the following situations: of the buoy line. From November 15, (1) Entanglements in critical habitat. If 1999, each net panel must be marked a serious injury or mortality of a right along both the float line and the lead whale occurs in the Cape Cod Bay crit- line at least once every 100 yards (92.4 ical habitat from January 1 through m). May 15, in the Great South Channel (3) Restrictions—(i) Observer require- Restricted Area from April 1 through ment. No person may fish with shark June 30, or in the Southeast U.S. Re- gillnet gear in the southeast U.S. ob- stricted Area from November 15 server area from November 15 through through March 31 as a result of an en- March 31 of the following year unless tanglement by lobster or gillnet gear the operator of the vessel calls the SE allowed to be used in those areas and Regional Office in St. Petersburg, FL, times, the Assistant Administrator not less than 48 hours prior to depart- shall close that area to that gear type ing on any fishing trip in order to ar- for the rest of that time period and for range for observer coverage. If the Re- that same time period in each subse- gional Office requests that an observer quent year, unless the Assistant Ad- be taken on board a vessel during a ministrator revises the restricted pe- fishing trip at any time from November riod in accordance with paragraph 15 through March 31 of the following (g)(2) of this section or unless other year, no person may fish with shark measures are implemented under para- gillnet gear aboard that vessel in the graph (g)(2).

264

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.32

(2) Other special measures. The Assist- (B) The DAM zone will then be de- ant Administrator may revise the re- fined by a polygon drawn outside but quirements of this section through a tangential to the circular buffer publication in the FEDERAL REGISTER zone(s). The latitudinal and longitu- if: dinal coordinates of the corners of the (i) NMFS verifies that certain gear polygon will then be identified. characteristics are both operationally (iii) Requirements and prohibitions effective and reduce serious injuries within DAM zones. Notice of specific and mortalities of endangered whales; area restrictions will be published in (ii) New gear technology is developed the FEDERAL REGISTER and will become and determined to be appropriate; effective 2 days after publication. Gear (iii) Revised breaking strengths are not in compliance with the imposed re- determined to be appropriate; strictions may not be set in the DAM (iv) New marking systems are devel- zone after the effective date. NMFS oped and determined to be appropriate; may either: (v) NMFS determines that right (A) require owners of gillnet and lob- whales are remaining longer than ex- ster gear set within the DAM zone to pected in a closed area or have left ear- remove all such gear within 2 days lier than expected; after notice is published in the (vi) NMFS determines that the FEDERAL REGISTER, or boundaries of a closed area are not ap- (B) allow fishing within a DAM zone propriate; with gear modifications determined by (vii) Gear testing operations are con- NMFS to sufficiently reduce the risk of sidered appropriate; or entanglement to right whales. Accept- (viii) Similar situations occur. able fishing practices and gear modi- (3) For the purpose of reducing the fications would be identified in the risk of fishery interactions with right FEDERAL REGISTER notification imple- whales, NMFS may establish a tem- menting the DAM zone. porary Dynamic Area Management (DAM) zone in the following manner: (C) The determination of whether re- (i) Trigger. Upon receipt of a single strictions will be imposed within a reliable report from a qualified indi- DAM zone would be based on NMFS’ re- vidual of three or more right whales view of a variety of factors, including within an area NMFS will plot each in- but not limited to: the location of the dividual sighting (event) and draw a DAM zone with respect to other fishery circle with a 2.8 nm (5.2 km) radius closure areas, weather conditions as around it, which will be adjusted for they relate to the safety of human life the number of right whales sighted at sea, the type and amount of gear al- such that a density of at least 0.04 ready present in the area, and a review right whales per nm2 (1.85 km2) is of recent right whale entanglement and maintained within the circle. If any mortality data. circle or group of contiguous circles in- (iv) Restricted period. Any DAM zone cludes 3 or more right whales, NMFS will remain in effect for a minimum pe- would consider this core area and its riod of 15 days. At the conclusion of the surrounding waters a candidate DAM 15-day period, the DAM zone will expire zone. automatically unless it is extended by (ii) DAM zone. Areas for consider- subsequent publication in the FEDERAL ation for DAM zones are limited to REGISTER. areas north of 40o N latitude. Having (v) Extensions of the restricted period. identified any circle or group of contig- Any 15-day period may be extended if uous circles including 3 or more right NMFS determines that the trigger es- whales as candidates for protection, as tablished in paragraph (g)(3)(i) of this identified in paragraph (g)(3)(i) of this section continues to be met. section, NMFS will determine the ex- (vi) Reopening of restricted zone. tent of the DAM zone as follows: NMFS may remove any gear restric- (A) A larger circular zone will be tion or prohibition and reopen the drawn to extend 15 nm (27.8 km) from DAM zone prior to its automatic expi- the perimeter of a circle around each ration if there are no confirmed core area. sightings of right whales for at least 1

265

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.32 50 CFR Ch. II (10–1–02 Edition)

week, or other credible evidence indi- (iii) Net panel weak link—Each net cates that right whales have left the panel must have a total of five weak DAM zone. NMFS will notify the public links. The breaking strength of these of the reopening of a DAM zone prior to weak links must not exceed 1,100 lb the expiration of the 15-day period by (498.9 kg). The weak link requirements issuing a document in the FEDERAL apply to all variations in panel size. REGISTER and through other appro- Three of the five weak links must be priate media. located on the floatline. One floatline (4) Seasonal Area Management weak link must be placed at the center (SAM) Program. All vessels deploying of the net panel, and two weak links anchored gillnet or lobster trap gear must be placed as close as possible to may fish in the SAM Areas as described each of the bridle ends of the net panel. in paragraphs (g)(4)(i)(A) and The remaining two of the five weak (g)(4)(ii)(A) of this section, provided links must be placed in the center of the vessel complies with the gear requirements during the times specified each of the up and down lines at either in paragraphs (g)(4)(i)(B) and end of each panel. (g)(4)(ii)(B) of this section. Copies of a (iv) Buoy line—No more than one chart depicting these areas are avail- buoy line per net string may be used, able from the Regional Administrator and it must be deployed at the north- upon request. ern or western end of the gillnet string (i) SAM West. (A) Area. SAM West depending on the direction of the set. consists of all waters bounded by (v) Gillnet anchor—All anchored straight lines connecting the following gillnets, regardless of the number of points in the order stated: net panels, must be securely anchored with a holding power of at least a 22-lb SAM WEST (9.9-kg) Danforth-style anchor at each Point N. Lat. W. Long. end of the net string. (2) Lobster Trap gear. (i) Sinking SAM1 ...... 42°04.8′ ...... 70°10′ ground line—All ground lines must be SAM2 ...... 42°12′ ...... 70°15′ SAM3 ...... 42°30′ ...... 70°15′ made entirely of sinking or neutrally SAM4 ...... 42°30′ ...... 69°24′ buoyant line. SAM5 ...... 41°48.9′ ...... 69°24′ (ii) Offshore Lobster buoy weak ° ′ ° ′ SAM6 ...... 41 45 ...... 69 33 links—All buoy lines must be attached SAM7 ...... 41°45′ ...... 69°55.8′ to the buoy with a weak link having a (B) Gear requirements. Unless other- maximum breaking strength of up to wise authorized by the Assistant Ad- 1,500 lb (680.4 kg). Weak links may in- ministrator for Fisheries, NMFS, in ac- clude swivels, plastic weak links, rope cordance with paragraph (g)(2) of this of appropriate diameter, hog rings, section, from March 1 through April 30, rope stapled to a buoy stick, or other no person may fish with anchored materials or devices approved in writ- gillnet or lobster gear unless that per- ing by the Assistant Administrator. son’s gear complies with the following (iii) Buoy line—No more than one gear characteristics: buoy line per trawl is allowed. The (1) Anchored gillnet gear. (i) Ground buoy line must be attached to the line—All ground lines area made en- northern or western end of the trawl tirely of sinking or neutrally buoyant string depending on the direction of line. the set. These requirements supersede (ii) Buoy weak links—All buoy lines the requirements found at § 697.21, are attached to the buoy with a weak which require one radar reflector at link having a maximum breaking each end of a trawl with more than strength of up to 1,100 lb (498.9 kg). three traps. Weak links may include swivels, plastic weak links, rope of appropriate di- (ii) SAM East. (A) Area. SAM East ameter, hog rings, rope stapled to a consists of all waters bounded by buoy stick, or other materials or de- straight lines connecting the following vices approved in writing by the Assist- points in the order stated: ant Administrator.

266

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.33

SAM EAST (4) Restricted period, closure and restrictions, and exemption. (i) Restricted period. The re- Point N. Lat. W. Long. stricted period for the southeast U.S. restricted area is from November 15 through SAM5 ...... 41°48.9′ ...... 69°24′ March 31 of the following year, unless the ° ′ ° ′ SAM4 ...... 42 30 ...... 69 24 Assistant Administrator revises this re- ° ′ ° ′ SAM8 ...... 42 30 ...... 67 26 stricted period in accordance with paragraph SAM9 ...... 42°30′ ...... 66°50′ (g) of this section. SAM10 ...... 41°45′ ...... 66°50′ SAM11 ...... 41°45′ ...... 68°17′ (ii) Closure for shark gillnet gear. Except as SAM12 ...... 42°10′ ...... 68°31′ provided under paragraph (f)(4)(iv) of this section, no person may fish with shark (B) Gear requirements. Unless other- gillnet gear in the southeast U.S. restricted area during the restricted period. wise authorized by the Assistant Ad- (iii) Restrictions for straight sets. Except as ministrator for Fisheries, NMFS, in ac- provided for shark gillnet gear under para- cordance with paragraph (g)(2) of this graph (f)(4)(iv) of this section, no person may section, from May 1 through July 31, no fish with a straight set of gillnet gear at person may fish with anchored gillnet night in the southeast U.S. restricted area or lobster gear unless that person’s during the restricted period. A straight set is gear complies with the gear character- defined as a set in which the gillnet is placed in a line in the water column, as opposed to istics found at paragraph (g)(4)(i)(B) of a circular set in which the gillnet is placed this section. to encircle an area in the water column. NOTE TO § 229.32: Additional regulations (iv) Special provision for strikenets. Fishing that affect fishing with lobster trap gear for sharks with strikenet gear is exempt have also been issued under authority of the from the restrictions under paragraphs Atlantic Coastal Fisheries Cooperative Man- (f)(4)(ii) and (f)(4)(iii) of this section if: agement Act in part 697 of this title. (A) No nets are set at night or when visibility is less than 500 yards (460m). [64 FR 7552, Feb. 16, 1999, as amended at 65 (B) Each set is made under the observation FR 70317, Nov. 22, 2000; 65 FR 80377, Dec. 21, of a spotter plane. 2000; 67 FR 1141, 1159, Jan. 9, 2002; 67 FR 1313, (C) No net is set within 3 nautical miles of Jan. 10, 2002; 67 FR 15494, Apr. 2, 2002] a right, humpback, fin or minke whale. EFFECTIVE DATE NOTE: At 67 FR 59477, (D) If a right, humpback, fin or minke Sept. 23, 2002, in § 229.32, the heading of para- whale moves within 3 nautical miles of the graph (f) and paragraph (f)(3) were revised; set gear, the gear is removed immediately and paragraph (f)(4) was added, effective Oct. from the water. 23, 2002. For the convenience of the user, the revised and added text is set forth as follows: * * * * * § 229.32 Atlantic large whale take reduction plan regulations. § 229.33 Harbor Porpoise Take Reduc- tion Plan Implementing Regula- tions—Gulf of Maine. * * * * * (a) Restrictions—(1) Northeast Closure (f) Restrictions applicable to the southeast Area. From August 15 through Sep- U.S. restricted area and the southeast U.S. ob- tember 13 of each fishing year, it is server area. * * * prohibited to fish with, set, haul back, possess on board a vessel unless * * * * * stowed, or fail to remove sink gillnet (3) Observer requirement. No person may gear or gillnet gear capable of catching fish with shark gillnet gear in the southeast multispecies, from Northeast Closure U.S. observer area from November 15 Area. This prohibition does not apply through March 31 of the following year un- to a single pelagic gillnet (as described less the operator of the vessel calls the SE and used as set forth in § 648.81(f)(2)(ii) Regional Office in St. Petersburg, FL not of this title). The Northeast Closure less than 48 hours prior to departing on any fishing trip in order to arrange for observer Area is the area bounded by straight coverage. If the Regional Office requests that lines connecting the following points in an observer be taken on board a vessel dur- the order stated: ing a fishing trip at any time from November 15 through March 31 of the following year, no NORTHEAST CLOSURE AREA person may fish with shark gillnet gear aboard that vessel in the southeast U.S. ob- Point N. Lat. W. Long. server area unless an observer is on board NE1 (1) 68°55.0′ that vessel during the trip. NE2 43°29.6′ 68°55.0′

267

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.33 50 CFR Ch. II (10–1–02 Edition)

NORTHEAST CLOSURE AREA—Continued MASSACHUSETTS BAY CLOSURE AREA— Continued Point N. Lat. W. Long. Point N. Lat. W. Long. NE3 44°04.4′ 67°48.7′ ° ′ ° ′ NE4 44 06.9 67 52.8 MC7 42°00′ (1) NE5 44°31.2′ 67°02.7′ NE6 (1) 67°02.7′ 1 Massachusetts shoreline. 2 Cape Cod shoreline. 1 Maine shoreline. (4) Cape Cod South Closure Area. From (2) Mid-coast Closure Area. From Sep- December 1 through May 31, it is pro- tember 15 through May 31, it is prohib- hibited to fish with, set, haul back, ited to fish with, set, haul back, pos- possess on board a vessel unless sess on board a vessel unless stowed, or stowed, or fail to remove sink gillnet fail to remove sink gillnet gear or gear or gillnet gear capable of catching gillnet gear capable of catching multi- multispecies from Cape Cod South Clo- species. This prohibition does not apply sure Area, except with the use of to a single pelagic gillnet (as described pingers as provided in paragraph (d)(3) and used as set forth in § 648.81(f)(2)(ii) of this section. This prohibition does of this title). The Mid-Coast Closure not apply to a single pelagic gillnet (as Area is the area bounded by straight described in § 648.81(f)(2)(ii) of this lines connecting the following points in title). The Cape Cod South Closure the order stated: Area is the area bounded by straight lines connecting the following points in MID-COAST CLOSURE AREA the order stated: Point N. Lat. W. Long. CAPE COD SOUTH CLOSURE AREA MC1 42°30′ (1) MC2 42°30′ 70°15′ Point N. Lat. W. Long. MC3 42°40′ 70°15′ MC4 42°40′ 70°00′ CCS1 (1) 71°45′ MC5 43°00′ 70°00′ CCS2 40°40′ 71°45′ MC6 43°00′ 69°30′ CCS3 40°40′ 70°30′ MC7 43°30′ 69°30′ CCS4 (2) 70°30′ ° ′ ° ′ MC8 43 30 69 00 1 Rhode Island shoreline. MC9 (2) 69°00′ 2 Massachusetts shoreline. 1 Massachusetts shoreline. 2 Maine shoreline. (5) Offshore Closure Area. From No- vember 1 through May 31, it is prohib- (3) Massachusetts Bay Closure Area. ited to fish with, set, haul back, pos- From December 1 through May 31, it is sess on board a vessel unless stowed, or prohibited to fish with, set, haul back, fail to remove sink gillnet gear or possess on board a vessel unless gillnet gear capable of catching multi- stowed, or fail to remove sink gillnet species from Offshore Closure Area, ex- gear or gillnet gear capable of catching cept for the use of pingers as provided multispecies from the Massachusetts in § 229.33(d)(4). This prohibition does Bay Closure Area, except with the use not apply to a single pelagic gillnet (as of pingers as provided in paragraph described in § 648.81(f)(2)(ii) of this (d)(2) of this section. This prohibition title). The Offshore Closure Area is the does not apply to a single pelagic area bounded by straight lines con- gillnet (as described in § 648.81(f)(2)(ii) necting the following points in the of this title). The Massachusetts Bay order stated: Closure Area is the area bounded by straight lines connecting the following OFFSHORE CLOSURE AREA points in the order stated: Point N. Lat. W. Long.

MASSACHUSETTS BAY CLOSURE AREA OFS1 42°50′ 69°30′ OFS2 43°10′ 69°10′ Point N. Lat. W. Long. OFS3 43°10′ 67°40′ OFS4 42°10′ 67°40′ ° ′ 1 MB1 42 30 () OFS5 42°10′ 69°30′ ° ′ ° ′ MB2 42 30 70 30 OFS6 42°50′ 69°30′ MB3 42°12′ 70°30′ MB4 42°12′ 70°00′ MB5 (2) 70°00′ (6) Cashes Ledge Closure Area. For the MB6 42°00′ (2) month of February of each fishing

268

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.33

year, it is prohibited to fish with, set, (2) Vessels, subject to the restrictions haul back, possess on board a vessel and regulations specified in paragraph unless stowed, or fail to remove sink (a)(3) of this section, may fish in the gillnet gear or gillnet gear capable of Massachusetts Bay Closure Area from catching multispecies from the Cashes December 1 through the last day of Ledge Closure Area. This prohibition February and from April 1 through does not apply to a single pelagic May 31 of each fishing year, provided gillnet (as described in § 648.81(f)(2)(ii) that pingers are used in accordance of this title). The Cashes Ledge Closure with the requirements of paragraphs Area is the area bounded by straight (b) (1) and (2) of this section. lines connecting the following points in (3) Vessels, subject to the restrictions the order stated: and regulations specified in paragraph (a)(4) of this section, may fish in the CASHES LEDGE CLOSURE AREA Cape Cod South Closure Area from De- Point N. Lat. W. Long. cember 1 through the last day of Feb- ruary and from April 1 through May 31 CL1 42°30′ 69°00′ CL2 42°30′ 68°30′ of each fishing year, provided that CL3 43°00′ 68°30′ pingers are used in accordance with the CL4 43°00′ 69°00′ requirements of paragraphs (b) (1) and ° ′ ° ′ CL5 42 30 69 00 (2) of this section. (b) Pingers—(1) Pinger specifications. (4) Vessels, subject to the restrictions For the purposes of this subpart, a and regulations specified in paragraph pinger is an acoustic deterrent device (a)(5) of this section, may fish in the which, when immersed in water, broad- Offshore Closure Area from November 1 casts a 10 kHz (±2 kHz) sound at 132 dB through May 31 of each fishing year, (±4 dB) re 1 micropascal at 1 m, lasting with the exception of the Cashes Ledge 300 milliseconds (±15 milliseconds), and Closure Area. From February 1 repeating every 4 seconds (±.2 seconds). through the end of February, the area (2) Pinger attachment. An operating within the Offshore Closure Area de- and functional pinger must be attached fined as ‘‘Cashes Ledge’’ is closed to all at the end of each string of the gillnets fishing with sink gillnets. Vessels sub- and at the bridle of every net within a ject to the restrictions and regulation string of nets. specified in paragraph (a)(5) of this sec- (c) Pinger training and certification. tion may fish in the Offshore Closure Beginning on January 1, 1999, the oper- Area outside the Cashes Ledge Area ator of a vessel may not fish with, set from February 1 through the end of or haul back sink gillnets or gillnet February provided that pingers are gear, or allow such gear to be in closed used in accordance with the require- areas where pingers are required as ments of paragraphs (b) (1) and (2) of specified under paragraph (b) of this this section. section, unless the operator has satis- (e) Other special measures. The Assist- factorily completed the pinger certifi- ant Administrator may revise the re- cation training program and possesses quirements of this section through no- on board the vessel a valid pinger tification published in the FEDERAL training certificate issued by NMFS. REGISTER if: Notice will be given announcing the (1) After plan implementation, NMFS times and locations of pinger certifi- determines that pinger operating effec- cation training programs. tiveness in the commercial fishery is (d) Use of pingers in closed areas—(1) inadequate to reduce bycatch to the Vessels, subject to the restrictions and PBR level with the current plan. regulations specified in paragraph (2) NMFS determines that the bound- (a)(2) of this section, may fish in the ary or timing of a closed area is inap- Mid-coast Closure Area from Sep- propriate, or that gear modifications tember 15 through May 31 of each fishing year, provided that pingers are (including pingers) are not reducing by- used in accordance with the require- catch to below the PBR level. ments of paragraphs (b) (1) and (2) of [63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, this section. 1998]

269

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.34 50 CFR Ch. II (10–1–02 Edition)

§ 229.34 Harbor Porpoise Take Reduc- stowed, or fail to remove any large tion Plan—Mid-Atlantic. mesh gillnet gear from the waters off (a)(1) Regulated waters. The regula- New Jersey. tions in this section apply to all waters (2) Mudhole. From February 15 in the Mid-Atlantic bounded on the through March 15, it is prohibited to east by 72°30′ W. longitude and on the fish with, set, haul back, possess on south by the North Carolina/South board a vessel unless stowed, or fail to Carolina border (33°51′ N. latitude), ex- remove any large mesh or small mesh cept for the areas exempted in para- gillnet gear from the waters off New graph (a)(2) of this section. Jersey known as the Mudhole. (2) Exempted waters. All waters land- (3) Southern Mid-Atlantic waters. From ward of the first bridge over any February 15 through March 15, it is embayment, harbor, or inlet will be ex- prohibited to fish with, set, haul back, empted. The regulations in this section possess on board a vessel unless do not apply to waters landward of the stowed, or fail to remove any large following lines: mesh gillnet gear from the southern Mid-Atlantic waters. New York (c) Gear requirements and limita- 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ tions—(1) Waters off New Jersey—large W (Moriches Bay Inlet) mesh gear requirements and limitations. 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ From January 1 through April 30 of W (Fire Island Inlet) each year, no person may fish with, ° ′ ° ′ ° ′ ° ′ 40 34.40 N 73 34.55 W TO 40 35.08 N 73 35.22 set, haul back, possess on board a ves- W (Jones Inlet) sel unless stowed, or fail to remove any New Jersey/Delaware large mesh gillnet gear in waters off 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ New Jersey, unless the gear complies W (Barnegat Inlet) with the specified gear characteristics. 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ During this period, no person who owns W (Beach Haven to Brigantine Inlet) or operates the vessel may allow the 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ vessel to enter or remain in waters off W (Cape May Inlet) New Jersey with large mesh gillnet All marine and tidal waters landward of the 72 COLREGS demarcation line gear on board, unless the gear complies (International Regulations for Preventing with the specified gear characteristics Collisions at Sea, 1972), as depicted or noted or unless the gear is stowed. In order to on nautical charts published by NOAA (Coast comply with these specified gear char- Charts 1:80,000 scale), and as described in 33 acteristics, the gear must have all the CFR part 80. (Delaware Bay) following characteristics: Maryland/Virginia (i) Floatline length. The floatline is no longer than 4,800 ft (1,463.0 m), and, if ° ′ ° ′ ° ′ ° ′ 38 19.48 N 75 05.10 W TO 38 19.35 N 75 05.25 the gear is used in the Mudhole, the W (Ocean City Inlet) 37° 52.′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ floatline is no longer than 3,900 ft W (Chincoteague to Ship Shoal Inlet) (1,188.7 m). 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ (ii) Twine size. The twine is at least W (Little Inlet) 0.04 inches (0.090 cm) in diameter. 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.′ (iii) Size of nets. Individual nets or W (Smith Island Inlet) net panels are not more than 300 ft North Carolina (91.44 m, or 50 fathoms), in length. All marine and tidal waters landward of (iv) Number of nets. The total number the 72 COLREGS demarcation line of individual nets or net panels for a (International Regulations for Preventing vessel, including all nets on board the Collisions at Sea, 1972), as depicted or noted vessel, hauled by the vessel or deployed on nautical charts published by NOAA (Coast by the vessel, does not exceed 80. Charts 1:80,000 scale), and as described in 33 (v) Tie-down system. The gillnet is CFR part 80. equipped with tie-downs spaced not (b) Closures—(1) New Jersey waters. more than 15 ft (4.6 m) apart along the From April 1 through April 20, it is floatline, and each tie-down is not prohibited to fish with, set, haul back, more than 48 inches (18.90 cm) in length possess on board a vessel unless from the point where it connects to the

270

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 229.34

floatline to the point where it connects board, unless the gear complies with to the lead line. the specified gear characteristics or (vi) Tagging requirements. Beginning unless the gear is stowed. In order to January 1, 2000, the gillnet is equipped comply with these specified gear char- with one tag per net, with one tag se- acteristics, the gear must have all the cured to each bridle of every net within following characteristics: a string of nets. (i) Floatline length. The floatline is no (2) Waters off New Jersey—small mesh longer than 3,900 ft (1,188.7 m). gillnet gear requirements and limitations. (ii) Twine size. The twine is at least From January 1 through April 30 of 0.04 inches (0.090 cm) in diameter. each year, no person may fish with, (iii) Size of nets. Individual nets or set, haul back, possess on board a ves- net panels are not more than 300 ft (91.4 sel unless stowed, or fail to remove any m or 50 fathoms) in length. small mesh gillnet gear in waters off (iv) Number of nets. The total number New Jersey, unless the gear complies of individual nets or net panels for a with the specified gear characteristics. vessel, including all nets on board the During this period, no person who owns vessel, hauled by the vessel or deployed or operates the vessel may allow the by the vessel, does not exceed 80. vessel to enter or remain in waters off New Jersey with small mesh gillnet (v) Tie-down system. The gillnet is gear on board, unless the gear complies equipped with tie-downs spaced not with the specified gear characteristics more than 15 ft (4.6 m) apart along the or unless the gear is stowed. In order to floatline, and each tie-down is not comply with these specified gear char- more than 48 inches (18.90 cm) in length acteristics, the gear must have all the from the point where it connects to the following characteristics: floatline to the point where it connects to the lead line. (i) Floatline length. The floatline is less than 3,000 ft (914.4 m). (vi) Tagging requirements. Beginning (ii) Twine size. The twine is at least January 1, 2000, the gillnet is equipped 0.031 inches (0.081 cm) in diameter. with one tag per net, with one tag se- (iii) Size of nets. Individual nets or cured to each bridle of every net within net panels are not more than 300 ft (91.4 a string of nets. m or 50 fathoms) in length. (4) Southern Mid-Atlantic waters—small (iv) Number of nets. The total number mesh gillnet gear requirements and limita- of individual nets or net panels for a tions. From February 1 through April vessel, including all nets on board the 30 of each year, no person may fish vessel, hauled by the vessel or deployed with, set, haul back, possess on board a by the vessel, does not exceed 45. vessel unless stowed, or fail to remove (v) Tie-down system. Tie-downs are any small mesh gillnet gear in waters prohibited. off New Jersey, unless the gear com- (vi) Tagging requirements. Beginning plies with the specified gear character- January 1, 2000, the gillnet is equipped istics. During this period, no person with one tag per net, with one tag se- who owns or operates the vessel may cured to each bridle of every net within allow the vessel to enter or remain in a string of nets. Southern Mid-Atlantic waters with (3) Southern Mid-Atlantic waters—large small mesh gillnet gear on board, un- mesh gear requirements and limitations. less the gear complies with the speci- From February 1 through April 30 of fied gear characteristics or unless the each year, no person may fish with, gear is stowed. In order to comply with set, haul back, possess on board a ves- these specified gear characteristics, sel unless stowed, or fail to remove any the gear must have all the following large mesh gillnet gear in Southern characteristics: Mid-Atlantic waters, unless the gear (i) Floatline length. The floatline is no complies with the specified gear char- longer than 2118 ft (645.6 m). acteristics. During this period, no per- (ii) Twine size. The twine is at least son who owns or operates the vessel 0.03 inches (0.080 cm) in diameter. may allow the vessel to enter or re- (iii) Size of nets. Individual nets or main in Southern Mid-Atlantic waters net panels are not more than 300 ft (91.4 with large mesh sink gillnet gear on m or 50 fathoms) in length.

271

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 229.34 50 CFR Ch. II (10–1–02 Edition)

(iv) Number of nets. The total number tification published in the FEDERAL of individual nets or net panels for a REGISTER if: vessel, including all nets on board the (1) After plan implementation, NMFS vessel, hauled by the vessel or deployed determines that pinger operating effec- by the vessel, does not exceed 45. tiveness in the commercial fishery is (v) Tie-down system. Tie-downs are inadequate to reduce bycatch to the prohibited. PBR level with the current plan. (vi) Tagging requirements. Beginning (2) NMFS determines that the bound- January 1, 2000, the gillnet is equipped ary or timing of a closed area is inap- with one tag per net, with one tag se- propriate, or that gear modifications cured to each bridle of every net within (including pingers) are not reducing by- a string of nets. catch to below the PBR level. (d) Other special measures. The Assist- ant Administrator may revise the re- [63 FR 66489, Dec. 2, 1998, as amended at 66 quirements of this section through no- FR 2338, Jan. 11, 2001]

272

VerDate 0ct<31>2002 05:27 Nov 21, 2002 Jkt 197209 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce Pt. 229, Fig. 1

[64 FR 3434, Jan. 22, 1999]

273

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00273 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T ER22JA99.001 SUBCHAPTER D—WHALING

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.

274

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 230.6

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.

275

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00275 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 230.7 50 CFR Ch. II (10–1–02 Edition)

(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]

276

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00276 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T SUBCHAPTER F—AID TO FISHERIES

PART 253—FISHERIES ASSISTANCE (1) To promote and encourage State PROGRAMS activities in support of the management of interjurisdictional fishery re- Subpart A—General sources identified in interstate or Fed- eral fishery management plans; and Sec. (2) To promote and encourage man- 253.1 Purpose. agement of interjurisdictional fishery resources throughout their range. Subpart B—Fisheries Obligation Guarantee (3) The scope of this part includes Program guidance on making financial assist- 253.10 Definitions. ance awards to States or Interstate 253.11 Guarantee policy. Commissions to undertake projects in 253.12 Guaranteed note, U.S. note, and secu- support of management of interjuris- rity documents. dictional fishery resources in both the 253.13 Ability and experience requirements. exclusive economic zone (EEZ) and 253.14 Economic and financial require- State waters, and to encourage States ments. to enter into enforcement agreements 253.15 Miscellaneous. with either the Department of Com- 253.16 Fees. merce or the Department of the Inte- 253.17 Demand and payment. rior. 253.18 Program operating guidelines. 253.19 Default and liquidation. Subpart B—Fisheries Obligation Subpart C—Interjurisdictional Fisheries Guarantee Program 253.20 Definitions. § 253.10 Definitions. 253.21 Apportionment. 253.22 State projects. The terms used in this subpart have 253.23 Other funds. the following meanings: 253.24 Administrative requirements. Act means Title XI of the Merchant Marine Act, 1936, as amended. AUTHORITY: 46 U.S.C. 1271–1279 and 16 U.S.C. 4101 et seq. Actual cost means project cost (less a 10-percent salvage value), depreciated SOURCE: 61 FR 19172, May 1, 1996, unless (excluding land) on a straightline basis otherwise noted. at 1-year intervals over the project property’s useful life including archi- Subpart A—General tectural, engineering, inspection, delivery, outfitting, and interest costs, as § 253.1 Purpose. well as the cost of any consulting con- (a) The regulations in this part per- tract the Division requires. tain to fisheries assistance programs. Applicant means the one applying for Subpart B of these rules governs the a guarantee (the prospective Fisheries Obligation Guarantee Pro- notemaker). gram, which guarantees the repayment Application means an application for of certain long-term fisheries and a guarantee. aquacultural debts. This allows those Application fee means 0.5 percent of debts to be placed in the same private the dollar amount of an application. investment market that buys U.S. Aquacultural facility means land, land Treasury securities, where interest structures, water structures, water rates are lower and maturities are craft built in the U.S., and equipment longer. The Program does all credit for hatching, caring for, or growing work and holds and services all credit fish under controlled circumstances collateral. The Program’s guarantee and for its unloading, receiving, hold- fee makes it self-supporting. ing, processing, or distribution for (b) Subpart C implements Title III of commercial purposes. Public Law 99–659 (16 U.S.C. 4100 et CCF means Capital Construction seq.), which has two objectives: Fund.

277

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00277 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 253.10 50 CFR Ch. II (10–1–02 Edition)

Citizen means a citizen or national of Guaranteed note means a promissory the U.S. who is otherwise also a citizen note from a notemaker to a noteholder for the purpose of documenting a vessel whose repayment the guarantor guar- in the coastwise trade under section 2 antees. of the Shipping Act, 1916, as amended. Guarantor means the U.S., acting, Contributory project means any under the Act, by and through the Sec- project that contributes to developing retary of Commerce. the U.S. fishing industry by: Causing Industry means the fisheries and/or any vessel to catch less overutilized aquacultural industry. species than before; applying new tech- Noteholder means a guaranteed note nology; improving safety or fuel effi- payee. ciency; making project property more Notemaker means a guaranteed note efficient, productive, or competitive; payor. potentially increasing fisheries ex- Passenger fishing means carrying in ports; helping develop an underutilized vessels for commercial purposes pas- fishery; or enhancing financial sta- sengers who catch fish. bility, financial performance, growth, Program means the Fisheries Obliga- productivity, or any other business at- tion Guarantee Program. tribute. Project means the construction of Demand means a noteholder’s request new project property or the refur- that the guarantor pay a guaranteed bishing or purchase of used project note’s full principal and interest bal- property including architectural, engi- ance. neering, inspection, delivery, outfit- Division means the Financial Services ting, and interest costs, as well as the Division, National Marine Fisheries cost of any consulting contract the Di- Service, National Oceanic and Atmos- vision requires. pheric Administration, U.S. Depart- Project property means the vessel or ment of Commerce. facility involved in a project whose ac- Dual Use CCF means a CCF agree- tual cost is eligible under the Act for ment whose qualified vessel is project guarantee and controls the dollar property and whose deposits are amount of a guaranteed note. pledged to repayment of the U.S. note. Property means the project property and all other property pledged as secu- Facility means a fisheries facility or rity for a U.S. note. aquacultural facility. Qualified means acceptable, in the Di- means the first permanent Financing vision’s credit risk judgment, and oth- debt placed on project property for fi- erwise meeting the Division’s require- nancing its project cost. ments for guarantee. Fish means all forms of aquatic ani- Refinancing means newer debt that mal and plant life, except marine mam- either replaces older debt or reim- mals and birds. burses applicants for previous expendi- Fishery facility means land, land tures. structures, water craft that do not fish, Refinancing/assumption fee means 0.25 and equipment used for transporting, percent of the principal amount of a unloading, receiving, holding, proc- guaranteed note to be refinanced or as- essing, or distributing fish for commer- sumed. cial purposes (including any fishery fa- Refurbishing means any reconstruc- cility for passenger fishing). tion, reconditioning, or other improve- Fishing means catching wild fish for ment of used project property involv- commercial purposes (including pas- ing more than routine repair or main- senger fishing). tenance. Guarantee means the guarantor’s con- Security documents mean all collateral tractual promise, backed by the full securing the U.S. note’s repayment and faith and credit of the United States, all other assurances, undertakings, and to repay a guaranteed note if a contractual arrangements associated notemaker fails to repay it as agreed. with the U.S. note. Guarantee fee means 1 percent of a Underutilized fishery means: guaranteed note’s average annual un- (1) For a vessel, any fish species har- paid principal balance. vested below its sustainable yield.

278

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00278 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 253.12

(2) For a fisheries facility, any facil- cost (except for a used vessel or fishery ity using that species or any for which facility that the Program purchased aggregate facilities are inadequate to and is reselling), unless the used vessel best use harvests of that or any other or fishery facility will be refurbished in species. the United States and will be a con- U.S. means the United States of tributory project or it will be used in America and, for citizenship purposes, an underutilized fishery. includes the Commonwealth of Puerto (b) Every project, other than those Rico; American Samoa; the U.S. Virgin specified in paragraphs (a) (1) and (2) of Islands; Guam; the Republic of the this section, is consistent with wise use Marshal Islands; the Federated States and every project, other than those of Micronesia; the Commonwealth of specifically precluded in paragraphs (a) the Northern Mariana Islands; any (1) and (2) of this section, may be fi- other commonwealth, territory, or pos- nanced, as well as refinanced. session of the United States; or any political subdivision of any of them. § 253.12 Guaranteed note, U.S. note, U.S. note means a promissory note and security documents. payable by the notemaker to the guar- (a) Guaranteed note—(1) Principal. antor. This may not exceed 80 percent of ac- Useful life means the period during tual cost, but may, in the Division’s which project property will, as deter- credit judgment, be less. mined by the Division, remain eco- (2) Maturity. This may not exceed 25 nomically productive. years, but shall not exceed the project Vessel means any vessel documented property’s useful life and may, in the under U.S. law and used for fishing. Division’s credit judgment, be less. Wise use means the wise use of fisheries resources and their development, (3) Interest rate. This may not exceed advancement, management, conserva- the amount the Division deems reason- tion, and protection. able. (4) Prepayment penalty. The Division § 253.11 Guarantee policy. will allow a reasonable prepayment (a) A guarantee financing or refi- penalty, but the guarantor will not nancing up to 80 percent of a project’s guarantee a notemaker’s payment of actual cost shall be available to any it. qualified citizen otherwise eligible (5) Form. This will be the simple under the Act and these rules, except: promissory note (with the guarantee (1) Vessel construction. The Program attached) the Division prescribes, will not finance this project cost. The promising only to pay principal, inter- Program will only refinance this est, and prepayment penalty. project cost for an existing vessel (6) Sole security. The guaranteed note whose previous construction cost has and the guarantee will be the already been financed (or otherwise noteholder’s sole security. paid). Refinancing this project cost for (b) U.S. note and security documents— a vessel that already exists is not in- (1) Form. The U.S. note and security consistent with wise use, but financing documents will be in the form the Divi- it may be. sion prescribes. (2) Vessel refurbishing that materially (2) U.S. note. This exists to evidence increases an existing vessel’s harvesting the notemaker’s actual and contingent capacity. The Program will not finance liability to the guarantor (contingent this project cost. The Program will if the guarantor does not pay the guar- only refinance this project cost for a anteed note (including any portion of vessel whose previous refurbishing cost it), on the notemaker’s behalf or if the has already been financed (or otherwise guarantor does not advance any other paid). Refinancing this project cost is amounts or incur any other expenses not inconsistent with wise use, but fi- on the notemaker’s behalf to protect nancing it may be. the U.S. or accommodate the (3) Purchasing a used vessel or used notemaker; actual if, and to the same fishery facility. The Program will nei- monetary extent that, the guarantor ther finance nor refinance this project does). Payment of the guaranteed note

279

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 253.13 50 CFR Ch. II (10–1–02 Edition)

by anyone but the guarantor will am- tax-deferral benefits, but also both ortize the original principal balance gives the Program control of CCF with- (and interest accruing on it) of the U.S. drawals and recourse against CCF de- note to the same extent that it amor- posits and ensures an emergency refur- tizes the guaranteed note. The U.S bishing reserve (tax-deferred) for note will, among other things, contain project property. provisions for adding to its principal balance all amounts the Program ad- § 253.13 Ability and experience re- vances, or expenses it incurs, to pro- quirements. tect the U.S. or accommodate the A notemaker and the majority of its notemaker. principals must generally have the (3) Security documents. The Division ability, experience, resources, char- will, at a minimum, require a pledge of acter, reputation, and other qualifica- all project property (or adequate sub- tions the Division deems necessary for stitute collateral). The Division will successfully operating the project require such other security as it deems property and protecting the U.S. The the circumstances of each notemaker Program will ordinarily not provide and project require to protect the U.S. guarantees: For venture capital pur- All security documents will secure the poses; to a notemaker whose principals U.S. note. The security documents will, are all from outside the industry; or for among other things, contain provisions a notemaker the majority of whose for adding to the U.S. note all Program principals cannot document successful advances, expenditures, and expenses industry ability and experience of a du- required to protect the U.S. or accom- ration, degree, and nature consistent modate the notemaker. with protecting the U.S. (4) Recourse. Significant Program reliance, as a secondary means of repay- § 253.14 Economic and financial re- ment, on the net worths of parties quirements. other than the notemaker will ordi- (a) Income and expense projections. The narily require secured recourse against Division’s conservative income and ex- those net worths. Recourse may be by pense projections for the project prop- a repayment guarantee or irrevocable erty’s operation must prospectively in- letter of credit. Ordinarily, the Divi- dicate net earnings that can service all sion will require recourse against: All debt, properly maintain the project major shareholders of a closely-held property, and protect the U.S. against corporate notemaker, the parent cor- the industry’s cyclical economics and poration of a subsidiary corporate other risks of loss. notemaker without substantial pledged (b) Working capital. The Division’s assets other than the project property, conservative assessment of an appli- and all major limited partners. The Di- cant’s financial condition must indi- vision may also require recourse cate initial working capital prospec- against others it deems necessary to tively sufficient to provide for the protect the U.S. The principal parties project property to achieve net earn- in interest, who ultimately stand most ings projections, fund all foreseeable to benefit from the project, should or- contingencies, and protect the U.S. At dinarily be held financially account- the Division’s discretion, some portion able for the project’s performance. of projected working capital needs may Where otherwise appropriate recourse be met by something other than cur- is unavailable, the conservatively pro- rent assets minus current liabilities jected net liquidating value of the (i.e., by a line or letter of credit, non- notemaker’s assets pledged to the Pro- current assets readily capable of gener- gram must, in the Division’s credit ating working capital, a guarantor judgment, substantially exceed all pro- with sufficient financial resources, jected Program exposure. etc.). (c) Dual-use CCF. For a vessel, the Di- (c) Audited financial statements. These vision may require annually depositing will ordinarily be required for any some portion of the project property’s notemaker with large or financially ex- net income into a dual-use CCF. A tensive operations whose financial con- dual-use CCF provides the normal CCF dition the Division believes it cannot

280

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 253.15

otherwise assess with reasonable cer- Program will ordinarily be an addi- tainty. tional insured as well as the sole loss (d) Consultant services. Infrequently, payee for the amount of its interest; expert consulting services may be nec- cancellation will require 20 days’ ad- essary to help the Division assess a vance written notice; vessel seaworthi- project’s economic, technical, or finan- ness will be admitted, and the Program cial feasibility. The Division will select will be adequately protected against and employ the necessary consultant, other insureds’ breaches of policy war- but require the applicant to reimburse ranties, negligence, omission, etc.) the Division. A subsequently approved (d) Property inspections. The Division application will not be closed until the will require adequate condition and applicant reimburses the Division. This valuation inspection of all property as cost may, at the Division’s discretion, the basis for assessing the property’s be included in a guaranteed note’s worth and suitability for guarantee. amount. For a declined application, the The Division may also require these at Division may reimburse itself from the specified periods during guarantee life. remaining 25 percent of the application These must be conducted by competent fee. and impartial inspectors acceptable to the Division. Inspection cost will be at § 253.15 Miscellaneous. an applicant’s expense. Those occur- (a) Applicant. Only the legal title ring before application approval may holder of project property (or the lessee be included in actual cost. of an appropriate long-term financing (e) Guarantee terms and conditions. lease) may apply for a guarantee. Ap- The Division’s approval in principle plicants must submit an ‘‘Application letter shall specify the terms and con- for Fisheries Obligation Program Guar- ditions of the guarantor’s willingness antee’’ to the appropriate NMFS Re- to guarantee. These shall be incor- gional Financial Services Branch to be porated in closing documents that the considered for a guaranteed loan. Division prepares. Terms and condi- (b) Investigation and approval. The Di- tions are at the Division’s sole discre- vision shall do a due diligence inves- tion. An applicant’s nonacceptance will tigation of every application it accepts result in disqualification for guar- and determine if, in the Division’s sole antee. judgment, the application is eligible (f) Noteholder. The Division will, as a and qualified. Applications the Divi- gratuitous service, request parties in- sion deems ineligible or unqualified terested in investing in guaranteed will be declined. The Division will ap- notes to submit offers to fund each pro- prove eligible and qualified applica- spective guaranteed note. The Division tions based on the applicability of the and the applicant will, by mutual con- information obtained during the appli- sent, choose the responsive bidder, cation and investigation process to the which ordinarily will be the prospec- programmatic goals and financial re- tive noteholder whose bid represents quirements of the program and under the lowest net effective annual cost of terms and conditions that, in the Divi- capital. Until the Division has closed sion’s sole discretion, protect the U.S. the guarantee, arrangements between The Division will state these terms and an applicant and a prospective conditions in its approval in principal noteholder are a matter of private con- letter. tract between them, and the Program (c) Insurance. All property and other is not responsible to either for non- risks shall be continuously insured performance by the other. during the term of the U.S. note. Insur- (g) Closing—(1) Approval in principle ers must be acceptable to the Division. letters. Every closing will be in strict Insurance must be in such forms and accordance with a final approval in amounts and against such risks as the principle letter. Division deems necessary to protect (2) Contracts. The guaranteed note, the U.S. Insurance must be endorsed to U.S. note, and security documents will include the requirements the U.S., as ordinarily be on standard Program respects its interest only, deems nec- forms that may not be altered without essary to protect the U.S. (e.g., the Divisional approval. The Division will

281

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 253.16 50 CFR Ch. II (10–1–02 Edition)

ordinarily prepare all contracts, except (c) Refinancing or assumption fee. This certain pledges involving real property, fee applies only to refinancing or as- which will be prepared by each suming existing guaranteed notes. It is notemaker’s attorney at the direction due upon application for refinancing or and approval of the Division’s attor- assuming a guaranteed note. It is fully ney. earned when due and shall be non- (3) Closing schedules. The Division refundable. The Division may waive a will ordinarily close guarantee trans- refinancing or assumption fee’s pay- actions with minimal services from ap- ment when the refinancing or assump- plicants’ attorneys, except where real tion’s primary purpose is to protect the property pledges or other matters ap- U.S. propriate for private counsel are in- (d) Where payable. Fees are payable volved. Real property services required by check made payable to ‘‘NMFS/ from an applicant’s attorney may in- FSFF.’’ Other than those collected at clude: Title search, mortgage and other application or closing, fees are payable document preparation, execution and by mailing checks to: U.S. Department recording, escrow and disbursement, of Commerce, National Oceanic and At- and a legal opinion and other assur- mospheric Administration, National ances. An applicant’s attorney’s ex- Marine Fisheries Service, P.O. Box pense, and that of any other private 73004, Chicago, Ill. 60673. To ensure contractor required, is for applicant’s proper crediting, each check must in- account. Attorneys and other contrac- clude the official case number the Divi- tors must be satisfactory to the Divi- sion assigns to each guarantee. sion. The Division will attempt to meet reasonable closing schedules, but will § 253.17 Demand and payment. not be liable for adverse interest-rate fluctuations, loss of commitments, or Every demand must be delivered in other consequences of being unable to writing to the Division. Each must in- meet an applicant’s and a prospective clude the noteholder’s certified record noteholder’s closing schedule. These of the date and amount of each pay- parties should work closely with the ment made on the guaranteed note and Division to ensure a closing schedule the manner of its application. Should the Division can meet. the Division not acknowledge receipt of a timely demand, the noteholder § 253.16 Fees. must possess evidence of the demand’s (a) Application fee. The Division will timely delivery. not accept an application without the § 253.18 Program operating guidelines. application fee. Fifty percent of the application fee is fully earned at applica- The Division may issue Program option acceptance, and is not refundable. erating guidelines, as the need arises, The rest is fully earned when the Divi- governing national Program policy and sion issues an approval in principal let- administrative issues not addressed by ter, and it is refundable only if the Di- these rules. vision declines an application or an applicant requests refund before the Divi- § 253.19 Default and liquidation. sion issues an approval in principal let- Upon default of the security docu- ter. ments, the Division shall take such re- (b) Guarantee fee. Each guarantee fee medial action (including, where appro- will be due in advance and will be based priate, liquidation) as it deems best on the guaranteed note’s repayment able to protect the U.S.’ interest. provisions for the prospective year. The first annual guarantee fee is due at guarantee closing. Each subsequent Subpart C—Interjurisdictional one is due and payable on the guar- Fisheries antee closing’s anniversary date. Each is fully earned when due, and shall not § 253.20 Definitions. subsequently be refunded for any rea- The terms used in this subpart have son. the following meanings:

282

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 253.20

Act means the Interjurisdictional Interstate Commission means a com- Fisheries Act of 1986, Public Law 99–659 mission or other administrative body (Title III). established by an interstate compact. Adopt means to implement an inter- Interstate compact means a compact state fishery management plan by that has been entered into by two or State action or regulation. more states, established for purposes of Commercial fishery failure means a se- conserving and managing fishery re- rious disruption of a fishery resource sources throughout their range, and affecting present or future productivity consented to and approved by Congress. due to natural or undetermined causes. Interstate Fisheries Research Program It does not include either: means research conducted by two or (1) The inability to harvest or sell more state agencies under a formal raw fish or manufactured and processed interstate agreement. fishery merchandise; or Interstate fishery management plan (2) Compensation for economic loss means a plan for managing a fishery suffered by any segment of the fishing resource developed and adopted by the industry as the result of a resource dis- member states of an Interstate Marine aster. Fisheries Commission, and contains information regarding the status of the Enforcement agreement means a writ- fishery resource and fisheries, and rec- ten agreement, signed and dated, be- ommends actions to be taken by the tween a state agency and either the States to conserve and manage the Secretary of the Interior or Secretary fishery resource. of Commerce, or both, to enforce Fed- Landed means the first point of off- eral and state laws pertaining to the loading fishery resources. protection of interjurisdictional fishery resources. NMFS Regional Director means the Di- rector of any one of the five National Federal fishery management plan Marine Fisheries Service regions. means a plan developed and approved Project means an undertaking or a under the Magnuson Fishery Conserva- proposal for research in support of tion and Management Act (16 U.S.C. management of an interjurisdictional 1801 et seq.). fishery resource or an interstate fish- Fisheries management means all ac- ery management plan. tivities concerned with conservation, Research means work or investigative restoration, enhancement, or utiliza- study, designed to acquire knowledge tion of fisheries resources, including of fisheries resources and their habitat. research, data collection and analysis, Secretary means the Secretary of monitoring, assessment, information Commerce or his/her designee. dissemination, regulation, and enforce- State means each of the several ment. states, the District of Columbia, the Fishery resource means finfish, mol- Commonwealth of Puerto Rico, Amer- lusks, and crustaceans, and any form of ican Samoa, the Virgin Islands, Guam, marine or Great Lakes animal or plant or the Commonwealth of the Northern life, including habitat, other than ma- Mariana Islands. rine mammals and birds. State Agency means any department, Interjurisdictional fishery resource agency, commission, or official of a means: state authorized under the laws of the (1) A fishery resource for which a State to regulate commercial fisheries fishery occurs in waters under the ju- or enforce laws relating to commercial risdiction of one or more states and the fisheries. U.S. Exclusive Economic Zone; or Value means the monetary worth of (2) A fishery resource for which an fishery resources used in developing interstate or a Federal fishery manage- the apportionment formula, which is ment plan exists; or equal to the price paid at the first (3) A fishery resource which migrates point of landing. between the waters under the jurisdic- Volume means the weight of the fish- tion of two or more States bordering ery resource as landed, at the first on the Great Lakes. point of landing.

283

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 253.21 50 CFR Ch. II (10–1–02 Edition)

§ 253.21 Apportionment. ery that is managed under an inter- (a) Apportionment formula. The state fishery management plan; amount of funds apportioned to each (3) Borders one or more of the Great state is to be determined by the Sec- Lakes; retary as the ratio which the equally (4) Has entered into an interstate co- weighted average of the volume and operative fishery management agree- value of fishery resources harvested by ment and has in effect an interstate domestic commercial fishermen and fisheries management plan or an inter- landed within such state during the 3 state fisheries research program; or (5) Has adopted a Federal fishery most recent calendar years for which management plan for an interjurisdic- data satisfactory to the Secretary are tional fishery resource. available bears to the total equally (d) Any state that has a ratio of less weighted average of the volume and than one-third of 1 percent and meets value of all fishery resources harvested any of the requirements set forth in by domestic commercial fishermen and paragraphs (c) (1) through (5) of this landed within all of the states during section may receive an apportionment those calendar years. for any fiscal year that is not less than (1) The equally weighted average 0.5 percent of the total amount of funds value is determined by the following available for apportionment for such formula: fiscal year. Volume of X State (e) No state may receive an appor- = A percent tionment under this section for any fis- Volume of all States cal year that is more than 6 percent of the total amount of funds available for Value of X State apportionment for such fiscal year. = B percent (f) Unused apportionments. Any part Value of all States of an apportionment for any fiscal year to any state: [%AB+ %] State percentage used to (1) That is not obligated during that = determine state' s share of year; 2 the total available funds (2) With respect to which the state (2) Upon appropriation of funds by notifies the Secretary that it does not Congress, the Secretary will take the wish to receive that part; or following actions: (3) That is returned to the Secretary (i) Determine each state’s share ac- by the state, may not be considered to cording to the apportionment formula. be appropriated to that state and must (ii) Certify the funds to the respec- be added to such funds as are appro- tive NMFS Regional Director. priated for the next fiscal year. Any (iii) Instruct NMFS Regional Direc- notification or return of funds by a tors to promptly notify states of funds’ state referred to in this section is ir- availability. revocable. (b) No state, under the apportionment formula in paragraph (a) of this § 253.22 State projects. section, that has a ratio of one-third of (a) General—(1) Designation of state 1 percent or higher may receive an ap- agency. The Governor of each state portionment for any fiscal year that is shall notify the Secretary of which less than 1 percent of the total amount agency of the state government is au- of funds available for that fiscal year. thorized under its laws to regulate (c) If a State’s ratio under the appor- commercial fisheries and is, therefore, tionment formula in paragraph (b) of designated receive financial assistance this section is less than one-third of 1 awards. An official of such agency shall percent, that state may receive funding certify which official(s) is authorized if the state: in accordance with state law to com- (1) Is signatory to an interstate fish- mit the state to participation under ery compact; the Act, to sign project documents, and (2) Has entered into an enforcement to receive payments. agreement with the Secretary and/or (2) States that choose to submit pro- the Secretary of the Interior for a fish- posals in any fiscal year must so notify

284

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T ER01MY96.004 ER01MY96.005 ER01MY96.006 National Marine Fisheries Service/NOAA, Commerce § 253.23

the NMFS Regional Director before the a proposed project shall not exceed 10 end of the third quarter of that fiscal percent of the total cost of such works, year. and shall be paid by the state as a part (3) Any state may, through its state of its contribution to the total cost of agency, submit to the NMFS Regional the project. Director a completed NOAA Grants and (2) The expenditure of funds under Cooperative Agreement Application this subpart may be applied only to Package with its proposal for a project, projects for which a proposal has been which may be multiyear. Proposals evaluated under paragraph (b) of this must describe the full scope of work, section and approved by the Secretary, specifications, and cost estimates for except that up to $25,000 each fiscal such project. year may be awarded to a state out of (4) States may submit a proposal for a project through, and request pay- the state’s regular apportionment to ment to be made to, an Interstate Fish- carry out an ‘‘enforcement agree- eries Commission. Any payment so ment.’’ An enforcement agreement made shall be charged against the ap- does not require state matching funds. portionment of the appropriate (f) Prosecution of work. All work must state(s). Submitting a project through be performed in accordance with appli- one of the Commissions does not re- cable state laws or regulations, except move the matching funds requirement when such laws or regulations are in for any state, as provided in paragraph conflict with Federal laws or regula- (c) of this section. tions such that the Federal law or reg- (b) Evaluation of projects. The Sec- ulation prevails. retary, before approving any proposal for a project, will evaluate the proposal § 253.23 Other funds. as to its applicability, in accordance (a) Funds for disaster assistance. (1) with 16 U.S.C. 4104(a)(2). The Secretary shall retain sole author- (c) State matching requirements. The ity in distributing any disaster assist- Federal share of the costs of any ance funds made available under sec- project conducted under this subpart, tion 308(b) of the Act. The Secretary including a project submitted through an Interstate Commission, cannot ex- may distribute these funds after he or ceed 75 percent of the total estimated she has made a thorough evaluation of cost of the project, unless: the scientific information submitted, (1) The state has adopted an inter- and has determined that a commercial state fishery management plan for the fishery failure of a fishery resource fishery resource to which the project arising from natural or undetermined applies; or causes has occurred. Funds may only (2) The state has adopted fishery reg- be used to restore the resource affected ulations that the Secretary has deter- by the disaster, and only by existing mined are consistent with any Federal methods and technology. Any fishery fishery management plan for the spe- resource used in computing the states’ cies to which the project applies, in amount under the apportionment for- which case the Federal share cannot mula in § 253.21(a) will qualify for fund- exceed 90 percent of the total esti- ing under this section. The Federal mated cost of the project. share of the cost of any activity con- (d) Financial assistance award. If the ducted under the disaster provision of Secretary approves or disapproves a the Act shall be limited to 75 percent of proposal for a project, he or she will the total cost. promptly give written notification, in- (2) In addition, pursuant to section cluding, if disapproved, a detailed ex- 308(d) of the Act, the Secretary is au- planation of the reason(s) for the dis- thorized to award grants to persons en- approval. gaged in commercial fisheries, for un- (e) Restrictions. (1) The total cost of all items included for engineering, insured losses determined by the Sec- planning, inspection, and unforeseen retary to have been suffered as a direct contingencies in connection with any result of a fishery resource disaster. works to be constructed as part of such

285

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 253.24 50 CFR Ch. II (10–1–02 Edition)

Funds may be distributed by the Sec- JOINT TAX REGULATIONS retary only after notice and opportunity for public comment of the ap- § 259.1 Execution of agreements and propriate limitations, terms, and con- deposits made in a Capital Con- ditions for awarding assistance under struction Fund. this section. Assistance provided under In the case of a taxable year of a tax- this section is limited to 75 percent of payer beginning after December 31, an uninsured loss to the extent that 1969, and before January 1, 1972, the such losses have not been compensated rules governing the execution of agree- by other Federal or State programs. ments and deposits under such agree- (b) Funds for interstate commissions. ments shall be as follows: Funds authorized to support the efforts (a) A capital construction fund agree- of the three chartered Interstate Ma- ment executed and entered into by the rine Fisheries Commissions to develop taxpayer on or prior to the due date, and maintain interstate fishery man- with extensions, for the filing of his agement plans for interjurisdictional Federal income tax return for such tax- fisheries will be divided equally among able year or years will be deemed to be the Commissions. effective on the date of the execution of such agreement or as of the close of § 253.24 Administrative requirements. business of the last regular business Federal assistance awards made as a day of each such taxable year or years result of this Act are subject to all to which such deposit relates, which- Federal laws, Executive Orders, Office ever day is earlier. of Management and Budget Circulars (b) Notwithstanding the provisions of as incorporated by the award; Depart- paragraph (a) of this section, where: ment of Commerce and NOAA regula- (1) For taxable years beginning after tions; policies and procedures applica- December 31, 1969, and prior to January ble to Federal financial assistance 1, 1971, an application for a capital con- awards; and terms and conditions of struction fund agreement is filed by a the awards. taxpayer prior to January 1, 1972, and a capital construction fund agreement is PART 259—CAPITAL executed and entered into by the tax- CONSTRUCTION FUND payer prior to March 1, 1972, and (2) For taxable years beginning after JOINT TAX REGULATIONS December 31, 1970, and prior to January Sec. 1, 1972, an application for a capital con- 259.1 Execution of agreements and deposits struction fund agreement is filed by a made in a Capital Construction Fund. taxpayer prior to January 1, 1973, and a capital construction fund agreement is CAPITAL CONSTRUCTION FUND AGREEMENT executed and entered into by the tax- 259.30 Application for Interim Capital Con- payer prior to March 1, 1973 (or, if ear- struction Fund Agreement (‘‘Interim lier, 60 days after the publication of CCF Agreement’’). final joint regulations under section 259.31 Acquisition, construction, or recon- 607 of the Merchant Marine Act, 1936, struction. 259.32 Conditional fisheries. as amended); then such a capital con- 259.33 Constructive deposits and with- struction fund agreement will be drawals; ratification of withdrawals (as deemed to be effective as of the close of qualified) made without first having ob- business of the last regular business tained Secretary’s consent; first tax year day of each such taxable year or years for which Interim CCF Agreement is ef- to which such deposit related. fective. (c)(1) Deposits made in a capital con- 259.34 Minimum and maximum deposits; struction fund pursuant to such an maximum time to deposit. 259.35 Annual deposit and withdrawal re- agreement within 60 days after the ports required. date of execution of the agreement, or 259.36 CCF accounts. on or prior to the due date, with exten- 259.37 Conditional consents to withdrawal sions, for the filing of his Federal in- qualification. come tax return for such taxable year 259.38 Miscellaneous. or years, whichever date shall be later, AUTHORITY: 46 U.S.C. 1177. shall be deemed to have been made on

286

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.30

the date of the actual deposit or as of (2) Own or lease one or more eligible the close of business of the last regular vessels (as defined in section 607(k)(1) business day of each such taxable year of the Act) operating in the foreign or or years to which such deposit relates, domestic commerce of the United whichever day is earlier. States. (2) Notwithstanding paragraph (c)(1) (3) Have an acceptable program for of this section, for taxable years begin- the acquisition, construction, or recon- ning after December 31, 1970, and end- struction of one or more qualified ves- ing prior to January 1, 1972, deposits sels (as defined in section 607(k)(2) of made later than the last date per- the Act). Qualified vessels must be for mitted under paragraph (c)(1) of this commercial operation in the fisheries section but on or before January 9, of the United States. If the qualified 1973, in a capital construction fund pursuant to an agreement with the Sec- vessel is 5 net tons or over, it must be retary of Commerce, acting by and documented in the fisheries of the through the Administrator of the Na- United States. Dual documentation in tional Oceanic and Atmospheric Ad- both the fisheries and the coastwise ministration, shall be deemed to have trade of the United States is permis- been made on the date of the actual de- sible. Any vessel which will carry fish- posit or as of the close of business of ing parties for hire must be inspected the last regular business day of such and certified (under 46 CFR part 176) by taxable year, whichever is earlier. the U.S. Coast Guard as qualified to (d) Nothing in this section shall alter carry more than six passengers or dem- the rules and regulations governing the onstrate to the Secretary’s satisfaction timing of deposits with respect to ex- that the carrying of fishing parties for isting capital and special reserve funds hire will constitute its primary activ- or with respect to the treatment of de- ity. The program must be a firm rep- posits for any taxable year or years resentation of the applicant’s actual other than a taxable year or years be- intentions. Vague or contingent objec- ginning after December 31, 1969, and be- tives will not be acceptable. fore January 1, 1972.1 (b) Content of application. Applicants [37 FR 25025, Nov. 25, 1972, as amended at 38 seeking an Interim CCF Agreement FR 8163, Mar. 29, 1973] may make application by letter providing the following information: CAPITAL CONSTRUCTION FUND (1) Proof of U.S. citizenship; AGREEMENT (2) The first taxable year for which the Interim CCF Agreement is to apply SOURCE: Sections 259.30 to 259.38 appear at (see § 259.33 for the latest time at which 39 FR 33675, Sept. 19, 1974, unless otherwise applications for an Interim CCF Agree- noted. ment relating to a previous taxable § 259.30 Application for Interim Cap- year may be received); ital Construction Fund Agreement (3) The following information regard- (‘‘Interim CCF Agreement’’). ing each ‘‘eligible vessel’’ which is to (a) General qualifications. To be eligi- be incorporated in Schedule A of the ble to enter into an Interim CCF Interim CCF Agreement for purposes of Agreement an applicant must: making deposits into a CCF pursuant (1) Be a citizen of the United States to section 607 of the Act: (citizenship requirements are those for (i) Name of vessel, documenting vessels in the coastwise (ii) Official number, or, in the case of trade within the meaning of section 2 vessels under 5 net tons, the State reg- of the Shipping Act, 1916, as amended); istration number where required, (iii) Type of vessel (i.e., catching ves- 1 The phrase ‘‘existing capital and special sel, processing vessel, transporting ves- reserve funds’’ does not refer to the Capital sel, charter vessel, barge, passenger Construction Fund program but rather to carrying fishing vessel, etc.), funds established with the Maritime Admin- istration prior to the amendment of the Mer- (iv) General characteristic (i.e., net chant Marine Act, 1936, which authorized the tonnage, fish-carrying capacity, age, Capital Construction Fund program. length, type of fishing gear, number of

287

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 259.31 50 CFR Ch. II (10–1–02 Edition)

passengers carried or in the case of ves- (vii) Fishery of operation (which in sels operating in the foreign or domes- this section means each species or tic commerce the various uses of the group of species—each species must be vessel, etc.), specifically identified by acceptable (v) Whether owned or leased and, if common name—of fish, shellfish, or leased, the name of the owner, and a other living marine resources), copy of the lease, (viii) Area of operation (which in this (vi) Date and place of construction, section means the general geographic (vii) If reconstructed, date of redeliv- areas in which each vessel will will op- ery and place of reconstruction, erate for each species or group of spe- (viii) Trade (or trades) in which ves- cies of fish, shellfish, or other living sel is documented and date last docu- marine resources). mented, (c) Filing. The application must be (ix) If a fishing vessel, the fishery of signed and submitted in duplicate to operation (which in this section means the Regional Office of the National Ma- each species or group of species—each rine Fisheries Service’s Financial As- species must be specifically identified sistance Division corresponding to the by acceptable common names—of fish, region in which the party conducts its shellfish, or other living marine re- business. As a general rule, the Interim sources which each vessel catches, CCF Agreement must be executed and processes, or transports or will catch, entered into by the taxpayer on or process, or transport for commercial prior to the due date, with extensions, purposes such as marketing or proc- for the filing of the Federal tax return essing the catch), in order to be effective for the tax year (x) If a fishing vessel, the area of op- to which that return relates. It is eration (which for fishing vessels manifestly in the Applicant’s best in- means the general geographic areas in terest to file at least 45 days in ad- which each vessel will catch, process, vance of such date. or transport, or charter for each species or group of species of fish, shell- [39 FR 33675, Sept. 19, 1974, as amended at 42 fish, or other living marine resources). FR 65185, Dec. 30, 1978] (4) The specific objectives to be achieved by the accumulation of assets § 259.31 Acquisition, construction, or reconstruction. in a Capital Construction Fund (to be incorporated in Schedule B of the In- (a) Acquisition. No vessel having pre- terim CCF Agreement) including: viously been operated in a fishery of (i) Number of vessels, the United States prior to its acquisi- (ii) Type of vessel (i.e., catching, tion by the party seeking CCF with- processing, transporting, or passenger drawal therefor shall be a qualified ves- carrying fishing vessel), sel for the purpose of acquisition, ex- (iii) General characteristics (i.e., net cept in the cases specified in para- tonnage, fish-carrying capacity, age, graphs (a)(1) and (2) of this section: length, type of fishing gear, number of (1) A vessel not more than 5 years passengers carried), old, at the time of its acquisition by (iv) Cost of projects, the party seeking CCF withdrawal (v) Amount of indebtedness to be paid therefor may be a qualified vessel for for vessels to be constructed, acquired, the purpose of acquisition, but only if or reconstructed (all notes, mortgages, each acquisition in this category be- or other evidences of the indebtedness comes a Schedule A vessel and there must be submitted as soon as available, exists for each acquisition in this cat- together with sufficient additional evi- egory (on a one-for-one basis) an addi- dence to establish that full proceeds of tional Schedule B construction or re- the indebtedness to be paid from a CCF construction. The sole consideration under an Interim CCF Agreement, were for permitting an acquisition in this used solely for the purpose of the con- category is that it will enable the struction, acquisition, or reconstruc- party (but the Secretary will not at- tion of Schedule B vessels), tempt to predetermine such an ability) (vi) Date of construction, acquisition, to accelerate accomplishment of the or reconstruction, additional Schedule B construction or

288

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.31

reconstruction. Should this consider- (2) All, or the major portion ation materially fail, the Secretary (ordinarily, not less than 80 percent), of shall, at his discretion, disqualify pre- a reconstruction project’s actual cost viously qualified withdrawals in this must (for the purpose of meeting the category, seek liquidated damages as above dollar or percentage tests) be provided for in paragraph (a)(4) of this classifiable as a capital expenditure for section and/or terminate the Interim Internal Revenue Service (IRS) pur- CCF Agreement. poses. That otherwise allowable (i.e., (2) A vessel more than 5 years old, for the purpose of meeting the above but not more than 25 years old (special dollar or percentage tests) portion of a showing required if more than 25 years reconstruction project’s actual cost old, see paragraph (b) of this section), which is not classifiable as a capital at the time of acquisition by the party expenditure shall, however, be excluded seeking CCF withdrawal therefor may from the amount qualified for with- be a qualified vessel for the purpose of drawal as a result of the reconstruction acquisition, but only if that same ves- project. sel becomes a Schedule A vessel and (in (3) No vessel more than 25 years old addition to being a Schedule B vessel at the time of withdrawal or request for the purpose of its acquisition) be- for withdrawal shall be a qualified ves- comes a Schedule B vessel for the pur- sel for the purpose of reconstruction pose of that same vessel’s reconstruc- unless a special showing is made, to tion to be accomplished ordinarily the Secretary’s discretionary satisfac- within 7 years from the date of acquisition, that the type and degree of recon- tion. The sole consideration for permit- struction intended will result in an ef- ting an acquisition in this category is ficient and productive vessel with an that it will enable a party (but the Sec- economically useful life at least 10 retary will not attempt to predeter- years beyond the date reconstruction is mine such an ability) to accelerate ac- completed. complishment of the Schedule B recon- (c) Time permitted for construction or struction of the vessel so acquired. reconstruction. Construction or recon- Should this consideration materially struction must be completed within 18 fail, the same penalty prescribed in months from the date construction or paragraph (a)(1) of this section applies. reconstruction first commences, unless (3) Reserved for minimum deposits otherwise consented to by the Sec- under this section. retary. (4) Reserved for liquidated damages. (d) Energy saving improvements. An (b) Reconstruction. No reconstruction improvement made to a vessel to con- project costing less than $100,000 shall serve energy shall, regardless of cost, qualify a vessel for reconstruction, un- be treated as a reconstruction for the less the reconstruction project costs, purpose of qualifying a CCF withdrawal or will cost, 20 percent or more of the for such expenditure and shall be ex- reconstructed vessel’s acquisition cost empted from having to meet condi- (in its unreconstructed state) to the tional fishery requirements for recon- party seeking CCF withdrawal there- struction as set forth in § 259.32 and for. If the reconstruction project meets from all qualifying tests for recon- the $100,000 test, then the 20 percent struction set forth in paragraph (b) of test does not apply. Conversely, if the this section with the following excep- reconstruction project does not meet tions: the $100,000 test, then the 20 percent (1) An energy saving improvement test applies. shall be required to meet both condi- (1) Reconstruction may include re- tional fishery requirements and the building, replacing, reconditioning, qualifying tests for reconstruction if it converting and/or improving any por- serves the dual purpose of saving en- tion of a vessel. A reconstruction ergy and meeting the reconstruction project must, however, substantially requirement of paragraph (a) of this prolong the useful life of the recon- section for qualifying a withdrawal for structed vessel, increase its value, or the acquisition of a used vessel. adapt it to a different commercial use (2) That portion of the actual cost of in the fishing trade or industry. an energy saving improvement which is

289

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 259.32 50 CFR Ch. II (10–1–02 Edition)

to be paid for from the CCF must be § 259.32 Conditional fisheries. classifiable and treated as a capital expenditure for Internal Revenue Service (a) The Secretary may from time-to- purposes. time establish certain fisheries in (e) Safety projects. The acquisition which CCF benefits will be restricted. and installation of safety equipment The regulatory mechanism for so doing for a qualified vessel and vessel modi- is part 251 of this chapter. Each fishery fications whose central purpose is ma- so restricted is termed a ‘‘conditional terially increasing the safety of a fishery’’. Subpart A of part 251 of this qualified vessel or the acquisition and chapter establishes the procedure to be installation of equipment required by used by the Secretary in proposing and law or regulation that materially in- adopting a fishery as a conditional creases the safety of a qualified vessel fishery. Subpart B of part 251 of this shall, regardless of cost, be treated as chapter enumerates each fishery actu- reconstruction for the purpose of quali- ally adopted as a conditional fishery fying a CCF withdrawal for such ex- (part 251 of this chapter should be re- penditure, shall be exempt from having ferred to for details). The purpose of to meet conditional fishery require- this § 259.32 is to establish the effect of ments for reconstruction as set forth in conditional fishery adoption upon In- § 259.32, and shall be exempt from all terim CCF Agreements. qualifying tests for reconstruction set (b) If a written request for an other- forth in paragraph (b) of this section, wise permissible action under an In- with the following exceptions: terim CCF Agreement is submitted (1) A safety improvement shall be re- prior to the date upon which condi- quired to meet both conditional fishery tional fishery adoption occurs, then requirements and all qualifying tests the Secretary will act, in an otherwise for reconstruction if it serves the dual normal manner, upon so much of the purpose of safety and meeting the re- action then applied for as is then per- construction requirement of paragraph missible without regard to the subse- (a) of this section for qualifying a with- quent adoption of a conditional fishery drawal for the acquisition of a used (even, if that adoption occurs before vessel; the Secretary gives his consent or (2) That portion of the actual cost of issues an Interim CCF Agreement or a safety improvement that is to be paid amendment thereto, all as the case for from the CCF must be classifiable may be). Nevertheless, the conditions and treated as a capital expenditure for as set forth in paragraph (d) of this sec- Internal Revenue Service purposes; tion shall apply. (3) Safety improvement projects (c) If a written request for an other- whose clear and central purpose is re- wise permissible action under an In- stricted to complying with the require- terim CCF Agreement, or an applica- ments of the Commercial Fishing In- tion for an Interim CCF Agreement, is dustry Vessel Safety Act of 1988 (Public submitted after the date upon which Law 100–424 Sec. 1, 102 stat. 1585 (1988) conditional fishery adoption occurs, (codified in scattered sections of 46 then the Secretary will act, in an oth- U.S.C.)) shall, without further docu- erwise normal manner, upon so much mentation, be considered to fall within of the action then applied for as is then this paragraph (e). Satisfactory docu- permissible without regard to the pre- mentation will be required for all other vious adoption of a conditional fishery projects proposed to be considered as provided, however, that this paragraph falling within this paragraph (e). shall apply only to construction or re- Projects not required by law or regula- construction for which a binding con- tion whose central purpose clearly in- tract has been reduced to writing prior volves something other than an im- to the date upon which conditional provement that materially increases fishery adoption occurred. Neverthe- the safety of a vessel will not be con- less, the conditions as set forth in sidered to fall within this paragraph paragraph (d) of this section shall (e). apply. [39 FR 33675, Sept. 19, 1974, as amended at 46 (d) Conditional fishery adoption shall FR 54563, Nov. 3, 1981; 62 FR 331, Jan. 3, 1997] have no effect whatsoever upon a

290

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.32

Schedule B objective whose qualifica- the Secretary’s discretion. Ordinarily, tion for withdrawal (which may be in in exercising his discretion about what an amount equal to the total cost over does or does not constitute substan- time of a Schedule B objective, i.e., a tially equivalent fishing capacity, the series of withdrawals) has been, prior Secretary will take into consideration to the date of conditional fishery adop- (i) the average size of vessels con- tion, either consented to by the Sec- structed for the adopted conditional retary or requested in accordance with fishery in question at the time vessel paragraph (b) or (c) of this section. ‘‘Z’’ was constructed (or, if constructed This extends to past, present, and fu- for a different fishery, the average size ture withdrawals in an amount rep- of vessels in the adopted conditional resenting up to 100 percent of the cost fishery at the time vessel ‘‘Z’’ entered of a Schedule B objective. Commence- it), (ii) the average size of vessels con- ment of any project in these categories structed for the adopted conditional shall, however, be started not later fishery at the time vessel ‘‘Y’’ was or than 6 months from the date of condi- will be constructed, and (iii) such other tional fishery adoption and shall be factors as the Secretary may deem ma- completed within 24 months from the terial and equitable, including the date of conditional fishery adoption, length of time the party had owned or unless for good and sufficient cause leased vessel ‘‘Z’’ and the length of shown the Secretary, at his discretion, time the vessel has operated in the consents to a longer period for either conditional fishery. The Secretary will project commencement or completion. consider these factors, and exercise his Consent to the qualification of with- discretion, in such a way as to encour- drawal for any project in these cat- age use of this program by established egories not commenced or completed fishermen who have owned or leased for within the periods allowed shall be re- substantial periods vessels which need voked at the end of the periods al- to be replaced, even though a ‘‘Z’’ ves- lowed. sel may have been constructed at a (e) Conditional fishery adoption shall time which dictated a lesser fishing ca- have no effect whatsoever upon Sched- pacity than dictated for a ‘‘Y’’ vessel ule B objectives which will not result at the time of its construction. in significantly increasing harvesting (2) Acquisition and/or reconstruction capacity in a fishery adopted as a con- of a used vessel for operation in an ditional fishery. adopted conditional fishery shall be (1) Construction of a new vessel deemed to significantly increase har- (vessel ‘‘Y’’) for operation in an adopt- vesting capacity in that fishery unless ed conditional fishery shall be deemed the vessel to be acquired and/or recon- to significantly increase harvesting ca- structed had during the previous 3 pacity in that fishery unless the party years operated substantially in the causing the ‘‘Y’’ vessel to be con- same fishery as the adopted condi- structed causes (within 1 year after the tional fishery in which it will operate delivery of vessel ‘‘Y’’) to be perma- after acquisition and/or reconstruction. nently removed from all fishing, or If less than 3 years, then acquisition placed permanently in a fishery not and/or reconstruction of a used vessel then adopted as a conditional fishery, for operation in an adopted conditional under such conditions as the Secretary fishery shall be deemed to significantly may deem necessary or desirable, a increase harvesting capacity in that vessel (vessel ‘‘Z’’) which has during fishery unless there occurs vessel re- the previous 18 months operated sub- moval or permanent placement else- stantially in the same fishery as the where under the same conditions speci- ‘‘Y’’ vessel and which has a fishing ca- fied for construction in paragraph (e)(1) pacity substantially equivalent to the of this section. ‘‘Y’’ vessel. Failure to remove a vessel (3) Construction of a new vessel or could subject all withdrawals to be the acquisition and/or reconstruction treated as nonqualified and may be of a used vessel for operation in an cause for termination of the CCF. What adopted conditional fishery shall not constitutes substantially equivalent be deemed to significantly increase the fishing capacity shall be a matter for harvesting capacity where the vessel

291

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 259.33 50 CFR Ch. II (10–1–02 Edition)

constructed, acquired and/or recon- fishery, be consented to. Parties at this structed replaces another vessel which point shall have the following option: was lost or destroyed and which had, (i) Make, with the Secretary’s con- immediately prior to the loss or de- sent, a nonqualified withdrawal of the struction, operated in the same fishery excess and discontinue the future de- as the adopted conditional fishery, pro- posit of eligible ceilings (which may ef- vided, however, that the fishing capac- fect termination of the Interim CCF ity of the replacement vessel has a Agreement). fishing capacity substantially equiva- (ii) Reserve the excess, as well as the lent to the vessel lost or destroyed and future deposit of eligible ceilings, for a that the construction, acquisition and/ Schedule B objective not then involv- or reconstruction is completed within 2 ing an adopted conditional fishery. If years after the close of the taxable amendment of an Interim CCF Agree- year in which the loss or destruction ment is necessary in order to include a occurred. The Secretary may, at his Schedule B objective not then involv- discretion, and for good and sufficient ing an adopted conditional fishery, the cause shown, extend the replacement party may, with the Secretary’s con- period, provided that the request for sent, make the necessary amendment. extension of time to replace is timely (iii) Reserve the excess, as well as the filed with the Secretary future deposit of eligible ceilings, for a (f) Conditional fishery adoption shall Schedule B objective involving a then have the following effect on all Sched- adopted conditional fishery in antici- ule B objectives (whether for acquisi- pation that the then adopted condition, construction, or reconstruction) tional fishery will eventually be which the Secretary deems to signifi- disadopted, in which case all deposits cantly increase harvesting capacity in of eligible ceilings will once again be that fishery, excluding those cir- eligible for the Secretary’s consent as cumstances specifically exempted by qualified withdrawals. If the adoption paragraphs (b) through (e) of this sec- of a conditional fishery continues for a tion (which shall be governed by the substantial length of time and there is provisions of paragraphs (b) through (e) no forseeable prospect of disadoption, of this section). then the Secretary, in his discretion, (1) The Secretary may nevertheless may require paragraph (f)(2)(i) or (ii) of consent to the qualification of with- this section to be effected. drawal, but only up to an amount not (g) The Secretary shall neither enter exceeding the total of eligible ceilings into a new Interim CCF Agreement, nor permit amendment of an existing actually deposited during tax years one, which involves a Schedule B objec- other than the taxable year in which tive in a then adopted conditional fish- conditional fishery adoption occurs ery unless paragraph (b), (c) or (d) of plus a pro-rata portion of eligible ceil- this § 259.32 applies or unless the Sched- ings generated in the tax year in which ule B objective is expressly conditioned conditional fishery adoption occurs. upon acquisition construction, or re- Pro-ration shall be according to the construction of the type permitted number of months or any part thereof under paragraph (e) of this § 259.32. in a party’s tax year which elapse be- Such an express condition would not fore the adoption of the conditional survive beyond the time at which con- fishery occurs. For example, if a par- ditional fishery status is removed. ty’s tax year runs from January 1, 1974, to December 31, 1974, and conditional § 259.33 Constructive deposits and fishery adoption occurs on August 15, withdrawals; ratification of with- 1974, (i.e., during the 8th month of the drawals (as qualified) made without party’s tax year), then the pro-rata first having obtained Secretary’s portion for that year is eight-twelfths consent; first tax year for which In- of the total eligible ceilings generated terim CCF Agreement is effective. during that year. (a) Periods controlling permissibility. (2) Qualified withdrawals in excess of For the purpose of this § 259.33, the pe- the amount specified in paragraph (f)(1) riod between the beginning and the end of this section shall not, during the of a party’s tax year is designated continuance of the adopted conditional ‘‘Period (aa)’’; the period between the

292

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.33

end of a party’s tax year and the par- effective date of an Interim CCF Agree- ty’s tax due date for that tax year is ment. Eligible ceilings must, after the designated ‘‘Period (bb)’’; the period effective date of an interim CCF Agree- between the party’s tax due date and ment, be physically deposited in money the date on which ends the party’s last or kind in scheduled depositories be- extension (if any) of that tax due date fore the last date eligible ceilings for is designated ‘‘Period (cc)’’. any Period (aa) of any party become in- (b) Constructive deposits and with- eligible for deposit (the last date being drawals (before Interim CCF Agreement Period (bb) or Period (cc), whichever effectiveness date). Constructive depos- applies). its and withdrawals shall be permis- (d) Ratification of withdrawals (as sible only during the Period (aa) during qualified) made without first having ob- which a written application for an in- tained Secretary’s consent. The Secre- terim CCF Agreement is submitted to tary may ratify as qualified any with- the Secretary and so much of the next drawal made without first having ob- succeeding Period (aa), if any, which tained the Secretary’s consent there- occurs before the Secretary executes for, provided the withdrawal was such the Interim CCF Agreement previously as would have resulted in the Sec- applied for. All otherwise qualified ex- retary’s consent had it been requested penditures of eligible ceilings during before withdrawal, and provided fur- Period (aa) may be consented to by the ther that the party’s request for con- Secretary as constructive deposits and sent (together with sufficient sup- withdrawals: Provided, The applicant’s porting data to enable issuance of the application for an Interim CCF Agree- Secretary’s consent) is submitted to ment and for consent to constructive the Secretary either before the end of deposit and withdrawal qualification Period (bb) or, if extension was re- (together with sufficient supporting quested and received, before the end of data to enable the Secretary’s execu- Period (cc). tion or issuance of consent) is sub- (1) If, however, the Secretary receives mitted to the Secretary either before the request in proper form so close to the end of Period (bb) or, if extension the latest permissible period that the was requested and received, before the consent cannot be given before expira- end of Period (cc). If, however, the Sec- tion of Period (bb) or Period (cc), retary receives the completed applica- whichever applies, then the burden is tion in proper form so close to the lat- entirely upon the party to negotiate est permissible period that the Interim with IRS for such relief as may be CCF Agreement cannot be executed available (e.g., filing an amended tax and/or the consent given before the end return, if appropriate). The Secretary of Period (bb) or Period (cc), whichever will nevertheless issue his consent applies, then the burden is entirely however long past the party’s Period upon the applicant to negotiate with (bb) or Period (cc), whichever applies, the Internal Revenue Service (IRS) for the Secretary’s administrative work- such relief as may be available (e.g., load requires. Should IRS relief be, for filing an amended tax return, if appro- any reason, unavailable, the Secretary priate). The Secretary willl neverthe- shall regard the same as merely due to less execute the Interim CCF Agree- the party’s having failed to apply in a ment and issue his consent however more timely fashion. long past the applicant’s Period (bb) or (2) All parties shall be counseled that Period (cc), whichever applies, the Sec- it is manifestly in their best interest to retary’s administrative workload re- request the Secretary’s consent 45 days quires. Should IRS relief be, for any in advance of the expected date of reason, unavailable, the Secretary withdrawal. Withdrawals made without shall regard the same as merely due to the Secretary’s consent, in reliance on the applicant’s having failed to apply obtaining the Secretary’s consent, are in a more timely fashion. made purely at a party’s own risk. (c) Constructive deposits (after Interim Should any withdrawal made without CCF Agreement effectiveness date). The the Secretary’s consent prove, for any Secretary shall not permit construc- reason, to be one to which the Sec- tive deposits or withdrawals after the retary will not or cannot consent by

293

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 259.34 50 CFR Ch. II (10–1–02 Edition)

ratification, then the result will be ei- party to negotiate with IRS for such ther, or both, at the Secretary’s discre- relief as may be available (e.g., filing tion, an unqualified withdrawal or an an amended tax return, if appropriate). involuntary termination of the Interim The Secretary will nevertheless exe- CCF Agreement. cute the Agreement however long past (3) Should the withdrawal made with- the party’s Period (bb) or Period (cc), out having first obtained the Sec- whichever applies, the Secretary’s ad- retary’s consent be made in pursuance ministrative workload requires. Should of a project not then an eligible Sched- IRS relief be, for any reason, unavail- ule B objective, then the Secretary able, the Secretary shall regard the may entertain an application to amend same as merely due to the party’s hav- the Interim CCF Agreement’s Schedule ing failed to apply in a more timely B objectives as the prerequisite to con- manner. senting by ratification to the with- (2) All parties shall be counseled that drawal, all under the same time con- it is manifestly in their best interest to straints and conditions as otherwise enter into and execute an Agreement, specified herein. and submit the same to the Secretary, (4) Any withdrawals made, after the at least 45 days in advance of the Pe- effective date of an Interim CCF Agree- riod (bb) or Period (cc), whichever ap- ment, without the Secretary’s consent plies, for the Period (aa) for which the are automatically non-qualified with- Agreement is first intended to be effec- drawals unless the Secretary subse- tive. quently consents to them by ratification as otherwise specified herein. § 259.34 Minimum and maximum de- (5) Redeposit of that portion of the posits; maximum time to deposit. ceiling withdrawn without the Sec- retary’s consent, and for which such (a) Minimum annual deposit. The min- consent is not subsequently given imum annual (based on each party’s (either by ratification or otherwise), taxable year) deposit required by the shall not be permitted. If such a non- Secretary in order to maintain an In- qualified withdrawal adversely affects terim CCF Agreement shall be an the Interim CCF Agreement’s general amount equal to 2 percent of the total status in any wise deemed by the Sec- anticipated cost of all Schedule B ob- retary, at his discretion, to be signifi- jectives unless such 2 percent exceeds cant and material, the Secretary may during any tax year 50 percent of a par- involuntarily terminate the Interim ty’s Schedule A taxable income, in CCF Agreement. which case the minimum deposit for (e) First tax year for which Interim CCF that year shall be 50 percent of the par- Agreement is effective. An Agreement, to ty’s Schedule A taxable income. be effective for any party’s Period (aa), (1) Minimum annual deposit compli- must be executed and entered into by ance shall be audited at the end of each the party, and submitted to the Sec- party’s taxable year unless any one or retary, before the end of Period (bb) or more of the Schedule B objectives is Period (cc), whichever applies, for such scheduled for commencement more Period (aa). If executed and entered than 3 taxable years in advance of the into by the party, and/or received by taxable year in which the agreement is the Secretary, after the end of Period effected, in which case minimum an- (bb) or Period (cc), whichever applies, nual deposit compliance shall be au- then the Agreement will be first effec- dited at the end of each 3 year taxable tive for the next succeeding Period period. In any taxable year, a Party (aa). may apply any eligible amount in ex- (1) If, however, the Secretary receives cess of the 2 percent minimum annual an Agreement executed and entered deposit toward meeting the party’s into by the party in proper form so minimum annual deposit requirement close to the latest permissible period in past or future years: Provided, how- that the Secretary cannot execute the ever, At the end of each 3 year period, Agreement before expiration of Period the aggregate amount in the fund must (bb) or Period (cc), whichever applies, be in compliance with 2 percent min- then the burden is entirely upon the imum annual deposit rule (unless the

294

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.36

50 percent of taxable income situation given includes all deposit and with- applies). drawal activity for the year and the ac- (2) The Secretary may, at his discre- count reported. Negative reports must tion and for good and sufficient cause be submitted in those cases where shown, consent to minimum annual de- there is no deposit and/or withdrawal posits in any given tax year or com- activity. If the party’s tax year is the bination of tax years in an amount same as the calendar year, and if the lower than prescribed herein: Provided, final deposit and withdrawal report re- The party demonstrates to the Sec- quired under paragraph (a)(2) of this retary’s satisfaction the availability of section is submitted before the due sufficient funds from any combination date for this preliminary report, then of sources to accomplish Schedule B this report is not required. objectives at the time they are sched- (2) A final deposit and withdrawal re- uled for accomplishment. port at the end of the tax year, which (b) Maximum deposits. Other than the shall be submitted not later than 30 maximum annual ceilings established days after expiration of the due date, by the Act, the Secretary shall not es- with extensions (if any), for filing the tablish a maximum annual ceiling: party’s Federal income tax return. The Provided, however, That deposits can no report must be made on a form pre- longer be made once a party has depos- scribed by the Secretary using a sepa- ited 100 percent of the anticipated cost rate form for each FVCCF depository. of all Schedule B objectives, unless the Each report must bear certification Interim CCF Agreement is then amend- that the deposit and withdrawal infor- ed to establish additional Schedule B mation given includes all deposit and objectives. withdrawal activity for the year and (c) Maximum time to deposit. Ten years account reported. Negative reports shall ordinarily be the maximum time must be submitted in those cases where the Secretary shall permit in which to there is no deposit and/or withdrawal accumulate deposits prior to com- activity. mencement of any given Schedule B (b) Failure to submit the required an- objective. A time longer than 10 years, nual deposit and withdrawal reports either by original scheduling or by sub- shall be cause after due notice for ei- sequent extension through amendment, ther, or both, disqualification of with- may, however, be permitted at the Sec- drawals or involuntary termination of retary’s discretion and for good and the Interim CCF Agreement, at the sufficient cause shown. Secretary’s discretion. (c) Additionally, the Secretary shall § 259.35 Annual deposit and with- require from each Interim CCF Agree- drawal reports required. ment holder, not later than 30 days (a) The Secretary will require from after expiration of the party’s tax due each Interim CCF Agreement holder date, with extensions (if any), a copy of (Party) the following annual deposit the party’s Federal Income Tax Return and withdrawal reports. Failure to sub- filed with IRS for the preceding tax mit such reports may be cause for in- year. Failure to submit shall after due voluntary termination of CCF Agree- notice be cause for the same adverse ments. action specified in the paragraph (1) A preliminary deposit and with- above. drawal report at the end of each cal- [39 FR 33675, Sept. 19, 1974, as amended at 48 endar year, which must be submitted FR 57302, Dec. 29, 1983; 53 FR 35203, Sept. 12, not later than 45 days after the close of 1988] the calendar year. The report must give the amounts withdrawn from and § 259.36 CCF accounts. deposited into the party’s CCF during (a) General: Each CCF account in the subject year, and be in letter form each scheduled depository shall have showing the agreement holder’s name, an account number, which must be re- FVCCF identification number, and tax- flected on the reports required by payer identification number. Each re- § 259.35. All CCF accounts shall be report must bear certification that the served only for CCF transactions. deposit and withdrawal information There shall be no intermingling of CCF

295

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 259.37 50 CFR Ch. II (10–1–02 Edition)

and non-CCF transactions and there of such a consent within a reasonable shall be no pooling of 2 or more CCF time and after due notice shall, at the accounts without prior consent of the Secretary’s discretion, be cause for ei- Secretary. Safe deposit boxes, safes, or ther, or both, nonqualification of with- the like shall not be eligible CCF de- drawal or involuntary Interim CCF positories without the Secretary’s con- Agreement termination. sent and then only under such conditions as the Secretary, in his discre- § 259.38 Miscellaneous. tion, prescribes. (a) Wherever the Secretary prescribes (b) Assignment: The use of Fund as- time constraints herein for the submis- sets for transactions in the nature of a sion of any CCF transactions, the post- countervailing balance, compensating mark date shall control if mailed or, if balance, pledge, assignment, or similar personally delivered, the actual date of security arrangement shall constitute submission. All required materials may a material breach of the Agreement un- be submitted to any Financial Assist- less prior written consent of the Sec- ance Division office of the National retary is obtained. Marine Fisheries Service. (c) Depositories: (1) Section 607(c) of (b) All CCF information received by the Act provides that amounts in a the Secretary shall be held strictly CCF must be kept in the depository or confidential, except that it may be depositories specified in the Agree- ments and be subject to such trustee or published or disclosed in statistical other fiduciary requirements as the form provided such publication does Secretary may specify. not disclose, directly or indirectly, the (2) Unless otherwise specified in the identity of any fundholder. Agreement, the party may select the (c) While recognizing that precise type or types of accounts in which the regulations are necessary in order to assets of the Fund may be deposited. treat similarly situated parties simi- (3) Non-cash deposits or investments larly, the Secretary also realizes that of the Fund should be placed in control precision in regulations can often of a trustee under the following condi- cause inequitable effects to result from tions: unavoidable, unintended, or minor dis- (i) The trustee should be specified in crepancies between the regulations and the Agreement; the circumstances they attempt to (ii) The trust instrument should pro- govern. The Secretary will, con- vide that all investment restrictions sequently, at his discretion, as a mat- stated in section 607(c) of the Act will ter of privilege and not as a matter of be observed; right, attempt to afford relief to par- (iii) The trust instrument should pro- ties where literal application of the vide that the trustee will give consider- purely procedural, as opposed to sub- ation to the party’s withdrawal re- stantive, aspects of these regulations quirements under the Agreement when would otherwise work an inequitable investing the Fund; hardship. This privilege will be spar- (iv) The trustee must agree to be ingly granted and no party should be- bound by all rules and regulations fore the fact attempt to act in reliance which have been or will be promulgated on its being granted after the fact. governing the investment or manage- (d) These §§ 259.30 through 259.38 are ment of the Fund. applicable absolutely to all Interim CCF Agreements first entered into (or § 259.37 Conditional consents to with- the amendment of all then existing In- drawal qualification. terim CCF Agreements, which amend- The Secretary may conditionally ment is first entered into) on or after consent to the qualification of with- the date these §§ 259.30 through 259.38 drawal, such consent being conditional are adopted. These §§ 259.30 through upon the timely submission to the Sec- 259.38 are applicable to all Interim CCF retary of such further proofs, assur- Agreements entered into before the ances, and advices as the Secretary, in date these §§ 259.30 through 259.38 are his discretion, may require. Failure of adopted, with the following exceptions a party to comply with the conditions only:

296

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 259.38

(1) The vessel age limitations im- (e) These §§ 259.30 through 259.38 are posed by § 259.31 shall not apply to al- specifically incorporated in all past, ready scheduled Schedule B objectives. present, and future Interim CCF Agree- (2) The minimum deposits imposed by ments by reference thereto made in § 259.34 shall not apply to any party’s Whereas Clause number 2 of all such tax year before that party’s tax year Interim CCF Agreements. next following the one in which these §§ 259.30 through 259.38 are adopted.

297

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROC- ESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROC- ESSED FOOD PRODUCTS

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.

298

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00298 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.6

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.

299

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00299 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.6 50 CFR Ch. II (10–1–02 Edition)

Establishment. ‘‘Establishment’’ licensed by the Secretary to inves- means any premises, buildings, struc- tigate, sample, inspect, and certify in tures, facilities, and equipment accordance with the regulations in this (including 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

300

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.7

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. Plant. ‘‘Plant’’ means the premises, ‘‘Unofficially drawn sample’’ means buildings, structures, and equipment any sample that has been selected by (including, but not being limited to, any person other than an inspector or machines, utensils, and fixtures) em- licensed sampler, or by any other per- ployed or used with respect to the man- son not authorized by the Director pur- ufacture or production of processed suant to 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:

301

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.12 50 CFR Ch. II (10–1–02 Edition)

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 pler is available and the facilities and (including 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.

302

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.21

§ 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

303

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.22 50 CFR Ch. II (10–1–02 Edition)

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

304

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.40

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

305

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.41 50 CFR Ch. II (10–1–02 Edition)

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.

306

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.61

§ 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:

307

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00307 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.61 50 CFR Ch. II (10–1–02 Edition)

(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.

308

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00308 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.61

HARACTER AS C 3,200 Over 3,200 – 28,000 Over 28,000 120,000 Over 120,000 420,000 Over 420,000 240,000 Over 240,000 – – – – IZE AND S UCH S 2,000 2,001 – 16,000 16,001 84,000 84,001 300,000 300,001 168,000 168,001 – – – – NITS OF U 8,000 8,001 1,200 1,201 – – 60,000 60,001 – 108,000 108,001 228,000 228,001 – – ONTAINING C EVELS L

HEREOF 800 801 – T 3,600 3,601 1 72,000 72,001 36,000 36,001 – – – 156,000 156,001 – CCEPTANCE EPARABLE A S RODUCTS P Lot size (number of containers) 400 401 – 2,400 2,401 EADILY – 96,000 96,001 48,000 48,001 24,000 24,001 AND R – – – LANS AND , INGLE SAMPLING PLANS P S TO BE RODUCTS 200 201 AMPLING – 1,600 1,601 P 48,000 48,001 15,000 15,001 – 24,000 24,001 S – – – INGLE ISHERY S F 80 81 800 801 – – 7,200 7,201 12,000 12,001 – 14,400 14,401 – – ROCESSED P IMILARLY S 1 2 3 4 5 ANNED OR C 700) ...... 2,400 or less 2,401 × — I 407) ...... 3,600 or less 3,601 812) ...... 1,200 or less 1,201 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 container 201 ...... 25 or less . 26 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

309

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00309 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.61 50 CFR Ch. II (10–1–02 Edition)

...... HARACTER AS C 3,200 Over 3,200 – 28,000 Over 28,000 240,000 Over 240,000 168,000 Over 168,000 – 120,000 Over 120,000 – – – IZE AND S approximately 2 pounds of product. UCH — S 2,000 2,001 84,000 84,001 – 16,000 16,001 – – 132,000 132,001 168,000 168,001 – – NITS OF U comparable to the various single sampling plans refer comparable to the various single sampling plans refer 8,000 8,001 1,200 1,201 96,000 96,001 – – 60,000 60,001 – 108,000 108,001 – – ONTAINING C

HEREOF 800 801 – T 3,600 3,601 – 60,000 60,001 36,000 36,001 72,000 72,001 1 – – – EPARABLE 1 container and its entire contents. Groups 4 5 S — RODUCTS P Lot size (number of containers) 400 401 – 2,400 2,401 EADILY 36,000 36,001 18,000 18,001 48,000 48,001 – AND R – – – , Single sampling plans TO BE RODUCTS 200 201 – P 1,600 1,601 18,000 18,001 10,800 10,801 – 24,000 24,001 – – – ISHERY F 80 81 800 801 – – 8,400 8,401 3,600 3,601 – 12,000 12,001 – – ROCESSED P 0123 4 5 6 7 0123 4 5 6 78 IMILARLY S ...... 3 6 13 21 29 38 48...... 60 3 72 6 13 21 29 38 48 60 72 2 2 ROZEN OR 1 2 3 4 5 F — II 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 For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans sample units) 1 pound or less net weight ...... 2,400 or less 2,401 over 1 pound but not over 4 pounds net weight ...... 1,800 or less over 4 pounds but 1,801 not over 10 pounds net weight ...... 900 or less over 10 pounds but not over 100 pounds 901 net weight ...... 200 or less over 100 pounds net weight ...... 201 25 or less sample units) 26 1 2 1 ABLE Container size group Sample size (number of Acceptance number ..... Any type of container Any type of container Any type of container Any type of container Any type of container Sample size (number of Acceptance number ..... T When determined by the inspector that a 2-pound sample unit is inadequate, larger may be substituted. table VI of this section. table VI of this section.

310

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00310 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.61 , LUID , F unit may be 3,200 Over 3,200 – 32,000 Over 32,000 168,000 Over 168,000 420,000 Over 420,000 – 480,000 Over 480,000 OMMINUTED – – – C approximately 3 pounds of product. — 2,000 2,001 – 24,000 24,001 132,000 132,001 360,000 360,001 300,000 300,001 – HEREOF OF A – – – T comparable to the various single sampling plans refer ir entire contents may be substituted for 1 or more sample olved. RODUCTS 1,200 1,201 P 16,000 16,001 – 96,000 96,001 – 240,000 240,001 228,000 228,001 – – – AND ,

800 801 – 8,000 8,001 RODUCTS – 60,000 60,001 P 174,000 174,001 – 156,000 156,001 2 TATE – – S 1 container and its entire contents. Groups 4 5 — ELATED 1 container and its entire contents. A smaller sample unit may be substituted in group 3 at the R — Lot size (number of containers) 400 401 – 3,200 3,201 96,000 96,001 60,000 36,001 – – – 112,000 112,001 OMOGENEOUS – Single sampling plans H OR ISHERY AND F 200 201 – 1,600 1,601 62,400 62,401 18,000 18,001 – 48,000 48,001 – – – ROCESSED P 80 81 – 800 801 – 8,400 8,401 – 21,600 21,601 14,400 14,401 – – THERWISE O approximately 16 ounces of product. When determined by the inspector that a 16-ounce sample unit is inadequate, larger — OR , ROZEN , F 1 ...... 3 6 13 21 29 38 48 60 72 ANNED 3 1 2 3 4 5 C — III s discretion. Groups 4, 5, and 6 ’ GROUP GROUP GROUP GROUP GROUP The sample units for the various container size groups are as follows: Groups 1, 2, and 3 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 ABLE 12 ounces or less ...... 5,400 or less 5,401 over 12 ounces but not over 60 ounces .... 3,600 or less 3,601 over 60 ounces but not over 160 ounces .. 1,800 or less 1,801 over 160 ounces but not over 10 gallons or 100 pounds whichever is applicable ...... 200 or less over 10 gallons or 100 pounds whichever is 201 applicable ...... 25 or less sample units) 26 2 1 2 3 Container size group T Any type of container Any type of container Any type of container Any type of container Any type of container Sample size (number of Acceptance number ...... 0 1 2 3 4 5 6 7 8 When determined by the inspector that a 3-pound sample unit is inadequate, larger or 1 more containers and units of 3 pounds. inspector table VI of this section. substituted.

311

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00311 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.61 50 CFR Ch. II (10–1–02 Edition) 3,200 Over 3,200 – 15,000 Over 15,000 32,000 Over 32,000 – – 120,000 Over 120,000 168,000 Over 168,000 – –

NITS U 2,000 2,001 9,600 9,601 84,000 84,001 – – 24,000 24,001 – 132,000 132,001 – 1 container and its entire contents or a small- AMPLE – — 72 S

comparable to the various single sampling plans refer EYOND 6,000 6,001 1,200 1,201 B 16,000 16,001 – – 60,000 60,001 96,000 96,001 – – – RODUCTS IZE P S AMPLE ELATED 800 801 S – 8,000 8,001 2,800 2,801 R 36,000 36,001 60,000 60,001 – – 1 – – NCREASING I Lot size (number of containers) ISHERY AND F 400 401 – 3,200 3,201 2,000 2,001 – – 18,000 18,001 36,000 36,001 1 container and its entire contents. Groups 2, 3, 4, 5 – – SE IN Single sampling plans — U EHYDRATED 200 201 D – 1,600 1,601 1,200 1,201 LANS FOR 10,800 10,801 18,000 18,001 – – — P – – IV ABLE T AMPLING 80 81 – 400 401 800 801 S – – 8,400 8,401 3,600 3,601 – – INGLE S — 0123 4 5 6 78 V ABLE T ...... 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 .... 3 6 13 21 29 38 48 60 72 2 ...... 84 96 108 120 132 144 156 168 180 192 204 216 230 244 258 272 286 300 314 328 342 356 370 384 400 1 2 3 4 5 n GROUP GROUP GROUP GROUP GROUP For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Group 1 of 1 pound or less net weight ...... 1,800 or less 1,801 over 1 pound but not over 6 pounds net weight ...... 900 or less over 6 pounds but not over 20 pounds 901 net weight ...... 200 or less over 20 pounds but not over 100 pounds net weight 201 .. 48 or less over 100 pounds net weight ...... 49 16 or less of sample units) 17 1 2 Container size group Acceptance numbers, Any type of container Any type of container Any type of container Any type of container Any type of container Sample size (number Acceptance number ... Sample size, table VI of this section. er sample unit when determined by the inspector to be adequate.

312

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00312 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.61 cr c crn c

LANS P crn c AMPLING S crn INGLE 5678 S c NDICATED 1 I crn LANS P c 3236 3 5 6 6 44 6 7 56 7 8 68 8 9 72 6 10 82 9 10 AMPLING crn S OMPARABLE TO THE c C 26 4 5 28 3 6 38 3 7 48 4 8 58 4 8 62 5 10 ULTIPLE M LANS P crn c 14 2 3 22 2 5 24 2 5 32 2 6 40 3 8 48 3 8 52 3 9 AMPLING S 2803100312041404160418052205 crn ULTIPLE c 1034 1040 2158 317 6321 5281 8 5241 7422 4200 6382 6 4160 6322 0 3141 5261 2100 8 4201 1 3181 2121 M — VI for r, ABLE T ...... 1 2 3 4 , and accept- c c ...... 6 13 21 29 38 48 60 72 n n c, n multiple sampling. 4 0 and rejection numbers, Single sample size, Acceptance numbers, These multiple sampling plans may be used in lieu of the single listed at heading each column. ance numbers, 1 Indicated single sampling plan: Cumulative sample sizes,

313

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00313 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.62 50 CFR Ch. II (10–1–02 Edition)

§ 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.

314

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00314 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.84

§ 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.

315

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00315 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.86 50 CFR Ch. II (10–1–02 Edition)

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

316

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00316 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T EC01JY91.061 EC01JY91.062 EC01JY91.063 EC01JY91.064 EC01JY91.065 National Marine Fisheries Service/NOAA, Commerce § 260.86

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

317

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00317 Fmt 8010 Sfmt 8006 Y:\SGML\197209T.XXX 197209T EC01JY91.066 EC01JY91.067 EC01JY91.068 EC01JY91.069 § 260.88 50 CFR Ch. II (10–1–02 Edition)

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.

318

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00318 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T EC01JY91.070 National Marine Fisheries Service/NOAA, Commerce § 260.93

(3) Using on a processed product any (9) Violating any one or more of the label which displays the words ‘‘Packed terms of any inspection contract or the Under Federal Inspection, U.S. Depart- provisions of the regulations of this ment of Commerce’’, or which displays subchapter. any official mark, official device, or of- (10) Engaging in acts or activities ficial identification, or which displays which destroy or interfere with the a facsimile of the foregoing, when such purposes of the inspection program or product has not been inspected under which have the effect of undermining the regulations of this subchapter. the integrity of the inspection pro- (4) Making any statement or ref- gram. erence to the U.S. Grade of any proc- (b) Temporary suspension. (1) When- essed product or any inspection service ever the Director has reasonable cause provided under the regulations of this to believe that any person has engaged subchapter on the label or in the adver- in any act or activity described in tising of any processed product, when paragraph (a) of this section, and in such product has not been inspected such act or activity, in the judgment of under the regulations of this sub- the Director, would cause serious and chapter. irreparable injury to the inspection (5) Making, using, issuing or at- program and services provided under tempting to issue or use in conjunction the regulations of this subchapter, the with the sale, shipment, transfer or ad- Director may, without a hearing, tem- vertisement of a processed product any porarily suspend, either before or after certificate of loading, certificate of the institution of a debarment hearing, sampling, inspection certificate, offi- the inspection service provided under cial device, official identification, offi- the regulations of this subchapter or cial mark, official document, or score under any inspection contract for one sheet which has not been issued, ap- or more plants under the control of proved, or authorized for use with such such person. Notice of suspension shall product by an inspector. be served by registered or certified (6) Using any of the terms ‘‘United mail, return receipt requested, and the States’’, ‘‘Officially graded’’, notice shall specifically state those ‘‘Officially inspected’’, ‘‘Government acts or activities of such person which inspected’’, ‘‘Federally inspected’’, are the bases for the suspension. The ‘‘Officially sampled’’, or words of simi- suspension shall become effective five lar import or meanings, or using any (5) days after receipt of the notice. official device, official identification, (2) Once a person has received a no- or official mark on the label, on the tice of a temporary suspension, a de- shipping container, or in the adver- barment hearing will be set for 30 days tising of any processed product, when after the effective date of the suspen- such product has not been inspected sion. Within 60 days after the comple- under the regulations of this sub- tion of the debarment hearing, the chapter. 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

319

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00319 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.93 50 CFR Ch. II (10–1–02 Edition)

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

320

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00320 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.93

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 llll this llll day of proceeding under the regulations of lllll, 19l this section, at rates fixed by the con- Signature llllllll 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

321

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.96 50 CFR Ch. II (10–1–02 Edition)

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

322

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.97

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;

323

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.98 50 CFR Ch. II (10–1–02 Edition)

(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

324

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.99

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

325

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.100 50 CFR Ch. II (10–1–02 Edition)

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

326

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00326 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 260.103

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

327

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00327 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 260.104 50 CFR Ch. II (10–1–02 Edition)

the product properly labeled and/or (5) Wear hair nets, caps, masks, or wholesome will be identified by the in- other effective hair restraints. Other spector in an appropriate and con- persons that may incidentally enter spicuous manner with the word the processing areas shall comply with ‘‘RETAINED.’’ Such lot(s) of product this requirement. shall be held for reinspection or test- (6) Not store clothing or other per- ing. Final disposition of the lot(s) shall sonal belongings, eat food, drink bev- be determined by NMFS and the re- erages, chew gum, or use tobacco in moval of the ‘‘RETAINED’’ identifica- any form in areas where food or food tion shall be performed by the inspec- ingredients are exposed or in areas tor. used for washing equipment or utensils. [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. STANDARDS FOR GRADES (2) Wash and sanitize their hands thoroughly to prevent contamination Sec. by undesirable microorganisms before 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. Standard for Grades. soiled or contaminated. (3) Remove all insecure jewelry and, AUTHORITY: 7 U.S.C. 1621–1630. when food is being manipulated by SOURCE: 61 FR 9369, Mar. 8, 1996, unless oth- hand, remove from hands any jewelry erwise noted. that cannot be adequately sanitized. (4) If gloves are used in food han- § 261.101 Standard description. dling, maintain them in an intact, A U.S. Standard for Grades author- clean, and sanitary condition. Such ized under this part is a standard for a gloves shall be of an impermeable ma- fish or fishery product that has been terial except where their usage would developed and adopted by the vol- be inappropriate or incompatible with untary seafood inspection program pur- the work involved. suant to the Agricultural Marketing

328

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00328 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 261.103

Act of 1946 (7 U.S.C. 1621 et seq.) and (3) Grade and inspection marks, which other authorities delegated to the U.S. describe the grades and inspection Department of Commerce. mark criteria for each grade category (e.g., Grade A ≤ 15 points). § 261.102 Publication and removal of (4) Grade determination, which de- U.S. Grade Standards. scribes the means by which the grade is (a) The voluntary U.S. Standards for determined (i.e., the factors rated by Grades adopted pursuant to this part score points and those that are not). shall be issued as Program policies and Standards may contain defect grouping contained within the NMFS Fishery limiting rules that contain additional Products Inspection Manual. Compli- provisions that must be met. ance with voluntary standards issued 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 evaluation). Cosmetic Act; or other Federal laws (7) Definitions of defects, which outline and regulations. the defects associated with the prod- (b) Notification of an application for ucts covered by the standard, defines a new grade standard shall be published them, and describes the method of in the FEDERAL REGISTER. If adopted, counting or measuring the defects. the grade standard shall be issued as a This section may provide associated Program policy and contained in the defect points or reference a defect table NMFS Fishery Products Inspection (e.g., bruises, blood spots, bones, black Manual. spots, coating defects, 1–inch squares, (c) Recision and revision of a U.S. percent by weight, ratios). Standard for Grades will be made a (8) Defect point assessment, which de- Program policy amendment and con- scribes how to assess points and pro- tained in the NMFS Fishery Products vides any special guidance that may be Inspection Manual. (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 scribe the methods of analysis that will U.S. grade standard may include the be used in the evaluation of the prod- following: ucts covered by the standard for grades (1) Scope and product description, (e.g., net weight, deglazing, which describes the products that are 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).

329

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00329 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T SUBCHAPTER H–J [Reserved] SUBCHAPTER K—CONTINENTAL SHELF

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

330

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00330 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 296.4

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

331

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00331 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 296.5 50 CFR Ch. II (10–1–02 Edition)

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

332

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00332 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 296.6

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

333

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00333 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 296.7 50 CFR Ch. II (10–1–02 Edition)

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

334

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T National Marine Fisheries Service/NOAA, Commerce § 296.11

National Ocean Survey, NOAA, or in (2) Negligence of the owner or oper- any weekly Notice to Mariners issued ator of the fishing vessel or gear will by the Defense Mapping Agency Hydro- reduce crewmember awards to the graphic/Topographic Center, in effect same extent that it reduces an award at least 15 days before the date the to the vessel’s owner or operator. damage or loss occurred, then an ob- (f) Insurance proceeds. An award will struction existed in the immediate vi- be reduced by the amount the claimant cinity where the damage or loss oc- has, or reasonably would have, received curred. In the case of damages caused under a commercial policy of full hull by a pipeline, the presumption will be and machinery and protection and in- available regardless of whether the demnity insurance, whether or not pipeline was recorded on charts or in such insurance was in effect at the the Notice to Mariners; and time the casualty occurred. (4) There was no proper surface [47 FR 49600, Nov. 1, 1982, as amended at 50 marker or lighted buoy attached, or FR 13796, Apr. 8, 1985] closely anchored, to such obstruction. (c) Geographic exclusion from presump- § 296.9 Initial determination. tion of causation. Damage or loss occur- The Chief, FSD will make an initial ring within a one-quarter mile radius determination on a claim within 60 of obstructions recorded on charts or in days after the day on which the claim a Notice to Mariners, or properly is accepted for filing. The initial deter- marked, is presumed to involve the re- mination will state: corded or marked obstruction. (a) If the claim is disapproved, the reason for disapproval, or § 296.8 Amount of award. (b) If the claim is approved, the (a) Actual damages. The award for amount of compensation and the basis damaged fishing gear will be the lesser on which the amount was determined. of the gear’s repair cost or replacement cost. The award for lost fishing gear § 296.10 Agency review. will be the gear’s replacement cost. (a) Within 30 days after the Chief, (b) Consequential damages. An award FDS, issues an initial determination, may also include compensation for any the claimant, or any other interested damage or loss (except personal injury) person who submitted evidence relat- that is incurred as a consequence of the ing to the initial determination, may fishing gear damage or loss. ask the Assistant Administrator, (c) Resulting economic loss. An award NMFS, or his designee, for a review of may also include 50 percent of the re- the initial determination. sulting economic loss from damage to (b) The petitioner may submit writ- or loss of fishing vessels and gear. ten or oral evidence within 30 days of (d) Attorney, CPA, consultant fees. An filing the petition for review. award may also include compensation for reasonable fees paid by the claim- § 296.11 Final determination. ant to an attorney, CPA, or other con- (a) If a petition for review of an ini- sultant for the preparation or prosecu- tial determination is filed within 30 tion of a claim. days after the date the Chief, FSD, (e) Negligence of claimant. (1) An issues an initial determination, the As- award will be reduced to the extent sistant Administrator, NMFS, or his that the loss or damage was caused by designee will conduct a review of the the negligence or fault of the claimant. initial determination, and will issue a (For example, a claimant who sus- final determination no later than 60 tained $10,000 in damages and whose days after receipt of the request for re- negligence or fault was found to be 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.

335

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T § 296.12 50 CFR Ch. II (10–1–02 Edition)

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

336

VerDate 0ct<31>2002 13:36 Nov 12, 2002 Jkt 197209 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Y:\SGML\197209T.XXX 197209T