Wildlife and Fisheries

50 Parts 200 to 599 Revised as of October 1, 2004

Containing a codification of documents of general applicability and future effect

As of October 1, 2004

With Ancillaries

Published by Office of the Federal Register National Archives and Records Administration

A Special Edition of the Federal Register

VerDate jul<14>2003 09:15 Oct 15, 2004 Jkt 203218 PO 00000 Frm 00001 Fmt 8091 Sfmt 8091 Y:\SGML\203218F.XXX 203218F U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2004

For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402–0001

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Page Explanation ...... v

Title 50:

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

Chapter III—International Fishing and Related Activities ...... 377

Chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fish- eries Service, National Oceanic and Atmospheric Administra- tion, Department of Commerce); Endangered Species Com- mittee Regulations ...... 447

Chapter V—Marine Mammal Commission ...... 497

Finding Aids:

Material Approved for Incorporation by Reference ...... 523

Table of CFR Titles and Chapters ...... 525

Alphabetical List of Agencies Appearing in the CFR ...... 543

List of CFR Sections Affected ...... 553

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To cite the regulations in this volume use title, part and section number. Thus, 50 CFR 216.1 refers to title 50, part 216, section 1.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2004), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cutoff date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate jul<14>2003 09:15 Oct 15, 2004 Jkt 203218 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\203218F.XXX 203218F Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 741–6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

VerDate jul<14>2003 09:15 Oct 15, 2004 Jkt 203218 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\203218F.XXX 203218F REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd–numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866–512–1800 or DC area, 202– 512–1800, M–F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202–512–2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250–7954. For GPO Customer Serv- ice call 202–512–1803. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Pri- vacy Act Compilation are available in electronic format at www.access.gpo.gov/ nara (‘‘GPO Access’’). For more information, contact Electronic Information Dis- semination Services, U.S. Government Printing Office. Phone 202–512–1530, or 888– 293–6498 (toll–free). E–mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federallregister. The NARA site also contains links to GPO Access.

RAYMOND A. MOSLEY, Director, Office of the Federal Register. October 1, 2004.

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Title 50—FISH AND WILDLIFE is composed of four volumes. The parts in these volumes are arranged in the following order: Parts 1–17, parts 18–199, parts 200– 599 and part 600 to end. The first and second volumes (parts 1–17 and parts 18– 199) contain the current regulations issued under chapter I—United States Fish and Wildlife Service, Department of the Interior. The third volume (parts 200– 599) contains the current regulations issued under chapter II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Depart- ment of Commerce; chapter III—International Fishing and Related Activities, chapter IV—Joint Regulations (United States Fish and Wildlife Service, Depart- ment of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee regulations; and chapter V—Marine Mammal Commission. The fourth volume (part 600 to end) contains the current regulations issued under chapter VI—Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2004.

Alphabetical listings of endangered and threatened wildlife and plants appear in part 17.

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

For this volume, Ruth Green was Chief Editor. The Code of Federal Regula- tions publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.

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VerDate jul<14>2003 09:15 Oct 15, 2004 Jkt 203218 PO 00000 Frm 00010 Fmt 8092 Sfmt 8092 Y:\SGML\203218F.XXX 203218F CFRORDR.FRM 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.

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SUBCHAPTER A—GENERAL PROVISIONS [RESERVED]

SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]

SUBCHAPTER C—MARINE MAMMALS

Part Page 216 Regulations governing the taking and importing of marine mammals ...... 5 217–221 [Reserved] 222 General endangered and threatened marine species 97 223 Threatened marine and anadromous species ...... 119 224 Endangered marine and anadromous species ...... 199 225 [Reserved] 226 Designated critical habitat ...... 202 228 Notice and hearing on section 103(d) regulations .... 273 229 Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972 ...... 279

SUBCHAPTER D—WHALING 230 Whaling provisions...... 313

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

SUBCHAPTER F—AID TO FISHERIES 253 Fisheries assistance programs ...... 316 259 Capital construction fund ...... 325

SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PROD- UCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS 260 Inspection and certification ...... 337 3

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Part Page 261 United States Standards for Grades ...... 367

SUBCHAPTERS H–J [RESERVED]

SUBCHAPTER K—CONTINENTAL SHELF 296 Fishermen’s Contingency Fund ...... 370

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PART 216—REGULATIONS GOV- 216.35 Permit restrictions. 216.36 Permit conditions. ERNING THE TAKING AND IM- 216.37 Marine mammal parts. PORTING OF MARINE MAM- 216.38 Reporting. MALS 216.39 Permit amendments. 216.40 Penalties and permit sanctions. 216.41 Permits for scientific research and Subpart A—Introduction 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 Access to marine mammal tissue, 216.8 Enforcement officers. analyses, and data. 216.48–216.49 [Reserved] Subpart B—Prohibitions Subpart E—Designated Ports 216.11 Prohibited taking. 216.12 Prohibited importation. 216.50 Importation at designated ports. 216.13 Prohibited uses, possession, transportation, sales, and permits. Subpart F—Pribilof Islands, Taking for 216.14 Marine mammals taken before the Subsistence Purposes MMPA. 216.71 Allowable take of fur seals. 216.15 Depleted species. 216.72 Restrictions on taking. 216.16 Prohibitions under the General Au- 216.73 Disposition of fur seal parts. thorization for Level B harassment for 216.74 Cooperation with Federal officials. scientific research. Subpart G—Pribilof Islands Administration Subpart C—General Exceptions 216.81 Visits to fur seal rookeries. 216.21 Actions permitted by international 216.82 Dogs prohibited. treaty, convention, or agreement. 216.83 Importation of birds or mammals. 216.22 Taking by State or local government 216.84 [Reserved] officials. 216.85 Walrus and Otter Islands. 216.23 Native exceptions. 216.86 Local regulations. 216.24 Taking and related acts incidental to 216.87 Wildlife research. commercial fishing operations by tuna purse seine vessels in the eastern trop- Subpart H—Dolphin Safe Tuna Labeling ical Pacific Ocean. 216.25 Exempted marine mammals and ma- 216.90 Purposes. rine mammal products. 216.91 Dolphin-safe labeling standards. 216.26 Collection of certain marine mammal 216.92 Dolphin-safe requirements for tuna parts without prior authorization. harvested in the ETP by large purse 216.27 Release, non-releasability, and dis- seine vessels. position under special exception permits 216.93 Submission of documentation. for rehabilitated marine mammals. 216.94 Tracking and verification program. 216.95 False statements or endorsements. Subpart D—Special Exceptions 216.96 Official mark for ‘‘Dolphin-safe’’ tuna products. 216.30 [Reserved] 216.31 Definitions. Subpart I—General Regulations Governing 216.32 Scope. Small Takes of Marine Mammals Inci- 216.33 Permit application submission, re- dental to Specified Activities view, and decision procedures. 216.34 Issuance criteria. 216.101 Purpose.

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216.102 Scope. 216.177 Renewal of a letter of authorization. 216.103 Definitions. 216.178 Modifications to a letter of author- 216.104 Submission of requests. ization. 216.105 Specific regulations. 216.106 Letter of Authorization. Subpart Q—Taking of Marine Mammals In- 216.107 Incidental harassment authorization cidental to Navy Operations of Surveil- for Arctic waters. lance Towed Array Sensor System Low 216.108 Requirements for monitoring and re- Frequency Active (SURTASS LFA) Sonar porting under incidental harassment authorizations for Arctic waters. 216.180 Specified activity and specified geographical region. Subpart J [Reserved] 216.181 Effective dates. 216.182 Permissible methods of taking. Subpart K—Taking of Marine Mammals In- 216.183 Prohibitions. cidental to Space Vehicle and Test 216.184 Mitigation. Flight Activities 216.185 Requirements for monitoring. 216.186 Requirements for reporting. 216.120 Specified activity and specified geo- 216.187 Applications for Letters of Author- graphical region. ization. 216.121 Effective dates. 216.188 Letters of Authorization. 216.122 Permissible methods of taking. 216.189 Renewal of Letters of Authorization. 216.123 Prohibitions. 216.190 Modifications to Letters of Author- 216.124 Mitigation. ization. 216.125 Requirements for monitoring and re- 216.191 Designation of Biologically Impor- porting. tant Marine Mammal Areas. 216.126 Applications for Letters of Author- ization. Subpart R—Taking of Marine Mammals In- 216.127 Renewal of Letters of Authorization. cidental to Construction and Oper- 216.128 Modifications of Letters of Author- ization. ation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea Subparts L–M [Reserved] 216.200 Specified activity and specified geographical region. Subpart N—Taking of Marine Mammals In- 216.201 Effective dates. cidental to Missile Launch Operations 216.202 Permissible methods of taking. from San Nicolas Island, CA 216.203 Prohibitions. 216.204 Mitigation. 216.151 Specified activity, geographical re- 216.205 Measures to ensure availability of gion, and incidental take levels. species for subsistence uses. 216.152 Effective dates. 216.206 Requirements for monitoring and re- 216.153 Permissible methods of taking; miti- porting. gation. 216.207 Applications for Letters of Author- 216.154 Prohibitions. ization. 216.155 Requirements for monitoring and re- 216.208 Letters of Authorization. porting. 216.209 Renewal of Letters of Authorization. 216.156 Letter of Authorization. 216.210 Modifications to Letters of Author- 216.157 Renewal of the Letter of Authoriza- ization. tion. NOTE TO PART 216: See also 50 CFR parts 228 216.158 Modifications to the Letter of Au- and 229 for regulations governing certain in- thorization. cidental takings of marine mammals. Subpart O [Reserved] AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted. Subpart P—Taking of Marine Mammals In- SOURCE: 39 FR 1852, Jan. 15, 1974, unless cidental to Operating a Low Fre- otherwise noted. quency Acoustic Source by the North Pacific Acoustic Laboratory Subpart A—Introduction 216.170 Specified activity and specified geographical region. § 216.1 Purpose of regulations. 216.171 Effective dates. The regulations in this part imple- 216.172 Permissible methods of taking. ment the Marine Mammal Protection 216.173 Prohibitions. 216.174 Mitigation. Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– 216.175 Requirements for monitoring and re- 1407, Pub. L. 92–522, which, among other porting. things, restricts the taking, possession, 216.176 Letter of authorization. transportation, selling, offering for

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sale, and importing of marine mam- of the United States who is regarded as mals. an Alaska Native by the Native village or group, of which he claims to be a § 216.2 Scope of regulations. member and whose father or mother is This part 216 applies solely to marine (or, if deceased, was) regarded as Na- mammals and marine mammal prod- tive by any Native village or Native ucts as defined in § 216.3. For regula- group. Any such citizen enrolled by the tions under the MMPA, with respect to Secretary of the Interior pursuant to other marine mammals and marine section 5 of the Alaska Native Claims mammal products, see 50 CFR part 18. Settlement Act shall be conclusively presumed to be an Alaskan Native for [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] purposes of this part. Article of handicraft means items § 216.3 Definitions. made by an Indian, Aleut or Eskimo In addition to definitions contained from the nonedible byproducts of fur in the MMPA, and unless the context seals taken for personal or family con- otherwise requires, in this part 216: sumption which— Acts means, collectively, the Marine (1) Were commonly produced by Alas- Mammal Protection Act of 1972, as kan Natives on or before October 14, amended, 16 U.S.C. 1361 et seq., the En- 1983; dangered Species Act of 1973, as amend- (2) Are composed wholly or in some ed, 16 U.S.C. 1531 et seq., and the Fur significant respect of natural mate- Seal Act of 1966, as amended, 16 U.S.C. rials, and; 1151 et seq. (3) Are significantly altered from Active sportfishing means paying pas- their natural form and which are pro- sengers have their terminal fishing duced, decorated, or fashioned in the gear (lures, hooks, etc.) in the water in exercise of traditional native handi- an attempt to catch fish or, in the case crafts without the use of pantographs, of fishing involving chumming, fishing multiple carvers, or similar mass copy- is considered to be in progress from the ing devices. Improved methods of pro- instant fish have been sighted taking duction utilizing modern implements bait (boiling) during that chumming such as sewing machines or modern process. tanning techniques at a tannery reg- Administrator, Southwest Region istered pursuant to § 216.23(c) may be means the Regional Administrator, used so long as no large scale mass pro- Southwest Region, National Marine duction industry results. Traditional Fisheries Service, 501 W. Ocean Blvd., native handicrafts include, but are not Suite 4200, Long Beach, CA 90802–4213, limited to, weaving, carving, stitching, or his or her designee. sewing, lacing, beading, drawing, and Agreement on the International Dolphin painting. The formation of traditional Conservation Program (Agreement on the native groups, such as a cooperative, is IDCP) means the Agreement estab- permitted so long as no large scale lishing the formal binding IDCP that mass production results. was signed in Washington, DC on May Assistant Administrator means the As- 21, 1998. sistant Administrator for Fisheries, Alaskan Native means a person de- National Marine Fisheries Service, Na- fined in the Alaska Native Claims Set- tional Oceanic and Atmospheric Ad- tlement Act (43 U.S.C. 1602(b)) (85 Stat. ministration, Silver Spring, MD 20910, 588) as a citizen of the United States or his/her designee. who is of one-fourth degree or more Authentic native articles of handicrafts Alaska Indian (including Tsimishian and clothing means items made by an Indians enrolled or not enrolled in the Indian, Aleut or Eskimo which (a) were Metlaktla Indian Community), Es- commonly produced on or before De- kimo, or Aleut blood or combination cember 21, 1972, and (b) are composed thereof. The term includes any Native, wholly or in some significant respect of as so defined, either or both of whose natural materials, and (c) are signifi- adoptive parents are not Natives. It cantly altered from their natural form also includes, in the absence of proof of and which are produced, decorated, or a minimum blood quantum, any citizen fashioned in the exercise of traditional

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native handicrafts without the use of terms may include licensed com- pantographs, multiple carvers, or simi- mercial passenger fishing vessel (as lar mass copying devices. Improved defined) activities, but no other sport- methods of production utilizing mod- fishing activities, whether or not the ern implements such as sewing ma- fish so caught are subsequently sold. chines or modern tanning techniques Commercial passenger fishing vessel at a tannery registered pursuant to means any vessel licensed for commer- § 216.23(c) may be used so long as no cial passenger fishing purposes within large scale mass production industry the State out of which it is operating results. Traditional native handicrafts and from which, while under charter or include, but are not limited to, weav- hire, persons are legally permitted to ing, carving, stitching, sewing, lacing, conduct sportfishing activities. beading, drawing, and painting. The formation of traditional native groups, Custody means holding a live marine such as a cooperative, is permitted so mammal pursuant to the conditional long as no large scale mass production authority granted under the MMPA, results. and the responsibility therein for cap- Bona fide scientific research: (1) Means tive maintenance of the marine mam- scientific research on marine mammals mal. conducted by qualified personnel, the Declaration of Panama means the dec- results of which: laration signed in Panama City, Repub- (i) Likely would be accepted for public of Panama, on October 4, 1995. lication in a refereed scientific journal; Director, Office of Protected Resources (ii) Are likely to contribute to the means Director, Office of Protected Re- basic knowledge of marine mammal bi- sources, National Marine Fisheries ology or ecology. (Note: This includes, Service, 1315 East-West Highway, Sil- for example, marine mammal parts in ver Spring, MD 20910. a properly curated, professionally ac- Dolphin Mortality Limit (DML) means credited scientific collection); or the maximum allowable number of in- (iii) Are likely to identify, evaluate, cidental dolphin mortalities per cal- or resolve conservation problems. endar year assigned to a vessel, unless (2) Research that is not on marine a shorter time period is specified. mammals, but that may incidentally take marine mammals, is not included Endangered Species means a species or in this definition (see sections subspecies of marine mammal listed as 101(a)(3)(A), 101(a)(5)(A), and ‘‘endangered’’ pursuant to the Endan- 101(a)(5)(D) of the MMPA, and sections gered Species Act of 1973, 87 Stat. 884, 7(b)(4) and 10(a)(1)(B) of the ESA). Pub. L. 93–205 (see part 17 of this title). Carrying capacity means the Regional ESA means the Endangered Species Director’s determination of the max- Act of 1973, as amended, 16 U.S.C. 1531 imum amount of fish that a vessel can et seq. carry in short tons based on the great- ETP means the eastern tropical Pa- er of the amount indicated by the cific Ocean which includes the Pacific builder of the vessel, a marine sur- Ocean area bounded by 40° N. latitude, veyor’s report, or the highest amount 40° S. latitude, 160° W. longitude and reported landed from any one trip. the coastlines of North, Central and Certified charter vessel means a fishing South America. vessel of a non-U.S. flag nation, which Facility means, in the context specific is operating under the jurisdiction of to captive marine mammals,: (1) One or the marine mammal laws and regula- more permanent primary enclosures tions of another, harvesting, nation by used to hold marine mammals captive a formal declaration entered into by mutual agreement of the nations. (i.e., pools, lagoons) and associated in- Co-investigator means the on-site rep- frastructure (i.e., equipment and sup- resentative of a principal investigator. plies necessary for the care and main- Commercial fishing operation means tenance of marine mammals) where the lawful harvesting of fish from the these enclosures are either located marine environment for profit as part within the boundaries of a single con- of an ongoing business enterprise. Such tiguous parcel of land and water, or are

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grouped together within the same gen- pain and suffering practicable to the eral area within which enclosure-to-en- animal involved. closure transport is expected to be Import means to land on, bring into, completed in less than one hour; or or introduce into, or attempt to land (2) A traveling display/exhibit, where on, bring into, or introduce into, any the enclosure(s) and associated infra- place subject to the jurisdiction of the structure is transported together with United States, whether or not such the marine mammals. landing, bringing, or introduction con- Feeding is offering, giving, or stitutes an importation within the Cus- attempting to give food or non-food toms laws of the United States; except items to marine mammals in the wild. that, for the purpose of any ban issued It includes operating a vessel or pro- under 16 U.S.C. 1371(a)(2) on the impor- viding other platforms from which tation of fish or fish products, the defi- feeding is conducted or supported. It nition of ‘‘import’’ in § 216.24(f)(1)(ii) does not include the routine discard of shall apply. bycatch during fishing operations or Incidental catch means the taking of a the routine discharge of waste or fish marine mammal (1) because it is di- byproducts from fish processing plants rectly interfering with commercial or other platforms if the discharge is otherwise legal and is incidental to op- fishing operations, or (2) as a con- eration of the activity. sequence of the steps used to secure the First exporter means the person or fish in connection with commercial company that first exports the fish or fishing operations: Provided, That a fish product, or, in the case of ship- marine mammal so taken must imme- ments that are subject to the labeling diately be returned to the sea with a requirements of 50 CFR part 247 and minimum of injury and further, that that only contain fish harvested by the taking of a marine mammal, which vessels of the United States, the first otherwise meets the requirements of seller of the fish or fish product. this definition shall not be considered Fisheries Certificate of Origin means an incidental catch of that mammal if NOAA Form 370, as described in it is used subsequently to assist in § 216.24(f)(5). commercial fishing operations. Force majeure means forces outside Intentional purse seine set means that the vessel operator’s or vessel owner’s a tuna purse seine vessel or associated control that could not be avoided by vessels chase marine mammals and the exercise of due care. subsequently make a purse seine set. FSA means the Fur Seal Act of 1966, International Dolphin Conservation as amended, 16 U.S.C. 1151 et seq. Program (IDCP) means the inter- Fur seal means North Pacific fur seal, national program established by the scientifically known as Callorhinus agreement signed in La Jolla, Cali- ursinus. fornia, in June 1992, as formalized, Hard part means any bone, tooth, modified, and enhanced in accordance baleen, treated pelt, or other part of a with the Declaration of Panama and marine mammal that is relatively solid the Agreement on the IDCP. or durable. International Dolphin Conservation Harvesting nation means the country Program Act (IDCPA) means Public Law under whose flag one or more fishing 105–42, enacted into law on August 15, vessels are documented, or which has 1997. by formal declaration agreed to assert International Review Panel (IRP) jurisdiction over one or more certified means the International Review Panel charter vessels, from which vessel(s) established by the Agreement on the fish are caught that are a part of any cargo or shipment of fish to be im- IDCP. ported into the United States, regard- Intrusive research means a procedure less of any intervening transshipments. conducted for bona fide scientific re- Humane means the method of taking, search involving: A break in or cutting import, export, or other activity which of the skin or equivalent, insertion of involves the least possible degree of

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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 that may affect behavior). For captive morphologically adapted to the marine animals, this definition does not in- environment, and whether alive or clude: dead, and any part thereof, including (1) A procedure conducted by the pro- but not limited to, any raw, dressed or fessional staff of the holding facility or an attending veterinarian for purposes dyed fur or skin: Cetacea (whales, dol- of animal husbandry, care, mainte- phins, and porpoises) and Pinnipedia, nance, or treatment, or a routine med- other than walrus (seals and sea lions). ical procedure that, in the reasonable MMPA means the Marine Mammal judgment of the attending veteri- Protection Act of 1972, as amended, 16 narian, would not constitute a risk to U.S.C. 1361 et seq. the health or welfare of the captive Native village or town means any com- animal; or munity, association, tribe, band, clan (2) A procedure involving either the or group. introduction of a substance or object Optimum sustainable population is a (i.e., as described in this definition) or population size which falls within a a stimulus directed at animals that, in range from the population level of a the reasonable judgment of the attend- given species or stock which is the ing veterinarian, would not involve a largest supportable within the eco- risk to the health or welfare of the cap- system to the population level that re- tive animal. sults in maximum net productivity. Label means a display of written, Maximum net productivity is the printed, or graphic matter on or affixed greatest net annual increment in popu- to the immediate container of any arti- lation numbers or biomass resulting cle. from additions to the population due to Land or landing means to begin off- reproduction and/or growth less losses loading any fish, to arrive in port with due to natural mortality. the intention of offloading fish, or to Per-stock per-year dolphin mortality cause any fish to be offloaded. limit means the maximum allowable Large-scale driftnet means a gillnet number of incidental dolphin mortali- that is composed of a panel or panels of ties and serious injuries from a speci- webbing, or a series of such gillnets, fied stock per calendar year, as estab- with a total length of 2.5 kilometers or lished under the IDCP. more that is used on the high seas and Pregnant means pregnant near term. allowed to drift with the currents and winds for the purpose of harvesting fish Pribilovians means Indians, Aleuts, by entangling the fish in the webbing and Eskimos who live on the Pribilof of the net. Islands. Level A Harassment means any act of Principal investigator means the indi- pursuit, torment, or annoyance which vidual primarily responsible for the has the potential to injure a marine taking, importation, export, and any mammal or marine mammal stock in related activities conducted under a the wild. permit issued for scientific research or Level B Harassment means any act of enhancement purposes. pursuit, torment, or annoyance which Public display means an activity that has the potential to disturb a marine provides opportunities for the public to mammal or marine mammal stock in view living marine mammals at a facil- the wild by causing disruption of be- ity holding marine mammals captive.

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Regional Director means the Regional shallow that the specimen is unable to Administrator, Northeast Regional Of- return to its natural habitat under its fice, NMFS, One Blackburn Drive, own power. Gloucester, MA 01930; or Regional Ad- Subsistence means the use of marine ministrator, Northwest Regional Of- mammals taken by Alaskan Natives fice, NMFS, 7600 Sandpoint Way, N.E., for food, clothing, shelter, heating, Building 1, Seattle, WA 98115; or Re- transportation, and other uses nec- gional Administrator, Southeast Re- essary to maintain the life of the taker gional Office, NMFS, 9721 Executive or those who depend upon the taker to Center Drive North, St. Petersburg, FL provide them with such subsistence. 33702; or Regional Administrator, Subsistence uses means the customary Southwest Regional Office, NMFS, 501 and traditional uses of fur seals taken West Ocean Boulevard, Suite 4200, Long by Pribilovians for direct personal or Beach, CA 90802; or Regional Adminis- family consumption as food, shelter, trator, Pacific Islands Regional Office, fuel, clothing, tools or transportation; NMFS, 1601 Kapiolani Boulevard, Suite for the making and selling of handi- 1110, Honolulu, HI 96814; or Regional craft articles out of nonedible byprod- Administrator, Alaska Regional Office, ucts of fur seals taken for personal or NMFS, PO Box 21668, Juneau, AK 99802. family consumption; and for barter, or Rehabilitation means treatment of sharing for personal or family con- beached and stranded marine mammals sumption. As used in this definition— taken under section 109(h)(1) of the (1) Family means all persons related MMPA or imported under section by blood, marriage, or adoption, or any 109(h)(2) of the MMPA, with the intent person living within a household on a of restoring the marine mammal’s permanent basis. health and, if necessary, behavioral patterns. (2) Barter means the exchange of fur seals or their parts, taken for subsist- Secretary shall mean the Secretary of Commerce or his authorized represent- ence uses— ative. (i) For other wildlife or fish or their Serious injury means any injury that parts, or will likely result in mortality. (ii) For other food or for nonedible Sexual harassment means any unwel- items other than money if the ex- come sexual advance, request for sex- change is of a limited and noncommer- ual favors, or other verbal and physical cial nature. conduct of a sexual nature which has Take means to harass, hunt, capture, the purpose or effect of substantially collect, or kill, or attempt to harass, interfering with an individual’s work hunt, capture, collect, or kill any ma- performance or creating an intimi- rine mammal. This includes, without dating, hostile, or offensive working limitation, any of the following: The environment. collection of dead animals, or parts Soft part means any marine mammal thereof; the restraint or detention of a part that is not a hard part. Soft parts marine mammal, no matter how tem- do not include urine or fecal material. porary; tagging a marine mammal; the South Pacific Ocean means any waters negligent or intentional operation of of the Pacific Ocean that lie south of an aircraft or vessel, or the doing of the equator. any other negligent or intentional act Stranded or stranded marine mammal which results in disturbing or molest- means a marine mammal specimen ing a marine mammal; and feeding or under the jurisdiction of the Secretary: attempting to feed a marine mammal (1) If the specimen is dead, and is on in the wild. a beach or shore, or is in the water Threatened species means a species of within the Exclusive Economic Zone of marine mammal listed as ‘‘threatened’’ the United States; or pursuant to the Endangered Species (2) If the specimen is alive, and is on Act of 1973, 87 Stat. 884, Pub. L. 93–205. a beach or shore and is unable to re- Trip means a voyage starting when a turn to the water, or is in the water vessel leaves port with all fish wells within the Exclusive Economic Zone of empty of fish and ending when a vessel the United States where the water is so unloads all of its fish.

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Tuna product means any food product § 216.6 Forfeiture and return of seized processed for retail sale and intended property. for human or animal consumption that (a) Whenever any cargo or marine contains an item listed in mammal or marine mammal product § 216.24(f)(2)(i) or (ii), but does not in- has been seized pursuant to section 107 clude perishable items with a shelf life of the MMPA, the Secretary shall expe- of less than 3 days. dite any proceedings commenced under Wasteful manner means any taking or these regulations. method of taking which is likely to re- (b) Whenever a civil penalty has been sult in the killing of marine mammals assessed by the Secretary under these beyond those needed for subsistence, regulations, any cargo, marine mam- subsistence uses, or for the making of mal, or marine mammal product seized authentic native articles of handicrafts pursuant to section 107 of the MMPA and clothing, or which results in the shall be subject to forfeiture. If re- waste of a substantial portion of the spondent voluntarily forfeits any such marine mammal and includes, without seized property or the monetary value limitation, the employment of a meth- thereof without court proceedings, the od of taking which is not likely to as- Secretary may apply the value thereof, sure the capture or killing of a marine if any, as determined by the Secretary, mammal, or which is not immediately toward payment of the civil penalty. (c) Whenever a civil penalty has been followed by a reasonable effort to re- assessed under these regulations, and trieve the marine mammal. whether or not such penalty has been [39 FR 1852, Jan. 15, 1974] paid, the Secretary may request the Attorney General to institute a civil EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 216.3, see the List of Sec- action in an appropriate United States tions Affected, which appears in the Finding District Court to compel forfeiture of Aids section of the printed volume and on such seized property or the monetary GPO Access. value thereof to the Secretary for disposition by him in such manner as he § 216.4 Other laws and regulations. deems appropriate. If no judicial action (a) Federal. Nothing in this part, nor to compel forfeiture is commenced any permit issued under authority of within 30 days after final decision- making assessment of a civil penalty, this part, shall be construed to relieve pursuant to § 216.60, such seized prop- a person from any other requirements erty shall immediately be returned to imposed by a statute or regulation of the respondent. the United States, including any appli- (d) If the final decision of the Sec- cable statutes or regulations relating retary under these regulations is that to wildlife and fisheries, health, quar- respondent has committed no violation antine, agriculture, or customs. of the MMPA or of any permit or regu- (b) State laws or regulations. See part lations issued thereunder, any marine 403 of this chapter. mammal, marine mammal product, or [39 FR 1852, Jan. 15, 1974, as amended at 41 other cargo seized from respondent in FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, connection with the proceedings under 1993] these regulations, or the bond or other monetary value substituted therefor, § 216.5 Payment of penalty. shall immediately be returned to the The respondent shall have 30 days respondent. from receipt of the final assessment de- (e) If the Attorney General com- cision within which to pay the penalty mences criminal proceedings pursuant to section 105(b) of the MMPA, and assessed. Upon a failure to pay the pen- such proceedings result in a finding alty, the Secretary may request the that the person accused is not guilty of Attorney General to institute a civil a criminal violation of the MMPA, the action in the appropriate United States Secretary may institute proceedings District Court to collect the penalty. for the assessment of a civil penalty [39 FR 1852, Jan. 15, 1974. Redesignated at 46 under this part: Provided, That if no FR 61652, Dec. 18, 1981] such civil penalty proceedings have

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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, tion 107(b) of the MMPA, the Secretary and shall identify the respondent, the may also designate officers and em- seized property, and, if appropriate, the ployees of any State or of any posses- bailee of the seized property. It shall sion of the United States to enforce the also provide that upon presentation of provisions of this MMPA. the letter and proper identification, [39 FR 1852, Jan. 15, 1974. Redesignated at 46 the seized property is authorized to be FR 61652, Dec. 18, 1981, and amended at 59 FR released. All charges for storage, care, 50375, Oct. 3, 1994] or handling of the seized property accruing 5 days or more after the date of Subpart B—Prohibitions the return receipt shall be for the account of the respondent: Provided, That § 216.11 Prohibited taking. if it is the final decision of the Sec- Except as otherwise provided in sub- retary under these regulations that the parts C, D, and I of this part 216 or in respondent has committed the alleged part 228 or 229, it is unlawful for: violation, all charges which have ac- (a) Any person, vessel, or conveyance crued for the storage, care, or handling subject to the jurisdiction of the of the seized property shall be for the United States to take any marine mammal on the high seas, or account of the respondent. (b) Any person, vessel, or conveyance [39 FR 1852, Jan. 15, 1974. Redesignated at 46 to take any marine mammal in waters FR 61652, Dec. 18, 1981, and amended at 59 FR or on lands under the jurisdiction of 50375, Oct. 3, 1994] the United States, or (c) Any person subject to the juris- § 216.7 Holding and bonding. diction of the United States to take (a) Any marine mammal, marine any marine mammal during the mora- mammal product, or other cargo seized torium. pursuant to section 107 of the MMPA [39 FR 1852, Jan. 15, 1974, as amended at 47 shall be delivered to the appropriate FR 21254, May 18, 1982; 54 FR 21921, May 19, Regional Director of the National Ma- 1989] rine Fisheries Service (see § 201.2 of this title) or his designee, who shall either § 216.12 Prohibited importation. hold such seized property or arrange (a) Except as otherwise provided in for the proper handling and care of subparts C and D of this part 216, it is such seized property. unlawful for any person to import any (b) Any arrangement for the handling marine mammal or marine mammal and care of seized property shall be in product into the United States. writing and shall state the compensa- (b) Regardless of whether an importation to be paid. Subpart F of 15 CFR tion is otherwise authorized pursuant to subparts C and D of this part 216, it part 904 contains additional procedures is unlawful for any person to import that govern seized property that is sub- into the United States any: ject to forfeiture or has been forfeited (1) Marine mammal: under the MMPA. (i) Taken in violation of the MMPA, [39 FR 1852, Jan. 15, 1974. Redesignated at 46 or FR 61652, Dec. 18, 1981, and amended at 50 FR (ii) Taken in another country in vio- 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] lation to the laws of that country;

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(2) Any marine mammal product if commercial fishery, any means or (i) The importation into the United method of fishing in contravention of States of the marine mammal from regulations and limitations issued by which such product is made would be the Secretary of Commerce for that unlawful under paragraph (b)(1) of this fishery to achieve the purposes of this section, or MMPA. (ii) The sale in commerce of such (d) Any person to violate any term, product in the country of origin if the condition, or restriction of any permit product is illegal. issued by the Secretary. (c) Except in accordance with an ex- [39 FR 1852, Jan. 15, 1974, as amended at 59 ception referred to in subpart C and FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May §§ 216.31 (regarding scientific research 10, 1996] permits only) and 216.32 of this part 216, it is unlawful to import into the United § 216.14 Marine mammals taken before States any: the MMPA. (1) Marine mammal which was preg- (a) Section 102(e) of the MMPA pro- nant at the time of taking. vides, in effect, that the MMPA shall (2) Marine mammal which was nurs- not apply to any marine mammal ing at the time of taking, or less than taken prior to December 21, 1972, or to 8 months old, whichever occurs later. any marine mammal product, con- (3) Specimen of an endangered or sisting of or composed in whole or in threatened species of marine mammal. part of, any marine mammal taken be- (4) Specimen taken from a depleted fore that date. This prior status of any species or stock of marine mammals, marine mammal or marine mammal or product may be established by submit- (5) Marine mammal taken in an inhu- ting to the Director, National Marine mane manner. Fisheries Service prior to, or at the (d) It is unlawful to import into the time of importation, an affidavit con- United States any fish, whether fresh, taining the following: frozen, or otherwise prepared, if such (1) The Affiant’s name and address; fish was caught in a manner proscribed (2) Identification of the Affiant; by the Secretary of Commerce for per- (3) A description of the marine mam- sons subject to the jurisdiction of the mals or marine mammal products United States, whether or not any ma- which the Affiant desires to import; rine mammals were in fact taken inci- (4) A statement by the Affiant that, dent to the catching of the fish. to the best of his knowledge and belief, the marine mammals involved in the [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] application were taken prior to Decem- ber 21, 1972; § 216.13 Prohibited uses, possession, (5) A statement by the Affiant in the transportation, sales, and permits. following language: It is unlawful for: The foregoing is principally based on the (a) Any person to use any port, har- attached exhibits which, to the best of my bor or other place under the jurisdic- knowledge and belief, are complete, true and tion of the United States for any pur- correct. I understand that this affidavit is pose in any way connected with a pro- being submitted for the purpose of inducing the Federal Government to permit the im- hibited taking or an unlawful importa- portation of—under the Marine Mammal tion of any marine mammal or marine Protection Act of 1972 (16 U.S.C. 1361 through mammal product; or 1407) and regulations promulgated there- (b) Any person subject to the juris- under, and that any false statements may diction of the United States to possess subject me to the criminal penalties of 13 any marine mammal taken in violation U.S.C. 1001, or to penalties under the Marine of the MMPA or these regulations, or Mammal Protection Act of 1972. to transport, sell, or offer for sale any (b) Either one of two exhibits shall be such marine mammal or any marine attached to such affidavit, and will mammal product made from any such contain either: mammal. (1) Records or other available evi- (c) Any person subject to the juris- dence showing that the product con- diction of the United States to use in a sists of or is composed in whole or in

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part of marine mammals taken prior to L in the waters of, but not limited to, the effective date of the MMPA. Such the inland waterways of southern Brit- records or other evidentiary material ish Columbia and Washington, includ- must include information on how, ing the Georgia Strait, the Strait of when, where, and by whom the animals Juan de Fuca, and Puget Sound. were taken, what processing has taken (i) AT1 stock of killer whales place since taking, and the date and lo- (Orcinus orca). The stock includes all cation of such processing; or killer whales belonging to the AT1 (2) A statement from a government group of transient killer whales occur- agency of the country of origin exer- ring primarily in waters of Prince Wil- cising jurisdiction over marine mam- liam Sound, Resurrection Bay, and the mals that any and all such mammals Kenai Fjords region of Alaska. from which the products sought to be imported were derived were taken prior [53 FR 17899, May 18, 1988, as amended at 58 to December 21, 1972. FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, (c) No pre-Act marine mammal or Oct. 3, 1994; 65 FR 34597, May 31, 2000; 68 FR pre-Act marine mammal product may 31983, May 29, 2003; 69 FR 31324, June 3, 2004] be imported unless the requirements of this section have been fulfilled. § 216.16 Prohibitions under the Gen- (d) This section has no application to eral Authorization for Level B har- any marine mammal or marine mam- assment for scientific research. mal product intended to be imported It shall be unlawful for any person pursuant to §§ 216.21, 216.31 or § 216.32. to: [39 FR 1852, Jan. 15, 1974, as amended at 59 (a) Provide false information in a let- FR 50375, 50376, Oct. 3, 1994] ter of intent submitted pursuant to § 216.45(b); § 216.15 Depleted species. (b) Violate any term or condition im- The following species or population posed pursuant to § 216.45(d). stocks have been designated by the As- [59 FR 50376, Oct. 3, 1994] sistant Administrator as depleted under the provisions of the MMPA. (a) Hawaiian monk seal (Monachus Subpart C—General Exceptions schauinslandi). § 216.21 Actions permitted by inter- (b) Bowhead whale (Balaena mystice- national treaty, convention, or tus). agreement. (c) North Pacific fur seal (Callorhinus The MMPA and these regulations ursinus). Pribilof Island population. (d) Bottlenose dolphin (Tursiops shall not apply to the extent that they truncatus), coastal-migratory stock are inconsistent with the provisions of along the U.S. mid-Atlantic coast. any international treaty, convention (e) Eastern spinner dolphin (Stenella or agreement, or any statute imple- longirostris orientalis). menting the same relating to the tak- (f) Northeastern offshore spotted dol- ing or importation of marine mammals phin (Stenella attenuata). or marine mammal products, which (g) Cook Inlet, Alaska, stock of was existing and in force prior to De- beluga whales (Delphinapterus leucas). cember 21, 1972, and to which the The stock includes all beluga whales United States was a party. Specifi- occurring in waters of the Gulf of Alas- cally, the regulations in subpart B of ka north of 58° North latitude includ- this part and the provisions of the ing, but not limited to, Cook Inlet, MMPA shall not apply to activities Kamishak Bay, Chinitna Bay, Tuxedni carried out pursuant to the Interim Bay, Prince William Sound, Yakutat Convention on the Conservation of Bay, Shelikof Strait, and off Kodiak Is- North Pacific Fur Seals signed at land and freshwater tributaries to Washington on February 9, 1957, and these waters. the Fur Seal Act of 1966, 16 U.S.C. 1151 (h) Eastern North Pacific Southern through 1187, as in each case, from Resident stock of killer whales time to time amended. (Orcinus orca). The stock includes all [39 FR 1852, Jan. 15, 1974, as amended at 59 resident killer whales in pods J, K, and FR 50376, Oct. 3, 1994]

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§ 216.22 Taking by State or local gov- (c) Salvage of dead stranded marine ernment officials. mammals or parts therefrom and sub- (a) A State or local government offi- sequent transfer. cial or employee may take a marine (1) Salvage. In the performance of of- mammal in the normal course of his ficial duties, a state or local govern- duties as an official or employee, and ment employee; an employee of the Na- no permit shall be required, if such tional Marine Fisheries Service, the taking: U.S. Fish and Wildlife Service, or any other Federal agency with jurisdiction (1) Is accomplished in a humane and conservation responsibilities in manner; marine shoreline areas; or a person au- (2) Is for the protection or welfare of thorized under 16 U.S.C. 1382(c) may such mammal or for the protection of take and salvage a marine mammal the public health or welfare; and specimen if it is stranded and dead or it (3) Includes steps designed to insure was stranded or rescued and died dur- return of such mammal, if not killed in ing treatment, transport, captivity or the course of such taking, to its nat- other rehabilitation subsequent to that ural habitat. In addition, any such offi- stranding or distress if salvage is for cial or employee may, incidental to the purpose of utilization in scientific such taking, possess and transport, but research or for the purpose of mainte- not sell or offer for sale, such mammal nance in a properly curated, profes- and use any port, harbor, or other place sionally accredited scientific collec- under the jurisdiction of the United tion. States. All steps reasonably prac- (2) Registration. A person salvaging a ticable under the circumstances shall dead marine mammal specimen under be taken by any such employee or offi- this section must register the salvage cial to prevent injury or death to the of the specimen with the appropriate marine mammal as the result of such Regional Office of the National Marine taking. Where the marine mammal in Fisheries Service within 30 days after question is injured or sick, it shall be the taking or death occurs. The reg- permissible to place it in temporary istration must include: captivity until such time as it is able (i) The name, address, and any offi- to be returned to its natural habitat. It cial position of the individual engaged shall be permissible to dispose of a car- in the taking and salvage; cass of a marine mammal taken in ac- (ii) A description of the marine mam- cordance with this subsection whether mal specimen salvaged including the the animal is dead at the time of tak- scientific and common names of the ing or dies subsequent thereto. species; (b) Each taking permitted under this (iii) A description of the parts section shall be included in a written salvaged; report to be submitted to the Secretary (iv) The date and the location of the every six months beginning December taking; 31, 1973. Unless otherwise permitted by (v) Such other information as deemed the Secretary, the report shall contain necessary by the Assistant Adminis- a description of: trator. (1) The animal involved; (3) Identification and curation. The Re- (2) The circumstances requiring the gional Director will assign a single taking; unique number to each carcass, and the (3) The method of taking; parts thereof, that are salvaged under (4) The name and official position of the provisions of this section. The per- the State official or employee involved; son who salvaged the specimen may (5) The disposition of the animal, in- designate the number to be assigned. cluding in cases where the animal has After this number is assigned, the per- been retained in captivity, a descrip- son who salvaged the specimen must tion of the place and means of confine- permanently mark that number on ment and the measures taken for its each separate hard part of that speci- maintenance and care; and men and must affix that number with (6) Such other information as the tags or labels to each soft part of that Secretary may require. specimen or the containers in which

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that soft part is kept. Each specimen Service grants prior written authoriza- salvaged under this section must be tion for the transfer. The Regional Di- curated in accordance with profes- rector may grant authorization for the sional standards. transfer if there is evidence that the (4) No sale or commercial trade. No per- conditions listed under paragraphs son may sell or trade for commercial (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this purposes any marine mammal speci- section are met. men salvaged under this section. (7) Tranfers outside of the United (5) Transfer without prior authoriza- States. A person who salvages a marine tion. A person who salvages a marine mammal specimen, or a person who has mammal specimen under this section received a marine mammal specimen may transfer that specimen to another under the provisions of this section, person if: may not transfer that specimen to a (i) The person transferring the ma- person outside of the United States un- rine mammal specimen does not re- less the Assistant Administrator ceive remuneration for the specimen; grants prior written authorization for (ii) The person receiving the marine the transfer. The Assistant Adminis- mammal specimen is an employee of trator may grant authorization for the the National Marine Fisheries Service, transfer if there is evidence that the the U.S. Fish and Wildlife Service, or conditions listed under paragraphs any other Federal agency with jurisdic- (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this tion and conservation responsibilities section are met. in marine shoreline areas; is a person (8) Exceptions to requirements for notifi- authorized under 16 U.S.C. 1382(c); or is cation or prior authorization. A person a person who has received prior author- may transfer a marine mammal speci- ization under paragraph (c)(6) of this men salvaged under this section with- section; out the notification required in para- (iii) The marine mammal specimen is graph (c)(5)(v) of this section or the transferred for the purpose of scientific prior authorization required in para- research, for the purpose of mainte- graph (c)(6) of this section if: nance in a properly curated, profes- (i) The transfer is a temporary trans- sionally accredited scientific collec- fer to a laboratory or research facility tion, or for educational purposes; within the United States so that anal- (iv) The unique number assigned by yses can be performed for the person the National Marine Fisheries Service salvaging the specimen; or is on, marked on, or affixed to the ma- (ii) The transfer is a loan of not more rine mammal specimen or container; than 1 year to another professionally and accredited scientific collection within (v) Except as provided under para- the United States. graph (c)(8) of this section, the person [39 FR 1852, Jan. 15, 1974, as amended at 56 transferring the marine mammal speci- FR 41307, Aug. 20, 1991] men notifies the appropriate Regional Office of the National Marine Fisheries § 216.23 Native exceptions. Service of the transfer, including noti- (a) Taking. Notwithstanding the pro- fication of the number of the specimen hibitions of subpart B of this part 216, transferred and the person to whom the but subject to the restrictions con- specimen was transferred, within 30 tained in this section, any Indian, days after the transfer occurs. Aleut, or Eskimo who resides on the (6) Other transfers within the United coast of the North Pacific Ocean or the States. Except as provided under para- Arctic Ocean may take any marine graphs (c)(5) and (c)(8) of this section, a mammal without a permit, if such tak- person who salvages a marine mammal ing is: specimen, or who has received a marine (1) By Alaskan Natives who reside in mammal specimen under the provi- Alaska for subsistence, or sions of this section, may not transfer (2) For purposes of creating and sell- that specimen to another person within ing authentic native articles of handi- the United States unless the Regional craft and clothing, and Director of the appropriate Regional (3) In each case, not accomplished in Office of the National Marine Fisheries a wasteful manner.

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(b) Restrictions. (1) No marine mam- (ii) A description of the applicant’s mal taken for subsistence may be sold procedures for receiving, storing, proc- or otherwise transferred to any person essing, and shipping materials; other than an Alaskan Native or deliv- (iii) A proposal for a system of book- ered, carried, transported, or shipped in keeping and/or inventory segregation interstate or foreign commerce, unless: by which the applicant could maintain (i) It is being sent by an Alaskan Na- accurate records of marine mammals tive directly or through a registered received from Indians, Aleuts, or Eski- agent to a tannery registered under mos pursuant to this section; paragraph (c) of this section for the (iv) Such other information as the purpose of processing, and will be re- Secretary may request; turned directly or through a registered (v) A certification in the following agent to the Alaskan Native; or language: (ii) It is sold or transferred to a reg- I hereby certify that the foregoing infor- istered agent in Alaska for resale or mation is complete, true and correct to the transfer to an Alaskan Native; or best of my knowledge and belief. I under- (iii) It is an edible portion and it is stand that this information is submitted for sold in an Alaskan Native village or the purpose of obtaining the benefit of an ex- town. ception under the Marine Mammal Protec- tion Act of 1972 (16 U.S.C. 1361 through 1407) (2) No marine mammal taken for pur- and regulations promulgated thereunder, and poses of creating and selling authentic that any false statement may subject me to native articles of handicraft and cloth- the criminal penalties of 18 U.S.C. 1001, or to ing may be sold or otherwise trans- penalties under the Marine Mammal Protec- ferred to any person other than an In- tion Act of 1972. dian, Aleut or Eskimo, or delivered, (vi) The signature of the applicant. carried, transported or shipped in The sufficiency of the application shall interstate or foreign commerce, unless: be determined by the Secretary, and in (i) It is being sent by an Indian, that connection, he may waive any re- Aleut or Eskimo directly or through a quirement for information, or require registered agent to a tannery reg- any elaboration or further information istered under paragraph (c) of this sec- deemed necessary. The registration of tion for the purpose of processing, and a tannery or other agent shall be sub- will be returned directly or through a ject to such conditions as the Sec- registered agent to the Indian, Aleut or retary prescribes, which may include, Eskimo; or but are not limited to, provisions re- (ii) It is sold or transferred to a reg- garding records, inventory segregation, istered agent for resale or transfer to reports, and inspection. The Secretary an Indian, Aleut, or Eskimo; or may charge a reasonable fee for proc- (iii) It has first been transformed essing such applications, including an into an authentic native article of appropriate apportionment of overhead handicraft or clothing; or and administrative expenses of the De- (iv) It is an edible portion and sold partment of Commerce. (A) in an Alaskan Native village or (d) Notwithstanding the preceding town, or (B) to an Alaskan Native for provisions of this section, whenever, his consumption. under the MMPA, the Secretary deter- (c) Any tannery, or person who wish- mines any species of stock of marine es to act as an agent, within the juris- mammals to be depleted, he may pre- diction of the United States may apply scribe regulations pursuant to section to the Director, National Marine Fish- 103 of the MMPA upon the taking of eries Service, U.S. Department of Com- such marine animals by any Indian, merce, Washington, DC 20235, for reg- Aleut, or Eskimo and, after promulga- istration as a tannery or an agent tion of such regulations, all takings of which may possess and process marine such marine mammals shall conform mammal products for Indians, Aleuts, to such regulations. or Eskimos. The application shall in- (e) Marking and reporting of Cook Inlet clude the following information: Beluga Whales. (1) Definitions. In addi- (i) The name and address of the appli- tion to definitions contained in the cant; MMPA and the regulations in this part:

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(i) Reporting means the collection and maintained in the NMFS Alaska Re- delivery of biological data, harvest gional Office in Juneau, Alaska, where data, and other information regarding such data will be available for public the effect of taking a beluga whale review. (Delphinapterus leucas) from Cook Inlet, (4) No person may falsify any infor- as required by NMFS. mation required to be set forth on the (ii) Whaling captain or vessel operator reporting form as required by para- means the individual who is identified graph (e) of this section. by Alaskan Natives as the leader of (5) The Anchorage Field Office of each hunting team (usually the other NMFS is located in room 517 of the crew on the boat) and who is the whal- Federal Office Building, 222 West 7th ing captain; or the individual operating Avenue; its mailing address is: NMFS, the boat at the time the whale is har- Box 43, Anchorage, AK. 99513. vested or transported to the place of (f) Harvest management of Cook Inlet processing. beluga whales. (1) Cooperative manage- (iii) Cook Inlet means all waters of ment of subsistence harvest. Subject to Cook Inlet north of 59° North latitude, the provisions of 16 U.S.C. 1371(b) and including, but not limited to, waters of any further limitations set forth in Kachemak Bay, Kamishak Bay, § 216.23, any taking of a Cook Inlet Chinitna Bay, and Tuxedni Bay. beluga whale by an Alaska Native must (2) Marking. Each whaling captain or be authorized under an agreement for vessel operator, upon killing and land- the co-management of subsistence uses ing a beluga whale (Delphinapterus (hereinafter in this paragraph ‘‘co-man- leucas) from Cook Inlet, Alaska, must agement agreement’’) between the Na- remove the lower left jawbone, leaving tional Marine Fisheries Service and an the teeth intact and in place. When Alaska Native organization(s). multiple whales are harvested during (2) Limitations. (i) Sale of Cook Inlet one hunting trip, the jawbones will be beluga whale parts and products. Au- marked for identification in the field thentic Native articles of handicraft to ensure correct reporting of harvest and clothing made from nonedible by- information by placing a label marked products of beluga whales taken in ac- with the date, time, and location of cordance with the provisions of this harvest within the container in which paragraph may be sold in interstate the jawbone is placed. The jawbone(s) commerce. The sale of any other part must be retained by the whaling cap- or product, including food stuffs, from tain or vessel operator and delivered to Cook Inlet beluga whales is prohibited, NMFS at the Anchorage Field Office, provided that nothing herein shall be 222 West 7th Avenue, Anchorage, Alas- interpreted to prohibit or restrict cus- ka 99513 within 72 hours of returning tomary and traditional subsistence from the hunt. practices of barter and sharing of Cook (3) Reporting. Upon delivery to NMFS Inlet beluga parts and products. of a jawbone, the whaling captain or (ii) Beluga whale calves or adults with vessel operator must complete and calves. The taking of a calf or an adult mail a reporting form, available from whale accompanied by a calf is prohib- NMFS, to the NMFS Anchorage Field ited. Office within 30 days. A separate form (iii) Season. All takings of beluga is required for each whale harvested. whales authorized under § 216.23(f) shall (i) To be complete, the form must occur no earlier than July 1 of each contain the following information: the year. date and location of kill, the method of (iv) Taking during 2001–2004. The har- harvest, and the coloration of the vest of Cook Inlet beluga whales is re- whale. The respondent will also be in- stricted during the four-year period of vited to report on any other observa- 2001–2004 as follows: tions concerning the animal or cir- (A) Strike limitations. Subject to the cumstance of the harvest. suspension provision of subparagraph (ii) Data collected pursuant to para- (C), a total of six (6) strikes, which graph (e) of this section will be re- could result in up to six landings, are ported on forms obtained from the An- to be allocated through co-manage- chorage Field Office. These data will be ment agreement(s).

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(B) Strike allocations. Four strikes, (2)(i) It is unlawful for any person not to exceed one per year, are allo- using a United States purse seine fish- cated to the Native Village of Tyonek. ing vessel of 400 short tons (st) (362.8 The remaining two strikes will be allo- metric tons (mt)) carrying capacity or cated over the 4–year period through less to intentionally deploy a net on or co-management agreement with other to encircle dolphins, or to carry more Cook Inlet community hunters, with than two speedboats, if any part of its no more than one such strike being al- fishing trip is in the ETP. located during every other year. (ii) It is unlawful for any person (C) Emergency provisions. Takings of using a United States purse seine fish- beluga whales authorized under § 216.23 ing vessel of greater than 400 short tons will be suspended whenever unusual (362.8 mt) carrying capacity that does mortalities exceed six (6) whales in any not have a valid permit obtained under year. ‘‘Unusual mortalities’’ include all these regulations to catch, possess, or documented human-caused mortality land tuna if any part of the vessel’s (including illegal takings and net en- fishing trip is in the ETP. tanglements but excluding all legally (iii) It is unlawful for any person sub- harvested whales) and all documented ject to the jurisdiction of the United mortality resulting from unknown or States to receive, purchase, or possess natural causes that occur above nor- tuna caught, possessed, or landed in mal levels, considered for the purposes violation of paragraph (a)(2)(ii) of this of this provision to be twelve beluga section. whales per year. The level of unusual (iv) It is unlawful for a person subject mortalities shall be calculated by doc- to the jurisdiction of the United States umenting mortality for the calendar to intentionally deploy a purse seine year and subtracting twelve. The sum net on, or to encircle, dolphins from a of this result and the carry over of un- vessel operating in the ETP when the usual mortality from any previous year DML assigned to that vessel has been from which the population has not re- reached, or when there is not a DML covered is the level of unusual mortali- assigned to that vessel. ties for the current year. If in any year (3) Upon written request made in ad- the number of unusual mortalities ex- vance of entering the ETP, the limita- ceeds six whales, no strikes will be al- tions in paragraphs (a)(2)(i) and lowed in that year or in subsequent (a)(2)(ii) of this section may be waived years until the population has recov- by the Administrator, Southwest Re- ered from those mortalities through gion, for the purpose of allowing tran- foregone future harvests and natural sit through the ETP. The waiver will recruitment. provide, in writing, the terms and con- (v) Taking during 2005 and subsequent ditions under which the vessel must op- years. [Reserved] erate, including a requirement to report by radio to the Administrator, [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, Southwest Region, the vessel’s date of 1999; 69 FR 17980, Apr. 6, 2004] exit from or subsequent entry into the permit area. § 216.24 Taking and related acts inci- (b) Permits—(1) Vessel permit. The dental to commercial fishing oper- owner or managing owner of a United ations by tuna purse seine vessels States purse seine fishing vessel of in the eastern tropical Pacific greater than 400 st (362.8 mt) carrying Ocean. capacity that participates in commer- (a)(1) No marine mammal may be cial fishing operations in the ETP must taken in the course of a commercial possess a valid vessel permit issued fishing operation by a United States under this paragraph (b) of this sec- purse seine fishing vessel in the ETP tion. This permit is not transferable unless the taking constitutes an inci- and must be renewed annually. If a ves- dental catch as defined in § 216.3, and sel permit holder surrenders his/her vessel and operator permits have been permit to the Administrator, South- 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

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year. Vessel permits are valid through mals, of the vessel that is to be covered December 31 of each year. under the permit; (2) Operator permit. The person in (ii) A statement of whether the vessel charge of and actually controlling fish- will make sets involving the inten- ing operations (hereinafter referred to tional taking of marine mammals; as the operator) on a United States (iii) The type and identification num- purse seine fishing vessel engaged in ber(s) of Federal, State, and local com- commercial fishing operations under a mercial fishing licenses under which vessel permit must possess a valid op- vessel operations are conducted, and erator permit issued under paragraph the dates of expiration; (b) of this section. Such permits are (iv) The name(s) of the operator(s) not transferable and must be renewed anticipated to be used; and annually. To receive a permit, the op- (v) The name of the applicant, wheth- erator must have satisfactorily com- er he/she is the owner or the managing pleted all required training under para- owner, his/her address, telephone and graph (c)(4) of this section. The opera- fax numbers, and, if applicable, the tor’s permit is valid only when the per- name, address, telephone and fax num- mit holder is on a vessel with a valid bers of the agent or organization act- vessel permit. Operator permits will be ing on behalf of the vessel. valid through December 31 of each (5) Application for operator permit. A year. person wishing to operate a purse seine vessel may apply for an operator per- (3) Possession and display. A valid ves- mit from the Administrator, South- sel permit issued pursuant to para- west Region, allowing at least 45 days graph (b)(1) of this section must be on for processing. The application must be board the vessel while engaged in fish- signed by the applicant or the appli- ing operations, and a valid operator cant’s representative, if applicable, and permit issued pursuant to paragraph contain: (b)(2) of this section must be in the pos- (i) The name, address, telephone and session of the operator to whom it was fax numbers of the applicant; issued. Permits must be shown upon re- (ii) The type and identification num- quest to NMFS enforcement agents, or ber(s) of any Federal, state, and local to U.S. Coast Guard officers, or to des- fishing licenses held by the applicant; ignated agents of NMFS or the IATTC (iii) The name of the vessel(s) on (including observers). A vessel owner or which the applicant anticipates serving operator who is at sea on a fishing trip as an operator; and when his or her permit expires and to (iv) The date, location, and provider whom a permit for the next year has of any training for the operator permit. been issued may take marine mammals (6) Fees. (i) Vessel permit application under the terms of the new permit fees. An application for a permit under without having to display it on board paragraph (b)(1) of this section must the vessel until the vessel returns to include a fee for each vessel as speci- port. fied on the application form. The As- (4) Application for vessel permit. The sistant Administrator may change the owner or managing owner of a purse amount of this fee at any time if a dif- seine vessel may apply for a vessel per- ferent fee is determined in accordance mit from the Administrator, South- with the NOAA Finance Handbook and west Region, allowing at least 45 days specified by the Administrator, South- for processing. The application must be west Region, on the application form. signed by the applicant and contain: (ii) Operator permit fee. There is no fee (i) The name, official number, ton- for a operator permit under paragraph nage, carrying capacity in short or (b)(2) of this section. The Assistant Ad- metric tons, maximum speed in knots, ministrator may impose a fee or processing equipment, and type and change the amount of this fee at any 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.

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(iii) Observer placement fee. The vessel Southwest Region or the IATTC con- permit holder must submit the fee for tact designated by the Administrator, the placement of observers, as estab- Southwest Region, at least 5 days in lished by the IATTC or other approved advance of the vessel’s departure on a observer program, to the Adminis- fishing voyage to allow for observer trator, Southwest Region, by Sep- placement on every voyage. tember 1 of the year prior to the year (B) The vessel permit holder must no- in which the vessel will be operated in tify the Administrator, Southwest Re- the ETP. The Administrator, South- gion, or the IATTC contact designated west Region, will forward all observer by the Administrator, Southwest Re- placement fees to the IATTC or to the gion, of any change of vessel operator applicable international organization at least 48 hours prior to departing on approved by the Administrator, South- a trip. In the case of a change in oper- west Region. ator due to an emergency, notification (7) Application approval. The Adminis- must be made within 72 hours of the trator, Southwest Region, will deter- change. mine the adequacy and completeness of (v) Data release. By using a permit, an application and, upon determining the permit holder authorizes the re- that an application is adequate and lease to NMFS and the IATTC of all complete, will approve that application data collected by observers aboard and issue the appropriate permit, ex- purse seine vessels during fishing trips cept for applicants having unpaid or under the IATTC observer program or overdue civil penalties, criminal fines, another international observer pro- or other liabilities incurred in a legal gram approved by the Administrator, proceeding. Southwest Region. The permit holder (8) Conditions applicable to all per- must furnish the international ob- mits— (i) General Conditions. Failure to server program with all release forms comply with the provisions of a permit required to authorize the observer data or with these regulations may lead to to be provided to NMFS and the suspension, revocation, modification, IATTC. Data obtained under such re- or denial of a permit. The permit hold- leases will be used for the same pur- er, vessel, vessel owner, operator, or poses as would data collected directly master may be subject, jointly or sev- by observers placed by NMFS and will erally, to the penalties provided for be subject to the same standards of under the MMPA. Procedures gov- confidentiality. erning permit sanctions and denials are (9) Mortality and serious injury reports. found at subpart D of 15 CFR part 904. The Administrator, Southwest Region, (ii) Observer placement. By obtaining a will provide to the public periodic sta- permit, the permit holder consents to tus reports summarizing the estimated the placement of an observer on the incidental dolphin mortality and seri- vessel during every trip involving oper- ous injury by U.S. vessels of individual ations in the ETP and agrees to pay- species and stocks. ment of the fees for observer place- (c) Purse seining by vessels with DMLs. ment. No observer will be assigned to a In addition to the terms and conditions vessel unless that vessel owner has sub- set forth in paragraph (b) of this sec- mitted payment of observer fees to the tion, any permit for a vessel to which Administrator, Southwest Region. The a DML has been assigned under para- observers may be placed under an ob- graph (c)(8) of this section and any op- server program of NMFS, IATTC, or erator permit when used on such a ves- another international observer pro- sel are subject to the following terms gram approved by the IDCP and the and conditions: Administrator, Southwest Region. (1) A vessel may be used to chase and (iii) Explosives. The use of explosive encircle schools of dolphins in the ETP devices is prohibited during all tuna only under the immediate direction of purse seine operations that involve ma- the holder of a valid operator’s permit. rine mammals. (2) No retention of Marine Mammals. (iv) Reporting requirements. (A) The Except as otherwise authorized by a vessel permit holder of each permitted specific permit, marine mammals inci- vessel must notify the Administrator, dentally taken must be immediately

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returned to the ocean without further 3/8 inch (3.50 cm) diameter cylindrical- injury. The operator of a purse seine shaped object. vessel must take every precaution to (iv) Dolphin safety panel corkline refrain from causing or permitting in- hangings. Throughout the length of the cidental mortality or serious injury of corkline under which the dolphin safe- marine mammals. Live marine mam- ty panel and dolphin apron are located, mals must not be brailed, sacked up, or corkline hangings must be inspected by hoisted onto the deck during ortza re- the vessel operator following each trip. trieval. Hangings found to have loosened to the (3) Gear and equipment required for extent that a cylindrical object with a valid permit. A vessel possessing a ves- 1 3/8 inch (3.50 cm) diameter can be in- sel permit for purse seining involving serted between the cork and corkline the intentional taking of marine mam- hangings, must be tightened so as not mals may not engage in fishing oper- to allow the insertion of a cylindrical ations involving the intentional de- object with a 1 3/8 inch (3.50 cm) diame- ployment of the net on or encirclement ter. of dolphins unless it is equipped with a (v) Speedboats. A minimum of three dolphin safety panel in its purse seine, speedboats in operating condition must has the other required gear and equip- be carried. All speedboats carried ment, and uses the required proce- aboard purse seine vessels and in oper- dures. ating condition must be rigged with tow lines and towing bridles or towing (i) Dolphin safety panel. The dolphin posts. Speedboat hoisting bridles may safety panel must be a minimum of 180 not be substituted for towing bridles. fathoms in length (as measured before (vi) Raft. A raft suitable to be used as installation), except that the minimum a dolphin observation-and-rescue plat- length of the panel in nets deeper than form must be carried. 18 strips must be determined in a ratio (vii) Face mask and snorkel, or view of 10 fathoms in length for each strip of box. At least two face masks and snor- net depth. It must be installed so as to kels or view boxes must be carried. protect the perimeter of the backdown (viii) Lights. The vessel must be area. The perimeter of the backdown equipped with lights capable of pro- area is the length of corkline that be- ducing a minimum of 140,000 lumens of gins at the outboard end of the last output for use in darkness to ensure bowbunch pulled and continues to at sufficient light to observe that proce- least two-thirds the distance from the dures for dolphin release are carried backdown channel apex to the stern out and to monitor incidental dolphin tiedown point. The dolphin safety mortality. panel must consist of small mesh web- (4) Vessel inspection—(i) Annual. At bing not to exceed 1 1/4 inches (3.18 cen- least once during each calendar year, timeter (cm)) stretch mesh extending purse seine nets and other gear and downward from the corkline and, if equipment required under § 216.24(c)(2) present, the base of the dolphin apron must be made available for inspection to a minimum depth equivalent to two and for a trial set/net alignment by an strips of 100 meshes of 4 1/4 inches (10.80 authorized NMFS inspector or IATTC cm) stretch mesh webbing. In addition, staff as specified by the Administrator, at least a 20-fathom length of corkline Southwest Region, in order to obtain a must be free from bunchlines at the vessel permit. apex of the backdown channel. (ii) Reinspection. Purse seine nets and (ii) Dolphin safety panel markers. Each other gear and equipment required by end of the dolphin safety panel and dol- these regulations must be made avail- phin apron must be identified with an able for reinspection by an authorized easily distinguishable marker. NMFS inspector or IATTC staff as (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

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reinspection or trial set/net alignment so that all live dolphins are released is required. prior to the initiation of the sack-up (iii) Upon failure to pass an inspec- procedure. tion or reinspection, a vessel may not (ii) Prohibited use of sharp or pointed engage in purse seining involving the instrument. The use of a sharp or point- intentional taking of marine mammals ed instrument to remove any marine until the deficiencies in gear or equip- mammal from the net is prohibited. ment are corrected as required by (iii) Sundown sets prohibited. On every NMFS. set encircling dolphin, the backdown (5) Operator permit holder training re- procedure must be completed no later quirements. An operator must maintain than one-half hour after sundown, ex- proficiency sufficient to perform the cept as provided here. For the purpose procedures required herein, and must of this section, sundown is defined as attend and satisfactorily complete a the time at which the upper edge of the formal training session approved by sun disappears below the horizon or, if the Administrator, Southwest Region, the view of the sun is obscured, the in order to obtain his or her permit. At local time of sunset calculated from ta- the training session an attendee will be bles developed by the U.S. Naval Ob- instructed on the relevant provisions servatory or other authoritative source and regulatory requirements of the approved by the Administrator, South- MMPA and the IDCP, and the fishing west Region. A sundown set is a set in gear and techniques that are required which the backdown procedure has not for, or will contribute to, reducing seri- been completed and rolling the net to ous injury and mortality of dolphin in- sack-up has not begun within one-half cidental to purse seining for tuna. Op- hour after sundown. Should a set ex- erators who have received a written tend beyond one-half hour after sun- certificate of satisfactory completion down, the operator must use the re- of training and who possess a current quired marine mammal release proce- or previous calendar year permit will dures including the use of the high in- not be required to attend additional tensity lighting system. In the event a formal training sessions unless there sundown set occurs where the seine are substantial changes in the relevant skiff was let go 90 or more minutes be- provisions or implementing regulations fore sundown, and an earnest effort to of the MMPA or the IDCP, or in fishing rescue dolphins is made, the Inter- gear and techniques. Additional train- national Review Panel of the IDCP ing may be required for any operator may recommend to the United States who is found by the Administrator, that in the view of the International Southwest Region, to lack proficiency Review Panel, prosecution by the in the required fishing procedures or United States is not recommended. familiarity with the relevant provi- Any such recommendation will be con- sions or regulations of the MMPA or sidered by the United States in evalu- the IDCP. ating the appropriateness of prosecu- (6) Marine mammal release require- tion in a particular circumstance. ments. All operators must use the fol- (iv) Dolphin safety panel. During lowing procedures during all sets in- backdown, the dolphin safety panel volving the incidental taking of marine must be positioned so that it protects mammals in association with the cap- the perimeter of the backdown area. ture and landing of tuna. The perimeter of the backdown area is (i) Backdown procedure. Backdown the length of corkline that begins at must be performed following a purse the outboard end of the last bow bunch seine set in which dolphins are cap- pulled and continues to at least two- tured in the course of catching tuna, thirds the distance from the backdown and must be continued until it is no channel apex to the stern tiedown longer possible to remove live dolphins point. from the net by this procedure. At (7) Experimental fishing operations. least one crewman must be deployed The Administrator, Southwest Region, during backdown to aid in the release may authorize experimental fishing op- of dolphins. Thereafter, other release erations, consistent with the provi- procedures required will be continued sions of the IDCP, for the purpose of

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testing proposed improvements in fish- application, giving the reasons for de- ing techniques and equipment that nial. may reduce or eliminate dolphin mor- (iv) A waiver for an experimental tality or serious injury, or do not re- fishing operation will be valid only for quire the encirclement of dolphins in the vessels and operators named in the the course of fishing operations. The permit, for the time period and areas Administrator, Southwest Region, may specified, for trips carrying an observer waive, as appropriate, any require- designated by the Administrator, ments of this section except DMLs and Southwest Region, when all the terms the obligation to carry an observer. and conditions of the permit are met. (i) A vessel permit holder may apply (v) The Administrator, Southwest to the Administrator, Southwest Re- Region, may suspend or revoke an ex- gion, for an experimental fishing oper- perimental fishing waiver in accord- ation waiver allowing for processing no ance with 15 CFR part 904 if the terms less than 90 days before the date the and conditions of the waiver or the pro- proposed operation is intended to visions of the regulations are not fol- begin. An application must be signed lowed. by the permitted operator and contain: (8) Operator permit holder performance (A) The name(s) of the vessel(s) and requirements. [Reserved] the vessel permit holder(s) to partici- (9) Vessel permit holder dolphin mor- pate; tality limits. For purposes of this para- (B) A statement of the specific vessel graph, the term ‘‘vessel permit holder’’ gear and equipment or procedural re- includes both the holder of a current quirement to be exempted and why vessel permit and also the holder of a such an exemption is necessary to con- vessel permit for the following year. duct the experiment; (i) By September 1 each year, a vessel (C) A description of how the proposed permit holder desiring a DML for the modification to the gear and equip- following year must provide to the Ad- ment or procedures is expected to re- ministrator, Southwest Region, the duce incidental mortality or serious in- name of the United States purse seine jury of marine mammals; fishing vessel(s) of carrying capacity (D) A description of the applicability greater than 400 st (362.8 mt) carrying of this modification to other purse capacity that the owner intends to use seine vessels; to intentionally deploy purse seine (E) The planned design, time, dura- fishing nets in the ETP to encircle dol- tion, and general area of the experi- phins in an effort to capture tuna dur- mental operation; ing the following year. NMFS will for- (F) The name(s) of the permitted op- ward the list of purse seine vessels to erator(s) of the vessel(s) during the ex- the Director of the IATTC on or before periment; and October 1, or as otherwise required by (G) A statement of the qualifications the IDCP, for assignment of a DML for of the individual or company doing the the following year under the provisions analysis of the research. of Annex IV of the Agreement on the (ii) The Administrator, Southwest IDCP. Region, will acknowledge receipt of the (ii) Each vessel permit holder that application and, upon determining that desires a DML only for the period be- it is complete, will publish a notice in tween July 1 to December 31 must pro- the FEDERAL REGISTER summarizing vide the Administrator, Southwest Re- the application, making the full appli- gion, by September 1 of the prior year, cation available for inspection and in- the name of the United States purse viting comments for a minimum period seine fishing vessel(s) of greater than of 30 days from the date of publication. 400 st (362.8 mt) carrying capacity that (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

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otherwise required under the IDCP, for December 31, unless the failure to set possible assignment of a DML for the 6- on dolphins is due to force majeure or month period July 1 to December 31. extraordinary circumstances as deter- Under the IDCP, the DML will be cal- mined by the International Review culated by the IDCP from any unuti- Panel. lized pool of DMLs in accordance with (C) Any vessel that loses its DML for the procedure described in Annex IV of 2 consecutive years will not be eligible the Agreement on the IDCP and will to receive a DML for the following not exceed one-third of an unadjusted year. full-year DML as calculated by the (D) NMFS will determine, based on IDCP. available information, whether a vessel (iii)(A) The Administrator, South- has left the fishery. west Region, will notify vessel owners (1) A vessel lost at sea, undergoing of the DML assigned for each vessel for extensive repairs, operating in an the following year, or the second half ocean area other than the ETP, or for of the year, as applicable. which other information indicates will (B) The Administrator, Southwest no longer be conducting purse seine op- Region, may adjust the DMLs in ac- erations in the ETP for the remainder cordance with Annex IV of the Agree- of the period covered by the DML will ment on the IDCP. All adjustments of be determined to have left the fishery. full-year DMLs will be made before (2) NMFS will make all reasonable ef- January 1, and the Administrator, forts to determine the intentions of the Southwest Region, will notify the Di- vessel owner, and the owner of any ves- rector of the IATTC of any adjust- sel that has been preliminarily deter- ments prior to a vessel departing on a mined to have left the fishery will be trip using its adjusted DML. The noti- provided notice of such preliminary de- fication will be no later than February termination and given the opportunity 1 in the case of adjustments to full- to provide information on whether the year DMLs, and no later than May 1 in vessel has left the fishery prior to the case of adjustments to DMLs for NMFS making a final determination the second half of the year. under 15 CFR part 904 and notifying the (C) Within the requirements of Annex IATTC. IV of the Agreement on the IDCP, the (v) Any vessel that exceeds its as- Administrator, Southwest Region, may signed DML after any applicable ad- adjust a vessel’s DML if it will further justment under paragraph (c)(8)(iii) of scientific or technological advance- this section will have its DML for the ment in the protection of marine mam- subsequent year reduced by 150 percent mals in the fishery or if the past per- of the overage, unless another adjust- formance of the vessel indicates that ment is determined by the Inter- the protection or use of the yellowfin national Review Panel. tuna stocks or marine mammals is best (vi) A vessel that is covered by a served by the adjustment, within the valid vessel permit and that does not mandates of the MMPA. Experimental normally fish for tuna in the ETP but fishing operation waivers or scientific desires to participate in the fishery on research permits will be considered a a limited basis may apply for a per-trip basis for adjustments. DML from the Administrator, South- (iv)(A) A vessel assigned a full-year west Region, at any time, allowing at DML that does not make a set on dol- least 60 days for processing. The re- phins by April 1 or that leaves the fish- quest must state the expected number ery will lose its DML for the remainder of trips involving sets on dolphins and of the year, unless the failure to set on the anticipated dates of the trip or dolphins is due to force majeure or other trips. The request will be forwarded to 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

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dolphins during that trip, the vessel signed to the U.S. fleet has been will be considered to have lost its DML reached or exceeded, or is expected to unless this was a result of force majeure be exceeded in the near future. or other extraordinary circumstances (xi) Sanctions recommended by the as determined by the International Re- International Review Panel for any view Panel. After two consecutive violation of these rules will be consid- losses of a DML, a vessel will not be el- ered by NMFS and NOAA in enforce- igible to receive a DML for the next ment actions brought under these regu- fishing year. lations. (vii) Observers will make their (xii) Intentionally deploying a purse records available to the vessel operator seine net on, or to encircle, dolphins at any reasonable time, including after after a vessel’s DML, as adjusted, has each set, in order for the operator to been reached will disqualify the vessel monitor the balance of the DML(s) re- from consideration for a DML for the maining for use. following year. If already assigned, the (viii) Vessel and operator permit DML for the following year will be holders must not deploy a purse seine withdrawn, and the Director of the net on or encircle any school of dol- IATTC will be notified by NMFS that phins containing individuals of a par- the DML assigned to that vessel will be ticular stock of dolphins: unutilized. Procedures found at 15 CFR (A) When the applicable per-stock part 904 apply to the withdrawal of the per-year dolphin mortality limit for permit. that stock of dolphins (or for that ves- (d) Purse seining by vessels without as- sel, if so assigned) has been reached or signed DMLs. In addition to the re- exceeded; or (B) After the time and date provided quirements of paragraph (b) of this sec- in actual notification or notification in tion, a vessel permit used for a trip not involving an assigned DML and the op- the FEDERAL REGISTER by the Adminis- trator, Southwest Region, based upon erator’s permit when used on such a the best available evidence, stating vessel are subject to the following when any applicable per-stock per-year terms and conditions: a permit holder dolphin mortality limit has been may take marine mammals provided reached or exceeded, or is expected to that such taking is an accidental oc- be reached in the near future. currence in the course of normal com- (ix) If individual dolphins belonging mercial fishing operations and the ves- to a stock that is prohibited from being sel does not intentionally deploy its taken are not reasonably observable at net on, or to encircle, dolphins; marine the time the net skiff attached to the mammals taken incidental to such net is released from the vessel at the commercial fishing operations must be start of a set, the fact that individuals immediately returned to the environ- of that stock are subsequently taken ment where captured without further will not be cause for enforcement ac- injury, using release procedures such tion provided that all procedures re- as hand rescue, and aborting the set at quired by the applicable regulations the earliest effective opportunity; the have been followed. use of one or more rafts and face masks (x) Vessel and operator permit hold- or view boxes to aid in the rescue of ers must not intentionally deploy a dolphins is recommended. purse seine net on or encircle dolphins (e) Observers: (1) The holder of a ves- intentionally: sel permit must allow an observer duly (A) When the vessel’s DML, as ad- authorized by the Administrator, justed, is reached or exceeded; or Southwest Region, to accompany the (B) After the date and time provided vessel on all fishing trips in the ETP in actual notification by letter, fac- for the purpose of conducting research simile, radio, or electronic mail, or no- and observing operations, including tice in the FEDERAL REGISTER by the collecting information that may be Administrator, Southwest Region, used in civil or criminal penalty pro- based upon the best available evidence, ceedings, forfeiture actions, or permit that intentional sets on dolphins must sanctions. A vessel that fails to carry cease because the total of the DMLs as- an observer in accordance with these

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requirements may not engage in fish- which it occurred, will be considered. ing operations. The determination of the legality of a (2) Research and observation duties particular action will be made from the will be carried out in such a manner as facts on a case-by-case basis. to minimize interference with commer- (5)(i) All observers must be provided cial fishing operations. Observers must sleeping, toilet and eating accommoda- be provided access to vessel personnel tions at least equal to that provided to and to dolphin safety gear and equip- a full crew member. A mattress or ment, electronic navigation equip- futon on the floor or a cot is not ac- ment, radar displays, high powered bin- ceptable in place of a regular bunk. oculars, and electronic communication Meal and other galley privileges must equipment. The navigator must provide be the same for the observer as for true vessel locations by latitude and other crew members. longitude, accurate to the nearest (ii) Female observers on a vessel with minute, upon request by the observer. an all-male crew must be accommo- Observers must be provided with ade- dated either in a single-person cabin quate space on the bridge or pilothouse or, if reasonable privacy can be ensured for clerical work, as well as space on by installing a curtain or other tem- deck adequate for carrying out ob- porary divider, in a two-person cabin server duties. No vessel owner, master, shared with a licensed officer of the operator, or crew member of a per- vessel. If the cabin assigned to a female mitted vessel may impair, or in any observer does not have its own toilet way interfere with, the research or ob- and shower facilities that can be pro- servations being carried out. Masters vided for the exclusive use of the ob- must allow observers to use vessel server, then a schedule for time-shar- communication equipment to report ing common facilities must be estab- information concerning the take of lished before the placement meeting marine mammals and other observer and approved by NMFS or other ap- collected data upon request of the ob- proved observer program and must be server. followed during the entire trip. (3) Any marine mammals killed dur- (iii) In the event there are one or ing fishing operations that are acces- more female crew members, the female sible to crewmen and requested from observer must be provided a bunk in a the permit holder or master by the ob- cabin shared solely with female crew server must be brought aboard the ves- members, and provided toilet and sel and retained for biological proc- shower facilities shared solely with essing, until released by the observer these female crew members. for return to the ocean. Whole marine (f) Importation, purchase, shipment, mammals or marine mammal parts sale and transport. (1)(i) It is illegal to designated as biological specimens by import into the United States any fish, the observer must be retained in cold whether fresh, frozen, or otherwise pre- storage aboard the vessel until re- pared, if the fish have been caught with trieved by authorized personnel of commercial fishing technology that re- NMFS or the IATTC when the vessel sults in the incidental kill or inci- returns to port for unloading. dental serious injury of marine mam- (4) It is unlawful for any person to mals in excess of that allowed under forcibly assault, impede, intimidate, this part for U.S. fishermen, or as spec- interfere with, or to influence or at- ified at paragraphs (f)(7) through (f)(9) tempt to influence an observer, or to of this section. harass (including sexual harassment) (ii) For purposes of this paragraph(f), an observer by conduct which has the and in applying the definition of an 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, ‘‘im- constitutes harassment, the totality of port’’ 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

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tuna embargo. The following U.S. Har- (A) Frozen: monized Tariff Schedule (HTS) num- 0303.41.0000 Albacore or longfinned tunas, frozen. bers identify yellowfin tuna or yel- 0303.43.0000 Skipjack, frozen. lowfin tuna products that are har- 0303.49.0020 Bluefin, frozen. vested in the ETP purse seine fishery 0303.49.0040 Other tuna, frozen. (B) Canned: and imported into the United States. 1604.14.2020 Albacore tuna, in airtight containers, All shipments containing tuna or tuna not in oil, not over 7kg, in quota. products imported into the United 1604.14.3020 Albacore tuna, in airtight containers, States under these HTS numbers must not in oil, not in quota. be accompanied by a Fisheries Certifi- (iii) Exports from driftnet nations only: cate of Origin (FCO), NOAA Form 370. HTS numbers requiring a Fisheries Cer- Yellowfin tuna identified by any of the tificate of Origin and official certification. following HTS numbers that was har- The following HTS numbers identify vested using a purse seine in the ETP categories of fish and shellfish, other may not be imported into the United than those identified in paragraphs States unless both the nation with ju- (f)(2)(i) and (f)(2)(ii) of this section, risdiction over the harvesting vessel known to have been harvested using a and the exporting nation (if different) large-scale driftnet and imported into have an affirmative finding under para- the United States. Shipments exported graph (f)(9) of this section. from a large-scale driftnet nation and (A) Frozen: imported into the United States under 0303.42.0020 Yellowfin tuna, whole, frozen. any of the HTS numbers listed in para- 0303.42.0040 Yellowfin tuna, eviscerated, head on, frozen. graph (f)(2) of this section must be ac- 0303.42.0060 Yellowfin tuna, other, frozen. companied by an FCO and the official (B) Canned: statement described in paragraph 1604.14.1000 Tuna, non-specific, in airtight containers, in oil. (f)(5)(x) of this section. 1604.14.2040 Tuna, other than albacore, not over (A) Frozen: 7kg, in airtight containers. 0303.10.0012 Salmon, chinook, frozen. 1604.14.3040 Tuna, other than albacore, in airtight 0303.10.0022 Salmon, chum, frozen. containers, not in oil, over quota. 0303.10.0032 Salmon, pink, frozen. (C) Loins: 0303.10.0042 Salmon, sockeye, frozen. 1604.14.4000 Tuna, not in airtight containers, not 0303.10.0052 Salmon, coho, frozen. in oil, over 6.8kg. 0303.10.0062 Salmon, Pacific, non-specific, frozen. 1604.14.5000 Tuna, other, not in airtight con- 0303.21.0000 Trout, frozen. tainers. (D) Other (only if the 0303.22.0000 Salmon, Atlantic and Danube, fro- product contains zen. tuna): 0303.29.0000 Salmonidae, other, frozen. 0304.10.4099 Other fish, fillets and other fish meat, 0303.70.4097 Fish, other, frozen. fresh or chilled. 0303.75.0010 Dogfish, frozen. 0304.20.2066 Other fish, fillets, skinned, in blocks 0303.75.0090 Other sharks, frozen. weighing over 4.5kg, frozen. 0303.79.2041 Swordfish steaks, frozen 0304.20.6096 Other fish, fillets, frozen. 0303.79.2049 Swordfish, other, frozen. 0304.90.1089 Other fish meat, in bulk or immediate containers, fresh or chilled. 0304.20.2066 Fish, fillet, skinned, in blocks frozen 0304.90.9091 Other fish meat, fresh or chilled. over 4.5kg. 0304.20.6008 Salmonidae, salmon fillet, frozen. 0304.20.6096 Fish, fillet, frozen. (ii) HTS numbers requiring a Fisheries 0307.49.0010 Squid, other, fillet, frozen. Certificate of Origin, not subject to yel- (B) Canned: lowfin tuna embargo. The following HTS 1604.11.2020 Salmon, pink, canned in oil, in airtight containers. numbers identify tuna or tuna prod- 1604.11.2030 Salmon, sockeye, canned in oil, in ucts, other than fresh tuna or tuna airtight containers. identified in paragraph (f)(2)(i) of this 1604.11.2090 Salmon, other, canned in oil, in air- section, known to be imported into the tight containers. 1604.11.4010 Salmon, chum, canned, not in oil. United States. All shipments imported 1604.11.4020 Salmon, pink, canned, not in oil. into the United States under these 1604.11.4030 Salmon, sockeye, canned, not in oil. HTS numbers must be accompanied by 1604.11.4040 Salmon, other, canned, not in oil. 1604.11.4050 Salmon, other, canned, not in oil. a FCO. The shipment may not be im- 1604.19.2000 Fish, other, in airtight containers, not ported into the United States if har- in oil. vested by a large-scale driftnet nation, 1604.19.3000 Fish, other, in airtight containers, in unless accompanied by the official oil. 1605.90.6055 Squid, loligo, prepared/preserved. statement described in paragraph (C) Other: (f)(5)(x) of this section. 0304.10.4099 Other fish, fillets and other fish meat, fresh or chilled. 29

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0304.20.2066 Other fish, fillets, skinned, in blocks panying shipment, must include the weighing over 4.5kg, frozen. following information: 0304.20.6098 Other fish, fillets, frozen. 0304.90.1089 Other fish, fillets and fish meat, in (i) Customs entry identification; bulk or in immediate containers, (ii) Date of entry; fresh or chilled. (iii) Exporter’s full name and com- 0304.90.9092 Other fish meat, fresh or chilled. plete address; 0305.30.6080 Fish, non-specific, fillet. dried/salted/ (iv) Importer’s or consignee’s full brine. name and complete address; 0305.49.4040 Fish, non-specific, smoked. (v) Species description, product form, 0305.59.2000 Shark fins. 0305.59.4000 Fish, non-specific, dried. and HTS number; 0305.69.4000 Salmon, non-specific, salted. (vi) Total net weight of the shipment in kilograms; 0305.69.5000 Fish, non-specific, in immediate containers, salted, not over 6.8kg. (vii) Ocean area where the fish were 0305.69.6000 Fish, non-specific, salted, other. harvested (ETP, Western Pacific 0307.49.0050 Squid, non-specific, frozen/dried/salt- Ocean, South Pacific Ocean, Atlantic ed/brine. 0307.49.0060 Squid, non-specific, & cuttle fish fro- Ocean, Caribbean Sea, Indian Ocean, or zen/dried/salted/brine. other); (viii) Type of fishing gear used to (3) Imports requiring a Fisheries Certifi- harvest the fish (purse seine, longline, cate of Origin. Shipments containing baitboat, large-scale driftnet, gillnet, the following may not be imported into trawl, pole and line, or other); the United States unless a completed (ix) Country under whose laws the FCO is filed with the Customs Service harvesting vessel operated based upon at the time of importation: the flag of the vessel or, if a certified (i) Tuna classified under an HTS charter vessel, the country that ac- number listed in paragraphs (f)(2)(i) or cepted responsibility for the vessel’s (f)(2)(ii) of this section, or fishing operations; (ii) Fish classified under an HTS (x) Dates on which the fishing trip number listed in paragraph (f)(2) of this began and ended; section that was harvested by a vessel (xi) If the shipment includes tuna or of a large-scale driftnet nation, as products harvested with a purse seine identified under paragraph (f)(8) of this net, the name of the harvesting vessel; section. (xii) Dolphin safe condition of the (4) Disposition of Fisheries Certificates shipment; of Origin. The FCO form described in (xiv) For shipments harvested by ves- paragraph (f)(5) of this section may be sels of a nation known to use large- obtained from the Administrator, scale driftnets, as determined by the Southwest Region, or downloaded from Secretary pursuant to paragraph (f)(8) the Internet at http://swr.ucsd.edu/ of this section, a statement must be in- noaa370.htm. The FCO required under cluded on the Fisheries Certificate of paragraph (f)(3) of this section must ac- Origin that is dated and signed by a re- company the tuna or tuna products sponsible government official of the from entry into the United States, harvesting nation, certifying that the through final processing, and it must fish or fish products were harvested by 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 30

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term or symbol that claims or suggests trator will determine which nations the tuna were harvested in a manner have registered vessels that engage in not injurious to dolphins are subject to fishing using large-scale driftnets. the requirements of subpart H of this Such determinations will be published part. in the FEDERAL REGISTER. A respon- (7) Scope of embargoes—(i) ETP yel- sible government official of any such lowfin tuna embargo. Yellowfin tuna or nation may certify to the Assistant yellowfin tuna products harvested Administrator that none of the na- using a purse seine in the ETP identi- tion’s vessels use large-scale driftnets. fied by an HTS number listed in para- Upon receipt of the certification, the graph (f)(2)(i) of this section may not Assistant Administrator may find, and be imported into the United States if publish such finding in the FEDERAL such tuna or tuna products were: REGISTER, that none of that nation’s (A) Harvested on or after March 3, vessels engage in fishing with large- 1999, the effective date of section 4 of scale driftnets. the IDCPA, and harvested by, or ex- (9) Affirmative finding procedure for ported from, a nation that the Assist- nations harvesting yellowfin tuna using a ant Administrator has determined has purse seine in the ETP. (i) The Assistant purse seine vessels of greater than 400 Administrator will determine, on an st (362.8 mt) carrying capacity har- annual basis, whether to make an af- vesting tuna in the ETP, unless the As- firmative finding based upon documen- sistant Administrator has made an af- tary evidence provided by the govern- firmative finding required for importa- ment of the exporting nation, by the tion for that nation under paragraph government of the harvesting nation, if (f)(9) of this section; different, or by the IDCP and the (B) Exported from an intermediary nation, as defined in section 3 of the IATTC, and will publish the finding in MMPA, and a ban is currently in force the FEDERAL REGISTER. A finding will prohibiting the importation from that remain valid for 1 year or for such nation under paragraph (f)(9)(viii) of other period as the Assistant Adminis- this section; or trator may determine. An affirmative (C) Harvested before March 3, 1999, finding will be terminated if the Assist- the effective date of section 4 of the ant Administrator determines that the IDCPA, and would have been banned requirements of this paragraph are no from importation under section longer being met. Every 5 years, the 101(a)(2) of the MMPA at the time of government of the harvesting nation, harvest. must submit such documentary evi- (ii) Driftnet embargo. A shipment con- dence directly to the Assistant Admin- taining an item listed in paragraph istrator and request an affirmative (f)(2) of this section may not be im- finding. Documentary evidence needs ported into the United States if it: to be submitted by the harvesting na- (A) Was exported from or harvested tion for the first affirmative finding on the high seas by any nation deter- subsequent to the effective date of this mined by the Assistant Administrator rule. The Assistant Administrator may to be engaged in large-scale driftnet require the submission of supporting fishing, unless the FCO is accompanied documentation or other verification of by an original statement by a respon- statements made in connection with sible government official of the har- requests to allow importations. An af- vesting nation, signed and dated by firmative finding applies to tuna and that official, certifying that the fish or tuna products that were harvested by fish products were harvested by a vessels of the nation after February 15, method other than large-scale driftnet; 1999. To make an affirmative finding, or the Assistant Administrator must find (B) Is identified on the FCO as having that: been harvested by a large-scale (A) The harvesting nation partici- driftnet. pates in the IDCP and is either a mem- (8) Large-scale driftnet nation: deter- ber of the IATTC or has initiated (and mination. Based upon the best informa- within 6 months thereafter completed) tion available, the Assistant Adminis- all steps required of applicant nations,

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in accordance with article V, para- nation’s purse seine fleet (including graph 3, of the Convention establishing certified charter vessels operating the IATTC, to become a member of under its jurisdiction) exceeded the ag- that organization; gregated total of the per-stock per-year (B) The nation is meeting its obliga- limits assigned by the IDCP for that tions under the IDCP and its obliga- nation’s purse seine vessels; and tions of membership in the IATTC, in- (ii) Immediately after the national cluding all financial obligations; authorities discovered the aggregate (C)(1) The annual total dolphin mor- per-stock mortality limits of its fleet tality of the nation’s purse seine fleet had been exceeded, the nation required (including certified charter vessels op- all its vessels to cease fishing for tuna erating under its jurisdiction) did not in association with the stocks whose exceed the aggregated total of the mor- limits had been exceeded, for the re- tality limits assigned by the IDCP for mainder of the calendar year. that nation’s purse seine vessels for the (ii) Documentary Evidence and Compli- year preceding the year in which the ance with the IDCP.—(A) Documentary finding would start; or Evidence. The Assistant Administrator (2)(i) Because of extraordinary cir- will make an affirmative finding under cumstances beyond the control of the paragraph (f)(9)(i) of this section only nation and the vessel captains, the if the government of the harvesting na- total dolphin mortality of the nation’s tion provides directly to the Assistant purse seine fleet (including certified Administrator, or authorizes the charter vessels operating under its ju- IATTC to release to the Assistant Ad- risdiction) exceeded the aggregated ministrator, complete, accurate, and total of the mortality limits assigned timely information that enables the by the IDCP for that nation’s purse Assistant Administrator to determine seine vessels; and whether the harvesting nation is meet- (ii) Immediately after the national ing the obligations of the IDCP, and authorities discovered the aggregate whether ETP-harvested tuna imported mortality of its fleet had been exceed- from such nation comports with the ed, the nation required all its vessels to tracking and verification regulations cease fishing for tuna in association of subpart H of this part. with dolphins for the remainder of the calendar year; and (B) Revocation. After considering the (D)(1) For calendar year 2000 and any information provided under paragraph subsequent years in which the parties (f)(9)(ii)(A) of this section, each party’s agree to a global allocation system for financial obligations to the IATTC, and per-stock per-year individual stock any other relevant information, includ- quotas, the nation responded to the no- ing information that a nation is con- tification from the IATTC that an indi- sistently failing to take enforcement vidual stock quota had been reached by actions on violations which diminish prohibiting any additional sets on the the effectiveness of the IDCP, the As- stock for which the quota had been sistant Administrator, in consultation reached; with the Secretary of State, will re- (2) If a per-stock per-year quota is al- voke an affirmative finding issued to a located to each nation, the annual per- nation that is not meeting the obliga- stock per-year dolphin mortality of the tions of the IDCP. nation’s purse seine fleet (including (iii) A harvesting nation may apply certified charter vessels operating for an affirmative finding at any time under its jurisdiction) did not exceed by providing to the Assistant Adminis- the aggregated total of the per-stock trator the information and authoriza- per-year limits assigned by the IDCP tions required in paragraphs (f)(9)(i) for that nation’s purse seine vessels (if and (f)(9)(ii) of this section, allowing at any) for the year preceding the year in least 60 days from the submission of which the finding would start; or complete information to NMFS for (3)(i) Because of extraordinary cir- processing. cumstances beyond the control of the (iv) The Assistant Administrator will nation and the vessel captains, the per- make or renew an affirmative finding stock per-year dolphin mortality of the for the period from April 1 through

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March 31, or portion thereof, if the har- the preceding 6 months yellowfin tuna vesting nation has provided all the in- or yellowfin tuna products that are formation and authorizations required subject to a ban on direct importation by paragraphs (f)(9)(i) and (f)(9)(ii) of into the United States under section this section, and has met the require- 101(a)(2)(B) of the MMPA. At that time, ments of paragraphs (f)(9)(i) and the nation shall no longer be consid- (f)(9)(ii) of this section. ered an ‘‘intermediary nation’’ and (v) Reconsideration of finding. The As- these import restrictions shall no sistant Administrator may reconsider longer apply. a finding upon a request from, and the (B) Changing the status of intermediary submission of additional information nation determinations. The Assistant by, the harvesting nation, if the infor- Administrator will review decisions mation indicates that the nation has under this paragraph upon the request met the requirements under para- of an intermediary nation. Such re- graphs (f)(9)(i) and (f)(9)(ii) of this sec- quests must be accompanied by specific tion. and detailed supporting information or (vi) Intermediary nation. Except as au- documentation indicating that a re- thorized under this paragraph, no tuna view or reconsideration is warranted. or tuna products classified under one of For purposes of this paragraph, the the HTS numbers listed in paragraph term ‘‘certification and reasonable (f)(2)(i) of this section may be imported proof’’ means the submission to the As- into the United States from any inter- sistant Administrator by a responsible mediary nation. An ‘‘intermediary na- government official from the nation of tion’’ is a nation that exports yellowfin a document reflecting the nation’s cus- tuna or yellowfin tuna products to the toms records for the preceding 6 United States and that imports yel- months, together with a certification lowfin tuna or yellowfin tuna products attesting that the document is accu- that are subject to a direct ban on im- rate. portation into the United States pursu- (vii) Pelly certification. After 6 months ant to section 101(a)(2)(B) of the of an embargo being in place against a MMPA, unless shown not to be yel- nation under this section, that fact lowfin tuna or yellowfin tuna products will be certified to the President for harvested using purse seine in the ETP. purposes of certification under section The Assistant Administrator will pub- 8(a) of the Fishermen’s Protective Act lish in the FEDERAL REGISTER a notice of 1967 (22 U.S.C. 1978(a)) for as long as announcing when NMFS has deter- the embargo remains in effect. mined, based on the best information (viii) Coordination. The Assistant Ad- available, that a nation is an ‘‘inter- ministrator will promptly advise the mediary nation.’’ After the effective Department of State and the Depart- date of that notice, these import re- ment of the Treasury of embargo deci- strictions shall apply. Shipments of sions, actions and finding determina- yellowfin tuna or yellowfin tuna prod- tions. ucts shipped through a nation on a (10) Fish refused entry. If fish is denied through bill of lading or in another entry under paragraph (f)(3) of this sec- 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

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shall not result in an introduction into sessed, or landed in violation of paragraph the United States of fish caught in vio- (a)(2)(ii) of this section. lation of the MMPA. (iv) It is unlawful for any person subject to (12) Market Prohibitions. It is unlawful the jurisdiction of the United States to intentionally deploy a purse seine net on, or to for any person to sell, purchase, offer encircle, dolphins from a vessel operating in for sale, transport, or ship in the the ETP when there is not a DML assigned United States, any tuna or tuna prod- to that vessel. ucts unless the tuna products are ei- (v) It is unlawful for any person subject to ther: the jurisdiction of the United States to in- (i) Dolphin-safe under subpart H; or tentionally deploy a purse seine net on, or to (ii) harvested in compliance with the encircle, dolphins from a vessel operating in IDCP by vessels under the jurisdiction the ETP with an assigned DML after a set in which the DML assigned to that vessel has of a nation that is a member of the been reached or exceeded. IATTC or has initiated, and within 6 (vi) Alleged violations of the Agreement on months thereafter completes, all steps the IDCP and/or these regulations identified required by applicant nations to be- by the International Review Panel will be come members of the IATTC. considered for potential enforcement action (iii) For purposes of this section, by NMFS. tuna or tuna products are ‘‘dolphin- (3) Upon written request made in advance safe if they are dolphin-safe under sub- of entering the ETP, the limitations in para- ’’ graphs (a)(2)(i) and (a)(2)(ii) of this section part H. may be waived by the Administrator, South- (g) Penalties. Any person or vessel west Region, for the purpose of allowing subject to the jurisdiction of the transit through the ETP. The waiver will United States will be subject to the provide, in writing, the terms and conditions penalties provided for under the MMPA under which the vessel must operate, includ- for the conduct of fishing operations in ing a requirement to report to the Adminis- violation of these regulations. trator, Southwest Region, the vessel’s date of exit from or subsequent entry into the [65 FR 48, Jan 3, 2000] permit area. (b) Permits—(1) Vessel permit. The owner or EFFECTIVE DATE NOTE: At 69 FR 55297, managing owner of a U.S. purse seine fishing Sept. 13, 2004, § 216.24 was revised, effective vessel of greater than 400 st (362.8 mt) car- Oct. 13, 2004. For the convenience of the user, rying capacity that participates in commer- the revised text is set forth as follows: cial fishing operations in the ETP must pos- § 216.24 Taking and related acts incidental sess a valid vessel permit issued under para- to commercial fishing operations by tuna graph (b) of this section. This permit is not purse seine vessels in the eastern tropical transferable and must be renewed annually. Pacific Ocean. If a vessel permit holder surrenders his/her (a)(1) No marine mammal may be taken in permit to the Administrator, Southwest Re- the course of a commercial fishing operation gion, the permit will not be returned and a by a U.S. purse seine fishing vessel in the new permit will not be issued before the end ETP unless the taking constitutes an inci- of the calendar year. Vessel permits will be dental catch as defined in § 216.3, and vessel valid through December 31 of each year. and operator permits have been obtained in (2) Operator permit. The person in charge of accordance with these regulations, and such and actually controlling fishing operations taking is not in violation of such permits or (hereinafter referred to as the operator) on a regulations. U.S. purse seine fishing vessel engaged in (2)(i) It is unlawful for any person using a commercial fishing operations under a vessel U.S. purse seine fishing vessel of 400 short permit must possess a valid operator permit tons (st) (362.8 metric tons (mt)) carrying ca- issued under paragraph (b) of this section. pacity or less to intentionally deploy a net Such permits are not transferable and must on or to encircle dolphins, or to carry more be renewed annually. To receive a permit, than two speedboats, if any part of its fish- the operator must have satisfactorily coming trip is in the ETP. pleted all required training under paragraph (ii) It is unlawful for any person using a (c)(5) of this section. The operator’s permit is U.S. purse seine fishing vessel of greater valid only when the permit holder is on a than 400 st (362.8 mt) carrying capacity that vessel with a valid vessel permit. Operator does not have a valid permit obtained under permits will be valid through December 31 of these regulations to catch, possess, or land each year. tuna if any part of the vessel’s fishing trip is (3) Possession and display. A valid vessel in the ETP. permit issued pursuant to paragraph (b)(1) of (iii) It is unlawful for any person subject to this section must be on board the vessel the jurisdiction of the United States to re- while engaged in fishing operations, and a ceive, purchase, or possess tuna caught, pos- valid operator permit issued pursuant to

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paragraph (b)(2) of this section must be in may change the amount of this fee required the possession of the operator to whom it at any time if a different fee is determined in was issued. Permits must be shown upon re- accordance with the NOAA Finance Hand- quest to NMFS enforcement agents, U.S. book and specified by the Administrator, Coast Guard officers, or designated agents of Southwest Region, on the application form. NMFS or the Inter-American Tropical Tuna (ii) Operator permit fee. There is no fee for Commission (IATTC) (including observers). the operator permit. The Assistant Adminis- A vessel owner or operator who is at sea on trator may require a fee at any time if a fee a fishing trip when his or her permit expires is determined in accordance with the NOAA and to whom a permit for the next year has Finance Handbook and specified by the Ad- been issued, may take marine mammals ministrator, Southwest Region, on the appli- under the terms of the new permit without cation form. having to display it on board the vessel until (iii) Observer placement fee. The vessel the vessel returns to port. owner or managing owner must submit the (4) Application for vessel permit. The owner fee for the placement of observers, and main- or managing owner of a purse seine vessel tenance of the observer program, as estab- may apply for a permit from the Adminis- lished by the IATTC or other approved ob- trator, Southwest Region, allowing at least server program, to the Administrator, 45 days for processing. An application must Southwest Region by December 1 of the year contain: prior to the year in which the vessel will be (i) The name, official number, tonnage, operated in the ETP. Payments received carrying capacity in short or metric tons, after December 1 will be subject to a 10–per- maximum speed in knots, processing equip- cent surcharge. The Administrator, South- ment, and type and quantity of gear, includ- west Region, will forward all observer place- ing an inventory of equipment required ment fees to the IATTC or to the applicable under paragraph (c)(3) of this section if the organization approved by the Administrator, application is for purse seining involving the Southwest Region. intentional taking of marine mammals, of (7) Application approval. The Adminis- the vessel that is to be covered under the trator, Southwest Region, will determine the permit; adequacy and completeness of an application (ii) A statement of whether the vessel will and, upon determining that an application is make sets involving the intentional taking adequate and complete, will approve that ap- of marine mammals; (iii) The type and identification number(s) plication and issue the appropriate permit, of Federal, state, and local commercial fish- except for applicants having unpaid or over- ing licenses under which vessel operations due civil penalties, criminal fines, or other are conducted, and the dates of expiration; liabilities incurred in a legal proceeding. (iv) The name(s) of the operator(s) antici- (8) Conditions applicable to all permits—(i) pated to be used; and General conditions. Failure to comply with (v) The name and signature of the appli- the provisions of a permit or with these reg- cant, whether he/she is the owner or the ulations may lead to suspension, revocation, managing owner, his/her address, telephone modification, or denial of a permit. The per- and fax numbers, and, if applicable, the mit holder, vessel, vessel owner, operator, or name, address, telephone and fax numbers of master may be subject, jointly or severally, the agent or organization acting on behalf of to the penalties provided for under the the vessel. MMPA. Procedures governing permit sanc- (5) Application for operator permit. An appli- tions and denials are found at subpart D of 15 cant for an operator permit must provide the CFR part 904. following information to the Administrator, (ii) Observer placement. By obtaining a per- Southwest Region, allowing at least 45 days mit, the permit holder consents to the place- for processing: ment of an observer on the vessel during (i) The name, address, telephone and fax every trip involving operations in the ETP numbers of the applicant; and agrees to payment of the fees for ob- (ii) The type and identification number(s) server placement. No observer will be as- of any Federal, state, and local fishing li- signed to a vessel unless that vessel owner censes held by the applicant; has submitted payment of observer fees to (iii) The name of the vessel(s) on which the the Administrator, Southwest Region. The applicant anticipates serving as an operator; observers may be placed under an observer (iv) The date, location, and provider of program of NMFS, IATTC, or another ob- training required under paragraph (c)(5) of server program approved by the Adminis- this section for the operator permit; and trator, Southwest Region. (v) The applicant’s signature or the signa- (iii) Explosives. The use of explosive devices ture of the applicant’s representative. is prohibited during all tuna purse seine op- (6) Fees—(i) Vessel permit application fees. erations that involve marine mammals. An application for a permit under paragraph (iv) Reporting requirements. (A) The vessel (b)(1) of this section will include a fee for permit holder of each permitted vessel must each vessel. The Assistant Administrator notify the Administrator, Southwest Region

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or the IATTC contact designated by the Ad- required gear and equipment, and uses the ministrator, Southwest Region, at least 5 required procedures. days in advance of the vessel’s departure on (i) Dolphin safety panel. The dolphin safety a fishing trip to allow for observer placement panel must be a minimum of 180 fathoms in on every trip. length (as measured before installation), ex- (B) The vessel permit holder must notify cept that the minimum length of the panel the Administrator, Southwest Region, or the in nets deeper than 18 strips must be deter- IATTC contact designated by the Adminis- mined in a ratio of 10 fathoms in length for trator, Southwest Region, of any change of each strip of net depth. It must be installed vessel operator at least 48 hours prior to de- so as to protect the perimeter of the back- parting on a fishing trip. In the case of a down area. The perimeter of the backdown change in operator due to an emergency, no- area is the length of corkline that begins at tification must be made within 72 hours of the outboard end of the last bowbunch pulled the change. and continues to at least two-thirds the dis- (v) Data release. By using a permit, the per- tance from the backdown channel apex to mit holder authorizes the release to NMFS the stern tiedown point. The dolphin safety and the IATTC of all data collected by ob- panel must consist of small mesh webbing servers aboard purse seine vessels during not to exceed 1 1/4 inches (3.18 centimeters fishing trips under the IATTC observer pro- (cm)) stretch mesh extending downward from gram or another international observer pro- the corkline and, if present, the base of the gram approved by the Administrator, South- dolphin apron to a minimum depth equiva- west Region. The permit holder must furnish lent to two strips of 100 meshes of 4 1/4 inches the international observer program with all (10.80 cm) stretch mesh webbing. In addition, release forms required to authorize the ob- at least a 20–fathom length of corkline must server data to be provided to NMFS and the be free from bunchlines at the apex of the IATTC. Data obtained under such releases backdown channel. will be used for the same purposes as would (ii) Dolphin safety panel markers. Each end data collected directly by observers placed of the dolphin safety panel and dolphin by NMFS and will be subject to the same apron, if present, must be identified with an standards of confidentiality. easily distinguishable marker. (9) Mortality and serious injury reports. The (iii) Dolphin safety panel hand holds. Administrator, Southwest Region, will pro- Throughout the length of the corkline under vide to the public periodic status reports which the dolphin safety panel and dolphin summarizing the estimated incidental dol- apron are located, hand hold openings must phin mortality and serious injury by U.S. be secured so that they will not allow the in- vessels of individual species and stocks. sertion of a 1 3/8 inch (3.50 cm) diameter cy- (c) Purse seining by vessels with Dolphin lindrical-shaped object. Mortality Limits (DMLs). In addition to the (iv) Dolphin safety panel corkline hangings. terms and conditions set forth in paragraph Throughout the length of the corkline under (b) of this section, any permit for a vessel to which the dolphin safety panel and dolphin which a DML has been assigned under para- apron if present, are located, corkline hang- graph (c)(9) of this section and any operator ings must be inspected by the vessel operator permit when used on such a vessel are sub- following each trip. Hangings found to have ject to the following terms and conditions: loosened to the extent that a cylindrical- (1) A vessel may be used to chase and en- shaped object with a 1 3/8 inch (3.50 cm) di- circle schools of dolphins in the ETP only ameter can be inserted between the cork and under the immediate direction of the holder corkline hangings, must be tightened so as of a valid operator’s permit. not to allow the insertion of a cylindrical- (2) No retention of live marine mammals. Ex- shaped object with a 1 3/8 inch (3.50 cm) di- cept as otherwise authorized by a specific ameter. permit, live marine mammals incidentally (v) Speedboats. A minimum of three speed- taken must be immediately returned to the boats in operating condition must be carried. ocean without further injury. The operator All speedboats carried aboard purse seine of a purse seine vessel must take every pre- vessels and in operating condition must be caution to refrain from causing or permit- rigged with tow lines and towing bridles or ting incidental mortality or serious injury of towing posts. Speedboat hoisting bridles may marine mammals. Live marine mammals not be substituted for towing bridles. may not be brailed, sacked up, or hoisted (vi) Raft. A raft suitable to be used as a onto the deck during ortza retrieval. dolphin observation-and-rescue platform (3) Gear and equipment required for valid per- must be carried. mit. A vessel possessing a vessel permit for (vii) Facemask and snorkel, or viewbox. At purse seining involving the intentional tak- least two facemasks and snorkels or ing of marine mammals may not engage in viewboxes must be carried. fishing operations involving the intentional (viii) Lights. The vessel must be equipped deployment of the net on or encirclement of with lights capable of producing a minimum dolphins unless it is equipped with a dolphin of 140,000 lumens of output for use in dark- safety panel in its purse seine, has the other ness to ensure sufficient light to observe

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that procedures for dolphin release are car- it is no longer possible to remove live dol- ried out and to monitor incidental dolphin phins from the net by this procedure. At mortality. least one crewmember must be deployed dur- (4) Vessel inspection—(i) Annual. At least ing backdown to aid in the release of dol- once during each calendar year, purse seine phins. Thereafter, other release procedures nets and other gear and equipment required required will be continued so that all live under § 216.24(c)(3) must be made available dolphins are released prior to the initiation for inspection and for a trial set/net align- of the sack-up procedure. ment by an authorized NMFS inspector or (ii) Prohibited use of sharp or pointed instru- IATTC staff as specified by the Adminis- ment. The use of a sharp or pointed instru- trator, Southwest Region, in order to obtain ment to remove any marine mammal from a vessel permit. the net is prohibited. (ii) Reinspection. Purse seine nets and other (iii) Sundown sets prohibited. On every set gear and equipment required by these regula- encircling dolphin, the backdown procedure tions must be made available for reinspec- must be completed no later than one-half tion by an authorized NMFS inspector or hour after sundown, except as provided here. IATTC staff as specified by the Adminis- For the purpose of this section, sundown is trator, Southwest Region. The vessel permit defined as the time at which the upper edge holder must notify the Administrator, of the sun disappears below the horizon or, if Southwest Region, of any net modification the view of the sun is obscured, the local at least 5 days prior to departure of the ves- time of sunset calculated from tables devel- sel in order to determine whether a reinspec- oped by the U.S. Naval Observatory or other tion or trial set/net alignment is required. authoritative source approved by the Admin- (iii) Failure to pass inspection. Upon failure istrator, Southwest Region. A sundown set is to pass an inspection or reinspection, a ves- a set in which the backdown procedure has sel may not engage in purse seining involv- not been completed and rolling the net to ing the intentional taking of marine mam- sack-up has not begun within one-half hour mals until the deficiencies in gear or equip- after sundown. Should a set extend beyond ment are corrected as required by NMFS. one-half hour after sundown, the operator (5) Operator permit holder training require- must use the required marine mammal re- ments. An operator must maintain pro- lease procedures including the use of the ficiency sufficient to perform the procedures high intensity lighting system. In the event required herein, and must attend and satis- a sundown set occurs where the seine skiff factorily complete a formal training session was let go 90 or more minutes before sun- approved by the Administrator, Southwest down, and an earnest effort to rescue dol- Region, in order to obtain his or her permit. phins is made, the International Review At the training session, an attendee will be Panel of the IDCP may recommend to the instructed on the relevant provisions and United States that in the view of the Inter- regulatory requirements of the MMPA and national Review Panel, prosecution by the the IDCP, and the fishing gear and tech- United States is not recommended. Any such niques that are required for reducing serious recommendation will be considered by the injury and mortality of dolphin incidental to United States in evaluating the appropriate- purse seining for tuna. Operators who have ness of prosecution in a particular cir- received a written certificate of satisfactory cumstance. completion of training and who possess a (iv) Dolphin safety panel. During backdown, current or previous calendar year permit will the dolphin safety panel must be positioned not be required to attend additional formal so that it protects the perimeter of the back- training sessions unless there are substantial down area. The perimeter of the backdown changes in the relevant provisions or imple- area is the length of corkline that begins at menting regulations of the MMPA or the the outboard end of the last bow bunch IDCP, or in fishing gear and techniques. Ad- pulled and continues to at least two-thirds ditional training may be required for any op- the distance from the backdown channel erator who is found by the Administrator, apex to the stern tiedown point. Southwest Region, to lack proficiency in the (7) Experimental fishing operations. The Ad- required fishing procedures or familiarity ministrator, Southwest Region, may author- with the relevant provisions or regulations ize experimental fishing operations, con- of the MMPA or the IDCP. sistent with the provisions of the IDCP, for (6) Marine mammal release requirements. All the purpose of testing proposed improve- operators fishing pursuant to paragraph (c) ments in fishing techniques and equipment of this section must use the following proce- that may reduce or eliminate dolphin mor- dures during all sets involving the incidental tality or serious injury, or do not require the taking of marine mammals in association encirclement of dolphins in the course of with the capture and landing of tuna. fishing operations. The Administrator, (i) Backdown procedure. Backdown must be Southwest Region, may waive, as appro- performed following a purse seine set in priate, any requirements of this section ex- which dolphins are captured in the course of cept DMLs and the obligation to carry an ob- catching tuna, and must be continued until server.

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(i) A vessel permit holder may apply for an (i) By September 1 each year, a vessel per- experimental fishing operation waiver by mit holder desiring a DML for the following submitting the following information to the year must provide to the Administrator, Administrator, Southwest Region, no less Southwest Region, the name of the U.S. than 90 days before the date the proposed op- purse seine fishing vessel(s) of carrying ca- eration is intended to begin: pacity greater than 400 st (362.8 mt) that the (A) The name(s) of the vessel(s) and the owner intends to use to intentionally deploy vessel permit holder(s) to participate; purse seine fishing nets in the ETP to encir- (B) A statement of the specific vessel gear cle dolphins in an effort to capture tuna dur- and equipment or procedural requirement to ing the following year. NMFS will forward be exempted and why such an exemption is the list of purse seine vessels to the Director necessary to conduct the experiment; of the IATTC on or before October 1, or as (C) A description of how the proposed otherwise required by the IDCP, for assign- modification to the gear and equipment or ment of a DML for the following year under procedures is expected to reduce incidental the provisions of Annex IV of the Agreement mortality or serious injury of marine mam- on the IDCP. mals; (ii) Each vessel permit holder that desires (D) A description of the applicability of a DML only for the period between July 1 to this modification to other purse seine ves- December 31 must provide the Adminis- sels; trator, Southwest Region, by September 1 of (E) The planned design, time, duration, and the prior year, the name of the U.S. purse general area of the experimental operation; seine fishing vessel(s) of greater than 400 st (F) The name(s) of the permitted oper- (362.8 mt) carrying capacity that the owner ator(s) of the vessel(s) during the experi- intends to use to intentionally deploy purse ment; seine fishing nets in the ETP to encircle dol- (G) A statement of the qualifications of the phins in an effort to capture tuna during the individual or company doing the analysis of period. NMFS will forward the list of purse the research; and seine vessels to the Director of the IATTC on (H) Signature of the permitted operator or of the operator’s representative. or before October 1, or as otherwise required (ii) The Administrator, Southwest Region, under the IDCP, for possible assignment of a will acknowledge receipt of the application DML for the 6–month period July 1 to De- and, upon determining that it is complete, cember 31. Under the IDCP, the DML will be calculated by the IDCP from any unutilized will publish a notice in the FEDERAL REG- pool of DMLs in accordance with the proce- ISTER summarizing the application, making the full application available for inspection dure described in Annex IV of the Agreement and inviting comments for a minimum pe- on the IDCP and will not exceed one-half of riod of 30 days from the date of publication. an unadjusted full-year DML as calculated (iii) The Administrator, Southwest Region, by the IDCP. after considering the information submitted (iii)(A) The Administrator, Southwest Re- in the application identified in paragraph gion, will notify vessel owners of the DML (c)(7)(i) of this section and the comments reassigned for each vessel for the following ceived, will either issue a waiver to conduct year, or the second half of the year, as appli- the experiment that includes restrictions or cable. conditions deemed appropriate, or deny the (B) The Administrator, Southwest Region, application, giving the reasons for denial. may adjust the DMLs in accordance with (iv) A waiver for an experimental fishing Annex IV of the Agreement on the IDCP. All operation will be valid only for the vessels adjustments of full-year DMLs will be made and operators named in the permit, for the before January 1, and the Administrator, time period and areas specified, for trips car- Southwest Region, will notify the Director rying an observer designated by the Admin- of the IATTC of any adjustments prior to a istrator, Southwest Region, and when all the vessel departing on a trip using its adjusted terms and conditions of the permit are met. DML. The notification will be no later than (v) The Administrator, Southwest Region, February 1 in the case of adjustments to full- may suspend or revoke an experimental fish- year DMLs, and no later than May 1 in the ing waiver in accordance with 15 CFR part case of adjustments to DMLs for the second 904 if the terms and conditions of the waiver half of the year. or the provisions of the regulations are not (C) In accordance with the requirements of followed. Annex IV of the Agreement on the IDCP, the (8) Operator permit holder performance re- Administrator, Southwest Region, may ad- quirements. [Reserved] just a vessel’s DML if it will further sci- (9) Vessel permit holder dolphin mortality lim- entific or technological advancement in the its. For purposes of this paragraph, the term protection of marine mammals in the fishery ‘‘vessel permit holder’’ includes both the or if the past performance of the vessel indi- holder of a current vessel permit and also cates that the protection or use of the yel- the holder of a vessel permit for the fol- lowfin tuna stocks or marine mammals is lowing year. best served by the adjustment, within the

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mandates of the MMPA. Experimental fish- Annex IV of the Agreement on the IDCP. If ing operation waivers or scientific research a vessel assigned a per-trip DML does not set permits will be considered a basis for adjust- on dolphins during that trip, the vessel will ments. be considered to have lost its DML unless (iv)(A) A vessel assigned a full-year DML this was a result of force majeure or other that does not make a set on dolphins by extraordinary circumstances as determined April 1 or that leaves the fishery will lose its by the International Review Panel. After DML for the remainder of the year, unless two consecutive losses of a DML, a vessel the failure to set on dolphins is due to force will not be eligible to receive a DML for the majeure or other extraordinary cir- next fishing year. cumstances as determined by the Inter- (vii) Observers will make their records national Review Panel. available to the vessel operator at any rea- (B) A vessel assigned a DML for the second sonable time, including after each set, in half of the year will be considered to have order for the operator to monitor the bal- lost its DML if the vessel has not made a set ance of the DML(s) remaining for use. on dolphins before December 31, unless the (viii) Vessel and operator permit holders failure to set on dolphins is due to force must not deploy a purse seine net on or en- majeure or extraordinary circumstances as circle any school of dolphins containing indi- determined by the International Review viduals of a particular stock of dolphins for Panel. the remainder of the calendar year: (C) Any vessel that loses its DML for 2 con- (A) after the applicable per-stock per-year secutive years will not be eligible to receive dolphin mortality limit for that stock of dol- a DML for the following year. phins (or for that vessel, if so assigned) has (D) NMFS will determine, based on avail- been reached or exceeded; or able information, whether a vessel has left (B) after the time and date provided in ac- the fishery. (1) A vessel lost at sea, undergoing exten- tual notification or notification in the FED- sive repairs, operating in an ocean area other ERAL REGISTER by the Administrator, South- than the ETP, or for which other informa- west Region, based upon the best available tion indicates that vessel will no longer be evidence, stating when any applicable per- conducting purse seine operations in the stock per-year dolphin mortality limit has ETP for the remainder of the period covered been reached or exceeded, or is expected to by the DML will be determined to have left be reached in the near future. the fishery. (ix) If individual dolphins belonging to a (2) NMFS will make all reasonable efforts stock that is prohibited from being taken are to determine the intentions of the vessel not reasonably observable at the time the owner. The owner of any vessel that has been net skiff attached to the net is released from preliminarily determined to have left the the vessel at the start of a set, the fact that fishery will be provided notice of such pre- individuals of that stock are subsequently liminary determination and given the oppor- taken will not be cause for enforcement ac- tunity to provide information on whether tion provided that all procedures required by the vessel has left the fishery prior to NMFS the applicable regulations have been fol- making a final determination under 15 CFR lowed. part 904 and notifying the IATTC. (x) Vessel and operator permit holders (v) Any vessel that exceeds its assigned must not intentionally deploy a purse seine DML after any applicable adjustment under net on or encircle dolphins intentionally: paragraph (c)(9)(iii) of this section will have (A) after a set in which the vessel’s DML, its DML for the subsequent year reduced by as adjusted, has been reached or exceeded; or 150 percent of the overage, unless another ad- (B) after the date and time provided in ac- justment is determined by the International tual notification by letter, facsimile, radio, Review Panel, as mandated by the Agree- or electronic mail, or notice in the FEDERAL ment on the IDCP. REGISTER by the Administrator, Southwest (vi) A vessel that is covered by a valid ves- Region, based upon the best available evi- sel permit and that does not normally fish dence, that intentional sets on dolphins for tuna in the ETP but desires to partici- must cease because the total of the DMLs as- pate in the fishery on a limited basis may signed to the U.S. fleet has been reached or apply for a per-trip DML from the Adminis- exceeded, or is expected to be exceeded in the trator, Southwest Region, at any time, al- near future. lowing at least 60 days for processing. The (d) Purse seining by vessels without assigned request must state the expected number of DMLs. In addition to the requirements of trips involving sets on dolphins and the an- paragraph (b) of this section, a vessel permit ticipated dates of the trip or trips. The reused for a trip not involving an assigned quest will be forwarded to the Secretariat of DML and the operator’s permit when used on the IATTC for processing in accordance with such a vessel are subject to the following Annex IV of the Agreement on the IDCP. A terms and conditions: a permit holder may per-trip DML will be assigned if one is made take marine mammals provided that such available in accordance with the terms of taking is an accidental occurrence in the

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course of normal commercial fishing oper- fering with the observer’s work performance, ations and the vessel does not intentionally or that creates an intimidating, hostile, or deploy its net on, or to encircle, dolphins; offensive environment. In determining marine mammals taken incidental to such whether conduct constitutes harassment, the commercial fishing operations must be im- totality of the circumstances, including the mediately returned to the environment nature of the conduct and the context in where captured without further injury, using which it occurred, will be considered. The de- release procedures such as hand rescue, or termination of the legality of a particular aborting the set at the earliest effective op- action will be made from the facts on a case- portunity; and the use of one or more rafts by-case basis. and facemasks or viewboxes to aid in the res- (5)(i) All observers must be provided sleep- cue of dolphins is recommended. ing, toilet and eating accommodations at (e) Observers—(1) The holder of a vessel per- least equal to that provided to a full crew mit must allow an observer duly authorized member. A mattress or futon on the floor or by the Administrator, Southwest Region, to a cot is not acceptable in place of a regular accompany the vessel on all fishing trips in bunk. Meal and other galley privileges must the ETP for the purpose of conducting re- be the same for the observer as for other search and observing operations, including crew members. collecting information that may be used in (ii) Female observers on a vessel with an civil or criminal penalty proceedings, for- all-male crew must be accommodated either feiture actions, or permit sanctions. A vessel in a single-person cabin or, if reasonable pri- that fails to carry an observer in accordance vacy can be ensured by installing a curtain with these requirements may not engage in or other temporary divider, in a two-person fishing operations. cabin shared with a licensed officer of the (2) Research and observation duties will be vessel. If the cabin assigned to a female ob- carried out in such a manner as to minimize server does not have its own toilet and show- interference with commercial fishing oper- er facilities that can be provided for the ex- ations. Observers must be provided access to clusive use of the observer, then a schedule vessel personnel and to dolphin safety gear for time-sharing common facilities must be and equipment, electronic navigation equip- established before the placement meeting ment, radar displays, high powered bin- and approved by NMFS or other approved ob- oculars, and electronic communication server program and must be followed during equipment. The navigator must provide true the entire trip. vessel locations by latitude and longitude, (iii) In the event there are one or more fe- accurate to the nearest minute, upon request male crew members, the female observer by the observer. Observers must be provided must be provided a bunk in a cabin shared with adequate space on the bridge or pilot- solely with female crew members, and pro- house for clerical work, as well as space on vided toilet and shower facilities shared sole- deck adequate for carrying out observer duly with these female crew members. ties. No vessel owner, master, operator, or (f) Importation, purchase, shipment, sale and crew member of a permitted vessel may im- transport. (1)(i) It is illegal to import into the pair, or in any way interfere with, the re- United States any fish, whether fresh, fro- search or observations being carried out. zen, or otherwise prepared, if the fish have Masters must allow observers to use vessel been caught with commercial fishing tech- communication equipment necessary to re- nology that results in the incidental kill or port information concerning the take of ma- incidental serious injury of marine mammals rine mammals and other observer collected in excess of that allowed under this part for data upon request of the observer. U.S. fishermen, or as specified at paragraph (3) Any marine mammals killed during (f)(6) of this section. fishing operations that are accessible to (ii) For purposes of this paragraph (f), and crewmen and requested from the permit in applying the definition of an ‘‘inter- holder or master by the observer must be mediary nation,’’ an import occurs when the brought aboard the vessel and retained for fish or fish product is released from a na- biological processing, until released by the tion’s Customs’ custody and enters into the observer for return to the ocean. Whole ma- commerce of the nation. For other purposes, rine mammals or marine mammal parts des- ‘‘import’’ is defined in § 216.3. ignated as biological specimens by the ob- (2) Imports requiring a Fisheries Certificate of server must be retained in cold storage Origin. Shipments of tuna, tuna products, aboard the vessel until retrieved by author- and certain other fish products identified by ized personnel of NMFS or the IATTC when the U.S. Harmonized Tariff Schedule (HTS) the vessel returns to port for unloading. numbers listed in paragraphs (f)(2)(i), (4) It is unlawful for any person to forcibly (f)(2)(ii) and (f)(2)(iii) of this section may not assault, impede, intimidate, interfere with, be imported into the United States unless a or to influence or attempt to influence an properly completed Fisheries Certificate of observer, or to harass (including sexual har- Origin (FCO), NOAA Form 370, is filed with assment) an observer by conduct that has the U.S. Customs Service at the time of im- the purpose or effect of unreasonably inter- portation.

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(i) HTS numbers requiring a Fisheries Certifi- 0303.46.0000 ...... Bluefin Southern, frozen cate of Origin, subject to yellowfin tuna embar- 0303.49.0100 ...... Other tuna, frozen go. The following HTS numbers identify yel- (B) Airtight Con- lowfin tuna or yellowfin tuna products tainers: (Other than (other than fresh tuna) known to be im- Yellowfin). 1604.14.1010 ...... Tuna, non-specific, in oil, in foil or ported into the United States. All shipments other flexible airtight containers imported into the United States under these weighing with their contents not HTS numbers must be accompanied by an more than 6.8 kg each FCO. The scope of yellowfin tuna embargoes 1604.14.1090 ...... Tuna, non-specific, in oil, in airtight and procedures for attaining an affirmative containers, other finding are described under paragraphs (f)(6) 1604.14.2251 ...... Tuna, albacore, not in oil, in foil or and (f)(8) of this section, respectively. other flexible airtight containers weighing with their contents not (A) Frozen: ...... more than 6.8 kg each, under 0303.42.0020 ...... Yellowfin tuna, whole, frozen quota 0303.42.0040 ...... Yellowfin tuna, eviscerated, head on, 1604.14.2259 ...... Tuna, albacore, not in oil, in airtight frozen containers, other, under quota 0303.42.0060 ...... Yellowfin tuna, other, frozen 1604.14.2291 ...... Tuna, other than albacore, not in oil, (B) Airtight Con- in foil or other flexible airtight containers: (products tainers weighing with their con- containing Yel- tents not more than 6.8 kg each, lowfin). under quota 1604.14.1010 ...... Tuna, non-specific, in oil, in foil or 1604.14.2299 ...... Tuna, other than albacore, not in oil, other flexible airtight containers in airtight containers, other, under weighing with their contents not quota more than 6.8 kg each 1604.14.3051 ...... Tuna, albacore, not in oil, in foil or 1604.14.1090 ...... Tuna, non-specific, in oil, in airtight other flexible airtight containers containers, other weighing with their contents not 1604.14.2291 ...... Tuna, other than albacore, not in oil, more than 6.8 kg each, over quota in foil or other flexible airtight con- 1604.14.3059 ...... Tuna, albacore, not in oil, in airtight tainers weighing with their con- containers, other, over quota tents not more than 6.8 kg each, 1604.14.3091 ...... Tuna, other than albacore, not in oil, under quota in foil or other flexible airtight con- 1604.14.2299 ...... Tuna, other than albacore, not in oil, tainers weighing with their con- in airtight containers, under quota tents not more than 6.8 kg each, 1604.14.3091 ...... Tuna, other than albacore, not in oil, over quota in foil or other flexible airtight con- 1604.14.3099 ...... Tuna, other than albacore, not in oil, tainers weighing with their con- in airtight containers, other, over tents not more than 6.8 kg each, quota over quota (C) Loins: (Other than 1604.14.3099 ...... Tuna, other than albacore, not in oil, Yellowfin). in airtight containers, over quota 1604.14.4000 ...... Tuna, not in airtight containers, in (C) Loins: (Yellowfin) bulk or in immediate containers 1604.14.4000 ...... Tuna, not in airtight containers, not weighing with their contents over in oil, weighing with their contents 6.8 kg, in oil over 6.8 kg 1604.14.5000 ...... Tuna, not in airtight containers, other 1604.14.5000 ...... Tuna, not in airtight containers, other (D) Other: (only if the (D) Other: (products product contains containing Yel- tuna). lowfin). 0304.20.2066 ...... Other fish, fillets, skinned, in blocks 0304.20.2066 ...... Other fish, fillets, skinned, in blocks weighing over 4.5 kg, frozen weighing over 4.5 kg, frozen 0304.20.6096 ...... Other fish, fillets, frozen 0304.20.6096 ...... Other fish, fillets, frozen 1604.20.2500 ...... Balls and cakes, not in oil, in airtight 1604.20.2500 ...... Balls and cakes, not in oil, in airtight containers, other containers, other 1604.20.3000 ...... Balls and cakes, other 1604.20.3000 ...... Balls and cakes, other (iii) Exports from driftnet nations only: HTS (ii) HTS numbers requiring a Fisheries Certifi- numbers requiring a Fisheries Certificate of Ori- cate of Origin, not subject to yellowfin tuna em- gin and official certification. The following bargo. The following HTS numbers identify HTS numbers identify categories of fish and tuna or tuna products, (other than fresh tuna shellfish, in addition to those identified in or yellowfin tuna identified in paragraph paragraphs (f)(2)(i) and (f)(2)(ii) of this sec- (f)(2)(i)) of this section, known to be im- tion, known to have been harvested using a ported into the United States. All shipments large-scale driftnet and imported into the imported into the United States under these United States. Shipments exported from a HTS numbers must be accompanied by an large-scale driftnet nation, as identified FCO. under paragraph (f)(7) of this section, and imported into the United States under any of (A) Frozen: ...... 0303.41.0000 ...... Albacore or longfinned tunas, frozen the HTS numbers listed in paragraph (f)(2) of 0303.43.0000 ...... Skipjack, frozen this section must be accompanied by an FCO 0303.44.0000 ...... Bigeye, frozen and the official statement described in para- 0303.45.0000 ...... Bluefin, frozen graph (f)(4)(xiii) of this section.

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port or export documents, invoices, and bills (A) Frozen: ...... of lading for 2 years, and such records must 0303.19.0012 ...... Salmon, chinook, frozen be made available within 30 days of a request 0303.19.0022 ...... Salmon, chum, frozen 0303.19.0032 ...... Salmon, pink, frozen by the Secretary or the Administrator, 0303.19.0052 ...... Salmon, coho, frozen Southwest Region. 0303.19.0062 ...... Salmon, Pacific, non-specific, frozen (4) Contents of Fisheries Certificate of Origin. 0303.21.0000 ...... Trout, frozen An FCO, certified to be accurate by the ex- 0303.22.0000 ...... Salmon, Atlantic and Danube, frozen porter(s) of the accompanying shipment, 0303.29.0000 ...... Salmonidae, other, frozen must include the following information: 0303.75.0010 ...... Dogfish, frozen 0303.75.0090 ...... Other sharks, frozen (i) Customs entry identification; 0303.79.2041 ...... Swordfish steaks, frozen (ii) Date of entry; 0303.79.2049 ...... Swordfish, other, frozen (iii) Exporter’s full name and complete ad- 0303.79.4097 ...... Fish, other, frozen dress; 0304.20.2066 ...... Fish, fillet, skinned, in blocks, frozen (iv) Importer’s or consignee’s full name over 4.5 kg and complete address; 0304.20.6008 ...... Salmonidae, salmon fillet, frozen 0304.20.6092 ...... Swordfish fillets, frozen (v) Species description, product form, and 0304.20.6096 ...... Fish, fillet, other, frozen HTS number; 0307.49.0010 ...... Squid, other, fillet, frozen (vi) Total net weight of the shipment in (B) Canned: ...... kilograms; 1604.11.2020 ...... Salmon, pink, canned in oil, in air- (vii) Ocean area where the fish were har- tight containers vested (ETP, western Pacific Ocean, south 1604.11.2030 ...... Salmon, sockeye, canned in oil, in airtight containers Pacific Ocean, eastern Atlantic Ocean, west- 1604.11.2090 ...... Salmon, other, canned in oil, in air- ern Atlantic Ocean, Caribbean Sea, Indian tight containers Ocean, or other); 1604.11.4010 ...... Salmon, chum, canned, not in oil (viii) Type of fishing gear used to harvest 1604.11.4020 ...... Salmon, pink, canned, not in oil the fish (purse seine, longline, baitboat, 1604.11.4030 ...... Salmon, sockeye, canned, not in oil large-scale driftnet, gillnet, trawl, pole and 1604.11.4040 ...... Salmon, other, canned, not in oil line, or other); 1604.11.4050 ...... Salmon, other, canned, not in oil 1604.19.2000 ...... Fish, other, in airtight containers, not (ix) Country under whose laws the har- in oil vesting vessel operated based upon the flag 1604.19.3000 ...... Fish, other, in airtight containers, in of the vessel or, if a certified charter vessel, oil the country that accepted responsibility for 1605.90.6050 ...... Squid, loligo, prepared/preserved the vessel’s fishing operations; 1605.90.6055 ...... Squid, other, prepared/preserved (x) Dates on which the fishing trip began (C) Other: ...... and ended; 0305.30.6080 ...... Fish, other, fillet, dried/salted/brine 0305.49.4040 ...... Fish, other, smoked (xi) If the shipment includes tuna or prod- 0305.59.2000 ...... Shark fins, dried ucts harvested with a purse seine net, the 0305.59.4000 ...... Fish, other, dried name of the harvesting vessel; 0305.69.4000 ...... Salmon, other, salted (or in brine) (xii) Dolphin-safe condition of the ship- 0305.69.5000 ...... Fish, other, salted (or in brine), in ment, described by checking the appropriate immediate containers, not over 6.8 statement on the form and attaching addi- kg 0305.69.6000 ...... Fish, other, salted (or in brine) tional certifications if required; 0307.49.0050 ...... Squid, other, frozen/dried/salted/ (xiii) For shipments harvested by vessels of brine a nation known to use large-scale driftnets, 0307.49.0060 ...... Squid, other, & cuttle fish frozen/ as determined by the Secretary pursuant to dried/salted/brine paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO (3) Disposition of Fisheries Certificates of Ori- must be dated and signed by a responsible gin. The FCO described in paragraph (f)(4) of government official of the harvesting nation, this section may be obtained from the Ad- certifying that the fish or fish products were ministrator, Southwest Region, or harvested by a method other than large-scale downloaded from the Internet at http:// driftnet; and swr.nmfs.noaa.gov/noaa370.htm. (xiv) If the shipment contains tuna har- (i) A properly completed FCO and its at- vested in the ETP by a purse seine vessel of tached certificates, if applicable, must ac- more than 400 st (362.8 mt) carrying capacity, company the required U.S. Customs entry each importer or processor who takes cus- documents that are filed at the time of im- tody of the shipment must sign and date the port. form to certify that the form and attached (ii) FCOs that accompany imported ship- documentation accurately describe the shipments of tuna destined for further processing ment of fish they accompany. in the United States must be endorsed at (5) Dolphin-safe label. Tuna or tuna prod- each change in ownership and submitted to ucts sold in or exported from the United the Administrator, Southwest Region, by the States that include on the label the term last endorser when all required endorsements ‘‘dolphin-safe’’ or any other term or symbol are completed. that claims or suggests the tuna were har- (iii) Importers and exporters are required vested in a manner not injurious to dolphins to retain their records, including FCOs, im- 42

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are subject to the requirements of subpart H the nation’s vessels use large-scale driftnets. of this part (§ 216.90 et seq.). Upon receipt of the certification, the Assist- (6) Scope of embargoes—(i) ETP yellowfin ant Administrator may find, and publish tuna embargo. Yellowfin tuna or products of such finding in the FEDERAL REGISTER, that yellowfin tuna harvested using a purse seine none of that nation’s vessels engage in fish- in the ETP identified by an HTS number listing with large-scale driftnets. ed in paragraph (f)(2)(i) of this section may (8) Affirmative finding procedure for nations not be imported into the United States if harvesting yellowfin tuna using a purse seine in such tuna or tuna products were: the ETP. (i) The Assistant Administrator will (A) Harvested on or after March 3, 1999, the determine, on an annual basis, whether to effective date of section 4 of the IDCPA, and make an affirmative finding based upon doc- harvested by, or exported from, a nation that umentary evidence provided by the govern- the Assistant Administrator has determined ment of the harvesting nation or by the has jurisdiction over purse seine vessels of IDCP and the IATTC, and will publish the greater than 400 st (362.8 mt) carrying capac- finding in the FEDERAL REGISTER. A finding ity harvesting tuna in the ETP, unless the will remain valid for 1 year or for such other Assistant Administrator has made an affirm- period as the Assistant Administrator may ative finding required for importation for determine. An affirmative finding will be that nation under paragraph (f)(8) of this sec- terminated if the Assistant Administrator tion; determines that the requirements of this (B) Exported from an intermediary nation, paragraph are no longer being met. Every 5 as defined in Section 3 of the MMPA, and a years, the government of the harvesting na- ban is currently in force prohibiting the im- tion must submit such documentary evi- portation from that nation under paragraph dence directly to the Assistant Adminis- (f)(9) of this section; or trator and request an affirmative finding. (C) Harvested before March 3, 1999, the ef- Documentary evidence must be submitted by fective date of Section 4 of the IDCPA, and the harvesting nation for the first affirma- would have been banned from importation tive finding application. The Assistant Ad- under Section 101(a)(2) of the MMPA at the ministrator may require the submission of time of harvest. supporting documentation or other (ii) Driftnet embargo. A shipment con- verification of statements made in connec- taining fish or fish products identified by an tion with requests to allow importations. An HTS number listed in paragraph (f)(2) of this affirmative finding applies to yellowfin tuna section may not be imported into the United and yellowfin tuna products that were har- States if it is harvested by a large-scale driftnet, or if it is exported from or harvested by vessels of the nation after March 3, vested on the high seas by any nation deter- 1999. To make an affirmative finding, the As- mined by the Assistant Administrator to be sistant Administrator must find that: engaged in large-scale driftnet fishing, un- (A) The harvesting nation participates in less a government official of the large-scale the IDCP and is either a member of the driftnet nation completes, signs and dates IATTC or has initiated (and within 6 months the High Seas Driftnet section of the FCO thereafter completed) all steps required of certifying that the fish or fish products were applicant nations, in accordance with article harvested by a method other than large-scale V, paragraph 3, of the Convention estab- driftnet. lishing the IATTC, to become a member of (iii) Pelly certification. After 6 months of an that organization; embargo being in place against a nation (B) The nation is meeting its obligations under this section, the Secretary will certify under the IDCP and its obligations of mem- that nation under section 8(a) of the Fisher- bership in the IATTC, including all financial men’s Protective Act (22 U.S.C. 1978(a)). obligations; When such an embargo is lifted, the Sec- (C)(1) The annual total dolphin mortality retary will terminate the certification under of the nation’s purse seine fleet (including Section 8(d) of that Act (22 U.S.C. 1978(d)). certified charter vessels operating under its (iv) Coordination. The Assistant Adminis- jurisdiction) did not exceed the aggregated trator will promptly advise the Department total of the mortality limits assigned by the of State and the Department of Homeland IDCP for that nation’s purse seine vessels for Security of embargo decisions, actions, and the year preceding the year in which the finding determinations. finding would start; or (7) Large-scale driftnet nation: determination. (2)(i) Because of extraordinary cir- Based upon the best information available, cumstances beyond the control of the nation the Assistant Administrator will determine and the vessel captains, the total dolphin which nations have registered vessels that mortality of the nation’s purse seine fleet engage in fishing using large-scale driftnets. (including certified charter vessels operating Such determinations will be published in the under its jurisdiction) exceeded the aggre- FEDERAL REGISTER. A responsible govern- gated total of the mortality limits assigned ment official of any such nation may certify by the IDCP for that nation’s purse seine to the Assistant Administrator that none of vessels; and

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(ii) Immediately after the national au- tive finding issued to a nation that is not thorities discovered the aggregate mortality meeting the obligations of the IDCP. of its fleet had been exceeded, the nation re- (iv) A harvesting nation may apply for an quired all its vessels to cease fishing for tuna affirmative finding at any time by providing in association with dolphins for the remain- to the Assistant Administrator the informa- der of the calendar year; and tion and authorizations required in para- (D)(1) In any years in which the parties graphs (f)(8)(i) and (f)(8)(ii) of this section, agree to a global allocation system for per- allowing at least 60 days from the submis- stock per-year individual stock quotas, the sion of complete information to NMFS for nation responded to the notification from processing. the IATTC that an individual stock quota (v) The Assistant Administrator will make had been reached by prohibiting any addi- or renew an affirmative finding for the pe- tional sets on the stock for which the quota riod from April 1 through March 31 of the fol- had been reached; lowing year, or portion thereof, if the har- (2) If a per-stock per-year quota is allo- vesting nation has provided all the informa- cated to each nation, the annual per-stock tion and authorizations required by para- per-year dolphin mortality of the nation’s graphs (f)(8)(i) and (f)(8)(ii) of this section, purse seine fleet (including certified charter and has met the requirements of paragraphs vessels operating under its jurisdiction) did (f)(8)(i) and (f)(8)(ii) of this section. not exceed the aggregated total of the per- (vi) Reconsideration of finding. The Assist- stock per-year limits assigned by the IDCP ant Administrator may reconsider a finding for that nation’s purse seine vessels (if any) upon a request from, and the submission of for the year preceding the year in which the additional information by, the harvesting finding would start; or nation, if the information indicates that the (3)(i) Because of extraordinary cir- nation has met the requirements under para- cumstances beyond the control of the nation graphs (f)(8)(i) and (f)(8)(ii) of this section. and the vessel captains, the per-stock per- (9) Intermediary nation. Except as author- year dolphin mortality of the nation’s purse ized under this paragraph, no yellowfin tuna seine fleet (including certified charter ves- or yellowfin tuna products harvested by sels operating under its jurisdiction) exceed- purse seine in the ETP classified under one ed the aggregated total of the per-stock per- of the HTS numbers listed in paragraph year limits assigned by the IDCP for that na- (f)(2)(i) of this section may be imported into tion’s purse seine vessels; and the United States from any intermediary na- (ii) Immediately after the national au- tion. thorities discovered the aggregate per-stock (i) An ‘‘intermediary nation’’ is a nation mortality limits of its fleet had been exceed- that exports yellowfin tuna or yellowfin ed, the nation required all its vessels to tuna products to the United States and that cease fishing for tuna in association with the imports yellowfin tuna or yellowfin tuna stocks whose limits had been exceeded, for products that are subject to a direct ban on the remainder of the calendar year. importation into the United States pursuant (iii) Documentary Evidence and Compliance to Section 101(a)(2)(B) of the MMPA. with the IDCP—(A) Documentary Evidence. (ii) Shipments of yellowfin tuna that pass The Assistant Administrator will make an through any nation (e.g. on a ’through Bill of affirmative finding under paragraph (f)(8)(i) Lading’) and are not entered for consump- of this section only if the government of the tion in that nation are not considered to be harvesting nation provides directly to the imports to that nation and thus, would not Assistant Administrator, or authorizes the cause that nation to be considered an inter- IATTC to release to the Assistant Adminis- mediary nation under the MMPA. trator, complete, accurate, and timely infor- (iii) The Assistant Administrator will pub- mation that enables the Assistant Adminis- lish in the FEDERAL REGISTER a notice an- trator to determine whether the harvesting nouncing when NMFS has determined, based nation is meeting the obligations of the on the best information available, that a na- IDCP, and whether ETP-harvested tuna im- tion is an ‘‘intermediary nation.’’ After the ported from such nation comports with the effective date of that notice, the import re- tracking and verification regulations of sub- strictions of this paragraph shall apply. part H of this part. (iv) Changing the status of intermediary na- (B) Revocation. After considering the infor- tion determinations. Imports from an inter- mation provided under paragraph (f)(8)(ii)(A) mediary nation of yellowfin tuna and yel- of this section, each party’s financial obliga- lowfin tuna products classified under any of tions to the IATTC, and any other relevant the HTS numbers in paragraph (f)(2)(i) of information, including information that a this section may be imported into the United nation is consistently failing to take en- States only if the Assistant Administrator forcement actions on violations that dimin- determines, and publishes a notice of such ish the effectiveness of the IDCP, the Assist- determination in the FEDERAL REGISTER, ant Administrator, in consultation with the that the intermediary nation has provided Secretary of State, will revoke an affirma- certification and reasonable proof that it has

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not imported in the preceding 6 months yel- § 216.25 Exempted marine mammals lowfin tuna or yellowfin tuna products that and marine mammal products. are subject to a ban on direct importation into the United States under Section (a) The provisions of the MMPA and 101(a)(2)(B) of the MMPA. At that time, the these regulations shall not apply: nation shall no longer be considered an (1) To any marine mammal taken be- ‘‘intermediary nation’’ and these import re- fore December 21, 1972 1, or strictions shall no longer apply. (2) To any marine mammal product if (v) The Assistant Administrator will re- the marine mammal portion of such view decisions under this paragraph upon the product consists solely of a marine request of an intermediary nation. Such re- mammal taken before such date. quests must be accompanied by specific and detailed supporting information or docu- (b) The prohibitions contained in mentation indicating that a review or recon- § 216.12(c) (3) and (4) shall not apply to sideration is warranted. For purposes of this marine mammals or marine mammal paragraph, the term ‘‘certification and rea- products imported into the United sonable proof’’ means the submission to the States before the date on which a no- Assistant Administrator by a responsible tice is published in the FEDERAL REG- government official from the nation of a doc- ISTER with respect to the designation ument reflecting the nation’s customs of the species or stock concerned as de- records for the preceding 6 months, together with a certification attesting that the docu- pleted or endangered. ment is accurate. (c) Section 216.12(b) shall not apply to (10) Fish refused entry. If fish is denied articles imported into the United entry under paragraph (f)(2) of this section, States before the effective date of the the Port Director of Customs shall refuse to foreign law making the taking or sale, release the fish for entry into the United as the case may be, of such marine States. mammals or marine mammal products (11) Disposition of fish refused entry into the unlawful. United States. Fish that is denied entry under paragraph (f)(2) of this section and that is [39 FR 1852, Jan. 15, 1974, as amended at 56 not exported under Customs supervision FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, within 90 days shall be disposed of under Cus- 1994] toms laws and regulations at the importer’s expense. Provided, however, that any dis- § 216.26 Collection of certain marine position shall not result in an introduction mammal parts without prior au- into the United States of fish caught in vio- thorization. lation of the MMPA. Notwithstanding any other provision (12) Market Prohibitions. It is unlawful for of this subpart: any person to sell, purchase, offer for sale, transport, or ship in the United States, any (a) Any bones, teeth or ivory of any tuna or tuna products unless the tuna prod- dead marine mammal may be collected ucts are either: from a beach or from land within1⁄4 of a (i) Dolphin-safe under subpart H of this mile of the ocean. The term ocean in- part; or cludes bays and estuaries. (ii) Harvested in compliance with the IDCP (b) Notwithstanding the provisions of by vessels under the jurisdiction of a nation subpart D, soft parts that are sloughed, that is a member of the IATTC or has initi- excreted, or discharged naturally by a ated, and within 6 months thereafter com- living marine mammal in the wild may pletes, all steps required by an applicant nation to become a member of the IATTC and be collected or imported for bona fide the nation has an affirmative finding. scientific research and enhancement, (g) Penalties. Any person or vessel subject provided that collection does not in- to the jurisdiction of the United States will volve the taking of a living marine be subject to the penalties provided for under mammal in the wild. the MMPA for the conduct of fishing oper- (c) Any marine mammal part col- ations in violation of these regulations. Pen- lected under paragraph (a) of this sec- alties for violating these regulations may in- tion or any marine mammal part col- clude, but are not limited to, civil monetary fines, permit suspension or revocation, and lected and imported under paragraph reductions in current and future DMLs. Rec- ommended sanctions are identified in the 1 In the context of captive maintenance of IDCPA/DPCIA Tuna/Dolphin Civil Adminis- marine mammals, the only marine mammals trative Penalty Schedule. Procedures for the exempted under this section are those that imposition of penalties under the MMPA are were actually captured or otherwise in cap- found at 15 CFR part 904. tivity before December 21, 1972.

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(b) of this section must be registered (B) The Office Director at least 30 and identified, and may be transferred days in advance of releasing any im- or otherwise possessed, in accordance ported marine mammal. with § 216.22(c). In registering a marine (ii) Notification shall include the fol- mammal part collected or imported lowing: under paragraph (b) of this section, the (A) A description of the marine mam- person who collected or imported the mal, including its physical condition part must also state the scientific re- and estimated age; search or enhancement purpose for (B) The date and location of release; which the part was collected or im- and ported. (C) The method and duration of (d) No person may purchase, sell or transport prior to release. trade for commercial purposes any ma- (3) The Regional Director, or the Of- rine mammal part collected or im- fice Director as appropriate, may: ported under this section. (i) Require additional information (e) The export of parts collected prior to any release; without prior authorization under (ii) Change the date or location of re- paragraph (b) of this section may occur lease, or the method or duration of if consistent with the provisions at transport prior to release; § 216.37(d) under subpart D. (iii) Impose additional conditions to improve the likelihood of success or to [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, monitor the success of the release; or 1996] (iv) Require other disposition of the marine mammal. § 216.27 Release, non-releasability, and (4) All marine mammals must be re- disposition under special exception leased near wild populations of the permits for rehabilitated marine same species, and stock if known, un- mammals. less a waiver is granted by the Re- (a) Release requirements. (1) Any ma- gional Director or the Office Director. rine mammal held for rehabilitation (5) All marine mammals released must be released within six months of must be tagged or marked in a manner capture or import unless the attending acceptable to the Regional Director or veterinarian determines that: the Office Director. The tag number or (i) The marine mammal might ad- description of the marking must be re- versely affect marine mammals in the ported to the Regional Director or Of- wild; fice Director following release. (ii) Release of the marine mammal to (b) Non-releasability and postponed de- the wild will not likely be successful terminations. (1) The attending veteri- given the physical condition and be- narian shall provide the Regional Di- havior of the marine mammal; or rector or Office Director with a written (iii) More time is needed to deter- report setting forth the basis of any de- mine whether the release of the marine termination under paragraphs (a)(1)(i) mammal to the wild will likely be suc- through (iii) of this section. cessful. Releasability must be reevalu- (2) Upon receipt of a report under ated at intervals of no less than six paragraph (b)(1) of this section, the Re- months until 24 months from capture gional Director or Office Director, in or import, at which time there will be their sole discretion, may: a rebuttable presumption that release (i) Order the release of the marine into the wild is not feasible. mammal; (2) The custodian of the rehabilitated (ii) Order continued rehabilitation marine mammal shall provide written for an additional 6 months; or notification prior to any release into (iii) Order other disposition as au- the wild. thorized. (i) Notification shall be provided to: (3) No later than 30 days after a ma- (A) The NMFS Regional Director at rine mammal is determined least 15 days in advance of releasing unreleasable in accordance with para- any beached or stranded marine mam- graphs (a)(1)(i) through (iii) of this sec- mal, unless advance notice is waived in tion, the person with authorized cus- writing by the Regional Director; or tody must:

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(i) Request authorization to retain or cation for such a special exception per- transfer custody of the marine mam- mit under § 216.33 or a request for a mal in accordance with paragraph (c) major amendment under § 216.39 has of this section, or; been submitted to the Office Director (ii) Humanely euthanize the marine and has been found complete; mammal or arrange any other disposi- (ii) The recipient agrees to hold the tion of the marine mammal authorized marine mammal in conformance with by the Regional Director or Office Di- all applicable requirements and stand- rector. ards; and (4) Notwithstanding any of the provi- (iii) The recipient acknowledges that sions of this section, the Office Direc- the marine mammal is subject to sei- tor may require use of a rehabilitated zure by the Office Director: marine mammal for any activity au- (A) If, at any time pending issuance thorized under subpart D in lieu of ani- of the major amendment or permit, the mals taken from the wild. Office Director determines that seizure (5) Any rehabilitated beached or is necessary in the interest of the stranded marine mammal placed on health or welfare of the marine mam- public display following a non-releas- mal; ability determination under paragraph (B) If the major amendment or per- (a)(1) of this section and pending dis- mit is denied; or position under paragraph (c) of this section, or any marine mammal im- (C) If the recipient is issued a notice ported for medical treatment otherwise of violation and assessment, or is sub- unavailable and placed on public dis- ject to permit sanctions, in accordance play pending disposition after such with 15 CFR part 904. medical treatment is concluded, must (4) There shall be no remuneration be held in captive maintenance con- associated with any transfer, provided sistent with all requirements for public that, the transferee may reimburse the display. transferor for any and all costs associ- (c) Disposition for a special exception ated with the rehabilitation and trans- purpose. (1) Upon receipt of an author- port of the marine mammal. ization request made under paragraph (5) Marine mammals undergoing re- (b)(3)(i) of this section, or release noti- habilitation or pending disposition fication under (a)(2), the Office Direc- under this section shall not be subject tor may authorize the retention or to public display, unless such activities transfer of custody of the marine mam- are specifically authorized by the Re- mal for a special exception purpose au- gional Director or the Office Director, thorized under subpart D. and conducted consistent with the re- (2) The Office Director will first con- quirements applicable to public dis- sider requests from a person authorized play. Such marine mammals shall not to hold the marine mammal for reha- be trained for performance or be in- bilitation. The Office Director may au- cluded in any aspect of a program in- thorize such person to retain or trans- volving interaction with the public; fer custody of the marine mammal for and scientific research, enhancement, or (6) Marine mammals undergoing republic display purposes. habilitation shall not be subject to in- (3) The Office Director may authorize trusive research, unless such activities retention or transfer of custody of the are specifically authorized by the Of- marine mammal only if: fice Director in consultation with the (i) Documentation has been sub- Marine Mammal Commission and its mitted to the Office Director that the Committee of Scientific Advisors on person retaining the subject animal or Marine Mammals, and are conducted the person receiving custody of the pursuant to a scientific research per- subject animal by transfer, hereinafter mit. referred to as the recipient, complies (d) Reporting. In addition to the re- with public display requirements of 16 port required under § 216.22(b), the per- U.S.C. 1374(c)(2)(A) or, for purposes of son authorized to hold marine mam- scientific research and enhancement, mals for rehabilitation must submit re- holds an applicable permit, or an appli- ports to the Regional Director or Office

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Director regarding release or other dis- that exercises oversight over marine position. These reports must be pro- mammals. vided in the form and frequency speci- (2) Include a certification from the fied by the Regional Director or Office foreign government that: Director. (i) The information set forth in the [61 FR 21933, May 10, 1996] application is accurate; (ii) The laws and regulations of the foreign governmentinvolved allow en- Subpart D—Special Exceptions forcement of the terms and conditions § 216.30 [Reserved] of the permit, and that the foreign government will enforce all terms and con- § 216.31 Definitions. ditions; and For the purpose of this subpart, the (iii) The foreign government involved definitions set forth in 50 CFR part 217 will afford comity to any permit shall apply to all threatened and en- amendment, modification, suspension dangered marine mammals, unless a or revocation decision. more restrictive definition exists under (c) Initial review. (1) NMFS will notify the MMPA or part 216. the applicant of receipt of the application. [61 FR 21935, May 10, 1996] (2) During the initial review, the Of- fice Director will determine: § 216.32 Scope. (i) Whether the application is com- The regulations of this subpart apply plete. to: (ii) Whether the proposed activity is (a) All marine mammals and marine for purposes authorized under this sub- mammal parts taken or born in cap- part. tivity after December 20, 1972; and (iii) If the proposed activity is for en- (b) All marine mammals and marine hancement purposes, whether the spe- mammal parts that are listed as cies or stock identified in the applica- threatened or endangered under the tion is in need of enhancement for its ESA. survival or recovery and whether the [61 FR 21935, May 10, 1996] proposed activity will likely succeed in its objectives. § 216.33 Permit application submis- (iv) Whether the activities proposed sion, review, and decision proce- are to be conducted consistent with the dures. permit restrictions and permit specific (a) Application submission. Persons conditions as described in § 216.35 and seeking a special exemption permit § 216.36(a). under this subpart must submit an ap- (v) Whether sufficient information is plication to the Office Director. The included regarding the environmental application must be signed by the ap- impact of the proposed activity to en- plicant, and provide in a properly for- able the Office Director: matted manner all information nec- (A) To make an initial determination essary to process the application. Writ- under the National Environmental Pol- ten instructions addressing informa- icy Act (NEPA) as to whether the pro- tion requirements and formatting may posed activity is categorically excluded be obtained from the Office Director from preparation of further environ- upon request. mental documentation, or whether the (b) Applications to export living marine preparation of an environmental as- mammals. For applicants seeking a spe- sessment (EA) or environmental im- cial exception permit to export living pact statement (EIS) is appropriate or marine mammals, the application necessary; and must: (B) To prepare an EA or EIS if an ini- (1) Be submitted through the Conven- tial determination is made by the Of- tion on International Trade in Endan- fice Director that the activity proposed gered Fauna and Flora management is not categorically excluded from such authority of the foreign government requirements. or, if different, the appropriate agency (3) The Office Director may consult or agencies of the foreign government with the Marine Mammal Commission

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(Commission) and its Committee of (3) The Office Director may consult Scientific Advisors on Marine Mam- with any other person, institution, or mals (Committee) in making these ini- agency concerning the application. tial, and any subsequent, determina- (4) Within 30 days of publication of tions. the notice of receipt in the FEDERAL (4) Incomplete applications will be REGISTER, any interested party may returned with explanation. If the appli- submit written comments or may re- cant fails to resubmit a complete appli- quest a public hearing on the applica- cation or correct the identified defi- tion. ciencies within 60 days, the application (5) If the Office Director deems it ad- will be deemed withdrawn. Applica- visable, the Office Director may hold a tions that propose activities incon- public hearing within 60 days of publi- sistent with this subpart will be re- cation of the notice of receipt in the turned with explanation, and will not FEDERAL REGISTER. Notice of the date, be considered further. time, and place of the public hearing (d) Notice of receipt and application re- will be published in the FEDERAL REG- view. (1) Upon receipt of a valid, com- ISTER not less than 15 days in advance plete application, and the preparation of the public hearing. Any interested of any NEPA documentation that has person may appear in person or been determined initially to be re- through representatives and may sub- quired, the Office Director will publish mit any relevant material, data, views, a notice of receipt in the FEDERAL REG- or comments. A summary record of the ISTER. The notice will: hearing will be kept. (i) Summarize the application, in- (6) The Office Director may extend cluding: the period during which any interested (A) The purpose of the request; party may submit written comments. (B) The species and number of marine Notice of the extension must be pub- mammals; lished in the FEDERAL REGISTER within (C) The type and manner of special 60 days of publication of the notice of exception activity proposed; receipt in the FEDERAL REGISTER. (D) The location(s) in which the ma- (7) If, after publishing a notice of re- rine mammals will be taken, from ceipt, the Office Director determines which they will be imported, or to on the basis of new information that an which they will be exported; and EA or EIS must be prepared, the Office (E) The requested period of the per- Director must deny the permit unless mit. an EA is prepared with a finding of no (ii) List where the application is significant impact. If a permit is de- available for review. nied under these circumstances the ap- (iii) Invite interested parties to sub- plication may be resubmitted with in- mit written comments concerning the formation sufficient to prepare an EA application within 30 days of the date or EIS, and will be processed as a new of the notice. application. (iv) Include a NEPA statement that (e) Issuance or denial procedures. (1) an initial determination has been made Within 30 days of the close of the pub- that the activity proposed is categori- lic hearing or, if no public hearing is cally excluded from the requirement to held, within 30 days of the close of the prepare an EA or EIS, that an EA was public comment period, the Office Di- prepared resulting in a finding of no rector will issue or deny a special ex- significant impact, or that a final EIS ception permit. has been prepared and is available for (2) The decision to issue or deny a review. permit will be based upon: (2) The Office Director will forward a (i) All relevant issuance criteria set copy of the complete application to the forth at § 216.34; Commission for comment. If no com- (ii) All purpose-specific issuance cri- ments are received within 45 days (or teria as appropriate set forth at § 216.41, such longer time as the Office Director § 216.42, and § 216.43; may establish) the Office Director will (iii) All comments received or views consider the Commission to have no solicited on the permit application; objection to issuing a permit. and

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(iv) Any other information or data (7) The applicant or any party op- that the Office Director deems rel- posed to a permit may seek judicial re- evant. view of the terms and conditions of (3) If the permit is issued, upon re- such permit or of a decision to deny ceipt, the holder must date and sign such permit. Review may be obtained the permit, and return a copy of the by filing a petition for review with the original to the Office Director. The appropriate U.S. District Court as pro- permit shall be effective upon the per- vided for by law. mit holder’s signing of the permit. In signing the permit, the holder: [61 FR 21935, May 10, 1996] (i) Agrees to abide by all terms and § 216.34 Issuance criteria. conditions set forth in the permit, and all restrictions and relevant regula- (a) For the Office Director to issue tions under this subpart; and any permit under this subpart, the ap- (ii) Acknowledges that the authority plicant must demonstrate that: to conduct certain activities specified (1) The proposed activity is humane in the permit is conditional and subject and does not present any unnecessary to authorization by the Office Director. risks to the health and welfare of ma- (4) Notice of the decision of the Office rine mammals; Director shall be published in the FED- (2) The proposed activity is con- ERAL REGISTER within 10 days after the sistent with all restrictions set forth at date of permit issuance or denial and § 216.35 and any purpose-specific restric- shall indicate where copies of the per- tions as appropriate set forth at mit, if issued, may be reviewed or ob- § 216.41, § 216.42, and § 216.43; tained. If the permit issued involves (3) The proposed activity, if it in- marine mammals listed as endangered volves endangered or threatened ma- or threatened under the ESA, the no- rine mammals, will be conducted con- tice shall include a finding by the Of- sistent with the purposes and policies fice Director that the permit: set forth in section 2 of the ESA; (i) Was applied for in good faith; (4) The proposed activity by itself or (ii) If exercised, will not operate to in combination with other activities, the disadvantage of such endangered or will not likely have a significant ad- threatened species; and verse impact on the species or stock; (iii) Is consistent with the purposes (5) Whether the applicant’s expertise, and policy set forth in section 2 of the facilities, and resources are adequate ESA. to accomplish successfully the objec- (5) If the permit is denied, the Office tives and activities stated in the appli- Director shall provide the applicant cation; with an explanation for the denial. (6) If a live animal will be held cap- (6) Under the MMPA, the Office Di- rector may issue a permit for scientific tive or transported, the applicant’s research before the end of the public qualifications, facilities, and resources comment period if delaying issuance are adequate for the proper care and could result in injury to a species, maintenance of the marine mammal; stock, or individual, or in loss of and unique research opportunities. The Of- (7) Any requested import or export fice Director also may waive the 30-day will not likely result in the taking of comment period required under the marine mammals or marine mammal ESA in an emergency situation where parts beyond those authorized by the the health or life of an endangered or permit. threatened marine mammal is threat- (b) The opinions or views of scientists ened and no reasonable alternative is or other persons or organizations available. If a permit is issued under knowledgeable of the marine mammals these circumstances, notice of such that are the subject of the application issuance before the end of the comment or of other matters germane to the ap- period shall be published in the FED- plication will be considered. ERAL REGISTER within 10 days of issuance. [61 FR 21936, May 10, 1996]

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§ 216.35 Permit restrictions. (h) Persons who require state or Fed- The following restrictions shall apply eral licenses to conduct activities au- to all permits issued under this sub- thorized under the permit must be duly part: licensed when undertaking such activi- (a) The taking, importation, export, ties; or other permitted activity involving (i) Special exception permits are not marine mammals and marine mammal transferable or assignable to any other parts shall comply with the regulations person, and a permit holder may not of this subpart. require any direct or indirect com- (b) The maximum period of any spe- pensation from another person in re- cial exception permit issued, or any turn for requesting authorization for major amendment granted, is five such person to conduct the taking, im- years from the effective date of the port, or export activities authorized permit or major amendment. In ac- under the subject permit; cordance with the provisions of § 216.39, (j) The permit holder or designated the period of a permit may be extended agent shall possess a copy of the per- by a minor amendment up to 12 months mit when engaged in a permitted activ- beyond that established in the original ity, when the marine mammal is in permit. transit incidental to such activity, and (c) Except as provided for in whenever marine mammals or marine § 216.41(c)(1)(v), marine mammals or mammal parts are in the possession of marine mammal parts imported under the permit holder or agent. A copy of the authority of a permit must be the permit shall be affixed to any con- taken or imported in a humane man- tainer, package, enclosure, or other ner, and in compliance with the Acts means of containment, in which the and any applicable foreign law. Impor- marine mammals or marine mammal tation of marine mammals and marine parts are placed for purposes of transit, mammal parts is subject to the provi- supervision, or care. For marine mam- sions of 50 CFR part 14. mals held captive and marine mammal (d) The permit holder shall not take parts in storage, a copy of the permit from the wild any marine mammal shall be kept on file in the holding or which at the time of taking is either storage facility. unweaned or less than eight months [61 FR 21936, May 10, 1996] old, or is a part of a mother-calf/pup pair, unless such take is specifically § 216.36 Permit conditions. authorized in the conditions of the special exception permit. Additionally, (a) Specific conditions. (1) Permits the permit holder shall not import any issued under this subpart shall contain marine mammal that is pregnant or specific terms and conditions deemed lactating at the time of taking or im- appropriate by the Office Director, in- port, or is unweaned or less than eight cluding, but not limited to: months old unless such import is spe- (i) The number and species of marine cifically authorized in the conditions mammals that are authorized to be of the special exception permit. taken, imported, exported, or other- (e) Captive marine mammals shall wise affected; not be released into the wild unless (ii) The manner in which marine specifically authorized by the Office mammals may be taken according to Director under a scientific research or type of take; enhancement permit. (iii) The location(s) in which the ma- (f) The permit holder is responsible rine mammals may be taken, from for all activities of any individual who which they may be imported, or to is operating under the authority of the which they may be exported, as appli- permit; cable, and, for endangered or threat- (g) Individuals conducting activities ened marine mammal species to be im- authorized under the permit must pos- ported or exported, the port of entry or sess qualifications commensurate with export; their duties and responsibilities, or (iv) The period during which the per- must be under the direct supervision of mit is valid. a person with such qualifications; (2) [Reserved]

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(b) Other conditions. In addition to tion of receipt, subsequent transfers the specific conditions imposed pursu- may only occur subject to the provi- ant to paragraph (a) of this section, the sions of paragraph (a) of this section; Office Director shall specify any other and permit conditions deemed appropriate. (6) Within 30 days after the transfer, [61 FR 21937, May 10, 1996] the person transferring the marine mammal part notifies the Regional Di- § 216.37 Marine mammal parts. rector of the transfer, including a de- With respect to marine mammal scription of the part, the person to parts acquired by take or import au- whom the part was transferred, the thorized under a permit issued under purpose of the transfer, certification this subpart: that the recipient has agreed to comply (a) Marine mammal parts are with the requirements of paragraph (a) transferrable if: of this section for subsequent transfers, (1) The person transferring the part and, if applicable, the recipient’s per- receives no remuneration of any kind mit number. for the marine mammal part; (b) Marine mammal parts may be (2) The person receiving the marine loaned to another person for a purpose mammal part is: described in paragraph (a)(3) of this (i) An employee of NMFS, the U.S. section and without the agreement and Fish and Wildlife Service, or any other notification required under paragraphs governmental agency with conserva- (a)(5) and (6) of this section, if: tion and management responsibilities, (1) A record of the loan is main- who receives the part in the course of tained; and their official duties; (2) The loan is for not more than one (ii) A holder of a special exception year. Loans for a period greater than 12 permit which authorizes the take, im- months, including loan extensions or port, or other activity involving the renewals, require notification of the possession of a marine mammal part of Regional Director under paragraph the same species as the subject part; or (a)(6). (iii) In the case of marine mammal (c) Unless other disposition is speci- parts from a species that is not de- fied in the permit, a holder of a special pleted, endangered or threatened, a exception permit may retain marine person who is authorized under section mammal parts not destroyed or other- 112(c) of the MMPA and subpart C of wise disposed of during or after a sci- this part to take or import marine entific research or enhancement activ- mammals or marine mammal parts; ity, if such marine mammal parts are: (iv) Any other person specifically authorized by the Regional Director, con- (1) Maintained as part of a properly sistent with the requirements of para- curated, professionally accredited col- graphs (a)(1) and (a)(3) through (6) of lection; or this section. (2) Made available for purposes of sci- (3) The marine mammal part is trans- entific research or enhancement at the ferred for the purpose of scientific re- request of the Office Director. search, maintenance in a properly (d) Marine mammal parts may be ex- curated, professionally accredited sci- ported and subsequently reimported by entific collection, or education, pro- a permit holder or subsequent author- vided that, for transfers for edu- ized recipient, for the purpose of sci- cational purposes, the recipient is a entific research, maintenance in a museum, educational institution or properly curated, professionally ac- equivalent that will ensure that the credited scientific collection, or edu- part is available to the public as part cation, provided that: of an educational program; (1) The permit holder or other person (4) A unique number assigned by the receives no remuneration for the ma- permit holder is marked on or affixed rine mammal part; to the marine mammal part or con- (2) A unique number assigned by the tainer; permit holder is marked on or affixed (5) The person receiving the marine to the marine mammal specimen or mammal part agrees that, as a condi- container;

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(3) The marine mammal part is ex- (2) A minor amendment means any ported or reimported in compliance amendment that does not constitute a with all applicable domestic and for- major amendment. eign laws; (b) Amendment requests and proposals. (4) If exported or reimported for edu- (1) Requests by a permit holder for an cational purposes, the recipient is a amendment must be submitted in writ- museum, educational institution, or ing and include the following: equivalent that will ensure that the (i) The purpose and nature of the part is available to the public as part amendment; of an educational program; and (ii) Information, not previously sub- (5) Special reports are submitted mitted as part of the permit applica- within 30 days after both export and re- tion or subsequent reports, necessary import as required by the Office Direc- to determine whether the amendment tor under § 216.38. satisfies all issuance criteria set forth at § 216.34, and, as appropriate, § 216.41, [61 FR 21937, May 10, 1996] § 216.42, and § 216.43. (iii) Any additional information re- § 216.38 Reporting. quired by the Office Director for pur- All permit holders must submit an- poses of reviewing the proposed amend- nual, final, and special reports in ac- ment. cordance with the requirements estab- (2) If an amendment is proposed by lished in the permit, and any reporting the Office Director, the permit holder format established by the Office Direc- will be notified of the proposed amend- tor. ment, together with an explanation. [61 FR 21937, May 10, 1996] (c) Review of proposed amendments. (1) Major amendments. The provisions of § 216.39 Permit amendments. § 216.33(d) and (e) governing notice of (a) General. Special exception permits receipt, review and decision shall apply may be amended by the Office Direc- to all proposed major amendments. tor. Major and minor amendments may (2) Minor amendments. (i) After re- be made to permits in response to, or viewing all appropriate information, independent of, a request from the per- the Office Director will provide the mit holder. Amendments must be con- permit holder with written notice of sistent with the Acts and comply with the decision on a proposed or requested the applicable provisions of this sub- amendment, together with an expla- part. nation for the decision. (1) A major amendment means any (ii) If the minor amendment extends change to the permit specific condi- the duration of the permit 12 months tions under § 216.36(a) regarding: or less from that established in the (i) The number and species of marine original permit, notice of the minor mammals that are authorized to be amendment will be published in the taken, imported, exported, or other- FEDERAL REGISTER within 10 days from wise affected; the date of the Office Director’s deci- (ii) The manner in which these ma- sion. rine mammals may be taken, imported, (iii) A minor amendment will be ef- exported, or otherwise affected, if the fective upon a final decision by the Of- proposed change may result in an in- fice Director. creased level of take or risk of adverse [61 FR 21937, May 10, 1996] impact; (iii) The location(s) in which the ma- § 216.40 Penalties and permit sanc- rine mammals may be taken, from tions. which they may be imported, and to (a) Any person who violates any pro- which they may be exported, as appli- vision of this subpart or permit issued cable; and thereunder is subject to civil and (iv) The duration of the permit, if the criminal penalties, permit sanctions proposed extension would extend the and forfeiture as authorized under the duration of the permit more than 12 Acts, and 15 CFR part 904. months beyond that established in the (b) All special exception permits are original permit. subject to suspension, revocation,

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modification and denial in accordance pleted, or listed or proposed to be listed with the provisions of subpart D of 15 as endangered or threatened: CFR part 904. (i) The proposed research cannot be accomplished using a species or stock [61 FR 21938, May 10, 1996] that is not designated or proposed to be § 216.41 Permits for scientific research designated as depleted, or listed or pro- and enhancement. posed to be listed as threatened or endangered; In addition to the requirements (ii) The proposed research, by itself under §§ 216.33 through 216.38, permits or in combination with other activities for scientific research and enhance- will not likely have a long-term direct ment are governed by the following re- or indirect adverse impact on the spe- quirements: cies or stock; (a) Applicant. (1) For each application (iii) The proposed research will ei- submitted under this section, the appli- ther: cant shall be the principal investigator (A) Contribute to fulfilling a research responsible for the overall research or need or objective identified in a species enhancement activity. If the research recovery or conservation plan, or if or enhancement activity will involve a there is no conservation or recovery periodic change in the principal inves- plan in place, a research need or objec- tigator or is otherwise controlled by tive identified by the Office Director in and dependent upon another entity, the stock assessments established under applicant may be the institution, gov- section 117 of the MMPA; ernmental entity, or corporation re- (B) Contribute significantly to under- sponsible for supervision of the prin- standing the basic biology or ecology cipal investigator. of the species or stock, or to identi- (2) For any scientific research involv- fying, evaluating, or resolving con- ing captive maintenance, the applica- servation problems for the species or tion must include supporting docu- stock; or mentation from the person responsible (C) Contribute significantly to ful- for the facility or other temporary en- filling a critically important research closure. need. (b) Issuance Criteria. For the Office (6) For proposed enhancement activi- Director to issue any scientific re- ties: search or enhancement permit, the ap- (i) Only living marine mammals and plicant must demonstrate that: marine mammal parts necessary for (1) The proposed activity furthers a enhancement of the survival, recovery, bona fide scientific or enhancement or propagation of the affected species purpose; or stock may be taken, imported, ex- (2) If the lethal taking of marine ported, or otherwise affected under the mammals is proposed: authority of an enhancement permit. (i) Non-lethal methods for conducting Marine mammal parts would include in the research are not feasible; and this regard clinical specimens or other (ii) For depleted, endangered, or biological samples required for the con- threatened species, the results will di- duct of breeding programs or the diag- rectly benefit that species or stock, or nosis or treatment of disease. will fulfill a critically important re- (ii) The activity will likely con- search need. tribute significantly to maintaining or (3) Any permanent removal of a ma- increasing distribution or abundance, rine mammal from the wild is con- enhancing the health or welfare of the sistent with any applicable quota es- species or stock, or ensuring the sur- tablished by the Office Director. vival or recovery of the affected species (4) The proposed research will not or stock in the wild. likely have significant adverse effects (iii) The activity is consistent with: on any other component of the marine (A) An approved conservation plan ecosystem of which the affected species developed under section 115(b) of the or stock is a part. MMPA or recovery plan developed (5) For species or stocks designated under section 4(f) of the ESA for the or proposed to be designated as de- species or stock; or

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(B) If there is no conservation or re- (B) Will not interfere with the attain- covery plan, with the Office Director’s ment of the survival or recovery objec- evaluation of the actions required to tives. enhance the survival or recovery of the (c) Restrictions. (1) The following re- species or stock in light of the factors strictions apply to all scientific re- that would be addressed in a conserva- search permits issued under this sub- tion or recovery plan. part: (iv) An enhancement permit may au- (i) Research activities must be con- thorize the captive maintenance of a ducted in the manner authorized in the marine mammal from a threatened, en- permit. dangered, or depleted species or stock (ii) Research results shall be pub- only if the Office Director determines lished or otherwise made available to that: the scientific community in a reasonable period of time. (A) The proposed captive mainte- (iii) Research activities must be con- nance will likely contribute directly to ducted under the direct supervision of the survival or recovery of the species the principal investigator or a co-in- or stock by maintaining a viable gene vestigator identified in the permit. pool, increasing productivity, pro- (iv) Personnel involved in research viding necessary biological informa- activities shall be reasonable in num- tion, or establishing animal reserves ber and limited to: required to support directly these ob- (A) Individuals who perform a func- jectives; and tion directly supportive of and nec- (B) The expected benefit to the spe- essary to the permitted research activ- cies or stock outweighs the expected ity; and benefits of alternatives that do not re- (B) Support personnel included for quire removal of marine mammals the purpose of training or as backup from the wild. personnel for persons described in para- (v) The Office Director may authorize graph (c)(1)(iv)(A). the public display of marine mammals (v) Any marine mammal part im- held under the authority of an en- ported under the authority of a sci- hancement permit only if: entific research permit must not have (A) The public display is incidental been obtained as the result of a lethal to the authorized captive maintenance; taking that would be inconsistent with (B) The public display will not inter- the Acts, unless authorized by the Of- fere with the attainment of the sur- fice Director. vival or recovery objectives; (vi) Marine mammals held under a (C) The marine mammals will be held permit for scientific research shall not consistent with all requirements and be placed on public display, included in standards that are applicable to marine an interactive program or activity, or mammals held under the authority of trained for performance unless such activities: the Acts and the Animal Welfare Act, (A) Are necessary to address sci- unless the Office Director determines entific research objectives and have that an exception is necessary to im- been specifically authorized by the Of- plement an essential enhancement ac- fice Director under the scientific re- tivity; and search permit; and (D) The marine mammals will be ex- (B) Are conducted incidental to and cluded from any interactive program do not in any way interfere with the and will not be trained for perform- permitted scientific research; and ance. (C) Are conducted in a manner con- (vi) The Office Director may author- sistent with provisions applicable to ize non-intrusive scientific research to public display, unless exceptions are be conducted while a marine mammal specifically authorized by the Office is held under the authority of an en- Director. hancement permit, only if such sci- (vii) Any activity conducted inci- entific research: dental to the authorized scientific re- (A) Is incidental to the permitted en- search activity must not involve any hancement activities; and taking of marine mammals beyond

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what is necessary to conduct the re- paragraph (b) of this section, receive search (i.e., educational and commer- confirmation that the General Author- cial photography). ization applies in accordance with (2) Any marine mammal or progeny paragraph (c) of this section, and com- held in captive maintenance under an ply with the terms and conditions of enhancement permit shall be returned paragraph (d) of this section; or to its natural habitat as soon as fea- (ii) If such marine mammals are list- sible, consistent with the terms of the ed as endangered or threatened under enhancement permit and the objectives the ESA, they have been issued a per- of an approved conservation or recov- mit under Section 10(a)(1)(A) of the ery plan. In accordance with section ESA and implementing regulations at 10(j) of the ESA, the Office Director 50 CFR parts 217–227, particularly at may authorize the release of any popu- § 222.23 through § 222.28, to take marine lation of an endangered or threatened mammals in the wild for the purpose of species outside the current range of scientific research, the taking author- such species if the Office Director de- ized under the permit involves such termines that such release will further Level B harassment of marine mam- the conservation of such species. mals or marine mammal stocks, and [61 FR 21938, May 10, 1996] they comply with the terms and conditions of that permit. § 216.42 Photography. [Reserved] (2) Except as provided under paragraph (a)(1)(ii) of this section, no tak- § 216.43 Public display. [Reserved] ing, including harassment, of marine mammals listed as threatened or en- § 216.44 Applicability/transition. dangered under the ESA is authorized (a) General. The regulations of this under the General Authorization. Ma- subpart are applicable to all persons, rine mammals listed as endangered or including persons holding permits or threatened under the ESA may be other authorizing documents issued be- taken for purposes of scientific re- fore June 10, 1996, by NMFS for the search only after issuance of a permit take, import, export, or conduct of any for such activities pursuant to the otherwise prohibited activity involving ESA. a marine mammal or marine mammal (3) The following types of research part for special exception purposes. activities will likely qualify for inclu- (b) Scientific research. Any intrusive sion under the General Authorization: research as defined in § 216.3, initiated Photo-identification studies, behav- after June 10, 1996, must be authorized ioral observations, and vessel and aer- under a scientific research permit. In- ial population surveys (except aerial trusive research authorized by the Of- surveys over pinniped rookeries at alti- fice Director to be conducted on cap- tudes of less than 1,000 ft). tive marine mammals held for public (b) Letter of intent. Except as provided display purposes prior to June 10, 1996, under paragraph (a)(1)(ii) of this sec- must be authorized under a scientific tion, any person intending to take ma- research permit one year after June 10, rine mammals in the wild by Level B 1996. harassment for purposes of bona fide [61 FR 21939, May 10, 1996] scientific research under the General Authorization must submit, at least 60 § 216.45 General Authorization for days before commencement of such re- Level B harassment for scientific search, a letter of intent by certified research. return/receipt mail to the Chief, Per- (a) General Authorization. (1) Persons mits Division, F/PR1, Office of Pro- are authorized under section tected Resources, NMFS, 1335 East- 104(c)(3)(C) of the MMPA to take ma- West Highway, Silver Spring, MD rine mammals in the wild by Level B 20910–3226. harassment, as defined in § 216.3, for (1) The letter of intent must be sub- purposes of bona fide scientific remitted by the principal investigator search Provided, That: (who shall be deemed the applicant). (i) They submit a letter of intent in For purposes of this section, the prin- accordance with the requirements of cipal investigator is the individual who

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is responsible for the overall research Level B harassment only, and that any other project, or the institution, govern- take of marine mammals, including the con- mental entity, or corporation respon- duct of any activity that has the potential to sible for supervision of the principal in- injure marine mammals (i.e., Level A harassment), may subject me to penalties under vestigator. the MMPA and implementing regulations. (2) The letter of intent must include the following information: (c) Confirmation that the General Au- (i) The name, address, telephone thorization applies or notification of per- number, qualifications and experience mit requirement. of the applicant and any co-investi- (1) Not later than 30 days after re- gator(s) to be conducting the proposed ceipt of a letter of intent as described research, and a curriculum vitae for in paragraph (b) of this section, the each, including a list of publications by Chief, Permits Division, NMFS will each such investigator relevant to the issue a letter to the applicant either: objectives, methodology, or other as- (i) Confirming that the General Au- pects of the proposed research; thorization applies to the proposed sci- (ii) The species or stocks of marine entific research as described in the let- mammals (common and scientific ter of intent; names) that are the subject of the sci- (ii) Notifying the applicant that all entific research and any other species or part of the research described in the or stock of marine mammals that may letter of intent is likely to result in a be harassed during the conduct of the taking of a marine mammal in the wild research; involving other than Level B harass- (iii) The geographic location(s) in ment and, as a result, cannot be con- which the research is to be conducted, ducted under the General Authoriza- e.g., geographic name or lat./long.; tion, and that a scientific research per- (iv) The period(s) of time over which mit is required to conduct all or part of the research will be conducted (up to the subject research; or five years), including the field sea- (iii) Notifying the applicant that the son(s) for the research, if applicable; letter of intent fails to provide suffi- (v) The purpose of the research, in- cient information and providing a de- cluding a description of how the pro- scription of the deficiencies, or noti- posed research qualifies as bona fide re- fying the applicant that the proposed search as defined in § 216.3; and research as described in the letter of (vi) The methods to be used to con- intent is not bona fide research as de- duct the research. fined in § 216.3. (3) The letter of intent must be (2) A copy of each letter of intent and signed, dated, and certified by the ap- letter confirming that the General Au- plicant as follows: thorization applies or notifying the ap- In accordance with section 104(c)(3)(C) of plicant that it does not apply will be the Marine Mammal Protection Act of 1972, forwarded to the Marine Mammal Com- as amended (16 U.S.C. 1361 et seq.) and imple- mission. menting regulations (50 CFR part 216), I (3) Periodically, NMFS will publish a hereby notify the National Marine Fisheries summary document in the FEDERAL Service of my intent to conduct research in- REGISTER notifying the public of let- volving only Level B harassment on marine ters of confirmation issued. mammals in the wild, and request confirma- (d) Terms and conditions. Persons tion that the General Authorization for Level B Harassment for Scientific Research issued letters of confirmation in ac- applies to the proposed research as described cordance with paragraph (c) of this sec- herein. I certify that the information in this tion are responsible for complying with letter of intent is complete, true, and correct the following terms and conditions: to the best of my knowledge and belief, and (1) Activities are limited to those I understand that any false statement may conducted for the purposes, by the subject me to the criminal penalties of 18 means, in the locations, and during the U.S.C. 1001, or penalties under the MMPA periods of time described in the letter and implementing regulations. I acknowledge and accept that authority to conduct of intent and acknowledged as author- scientific research on marine mammals in ized under the General Authorization the wild under the General Authorization is in the confirmation letter sent pursu- a limited conditional authority restricted to ant to paragraph (c) of this section;

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(2) Annual reports of activities con- on marine mammals in the wild. The ducted under the General Authoriza- principal investigator must cooperate tion must be submitted to the Chief, with coordination efforts by the Re- Permits Division (address listed in gional Director in this regard; paragraph (b) of this section) within 90 (6) If research activities result in a days of completion of the last field sea- taking which exceeds Level B harass- son(s) during the calendar year or, if ment, the applicant shall: the research is not conducted during a (i) Report the taking within 12 hours defined field season, no later than 90 to the Director, Office of Protected Re- days after the anniversary date of the sources, or his designee as set forth in letter of confirmation issued under the letter authorizing research; and paragraph (c) of this section. Annual (ii) Temporarily discontinue for 72 reports must include: hours all field research activities that (i) A summary of research activities resulted in the taking. During this conducted; time period, the applicant shall consult (ii) Identification of the species and with NMFS as to the circumstances number of each species taken by Level surrounding the taking and any pre- B harassment; cautions necessary to prevent future (iii) An evaluation of the progress taking, and may agree to amend the re- made in meeting the objectives of the search protocol, as deemed necessary research as described in the letter of by NMFS. intent; and (7) NMFS may review scientific re- (iv) Any incidental scientific, edu- search conducted pursuant to the Gen- cational, or commercial uses of photo- eral Authorization. If requested by graphs, videotape, and film obtained as NMFS, the applicant must cooperate a result of or incidental to the research with any such review and shall: and if so, names of all photographers. (i) Allow any employee of NOAA or (3) Authorization to conduct research any other person designated by the Di- under the General Authorization is for rector, Office of Protected Resources to the period(s) of time identified in the observe research activities; and letter of intent or for a period of 5 (ii) Provide any documents or other years from the date of the letter of information relating to the scientific confirmation issued under paragraph research; (c) of this section, whichever is less, (8) Any photographs, videotape, or unless extended by the Director or film obtained during the conduct of re- modified, suspended, or revoked in ac- search under the General Authoriza- cordance with paragraph (e) of this section must be identified by a statement tion; that refers to the General Authoriza- (4) Activities conducted under the tion or ESA permit number, and in- General Authorization may only be cludes the file number provided by conducted under the on-site super- NMFS in the confirmation letter, the vision of the principal investigator or name of the photographer, and the date co-investigator(s) named in the letter the image was taken. This statement of intent. All personnel involved in the must accompany the image(s) in all conduct of activities under the General subsequent uses or sales. The annual Authorization must perform a function report must note incidental scientific, directly supportive of and necessary for educational, or commercial uses of the the research being conducted, or be one images, and if there are any such uses, of a reasonable number of support per- the names of all photographers; and sonnel included for the purpose of (9) Persons conducting scientific re- training or as back-up personnel; search under authority of the General (5) The principal investigator must Authorization may not transfer or as- notify the appropriate Regional Direc- sign any authority granted thereunder tor, NMFS, (Regional Director) in writ- to any other person. ing at least 2 weeks before initiation of (e) Suspension, revocation, or modifica- on-site activities. The Regional Direc- tion. (1) NMFS may suspend, revoke, or tor shall consider this information in modify the authority to conduct sci- efforts to coordinate field research ac- entific research under the General Au- tivities to minimize adverse impacts thorization if:

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(i) The letter of intent included false banked tissue is consistent with the information or statements of a mate- goals of the NMMTB and the rial nature; MMHSRP. (ii) The research does not constitute (A) The goals of the MMHSRP are to bona fide scientific research; facilitate the collection and dissemina- (iii) Research activities result in tion of reference data on marine mam- takings of marine mammals other than mals and health trends of marine mam- by Level B harassment; mal populations in the wild; to cor- (iv) Research activities differ from relate the health of marine mammals those described in the letter of intent submitted by the applicant and letter and marine mammal populations in the of confirmation issued by NMFS; or wild with available data on physical, (v) The applicant violates any term chemical, and biological environmental or condition set forth in this section. parameters; and to coordinate effective (2) Any suspension, revocation, or responses to unusual mortality events. modification is subject to the require- (B) The goal of the NMMTB is to ments of 15 CFR part 904. maintain quality controlled marine [59 FR 50376, Oct. 3, 1994] mammal tissues that will permit retro- spective analyses to determine envi- § 216.46 U.S. citizens on foreign flag ronmental trends of contaminants and vessels operating under the Inter- other analytes of interest and that will national Dolphin Conservation Pro- provide the highest quality samples for gram. analyses using new and innovative The MMPA’s provisions do not apply techniques. to a citizen of the United States who (ii) A copy of the applicant’s sci- incidentally takes any marine mam- entific research permit. The applicant mal during fishing operations in the must demonstrate that the proposed ETP which are outside the U.S. exclu- use of the banked tissue is authorized sive economic zone (as defined in sec- by the permit; tion 3 of the Magnuson-Stevens Fish- ery Conservation and Management Act (iii) Name of principal investigator, (16 U.S.C. 1802)), while employed on a official title, and affiliated research or fishing vessel of a harvesting nation academic organization; that is participating in, and in compli- (iv) Specific tissue sample and quan- ance with, the IDCP. tity desired; (v) Research facility where analyses [65 FR 56, Jan. 3, 2000] will be conducted. The applicant must § 216.47 Access to marine mammal tis- demonstrate that the research facility sue, analyses, and data. will follow the Analytical Quality As- (a) Applications for the National Ma- surance (AQA) program, which was de- rine Mammal Tissue Bank samples signed to ensure the accuracy, preci- (NMMTB). (1) A principal investigator, sion, level of detection, and inter- contributor or holder of a scientific re- compatibility of data resulting from search permit issued in accordance chemical analyses of marine mammal with the provisions of this subpart may tissues. The AQA consists of annual apply for access to a tissue specimen interlaboratory comparisons and the sample in the NMMTB. Applicants for development of control materials and tissue specimen samples from the standard reference materials for ma- NMMTB must submit a signed written rine mammal tissues; request with attached study plan to (vi) Verification that funding is the Marine Mammal Health and available to conduct the research; Stranding Response Program (vii) Estimated date for completion (MMHSRP) Program Manager, Office of of research, and schedule/date of subse- Protected Resources, NMFS. The written request must include: quent reports; (i) A clear and concise statement of (viii) Agreement that all research the proposed use of the banked tissue findings based on use of the banked tis- specimen. The applicant must dem- sue will be reported to the NMMTB, onstrate that the proposed use of the MMHSRP Program Manager and the

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contributor; and the sequences of tis- ity to the Director, Office of Protected sue specimen samples that are used/re- Resources within 30 days of the date leased for genetic analyses (DNA se- that the request was sent to the con- quencing) will be archived in the Na- tributor(s). tional Center for biotechnology Infor- (5) The USFWS Representative of the mation’s GenBank. Sequence acces- NMMTB Collaborating Agencies will be sions in GenBank should document the chair of review committees for resource, citing a NIST field number that quests involving species managed by indentifies the animal; and the DOI. The MMHSRP Program Man- (ix) Agreement that credit and ac- ager will be chair of all other review knowledgment will be given to U.S. committees. Fish and Wildlife Service (USFWS), US (6) Each committee chair will provide Geologic Service (USGS), National In- recommendations on the request and stitute of Standards and Technology an evaluation of the study plan to the (NIST), the Minerals Management Director, Office of Protected Re- Service (MMS), NMFS, the NMMTB, sources, NMFS. and the collector for use of banked tis- (7) The Director, Office of Protected sues. Resources, NMFS, will make the final (2) The applicant shall insert the fol- decision on release of the samples lowing acknowledgment in all publica- based on the advice provided by the re- tions, abstracts, or presentations based view committee, comments received on research using the banked tissue: from any contributor(s) of the sample The specimens used in this study were col- within the time provided in paragraph lected by [the contributor] and provided by (a)(4) of this section, and determina- the National Marine Mammal Tissue Bank, tion that the proposed use of the which is maintained in the National Biomon- banked tissue specimen is consistent itoring Specimen Bank at NIST and which is with the goals of the MMHSRP and the operated under the direction of NMFS with NMMTB. The Director will send a writ- the collaboration of MMS, USGS, USFWS, ten decision to the applicant and send and NIST through the Marine Mammal copies to all review committee mem- Health and Stranding Response Program [and the Alaska Marine Mammal Tissue Ar- bers. If the samples are released, the chival Project if the samples are from Alas- response will indicate whether the ka]. samples have been homogenized and, if (3) Upon submission of a complete ap- not, the homogenization schedule. plication, the MMHSRP Program Man- (8) The applicant will bear all ship- ager will send the request and attached ping and homogenization costs related study plan to the following entities to use of any specimens from the which will function as the review com- NMMTB. mittee: (9) The applicant will dispose of the (i) Appropriate Federal agency tissue specimen sample consistent with (NMFS or USFWS) marine mammal the provisions of the applicant’s sci- management office for that particular entific research permit after the re- species; and search is completed, unless the re- (ii) Representatives of the NMMTB quester submits another request and Collaborating Agencies (NMFS, USFS, receives approval pursuant to this sec- USGS Biological Resources Division, tion. The request must be submitted and NIST) If no member of the review within three months after the original committee is an expert in the field that project has been completed. is related to the proposed research ac- (b) [Reserved] tivity, any member may request an [69 FR 41979, July 13, 2004] outside review of the proposal, which may be outside of NMFS or USFWS but §§ 216.48–216.49 [Reserved] within the Federal Government. (4) The MMHSRP Program Manager Subpart E—Designated Ports will send the request and attached study plan to any contributor(s) of the § 216.50 Importation at designated tissue specimen sample. The contrib- ports. utor(s) of the sample may submit com- (a) Any marine mammal or marine ments on the proposed research activ- mammal product which is subject to

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the jurisdiction of the National Marine (b) By April 1 of every third year, be- Fisheries Service, National Oceanic ginning April 1994, the Assistant Ad- and Atmospheric Administration, De- ministrator will publish in the FED- partment of Commerce and is intended ERAL REGISTER a summary of the pre- for importation into the United States ceding 3 years of harvesting and a dis- shall be subject to the provisions of 50 cussion of the number of seals expected CFR part 14. to be taken annually over the next 3 (b) For the information of importers, years to satisfy the subsistence redesignated ports of entry for the quirements of each island. This discus- United States are: sion will include an assessment of fac- New York, N.Y. tors and conditions on St. Paul and St. Miami, Fla. George Islands that influence the need Chicago, Ill. by Pribilof Aleuts to take seals for sub- San Francisco, Calif. sistence uses and an assessment of any Los Angeles, Calif. changes to those conditions indicating New Orleans, La. Seattle, Wash. that the number of seals that may be Honolulu, Hi. taken for subsistence each year should be made higher or lower. Following a (c) Additionally, marine mammals or 30-day public comment period, a final marine mammal products which are notification of the expected annual entered into Alaska, Hawaii, Puerto harvest levels for the next 3 years will Rico, Guam, American Samoa or the 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 Guam—Honolulu, Hi. stunning followed immediately by 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 [51 FR 24840, July 9, 1986. Redesignated at 61 by NMFS scientists. 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:

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(1) St. Paul Island—Seals may only be island have been satisfied, whichever harvested from the following haulout occurs first. areas: Zapadni, English Bay, Northeast [51 FR 24840, July 9, 1986, as amended at 57 Point, Polovina, Lukanin, Kitovi, and FR 33902, July 31, 1992; 59 FR 35474, July 12, Reef. No haulout area may be har- 1994. Redesignated at 61 FR 11750, Mar. 22, vested more than once per week. 1996] (2) St. George Island—Seals may only be harvested from the following § 216.73 Disposition of fur seal parts. haulout areas: Northeast and Zapadni. Except for transfers to other Alaskan Neither haulout area may be harvested Natives for barter or sharing for per- more than twice per week. sonal or family consumption, no part (e)(1) The Assistant Administrator is of a fur seal taken for subsistence uses required to suspend the take provided may be sold or otherwise transferred to for in § 215.31 when: any person unless it is a nonedible by- (i) He determines, after reasonable product which: notice by NMFS representatives to the (a) Has been transformed into an ar- Pribilovians on the island, that the ticle of handicraft, or subsistence needs of the Pribilovians (b) Is being sent by an Alaskan Na- on the island have been satisfied; tive directly, or through a registered or agent, to a tannery registered under 50 (ii) He determines that the harvest is CFR 216.23(c) for the purpose of proc- otherwise being conducted in a waste- essing, and will be returned directly to ful manner; or the Alaskan Native for conversion into (iii) The lower end of the range of the an article of handicraft, or estimated subsistence level provided in (c) Is being sold or transferred to an the notice issued under paragraph (b) Alaskan Native, or to an agent reg- of this section is reached. istered under 50 CFR 216.23(c) for resale (2) A suspension based on a deter- or transfer to an Alaskan Native, who mination under paragraph (e)(1)(ii) of will convert the seal part into a handi- this section may be lifted by the As- craft. sistant Administrator if he finds that [51 FR 24840, July 9, 1986. Redesignated at 61 the conditions which led to the deter- FR 11750, Mar. 22, 1996] mination that the harvest was being conducted in a wasteful manner have § 216.74 Cooperation with Federal offi- been remedied. cials. (3) A suspension issued in accordance Pribilovians who engage in the har- with paragraph (e)(1)(iii) of this section vest of seals are required to cooperate may not exceed 48 hours in duration with scientists engaged in fur seal re- and shall be followed immediately by a search on the Pribilof Islands who may review of the harvest data to determine need assistance in recording tag or if a finding under paragraph (e)(1)(i) of other data and collecting tissue or this section is warranted. If a the har- other fur seal samples for research pur- vest is not suspended under paragraph poses. In addition, Pribilovians who (e)(1)(i) of this section, the Assistant take fur seals for subsistence uses Administrator must provide a revised must, consistent with 5 CFR estimate of the number of seals re- 1320.7(k)(3), cooperate with the NMFS quired to satisfy the Pribilovians’ sub- representatives on the Pribilof Islands sistence needs. who are responsible for compiling the (f) The Assistant Administrator shall following information on a daily basis: terminate the take provided for in (a) The number of seals taken each § 215.31 on August 8 of each year or day in the subsistence harvest, when it is determined under paragraph (b) The extent of the utilization of (e)(1)(i) of this section that the subsist- fur seals taken, and ence needs of the Pribilovians on the (c) Other information determined by the Assistant Administrator to be necessary for determining the subsistence

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needs of the Pribilovians or for making by posting in public places and brought determinations under § 215.32(e). to the attention of tourists by personal notice. [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] Subpart G—Pribilof Islands Administration § 216.87 Wildlife research. (a) Wildlife research, other than re- § 216.81 Visits to fur seal rookeries. search on North Pacific fur seals, in- From June 1 to October 15 of each cluding specimen collection, may be year, no person, except those author- permitted on the Pribilof Islands sub- ized by a representative of the National ject to the following conditions: Marine Fisheries Service, or accom- (1) Any person or agency, seeking to panied by an authorized employee of conduct such research shall first obtain any Federal or State of Alaska permit the National Marine Fisheries Service, required for the type of research in- shall approach any fur seal rookery or volved. hauling grounds nor pass beyond any (2) Any person seeking to conduct posted sign forbidding passage. such research shall obtain prior ap- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 proval of the Director, Pribilof Islands FR 11750, Mar. 22, 1996] Program, National Marine Fisheries Service, National Oceanic and Atmos- § 216.82 Dogs prohibited. 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: (i) Copies of the required Federal and [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] State of Alaska permits; and (ii) A resume of the intended research § 216.83 Importation of birds or mam- program. mals. (3) All approved research shall be No mammals or birds, except house- subject to all regulations and adminis- hold cats, canaries and parakeets, shall trative procedures in effect on the be imported to the Pribilof Islands Pribilof Islands, and such research without the permission of an author- shall not commence until approval ized representative of the National Ma- from the Director is received. rine Fisheries Service. (4) Any approved research program shall be subject to such terms and con- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 ditions as the Director, Pribilof Islands FR 11750, Mar. 22, 1996] Program deems appropriate. (5) Permission to utilize the Pribilof § 216.84 [Reserved] Islands to conduct an approved re- § 216.85 Walrus and Otter Islands. search program may be revoked by the Director, Pribilof Islands Program at By Executive Order 1044, dated Feb- any time for noncompliance with any ruary 27, 1909, Walrus and Otter Islands terms and conditions, or for violations were set aside as bird reservations. All of any regulation or administrative persons are prohibited to land on these procedure in effect on the Pribilof Is- islands except those authorized by the 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.

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§ 216.90 Purposes. regular and significant association occurs between dolphins and tuna (simi- This subpart governs the require- lar to the association between dolphins ments for using the official mark, de- and tuna in the ETP), unless such prod- scribed in § 216.96, or an alternative ucts are accompanied by a written mark that refers to dolphins, porpoises, statement, executed by the captain of or marine mammals, to label tuna or the vessel and an observer partici- tuna products offered for sale in or ex- pating in a national or international ported from the United States using program acceptable to the Assistant the term ‘‘dolphin-safe’’ or suggesting Administrator, certifying that no purse the tuna were harvested in a manner seine net was intentionally deployed on not injurious to dolphins. or used to encircle dolphins during the [65 FR 56, Jan. 3, 2000] particular voyage on which the tuna were caught and no dolphins were § 216.91 Dolphin-safe labeling stand- killed or seriously injured in the sets ards. in which the tuna were caught; or (a) It is a violation of section 5 of the (ii) In any other fishery unless the Federal Trade Commission Act (15 products are accompanied by a written U.S.C. 45) for any producer, importer, statement executed by the captain of exporter, distributor, or seller of any the vessel certifying that no purse tuna products that are exported from seine net was intentionally deployed on or offered for sale in the United States or used to encircle dolphins during the to include on the label of those prod- particular voyage on which the tuna ucts the term ‘‘dolphin-safe’’ or any was harvested; other term or symbol that claims or (3) Driftnet. By a vessel engaged in suggests that the tuna contained in the large-scale driftnet fishing; or products were harvested using a meth- (4) Other fisheries. By a vessel in a od of fishing that is not harmful to dol- fishery other than one described in phins if the products contain tuna har- paragraphs (a)(1) through(a)(3) of this vested: section that is identified by the Assist- (1) ETP large purse seine vessel. In the ant Administrator as having a regular ETP by a purse seine vessel of greater and significant mortality or serious in- than 400 st (362.8 mt) carrying capacity jury of dolphins, unless such product is unless: accompanied by a written statement, (i) The documentation requirements executed by the captain of the vessel for dolphin-safe tuna under §§ 216.92 and and an observer participating in a na- 216.94 are met; tional or international program ac- (ii) No dolphin were killed or seri- ceptable to the Assistant Adminis- ously injured during the sets in which trator, that no dolphins were killed or the tuna were caught; or seriously injured in the sets or other (iii) If the Assistant Administrator gear deployments in which the tuna publishes notification in the FEDERAL were caught, provided that the Assist- REGISTER announcing a finding that ant Administrator determines that the intentional deployment of purse such an observer statement is nec- seine nets on or encirclement of dol- essary. phins is having a significant adverse (b) It is a violation of section 5 of the impact on any depleted stock: Federal Trade Commission Act (15 (A) No tuna products were caught on U.S.C. 45) to willingly and knowingly a trip using a purse seine net inten- use a label referred to in this section in tionally deployed on or to encircle dol- a campaign or effort to mislead or de- phins; and ceive consumers about the level of pro- (B) No dolphins were killed or seri- tection afforded dolphins under the ously injured during the sets in which IDCP. the tuna were caught. (c) A tuna product that is labeled (2) Non-ETP purse seine vessel. Outside with the official mark, described in the ETP by a vessel using a purse seine § 216.96, may not be labeled with any net: other label or mark that refers to dol- (i) In a fishery in which the Assistant phins, porpoises, or marine mammals. Administrator has determined that a [65 FR 57, Jan. 3, 2000]

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§ 216.92 Dolphin-safe requirements for (4) The documentation provided in tuna harvested in the ETP by large paragraph(b)(3) of this section includes purse seine vessels. a listing of vessel names and identi- (a) U.S. vessels. Tuna products that fying numbers of the associated Tuna contain tuna harvested by U.S. flag Tracking Forms for each trip of which purse seine vessels of greater than 400 tuna in the shipment originates; and st (362.8 mt) carrying capacity in the (5) The FCO is properly endorsed by ETP may be labeled ‘‘dolphin-safe’’ if each exporter, importer, and processor the following requirements are met: certifying that, to the best of his or her (1) ‘‘Dolphin-safe’’ Tuna Tracking knowledge and belief, the FCO and at- Forms certified by the vessel captain tached documentation are complete and the observer are submitted to the and accurate. Regional Administrator, Southwest [65 FR 57, Jan. 3, 2000] Region, at the end of the fishing trip during which the tuna was harvested; § 216.93 Submission of documentation. (2) The tuna has been processed by a (a) Requirements for the submission U.S. tuna processor in a plant located of documents concerning the activities in one of the 50 states, Puerto Rico, or of U.S. flag vessels with greater than American Samoa that is in compliance 400 st carrying capacity fishing in the with the tuna tracking and verification ETP are contained in § 216.94. requirements of § 216.94; (b) The import documents required (3) The tuna or tuna products are ac- by §§ 216.91 and 216.92 must accompany companied by a properly completed the tuna product whenever it is offered FCO; for sale or export, except that these (4) The tuna or tuna products meet documents need not accompany the the dolphin-safe labeling standards product when offered for sale if: under § 216.91; and (1) The documents do not require fur- (5) The FCO is properly endorsed by ther endorsement by any importer or each processor certifying that, to the processor and are submitted to officials best of his or her knowledge and belief, of the U.S. Customs Service at the the FCO and attached documentation time of import; or are complete and accurate. (2) The documents are endorsed as re- (b) Imported tuna. Tuna or tuna prod- quired by § 216.92(b)(4) and the final ucts harvested in the ETP by purse processor delivers the endorsed docu- seine vessels of greater than 400 st ments to the Administrator, Southwest (362.8 mt) carrying capacity and pre- Region, or to U.S. Customs as required. sented for import into the United [65 FR 57, Jan. 3, 2000] States are dolphin safe if: EFFECTIVE DATE NOTE: At 69 FR 55307, (1) The tuna was harvested by a U.S. Sept. 13, 2004, § 216.93 was removed, effective vessel fishing in compliance with the Oct. 13, 2004. requirements of the IDCP and applicable U.S. law, or by a vessel belonging § 216.94 Tracking and verification pro- to a nation that has obtained an af- gram. firmative finding of § 216.24(f)(9); The Administrator, Southwest Re- (2) The tuna or tuna products are ac- gion, has established a national track- companied by a properly completed ing and verification program to accu- FCO; rately document the ‘‘dolphin-safe’’ con- (3) The tuna or tuna products are ac- dition of tuna, under the standards set companied by valid documentation forth in § 216.91(a). The tracking pro- signed by a representative of the appro- gram includes procedures and reports priate IDCP member nation, certifying for use when importing tuna into the that: U.S. and during U.S. purse seine fish- (i) There was an IDCP approved ob- ing, processing, and marketing in the server on board the vessel(s) during the U.S. and abroad. Verification of track- entire trip(s); and ing system operations is attained (ii) The tuna contained in the ship- through the establishment of audit and ment were caught according to the dol- document review requirements. The phin-safe labeling standards of § 216.91; tracking program is consistent with

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the international tuna tracking and server will change the designation of a verification program adopted by the ‘‘dolphin-safe’’ well to ‘‘non-dolphin- Parties to the IDCP. safe’’ if any tuna are loaded into the (a) Tuna tracking forms. Whenever a well that were captured in a set in U.S. flag tuna purse seine vessel of which a dolphin died or was seriously greater than 400 st (362.8 mt) carrying injured. capacity fishes in the ETP, IDCP ap- (2) Mixed wells. Only two acceptable proved Tuna Tracking Forms (TTFs), conditions exist under which a ‘‘mixed’’ bearing the IATTC cruise number as- well can be created. signed to that trip, are used by the ob- (i) In the event that a set has been server to record every set made during designated ‘‘dolphin-safe’’ by the ob- that trip. One TTF is used to record server, but during the loading process ‘‘dolphin-safe’’ sets and a second TTF is dolphin mortality or serious injury is used to record ‘‘non-dolphin-safe’’ sets. identified, the ‘‘dolphin-safe’’ designa- The information entered on the TTFs tion of the set will change to ‘‘non-dol- following each set includes date of trip, phin-safe.’’ If one or more of the wells set number, date of loading, name of into which the newly designated ‘‘non- the vessel, vessel Captain’s name, ob- dolphin-safe’’ tuna are loaded already server’s name, well number, weights by contains ‘‘dolphin-safe’’ tuna loaded species composition, estimated tons during a previous set, the observer will loaded, and date of the set. The ob- note in his or her trip records the well server and the vessel engineer initial numbers and the estimated weight of the entry for each set, and the vessel such ‘‘non-dolphin-safe’’ tuna and des- Captain and observer review and sign ignate such well(s) as ‘‘mixed well(s).’’ both TTFs at the end of the fishing trip Once a well has been identified as ‘‘non- certifying that the information on the dolphin-safe’’ or ‘‘mixed’’ all tuna subse- form is accurate. The captain’s and ob- quently loaded into that well will be server’s certification of the TTF on designated as non-dolphin-safe. When which dolphin-safe sets are recorded ‘‘ ’’ the contents of such a mixed well are complies with 16 U.S.C. 1385(h). ‘‘ ’’ received by a processor, the tuna will (b) Tracking fishing operations. (1) be weighed and separated according to During ETP fishing trips by purse seine vessels, tuna caught in sets designated the observer’s report of the estimated weight of dolphin-safe and non-dol- as ‘‘dolphin-safe’’ by the vessel observer ‘‘ ’’ ‘‘ must be stored separately from tuna phin-safe’’ tuna contained in that well. In addition, 15 percent of the dolphin- caught in ‘‘non-dolphin-safe’’ sets from ‘‘ the time of capture through unloading, safe’’ tuna unloaded from the ‘‘mixed except as provided in paragraph (b)(2) well’’ will be designated as ‘‘non-dol- of this section. Vessel personnel will phin-safe.’’ decide into which wells tuna will be (ii) Near the end of an ETP fishing loaded. The observer will initially des- trip, if the only well space available is ignate whether each set is ‘‘dolphin- in a ‘‘non-dolphin-safe’’ well, and there safe’’ or not, based on his/her observa- is an opportunity to make one last set, tion of the set. The observer will ini- ‘‘dolphin-safe’’ tuna caught in that set tially identify a vessel fish well as may be loaded into the ‘‘non-dolphin- ‘‘dolphin-safe’’ if the first tuna loaded safe’’ well. The ‘‘dolphin-safe’’ tuna into the well during a trip was cap- must be kept physically separate from tured in a set in which no dolphin died the ‘‘non-dolphin-safe’’ tuna already in or was seriously injured. The observer the well, using netting or other mate- will initially identify a vessel fish well rial. as ‘‘non-dolphin-safe’’ if the first tuna (3) The captain, managing owner, or loaded into the well during a trip was vessel agent of a U.S. purse seine vessel captured in a set in which a dolphin returning to port from a trip, any part died or was seriously injured. Any tuna of which included fishing in the ETP, loaded into a well previously des- must provide at least 48 hours notice of ignated ‘‘non-dolphin-safe’’ or ‘‘mixed the vessel’s intended place of landing, well’’ is considered ‘‘non-dolphin-safe’’ arrival time, and schedule of unloading tuna. Except as provided for in para- to the Administrator, Southwest Re- graph (b)(2)(i) of this section, the ob- gion.

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(4) If the trip terminates when the States in a country that is a party to vessel enters port to unload part or all the IDCP, the national authority in of its catch, new TTFs will be assigned whose area of jurisdiction the tuna is to the new trip, and any information to be processed will assume the respon- concerning tuna retained on the vessel sibility for tracking and verification of will be recorded as the first entry on the tuna offloaded. A representative of the TTFs for the new trip. If the trip is the national authority will receive cop- not terminated following a partial un- ies of the TTFs from the observer, and loading, the vessel will retain the copies of the TTFs will be forwarded to original TTFs and submit a copy of the Administrator, Southwest Region. those TTFs to the Administrator, (c) Tracking cannery operations. (1) Southwest Region, within 5 working Whenever a tuna canning company in days. In either case, the species and the 50 states, Puerto Rico, or American amount unloaded will be noted on the Samoa is scheduled to receive a domes- respective originals. tic or imported shipment of ETP (5) Tuna offloaded to trucks, storage facilities or carrier vessels must be caught tuna for processing, the com- loaded or stored in such a way as to pany must provide at least 48 hours no- maintain and safeguard the identifica- tice of the location and arrival date tion of the ‘‘dolphin-safe’’ or ‘‘non-dol- and time of such a shipment, to the Ad- phin-safe’’ designation of the tuna as it ministrator, Southwest Region, so that left the fishing vessel. a NMFS representative can be present (6)(i) When ETP caught tuna is to be to monitor delivery and verify that offloaded from a U.S. purse seiner di- ‘‘dolphin-safe’’ and ‘‘non-dolphin-safe’’ rectly to a U.S. canner within the 50 tuna are clearly identified and remain states, Puerto Rico, or American segregated. Samoa, or in any port and subse- (2) At the close of delivery activities, quently loaded aboard a carrier vessel which may include weighing, boxing or for transport to a U.S. processing loca- containerizing, and transfer to cold tion, a NMFS representative may meet storage or processing, the company the U.S. purse seiner to receive the must provide a copy of the processor’s TTFs from the vessel observer and to receiving report to the NMFS rep- monitor the handling of ‘‘dolphin-safe’’ resentative, if present. If a NMFS rep- and ‘‘non-dolphin-safe’’ tuna. resentative is not present, the com- (ii) When ETP caught tuna is pany must submit a copy of the proc- offloaded from an U.S. purse seiner in essor’s receiving report to the Adminis- any port and subsequently loaded trator, Southwest Region, electroni- aboard a carrier vessel for transport to cally, by mail, or by fax within 5 work- a cannery outside the jurisdiction of ing days. The processor’s receiving re- the United States, a NMFS representa- port must contain, at a minimum: date tive may meet the vessel to receive of delivery, catcher vessel name and copies of the TTFs from the observer flag, trip number and dates, storage and monitor the offloading. The U.S. container number(s), ‘‘dolphin-safe’’ or caught tuna becomes the tracking and ‘‘non-dolphin-safe’’ designation of each verification responsibility of the for- container, species, product description, eign buyer when it is offloaded from and weight of tuna in each container. the U.S. vessel. (iii) If a NMFS representative does (3) Tuna canning companies will re- not meet the vessel in port at the time port on a monthly basis the amounts of of arrival, the observer may take the ETP-caught tuna that are removed signed TTFs to the IATTC office and from cold storage. This report may be mail copies to the Administrator, submitted in conjunction with the Southwest Region, from that location monthly report required in paragraph within 5 working days of the end of the (c)(5) of this section. This report must trip. contain: (iv) When ETP caught tuna is (i) The date of removal; offloaded from a U.S. purse seiner di- (ii) Storage container number(s) and rectly to a processing facility located ‘‘dolphin-safe’’ or ‘‘non-dolphin-safe’’ outside the jurisdiction of the United designation of each container; and

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(iii) Details of the disposition of fish section, invoices, other import docu- (for example, canning, sale, rejection, ments, and trip reports. etc.). (2) Record submission. Within 30 days (4) During canning activities, ‘‘non- of receiving a written request from the dolphin-safe’’ tuna may not be mixed in Administrator, Southwest Region, any any manner or at any time in its proc- exporter, transshipper, importer, or essing with any ‘‘dolphin-safe’’ tuna or processor of any tuna or tuna products tuna products and may not share the containing tuna harvested in the ETP same storage containers, cookers, con- must submit to the Administrator any veyers, tables, or other canning and la- record required to be maintained under beling machinery. paragraph (e)(1) of this section. (5) Canned tuna processors must sub- (3) Audits and spot-checks. Upon re- mit a report to the Administrator, quest of the Administrator, Southwest Southwest Region, of all tuna received Region, any such exporter, at their processing facilities in each transshipper, importer, or processor calendar month whether or not the must provide the Administrator, tuna is actually canned or stored dur- Southwest Region, timely access to all ing that month. Monthly cannery re- pertinent records and facilities to ceipt reports must be submitted elec- allow for audits and spot-checks on tronically or by mail before the last caught, landed, and processed tuna. day of the month following the month (f) Confidentiality of proprietary infor- being reported. Monthly reports must mation. Information submitted to the contain the following information: Assistant Administrator under this (i) Domestic receipts: species, condi- section will be treated as confidential tion (round, loin, dressed, gilled and in accordance with NOAA Administra- gutted, other), weight in short tons to tive Order 216–100 ‘‘Protection of Con- the fourth decimal, ocean area of cap- fidential Fisheries Statistics.’’ ture (eastern tropical Pacific, western Pacific, Indian, eastern and western [65 FR 57, Jan. 3, 2000] Atlantic, other), catcher vessel, trip dates, carrier name, unloading dates, § 216.95 False statements or endorse- and location of unloading. ments. (ii) Import receipts: In addition to the Any person who knowingly and will- information required in paragraph fully makes a false statement or false (c)(5)(i) of this section, a copy of the endorsement required by § 216.92 is lia- FCO for each imported receipt must be ble for a civil penalty not to exceed provided. $100,000, that may be assessed in an ac- (d) Tracking imports. All tuna prod- tion brought in any appropriate Dis- ucts, except fresh tuna, that are im- trict Court of the United States on be- ported into the United States must be half of the Secretary. accompanied by a properly certified FCO as required by § 216.24(f). § 216.96 Official mark for ‘‘Dolphin- (e) Verification requirements.—(1) safe’’ tuna products. Record maintenance. Any exporter, (a) This is the ‘‘official mark’’ (see fig- transshipper, importer, or processor of ure 1) designated by the United States any tuna or tuna products containing Department of Commerce that may be tuna harvested in the ETP must main- used to label tuna products that meet tain records related to that tuna for at the ‘‘dolphin-safe’’ standards set forth least 3 years. These records include, in the Dolphin Protection Consumer but are not limited to: FCO and re- Information Act, 16 U.S.C. 1385, and im- quired certifications, any report re- plementing regulations at §§ 216.91 quired in paragraph (a) and (b) of this through 216.94:

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(b) Location and size of the official in or exported from the United States using mark. The official mark on labels must the term dolphin-safe or suggesting the tuna allow the consumer to identify the offi- were harvested in a manner not injurious to cial mark and be similar in design and dolphins. scale to figure 1. A full color version of § 216.91 Dolphin-safe labeling standards. the official mark is available at http:// swr.ucsd.edu/dsl.htm. (a) It is a violation of Section 5 of the Fed- eral Trade Commission Act (15 U.S.C. 45) for [65 FR 34410, May 30, 2000] any producer, importer, exporter, distributor, or seller of any tuna products that EFFECTIVE DATE NOTE: At 69 FR 55307, are exported from or offered for sale in the Sept. 13, 2004, in subpart H, § 216.93 was re- United States to include on the label of moved, §§ 216.94 through 216.96 were redesignated as §§ 216.93 through 216.95, and §§ 216.90 those products the term ‘‘dolphin-safe’’ or through 216.92 and the newly redesignated any other term or symbol that claims or sug- § 216.93 was revised, effective Oct. 13, 2004. gests that the tuna contained in the products For the convenience of the user, the revised were harvested using a method of fishing text is set forth as follows: that is not harmful to dolphins if the products contain tuna harvested: § 216.90 Purposes. (1) ETP large purse seine vessel. In the ETP This subpart governs the requirements for by a purse seine vessel of greater than 400 st using the official mark described in § 216.95 (362.8 mt) carrying capacity unless: or an alternative mark that refers to dol- (i) the documentation requirements for phins, porpoises, or marine mammals, to dolphin-safe tuna under § 216.92 and 216.93 are label tuna or tuna products offered for sale met;

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(ii) No dolphins were killed or seriously in- refers to dolphins, porpoises, or marine jured during the sets in which the tuna were mammals. caught; and (iii) None of the tuna were caught on a trip § 216.92 Dolphin-safe requirements for tuna using a purse seine net intentionally de- harvested in the ETP by large purse ployed on or to encircle dolphins, provided seine vessels. that this paragraph (a)(1)(iii) will not apply (a) U.S. vessels. Tuna products that contain if the Assistant Administrator publishes a tuna harvested by U.S. flag purse seine ves- notification in the FEDERAL REGISTER an- sels of greater than 400 st (362.8 mt) carrying nouncing a finding under 16 U.S.C. 1385(g)(2) capacity in the ETP may be labeled dolphin- that the intentional deployment of purse safe only if the following requirements are seine nets on or encirclement of dolphins is met: not having a significant adverse impact on (1) Tuna Tracking Forms containing a any depleted stock. complete record of all the fishing activities (2) Non-ETP purse seine vessel. Outside the on the trip, certified by the vessel Captain ETP by a vessel using a purse seine net: and the observer, are submitted to the Ad- (i) In a fishery in which the Assistant Ad- ministrator, Southwest Region, at the end of ministrator has determined that a regular the fishing trip during which the tuna was and significant association occurs between harvested; dolphins and tuna (similar to the association between dolphins and tuna in the ETP), un- (2) The tuna is delivered for processing to less such products are accompanied by a a U.S. tuna processor in a plant located in written statement, executed by the Captain one of the 50 states, Puerto Rico, or Amer- of the vessel and an observer participating in ican Samoa that is in compliance with the a national or international program accept- tuna tracking and verification requirements able to the Assistant Administrator, certi- of § 216.93; and fying that no purse seine net was inten- (3) The tuna or tuna products meet the dol- tionally deployed on or used to encircle dolphin-safe labeling standards under § 216.91. phins during the particular trip on which the (b) Imported tuna. tuna were caught and no dolphins were (1) Yellowfin tuna or tuna products har- killed or seriously injured in the sets in vested in the ETP by vessels of greater than which the tuna were caught; or 400 st (362.8 mt) carrying capacity and pre- (ii) In any other fishery unless the prod- sented for import into the United States ucts are accompanied by a written statement may be labeled dolphin-safe only if the yel- executed by the Captain of the vessel certi- lowfin tuna was harvested by a U.S. vessel fying that no purse seine net was inten- fishing in compliance with the requirements tionally deployed on or used to encircle dol- of the IDCP and applicable U.S. law, or by a phins during the particular trip on which the vessel belonging to a nation that has ob- tuna was harvested; tained an affirmative finding under (3) Driftnet. By a vessel engaged in large- § 216.24(f)(8). scale driftnet fishing; or (2) Tuna or tuna products, other than yel- (4) Other fisheries. By a vessel in a fishery lowfin tuna, harvested in the ETP by purse other than one described in paragraphs (a)(1) seine vessels of greater than 400 st (362.8 mt) through(a)(3) of this section that is identi- carrying capacity and presented for import fied by the Assistant Administrator as hav- into the United States may be labeled dol- ing a regular and significant mortality or se- phin-safe only if: rious injury of dolphins, unless such product is accompanied by a written statement, exe- (i) The tuna was harvested by a U.S. vessel cuted by the Captain of the vessel and an ob- fishing in compliance with the requirements server participating in a national or inter- of the IDCP and applicable U.S. law, or by a national program acceptable to the Assist- vessel belonging to a nation that is a Party ant Administrator, that no dolphins were to the Agreement on the IDCP or has applied killed or seriously injured in the sets or to become a Party and is adhering to all the other gear deployments in which the tuna requirements of the Agreement on the IDCP were caught, provided that the Assistant Ad- Tuna Tracking and Verification Plan; ministrator determines that such an ob- (ii) The tuna or tuna products are accom- server statement is necessary. panied by a properly completed FCO; and (b) It is a violation of section 5 of the Fed- (iii) The tuna or tuna products are accom- eral Trade Commission Act (15 U.S.C. 45) to panied by valid documentation signed by a willingly and knowingly use a label referred representative of the appropriate IDCP mem- to in this section in a campaign or effort to ber nation, containing the harvesting vessel mislead or deceive consumers about the level names and tuna tracking form numbers rep- of protection afforded dolphins under the resented in the shipment, and certifying IDCP. that: (c) A tuna product that is labeled with the (A) There was an IDCP approved observer official mark, described in § 216.95, may not on board the vessel(s) during the entire be labeled with any other label or mark that trip(s); and

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(B) The tuna contained in the shipment each set is dolphin-safe or not, based on his/ were caught according to the dolphin-safe la- her observation of the set. The observer will beling standards of § 216.91. initially identify a vessel fish well as dolphin-safe if the first tuna loaded into the § 216.93 Tracking and verification program. well during a trip was captured in a set in The Administrator, Southwest Region, has which no dolphin died or was seriously in- established a national tracking and jured. The observer will initially identify a verification program to accurately document vessel fish well as non-dolphin-safe if the the dolphin-safe condition of tuna, under the first tuna loaded into the well during a trip standards set forth in §§ 216.91 and 216.92. The was captured in a set in which a dolphin died tracking program includes procedures and or was seriously injured. Any tuna loaded reports for use when importing tuna into the into a well previously designated non-dol- United States and during U.S. purse seine phin-safe is considered non-dolphin-safe fishing, processing, and marketing in the tuna. The observer will change the designa- United States and abroad. Verification of tion of a dolphin-safe well to non-dolphin- tracking system operations is attained safe if any tuna are loaded into the well that through the establishment of audit and docu- were captured in a set in which a dolphin ment review requirements. The tracking pro- died or was seriously injured. gram is consistent with the international (2) The captain, managing owner, or vessel tuna tracking and verification program agent of a U.S. purse seine vessel greater adopted by the Parties to the Agreement on than 400 st (362.8 mt) returning to port from the IDCP. a trip, any part of which included fishing in (a) Tuna tracking forms. Whenever a U.S. the ETP, must provide at least 48 hours no- flag tuna purse seine vessel of greater than tice of the vessel’s intended place of landing, 400 st (362.8 mt) carrying capacity fishes in arrival time, and schedule of unloading to the ETP, IDCP approved Tuna Tracking the Administrator, Southwest Region. Forms (TTFs), bearing a unique number as- (3) If the trip terminates when the vessel signed to that trip, are used by the observer enters port to unload part or all of its catch, to record every set made during that trip. new TTFs will be assigned to the new trip, One TTF is used to record dolphin-safe sets and any information concerning tuna re- and a second TTF is used to record non-dol- tained on the vessel will be recorded as the phin-safe sets. The information entered on first entry on the TTFs for the new trip. If the TTFs following each set includes the the trip is not terminated following a partial date, well number, weights by species com- unloading, the vessel will retain the original position, estimated tons loaded, and addi- TTFs and submit a copy of those TTFs to the tional notes, if any. The observer and the Administrator, Southwest Region, within 5 vessel engineer initial the entry as soon as working days. In either case, the species and possible following each set, and the vessel amount unloaded will be noted on the respec- captain and observer review and sign both tive originals. TTFs at the end of the fishing trip certifying (4) Tuna offloaded to trucks, storage facili- that the information on the forms is accu- ties, or carrier vessels must be loaded or rate. TTFs are confidential official docu- stored in such a way as to maintain and safe- ments of the IDCP, consistent with Article guard the identification of the dolphin-safe XVIII of the Agreement on the IDCP, and the or non-dolphin-safe designation of the tuna Agreement on the IDCP Rules of Confiden- as it left the fishing vessel. tiality. (5)(i) When ETP caught tuna is offloaded (b) Dolphin-Safe Certification. Upon request, from a U.S. purse seine vessel greater than the Office of the Administrator, Southwest 400 st (362.8 mt) directly to a U.S. canner Region, will provide written certification within the 50 states, Puerto Rico, or Amer- that tuna harvested by U.S. purse seine ves- ican Samoa, or in any port and subsequently sels greater than 400 st (362.8 mt) carrying loaded aboard a carrier vessel for transport capacity is dolphin-safe, but only if NMFS’ to a U.S. processing location, a NMFS rep- review of the TTFs for the subject trip shows resentative may meet the U.S. purse seine that the tuna for which the certification is vessel to receive the TTFs from the vessel requested is dolphin-safe under the require- observer and to monitor the handling of dol- ments of the Agreement on the IDCP and phin-safe and non-dolphin-safe tuna. U.S. law. (ii) If a NMFS representative does not (c) Tracking fishing operations. (1) During meet the vessel in port at the time of ar- ETP fishing trips by purse seine vessels rival, the captain of the vessel or the vessel’s greater than 400 st (362.8 mt) carrying capac- managing office must assure delivery of the ity, tuna caught in sets designated as dol- TTFs to the Administrator, Southwest Re- phin-safe by the vessel observer must be gion, from that location within 5 working stored separately from tuna caught in non- days of the end of the trip. Alternatively, if dolphin-safe sets from the time of capture the captain approves and notifies the Admin- through unloading. Vessel personnel will de- istrator, Southwest Region, the captain may cide into which wells tuna will be loaded. entrust the observer to deliver the signed The observer will initially designate whether TTFs to the local office of the IATTC.

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(iii) When ETP caught tuna is offloaded vessel, trip dates, carrier name, unloading from a U.S. purse seine vessel greater than dates, and location of unloading. 400 st (362.8 mt) carrying capacity directly to (ii) Import receipts: In addition to the infor- a processing facility located outside the ju- mation required in paragraph (d)(2)(i) of this risdiction of the United States in a country section, a copy of the FCO for each imported that is a Party to the Agreement on the receipt must be provided. IDCP, the national authority in whose area (3) Tuna processors must report on a of jurisdiction the tuna is to be processed monthly basis the amounts of ETP-caught will assume the responsibility for tracking tuna that were immediately utilized upon re- and verification of the tuna offloaded. If a ceipt or removed from cold storage. This re- representative of the national authority port may be submitted in conjunction with meets the vessel in port, that representative the monthly report required in paragraph will receive the original TTFs and assume (d)(2) of this section. This report must con- the responsibility for providing copies of the tain: TTFs to the Administrator, Southwest Re- (i) The date of removal from cold storage gion. If a representative of the national au- or disposition; thority does not meet the vessel, the fishing (ii) Storage container or lot identifier vessel captain or the vessel’s managing of- number(s) and dolphin-safe or non-dolphin- fice must assure delivery of the completed safe designation of each container or lot; and TTFs in accordance with paragraphs (ii) and (iii) Details of the disposition of fish (for (v) of this section. example, canning, sale, rejection, etc.). (iv) When ETP caught tuna is offloaded (4) During canning activities, non-dolphin- from a U.S. purse seine vessel greater than safe tuna may not be mixed in any manner 400 st (362.8 mt) carrying capacity in a coun- or at any time during processing with any try that is not a Party to the Agreement on dolphin-safe tuna or tuna products and may the IDCP, the tuna becomes the tracking and not share the same storage containers, cook- verification responsibility of the national ers, conveyers, tables, or other canning and authority of the processing facility when it labeling machinery. is unloaded from the fishing vessel. The cap- (e) Tracking imports. All tuna products, ex- tain or the vessel’s managing office must as- cept fresh tuna, that are imported into the sure delivery of the completed TTFs in ac- United States must be accompanied by a cordance with paragraphs (ii) and (v) of this properly certified FCO that is submitted to section. the Administrator, Southwest Region, as re- (v) TTFs are confidential official docu- quired by section 216.24(f). ments of the IDCP. Vessel captains and man- (f) Verification requirements.—(1) Record aging offices shall not provide copies of maintenance. Any exporter, trans-shipper, TTFs to any representatives of private orga- importer, or processor of any tuna or tuna nizations or non-member states. products containing tuna harvested in the (d) Tracking cannery operations. (1) When- ETP must maintain records related to that ever a U.S. tuna canning company in the 50 tuna for at least 2 years. These records in- states, Puerto Rico, or American Samoa re- clude, but are not limited to: FCO and receives a domestic or imported shipment of quired certifications, any report required in ETP caught tuna for processing, a NMFS paragraphs (a), (b) and (d) of this section, in- representative may be present to monitor de- voices, other import documents, and trip re- livery and verify that dolphin-safe and non- ports. dolphin-safe tuna are clearly identified and (2) Record submission. Within 30 days of re- remain segregated. Such inspections may be ceiving a written request from the Adminis- scheduled or unscheduled, and canners must trator, Southwest Region, any exporter, allow the NMFS representative access to all trans-shipper, importer, or processor of tuna areas and records. or tuna products containing tuna harvested (2) Tuna processors must submit a report in the ETP must submit to the Adminis- to the Administrator, Southwest Region, of trator, Southwest Region, any record re- all tuna received at their processing facili- quired to be maintained under paragraph ties in each calendar month whether or not (f)(1) of this section. the tuna is actually canned or stored during (3) Audits and spot-checks. Upon request of that month. Monthly cannery receipt reports the Administrator, Southwest Region, any must be submitted electronically or by mail such exporter, trans-shipper, importer, or before the last day of the month following processor must provide the Administrator, the month being reported. Monthly reports Southwest Region, timely access to all perti- must contain the following information: nent records and facilities to allow for audits (i) Domestic receipts: dolphin-safe status, and spot-checks on caught, landed, stored, species, condition (round, loin, dressed, and processed tuna. gilled and gutted, other), weight in short (g) Confidentiality of proprietary information. tons to the fourth decimal, ocean area of Information submitted to the Assistant Ad- capture (ETP, western Pacific, Indian, east- ministrator under this section will be treat- ern and western Atlantic, other), catcher ed as confidential in accordance with NOAA

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Administrative Order 216–100 ‘‘Protection of to the monitoring and reporting of Confidential Fisheries Statistics.’’ such taking. The specific regulations governing certain specified activities Subpart I—General Regulations are contained in subsequent subparts of Governing Small Takes of Ma- this part. rine Mammals Incidental to Specified Activities § 216.103 Definitions. In addition to definitions contained SOURCE: 61 FR 15887, Apr. 10, 1996, unless in the MMPA, and in § 216.3, and unless otherwise noted. the context otherwise requires, in subsequent subparts to this part: § 216.101 Purpose. Arctic waters means the marine and The regulations in this subpart im- estuarine waters north of 60° N. lat. plement section 101(a)(5) (A) through Citizens of the United States and U.S. (D) of the Marine Mammal Protection citizens mean individual U.S. citizens or Act of 1972, as amended, 16 U.S.C. any corporation or similar entity if it 1371(a)(5), which provides a mechanism for allowing, upon request, the inci- is organized under the laws of the dental, but not intentional, taking of United States or any governmental small numbers of marine mammals by unit defined in 16 U.S.C. 1362(13). U.S. U.S. citizens who engage in a specified Federal, state and local government activity (other than commercial fish- agencies shall also constitute citizens ing) within a specified geographic re- of the United States for purposes of gion. this part. Incidental harassment, incidental tak- § 216.102 Scope. ing and incidental, but not intentional, The taking of small numbers of ma- taking all mean an accidental taking. rine mammals under section 101(a)(5) This does not mean that the taking is (A) through (D) of the Marine Mammal unexpected, but rather it includes Protection Act may be allowed only if those takings that are infrequent, un- the National Marine Fisheries Service: avoidable or accidental. (A complete (a) Finds, based on the best scientific definition of ‘‘take’’ is contained in evidence available, that the total tak- § 216.3). ing by the specified activity during the Negligible impact is an impact result- specified time period will have a neg- ing from the specified activity that ligible impact on species or stock of marine mammal(s) and will not have cannot be reasonably expected to, and an unmitigable adverse impact on the is not reasonably likely to, adversely availability of those species or stocks affect the species or stock through ef- of marine mammals intended for sub- fects on annual rates of recruitment or sistence uses; survival. (b) Prescribes either regulations Small numbers means a portion of a under § 216.106, or requirements and marine mammal species or stock whose conditions contained within an inci- taking would have a negligible impact dental harassment authorization issued on that species or stock. under § 216.107, setting forth permis- Specified activity means any activity, sible methods of taking and other other than commercial fishing, that means of effecting the least practicable takes place in a specified geographical adverse impact on the species or stock region and potentially involves the of marine mammal and its habitat and taking of small numbers of marine on the availability of the species or mammals. stock of marine mammal for subsistence uses, paying particular attention Specified geographical region means an to rookeries, mating grounds, and area within which a specified activity areas of similar significance; and is conducted and that has certain bio- (c) Prescribes either regulations or geographic characteristics. requirements and conditions contained Unmitigable adverse impact means an within an incidental harassment au- impact resulting from the specified ac- thorization, as appropriate, pertaining tivity:

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(1) That is likely to reduce the avail- (8) The anticipated impact of the ac- ability of the species to a level insuffi- tivity on the availability of the species cient for a harvest to meet subsistence or stocks of marine mammals for sub- needs by: sistence uses; (i) Causing the marine mammals to (9) The anticipated impact of the ac- abandon or avoid hunting areas; tivity upon the habitat of the marine (ii) Directly displacing subsistence mammal populations, and the likeli- users; or hood of restoration of the affected (iii) Placing physical barriers be- habitat; tween the marine mammals and the (10) The anticipated impact of the subsistence hunters; and loss or modification of the habitat on (2) That cannot be sufficiently miti- the marine mammal populations in- gated by other measures to increase volved; the availability of marine mammals to (11) The availability and feasibility allow subsistence needs to be met. (economic and technological) of equip- § 216.104 Submission of requests. ment, methods, and manner of conducting such activity or other means of (a) In order for the National Marine effecting the least practicable adverse Fisheries Service to consider author- impact upon the affected species or izing the taking by U.S. citizens of stocks, their habitat, and on their small numbers of marine mammals in- availability for subsistence uses, pay- cidental to a specified activity (other ing particular attention to rookeries, than commercial fishing), or to make a mating grounds, and areas of similar finding that an incidental take is un- significance; likely to occur, a written request must (12) Where the proposed activity be submitted to the Assistant Adminis- would take place in or near a tradi- trator. All requests must include the following information for their activ- tional Arctic subsistence hunting area ity: and/or may affect the availability of a (1) A detailed description of the spe- species or stock of marine mammal for cific activity or class of activities that Arctic subsistence uses, the applicant can be expected to result in incidental must submit either a plan of coopera- taking of marine mammals; tion or information that identifies (2) The date(s) and duration of such what measures have been taken and/or activity and the specific geographical will be taken to minimize any adverse region where it will occur; effects on the availability of marine (3) The species and numbers of ma- mammals for subsistence uses. A plan rine mammals likely to be found with- must include the following: in the activity area; (i) A statement that the applicant (4) A description of the status, dis- has notified and provided the affected tribution, and seasonal distribution subsistence community with a draft (when applicable) of the affected spe- plan of cooperation; cies or stocks of marine mammals like- (ii) A schedule for meeting with the ly to be affected by such activities; affected subsistence communities to (5) The type of incidental taking au- discuss proposed activities and to re- thorization that is being requested solve potential conflicts regarding any (i.e., takes by harassment only; takes aspects of either the operation or the by harassment, injury and/or death) plan of cooperation; and the method of incidental taking; (iii) A description of what measures (6) By age, sex, and reproductive con- the applicant has taken and/or will dition (if possible), the number of ma- take to ensure that proposed activities rine mammals (by species) that may be will not interfere with subsistence taken by each type of taking identified whaling or sealing; and in paragraph (a)(5) of this section, and (iv) What plans the applicant has to the number of times such takings by continue to meet with the affected each type of taking are likely to occur; communities, both prior to and while (7) The anticipated impact of the ac- conducting the activity, to resolve con- tivity upon the species or stock of ma- flicts and to notify the communities of rine mammal; any changes in the operation;

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(13) The suggested means of accom- the type of taking requested, will be re- plishing the necessary monitoring and turned to the applicant with an expla- reporting that will result in increased nation of why the application is being knowledge of the species, the level of returned. taking or impacts on populations of (c) The Assistant Administrator shall marine mammals that are expected to evaluate each request to determine, be present while conducting activities based upon the best available scientific and suggested means of minimizing evidence, whether the taking by the burdens by coordinating such reporting specified activity within the specified requirements with other schemes al- geographic region will have a neg- ready applicable to persons conducting ligible impact on the species or stock such activity. Monitoring plans should and, where appropriate, will not have include a description of the survey an unmitigable adverse impact on the techniques that would be used to deter- availability of such species or stock for mine the movement and activity of subsistence uses. If the Assistant Ad- marine mammals near the activity site(s) including migration and other ministrator finds that the mitigating habitat uses, such as feeding. Guide- measures would render the impact of lines for developing a site-specific mon- the specified activity negligible when itoring plan may be obtained by writ- it would not otherwise satisfy that re- ing to the Director, Office of Protected quirement, the Assistant Adminis- Resources; and trator may make a finding of neg- (14) Suggested means of learning of, ligible impact subject to such miti- encouraging, and coordinating research gating measures being successfully im- opportunities, plans, and activities re- plemented. Any preliminary findings of lating to reducing such incidental tak- ‘‘negligible impact’’ and ‘‘no ing and evaluating its effects. unmitigable adverse impact’’ shall be (b)(1) The Assistant Administrator proposed for public comment along shall determine the adequacy and com- with either the proposed incidental pleteness of a request and, if deter- harassment authorization or the pro- mined to be adequate and complete, posed regulations for the specific activ- will begin the public review process by ity. publishing in the FEDERAL REGISTER ei- (d) If, subsequent to the public review ther: period, the Assistant Administrator (i) A proposed incidental harassment finds that the taking by the specified authorization; or activity would have more than a neg- (ii) A notice of receipt of a request ligible impact on the species or stock for the implementation or re- of marine mammal or would have an implementation of regulations gov- unmitigable adverse impact on the erning the incidental taking. availability of such species or stock for (2) Through notice in the FEDERAL subsistence uses, the Assistant Admin- REGISTER, newspapers of general cir- istrator shall publish in the FEDERAL culation, and appropriate electronic REGISTER the negative finding along media in the coastal areas that may be with the basis for denying the request. affected by such activity, NMFS will invite information, suggestions, and § 216.105 Specific regulations. comments for a period not to exceed 30 days from the date of publication in (a) For all petitions for regulations the FEDERAL REGISTER. All informa- under this paragraph, applicants must tion and suggestions will be considered provide the information requested in by the National Marine Fisheries Serv- § 216.104(a) on their activity as a whole, ice in developing, if appropriate, the which includes, but is not necessarily most effective regulations governing limited to, an assessment of total im- the issuance of letters of authorization pacts by all persons conducting the ac- or conditions governing the issuance of tivity. an incidental harassment authoriza- (b) For allowed activities that may tion. result in incidental takings of small (3) Applications that are determined numbers of marine mammals by har- to be incomplete or inappropriate for assment, serious injury, death or a

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combination thereof, specific regula- (2) The taking allowed is having, or tions shall be established for each al- may have, more than a negligible im- lowed activity that set forth: pact on the species or stock or, where (1) Permissible methods of taking; relevant, an unmitigable adverse im- (2) Means of effecting the least prac- pact on the availability of the species ticable adverse impact on the species or stock for subsistence uses. and its habitat and on the availability (f) The requirement for notice and of the species for subsistence uses; and opportunity for public review in (3) Requirements for monitoring and § 216.106(e) shall not apply if the Assist- reporting, including requirements for ant Administrator determines that an the independent peer-review of pro- emergency exists that poses a signifi- posed monitoring plans where the pro- cant risk to the wellbeing of the spe- posed activity may affect the avail- cies or stocks of marine mammals con- ability of a species or stock for taking cerned. for subsistence uses. (g) A violation of any of the terms (c) Regulations will be established and conditions of a Letter of Author- based on the best available informa- ization or of the specific regulations tion. As new information is developed, shall subject the Holder and/or any in- through monitoring, reporting, or re- dividual who is operating under the au- search, the regulations may be modi- thority of the Holder’s Letter of Au- fied, in whole or in part, after notice thorization to penalties provided in the and opportunity for public review. MMPA.

§ 216.106 Letter of Authorization. § 216.107 Incidental harassment authorization for Arctic waters. (a) A Letter of Authorization, which (a) Except for activities that have may be issued only to U.S. citizens, is the potential to result in serious injury required to conduct activities pursuant or mortality, which must be authorized to any regulations established under under § 216.105, incidental harassment § 216.105. Requests for Letters of Au- authorizations may be issued, fol- thorization shall be submitted to the lowing a 30-day public review period, to Director, Office of Protected Re- allowed activities that may result in sources. The information to be sub- only the incidental harassment of a mitted in a request for an authoriza- small number of marine mammals. tion will be specified in the appropriate Each such incidental harassment au- subpart to this part or may be obtained thorization shall set forth: by writing to the above named person. (1) Permissible methods of taking by (b) Issuance of a Letter of Authoriza- harassment; tion will be based on a determination (2) Means of effecting the least prac- that the level of taking will be con- ticable adverse impact on the species, sistent with the findings made for the its habitat, and on the availability of total taking allowable under the spe- the species for subsistence uses; and cific regulations. (3) Requirements for monitoring and (c) Letters of Authorization will reporting, including requirements for specify the period of validity and any the independent peer-review of pro- additional terms and conditions appro- posed monitoring plans where the propriate for the specific request. posed activity may affect the avail- (d) Notice of issuance of all Letters of ability of a species or stock for taking Authorization will be published in the for subsistence uses. FEDERAL REGISTER within 30 days of (b) Issuance of an incidental harass- issuance. ment authorization will be based on a (e) Letters of Authorization shall be determination that the number of ma- withdrawn or suspended, either on an rine mammals taken by harassment individual or class basis, as appro- will be small, will have a negligible im- priate, if, after notice and opportunity pact on the species or stock of marine for public comment, the Assistant Ad- mammal(s), and will not have an ministrator determines that: unmitigable adverse impact on the (1) The regulations prescribed are not availability of species or stocks for being substantially complied with; or taking for subsistence uses.

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(c) An incidental harassment author- of their activity on marine mammals. ization will be either issued or denied Unless stated otherwise within an inci- within 45 days after the close of the dental harassment authorization, the public review period. holder of an incidental harassment au- (d) Notice of issuance or denial of an thorization effective in Arctic waters incidental harassment authorization must notify the Alaska Regional Direc- will be published in the FEDERAL REG- tor, National Marine Fisheries Service, ISTER within 30 days of issuance of a of any activities that may involve a determination. take by incidental harassment in Arc- (e) Incidental harassment authoriza- tic waters at least 14 calendar days tions will be valid for a period of time prior to commencement of the activ- not to exceed 1 year but may be re- ity. newed for additional periods of time (b) Holders of incidental harassment not to exceed 1 year for each reauthor- authorizations effective in Arctic wa- ization. ters may be required by their author- (f) An incidental harassment authorization to designate at least one quali- ization shall be modified, withdrawn, fied biological observer or another ap- or suspended if, after notice and oppor- propriately experienced individual to tunity for public comment, the Assist- observe and record the effects of activi- ant Administrator determines that: ties on marine mammals. The number (1) The conditions and requirements of observers required for monitoring prescribed in the authorization are not the impact of the activity on marine being substantially complied with; or mammals will be specified in the inci- (2) The authorized taking, either in- dental harassment authorization. If ob- dividually or in combination with servers are required as a condition of other authorizations, is having, or may the authorization, the observer(s) must have, more than a negligible impact on be approved in advance by the National the species or stock or, where relevant, Marine Fisheries Service. an unmitigable adverse impact on the (c) The monitoring program must, if availability of the species or stock for appropriate, document the effects (in- subsistence uses. cluding acoustical) on marine mam- (g) The requirement for notice and mals and document or estimate the ac- opportunity for public review in para- tual level of take. The requirements graph (f) of this section shall not apply for monitoring plans, as specified in if the Assistant Administrator deter- the incidental harassment authoriza- mines that an emergency exists that tion, may vary depending on the activ- poses a significant risk to the well- ity, the location, and the time. being of the species or stocks of marine (d) Where the proposed activity may mammals concerned. affect the availability of a species or (h) A violation of any of the terms stock of marine mammal for taking for and conditions of an incidental harass- subsistence purposes, proposed moni- ment authorization shall subject the toring plans or other research pro- holder and/or any individual who is op- posals must be independently peer-re- erating under the authority of the viewed prior to issuance of an inci- holder’s incidental harassment author- dental harassment authorization under ization to penalties provided in the this subpart. In order to complete the MMPA. peer-review process within the time frames mandated by the MMPA for an § 216.108 Requirements for monitoring incidental harassment authorization, a and reporting under incidental har- proposed monitoring plan submitted assment authorizations for Arctic under this paragraph must be sub- waters. mitted to the Assistant Administrator (a) Holders of an incidental harass- no later than the date of submission of ment authorization in Arctic waters the application for an incidental har- and their employees, agents, and des- assment authorization. Upon receipt of ignees must cooperate with the Na- a complete monitoring plan, and at its tional Marine Fisheries Service and discretion, the National Marine Fish- other designated Federal, state, or eries Service will either submit the local agencies to monitor the impacts plan to members of a peer review panel

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for review or within 60 days of receipt Subpart J [Reserved] of the proposed monitoring plan, schedule a workshop to review the plan. The Subpart K—Taking of Marine applicant must submit a final monitoring plan to the Assistant Adminis- Mammals Incidental to Space trator prior to the issuance of an inci- Vehicle and Test Flight Activi- dental harassment authorization. ties (e) At its discretion, the National Marine Fisheries Service may place an SOURCE: 69 FR 5727, Feb. 6, 2004, unless oth- observer aboard vessels, platforms, air- erwise noted. craft, etc., to monitor the impact of ac- EFFECTIVE DATE NOTE: At 69 FR 5727, Feb. tivities on marine mammals. 6, 2004, subpart K was added, effective Feb. 6, (f)(1) As specified in the incidental 2004, through Feb. 6, 2009. harassment authorization, the holder § 216.120 Specified activity and speci- of an incidental harassment authoriza- fied geographical region. tion for Arctic waters must submit reports to the Assistant Administrator (a) Regulations in this subpart apply within 90 days of completion of any in- only to the incidental taking of those dividual components of the activity (if marine mammals specified in para- any), within 90 days of completion of graph (b) of this section by U.S. citi- the activity, but no later than 120 days zens engaged in: (1) Launching up to 30 space and mis- prior to expiration of the incidental siles vehicles each year from Vanden- harassment authorization, whichever is berg Air Force Base, for a total of up to earlier. This report must include the 150 missiles and rockets over the 5-year following information: period of these regulations, (i) Dates and type(s) of activity; (2) Launching up to 20 rockets each (ii) Dates and location(s) of any ac- year from Vandenberg Air Force Base, tivities related to monitoring the ef- for a total of up to 100 rocket launches fects on marine mammals; and over the 5-year period of these regula- (iii) Results of the monitoring activi- tions, ties, including an estimate of the ac- (3) Aircraft flight test operations, tual level and type of take, species and name and numbers of each species ob- (4) Helicopter operations from Van- served, direction of movement of spe- denberg Air Force Base. cies, and any observed changes or (b) The incidental take of marine modifications in behavior. mammals on Vandenberg Air Force (2) Monitoring reports will be re- Base and in waters off southern Cali- viewed by the Assistant Administrator fornia, under the activity identified in and, if determined to be incomplete or paragraph (a) of this section, is limited inaccurate, will be returned to the to the following species: Harbor seals holder of the authorization with an ex- (Phoca vitulina), California sea lions planation of why the report is being re- (Zalophus californianus), northern ele- turned. If the authorization holder dis- phant seals (Mirounga angustirostris), agrees with the findings of the Assist- and northern fur seals (Callorhinus ant Administrator, the holder may re- ursinus). quest an independent peer review of the report. Failure to submit a complete § 216.121 Effective dates. and accurate report may result in a Regulations in this subpart are effec- delay in processing future authoriza- tive from February 6, 2004, through tion requests. February 6, 2009. (g) Results of any behavioral, feeding, or population studies, that are § 216.122 Permissible methods of tak- conducted supplemental to the moni- ing. toring program, should be made avail- (a) Under Letters of Authorization able to the National Marine Fisheries issued pursuant to § 216.106, the 30th Service before applying for an inci- Space Wing, U.S. Air Force, its con- dental harassment authorization for tractors, and clients, may incidentally, the following year. but not intentionally, take marine

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mammals by harassment, within the phant seal, and California sea lion area described in § 216.120, provided all pupping seasons, March through June. terms, conditions, and requirements of (4) If post-launch surveys determine these regulations and such Letter(s) of that an injurious or lethal take of a Authorization are complied with. marine mammal has occurred, the (b) [Reserved] launch procedure and the monitoring methods must be reviewed, in coopera- § 216.123 Prohibitions. tion with NMFS, and appropriate No person in connection with the ac- changes must be made through modi- tivities described in § 216.120 shall: fication to a Letter of Authorization, (a) Take any marine mammal not prior to conducting the next launch specified in § 216.120(b); under that Letter of Authorization. (b) Take any marine mammal speci- (5) Additional mitigation measures as fied in § 216.120(b) other than by inci- contained in a Letter of uthorization. dental, unintentional harassment; (b) [Reserved] (c) Take a marine mammal specified in § 216.120(b) if such take results in § 216.125 Requirements for monitoring more than a negligible impact on the and reporting. species or stocks of such marine mam- (a) Holders of Letters of Authoriza- mal; or tion issued pursuant to § 216.106 for ac- (d) Violate, or fail to comply with, tivities described in § 216.120(a) are re- the terms, conditions, and require- quired to cooperate with the National ments of these regulations or a Letter Marine Fisheries Service, and any of Authorization issued under § 216.106. other Federal, state or local agency § 216.124 Mitigation. monitoring the impacts of the activity on marine mammals. Unless specified (a) The activity identified in otherwise in the Letter of Authoriza- § 216.120(a) must be conducted in a man- tion, the Holder of the Letter of Au- ner that minimizes, to the greatest ex- thorization must notify the Adminis- tent practicable, adverse impacts on trator, Southwest Region, National marine mammals and their habitats. Marine Fisheries Service, by letter or When conducting operations identified telephone, at least 2 weeks prior to ac- in § 216.120, the following mitigation tivities possibly involving the taking measures must be utilized: of marine mammals. (1) All aircraft and helicopter flight (b) Holders of Letters of Authoriza- paths must maintain a minimum dis- tion must designate qualified on-site tance of 1,000 ft (305 m) from recognized individuals, approved in advance by the seal haul-outs and rookeries (e.g., Point Sal, Purisima Point, Rocky National Marine Fisheries Service, as Point), except in emergencies or for specified in the Letter of Authoriza- real-time security incidents (e.g., tion, to: search-and-rescue, fire-fighting) which (1) Conduct observations on harbor may require approaching pinniped seal, elephant seal, and sea lion activ- rookeries closer than 1,000 ft (305 m). ity in the vicinity of the rookery near- (2) For missile and rocket launches, est the launch platform or, in the ab- holders of Letters of Authorization sence of pinnipeds at that location, at must avoid, whenever possible, another nearby haulout, for at least 72 launches during the harbor seal hours prior to any planned launch oc- pupping season of March through June, curring during the harbor seal pupping unless constrained by factors includ- season (1 March through 30 June) and ing, but not limited to, human safety, continue for a period of time not less national security, or for space vehicle than 48 hours subsequent to launching, launch trajectory necessary to meet (2) For launches during the harbor mission objectives. seal pupping season (March through (3) VAFB must avoid, whenever pos- June), conduct follow-up surveys with- sible, launches which are predicted to in 2 weeks of the launch to ensure that produce a sonic boom on the Northern there were no adverse effects on any Channel Islands during harbor seal, ele- marine mammals,

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(3) Monitor haul-out sites on the (v) Behavioral modifications by Northern Channel Islands, if it is deter- pinnipeds that were likely the result of mined by modeling that a sonic boom launch noise or the sonic boom. of greater than 1 psf could occur in (e) An annual report must be sub- those areas (this determination will be mitted at the time of renewal of the made in consultation with the National LOA. Marine Fisheries Service), (f) A final report must be submitted (4) Investigate the potential for spon- at least 180 days prior to expiration of taneous abortion, disruption of effec- these regulations. This report will: tive female-neonate bonding, and other (1) Summarize the activities under- reproductive dysfunction, (5) Supplement observations on Van- taken and the results reported in all denberg and on the Northern Channel previous reports, Islands with video-recording of mother- (2) Assess the impacts at each of the pup seal responses for daylight major rookeries, launches during the pupping season, (3) Assess the cumulative impact on (6) Conduct acoustic measurements pinnipeds and other marine mammals of those launch vehicles that have not from Vandenberg activities, and had sound pressure level measurements (4) State the date(s), location(s), and made previously, and findings of any research activities re- (7) Include multiple surveys each day lated to monitoring the effects on that record the species, number of ani- launch noise and sonic booms on ma- mals, general behavior, presence of rine mammal populations. pups, age class, gender and reaction to launch noise, sonic booms or other nat- § 216.126 Applications for Letters of ural or human caused disturbances, in Authorization. addition to recording environmental (a) To incidentally take harbor seals conditions such as tide, wind speed, air and other marine mammals pursuant temperature, and swell. to these regulations, either the U.S. (c) Holders of Letters of Authoriza- citizen conducting the activity or the tion must conduct additional monitoring as required under an annual Let- 30th Space Wing on behalf of the U.S. ter of Authorization. citizen conducting the activity, must (d) The Holder of the Letter of Au- apply for and obtain a Letter of Au- thorization must submit a report to thorization in accordance with § 216.106. the Southwest Administrator, National (b) The application must be sub- Marine Fisheries Service within 90 mitted to the National Marine Fish- days after each launch. This report eries Service at least 30 days before the must contain the following informa- activity is scheduled to begin. tion: (c) Applications for Letters of Au- (1) Date(s) and time(s) of the launch, thorization and for renewals of Letters (2) Design of the monitoring proof Authorization must include the fol- gram, and lowing: (3) Results of the monitoring pro- (1) Name of the U.S. citizen request- grams, including, but not necessarily ing the authorization, limited to: (2) A description of the activity, the (i) Numbers of pinnipeds present on dates of the activity, and the specific the haulout prior to commencement of location of the activity, and the launch, (ii) Numbers of pinnipeds that may (3) Plans to monitor the behavior and have been harassed as noted by the effects of the activity on marine mam- number of pinnipeds estimated to have mals. entered the water as a result of launch (d) A copy of the Letter of Authoriza- noise, tion must be in the possession of the (iii) The length of time(s) pinnipeds persons conducting activities that may remained off the haulout or rookery, involve incidental takings of seals and (iv) The numbers of pinniped adults sea lions. or pups that may have been injured or killed as a result of the launch, and

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§ 216.127 Renewal of Letters of Author- this section by U.S. citizens engaged in ization. target missile launch activities at the A Letter of Authorization issued Naval Air Warfare Center Weapons Di- under § 216.126 for the activity identi- vision facilities on San Nicolas Island, fied in § 216.120(a) will be renewed annu- California. ally upon: (b) The incidental take of marine (a) Timely receipt of the reports re- mammals under the activity identified quired under § 216.125(d), if determined in paragraph (a) of this section is lim- by the Assistant Administrator to be ited to the following species: northern acceptable; and elephant seals (Mirounga angustirostris), (b) A determination that the mitiga- harbor seals (Phoca vitulina), and Cali- tion measures required under § 216.124 fornia sea lions (Zalophus and the Letter of Authorization have californianus). been undertaken. (c) This Authorization is valid only for activities associated with the § 216.128 Modifications of Letters of launching of a total of 40 Vandal (or Authorization. similar sized) vehicles from Alpha (a) In addition to complying with the Launch Complex and smaller missiles provisions of § 216.106, except as pro- and targets from Building 807 on San vided in paragraph (b) of this section, Nicolas Island, California. no substantive modification, including withdrawal or suspension, to a Letter § 216.152 Effective dates. of Authorization subject to the provi- Regulations in this subpart are effec- sions of this subpart shall be made tive from October 2, 2003 through Octo- until after notice and an opportunity ber 2, 2008. for public comment. (b) If the Assistant Administrator de- § 216.153 Permissible methods of tak- termines that an emergency exists that ing; mitigation. poses a significant risk to the well- (a) Under a Letter of Authorization being of the species or stocks of marine issued pursuant to § 216.106, the U.S. mammals specified in § 216.120 (b), a Navy may incidentally, but not inten- Letter of Authorization may be sub- tionally, take those marine mammal stantively modified without prior no- species specified in § 216.151(b) by Level tice and opportunity for public com- B harassment, in the course of con- ment. A notice will be published in the ducting target missile launch activi- FEDERAL REGISTER subsequent to the ties within the area described in action. § 216.151(a), provided all terms, conditions, and requirements of these regu- Subparts L–M [Reserved] lations and such Letter of Authoriza- tion are complied with. Subpart N—Taking of Marine (b) The activity specified in § 216.151 Mammals Incidental to Missile must be conducted in a manner that Launch Operations from San minimizes, to the greatest extent pos- Nicolas Island, CA sible, adverse impacts on marine mammals and their habitat. When conducting these activities, the following SOURCE: 68 FR 52138, Sept. 2, 2003, unless otherwise noted. mitigation measures must be utilized: (1) The holder of the Letter of Au- EFFECTIVE DATE NOTE: At 68 FR 52138, thorization must prohibit personnel Sept. 2, 2003, Subpart N of Part 216 was added, effective Oct. 2, 2003, through Oct. 2, from entering pinniped haul-out sites 2008. below the missile’s predicted flight path for 2 hours prior to planned mis- § 216.151 Specified activity, geo- sile launches. graphical region, and incidental (2) The holder of the Letter of Au- take levels. thorization must avoid launch activi- (a) Regulations in this subpart apply ties during harbor seal pupping season only to the incidental taking of marine (February to April), when operation- mammals specified in paragraph (b) of ally practicable.

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(3) The holder of this Authorization or in a manner not authorized, in this must limit launch activities during subpart. other pinniped pupping seasons, when operationally practicable. § 216.155 Requirements for monitoring (4) The holder of the Letter of Au- and reporting. thorization must not launch Vandal (a) The holder of the Letter of Au- target missiles from the Alpha Com- thorization is required to cooperate plex at low elevation (less than 1,000 with the National Marine Fisheries feet (304.8 m) on launch azimuths that Service and any other Federal, state or pass close to pinniped haul-out sites). local agency monitoring the impacts of (5) The holder of the Letter of Au- the activity on marine mammals. thorization must avoid, where prac- (b) The National Marine Fisheries ticable, launching multiple target mis- Service must be notified immediately siles in quick succession over haul-out of any changes or deletions to any por- sites, especially when young pups are tions of the proposed monitoring plan present. submitted in accordance with the Let- (6) The holder of the Letter of Au- ter of Authorization. thorization must limit launch activi- (c) The holder of the Letter of Au- ties during nighttime hours when oper- thorization must designate biologically ationally practicable. trained, on-site observer(s), approved (7) Aircraft and helicopter flight in advance by the National Marine paths must maintain a minimum alti- Fisheries Service, to record the effects tude of 1,000 feet (304.8 m) from of the launch activities and the result- pinniped haul-outs. ing noise on pinnipeds. (8) If injurious or lethal take is dis- (d) The holder of the Letter of Au- covered during monitoring conducted thorization must implement the fol- under § 216.155, the holder of the Letter lowing monitoring measures: of Authorization must contact the Re- (1) Visual Land-Based Monitoring. (i) gional Administrator, Southwest Re- Prior to each missile launch, an ob- gion, National Marine Fisheries Serv- server(s) will place 3 autonomous dig- ice, or his/her designee, at (562) 980–4023 ital video cameras overlooking chosen within 48 hours and, in cooperation haul-out sites located varying dis- with the National Marine Fisheries tances from the missile launch site. Service, launch procedure, mitigation Each video camera will be set to record measures, and monitoring methods a focal subgroup within the larger must be reviewed and appropriate haul-out aggregation for a maximum of changes made prior to the next launch. 4 hours or as permitted by the video- (9) If post-test surveys determine tape capacity. that an injurious or lethal take of a (ii) Systematic visual observations, marine mammal has occurred, the test by observers described in paragraph (c) procedure and the monitoring methods of this section, on pinniped presence must be reviewed and appropriate and activity will be conducted and re- changes must be made prior to con- corded in a field logbook a minimum of ducting the next missile launch. 2 hours prior to the estimated launch time and for at least 1 hour imme- § 216.154 Prohibitions. diately following the launch of all Notwithstanding takings authorized launch vehicles. by § 216.151(b) and by a Letter of Au- (iii) Documentation, both via autono- thorization issued under § 216.106, the mous video camera and human ob- following activities are prohibited: server, will consist of: (a) The taking of a marine mammal (A) Numbers and sexes of each age that is other than unintentional. class in focal subgroups; (b) The violation of, or failure to (B) Description and timing of launch comply with, the terms, conditions, activities or other disruptive event(s); and requirements of this part or a Let- (C) Movements of pinnipeds, includ- ter of Authorization issued under ing number and proportion moving, di- § 216.106. rection and distance moved, and pace (c) The incidental taking of any ma- of movement; rine mammal of a species not specified, (D) Description of reactions;

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(E) Minimum distances between (3) A draft comprehensive technical interacting and reacting pinnipeds; report will be submitted to the Office (F) Study location; of Protected Resources and Southwest (G) Local time; Regional Office, National Marine Fish- (H) Substratum type; eries Service, 180 days prior to the ex- (I) Substratum slope; piration of these regulations and pro- (J) Weather condition; viding full documentation of the meth- (K) Horizontal visibility; and ods, results, and interpretation of all (L) Tide state. monitoring tasks for launches to date plus preliminary information for mis- (2) Acoustic Monitoring. (i) During all target missile launches, calibrated re- sile launches during the first 6 months cordings of the levels and characteris- of the final Letter of Authorization. tics of the received launch sounds will (4) A revised final technical report, be obtained from 3 different locations including all monitoring results during of varying distances from the target the entire period of the Letter of Au- missile’s flight path. To the extent thorization, will be due 90 days after practicable, these acoustic recording the end of the period of effectiveness of locations will correspond with the these regulations. haul-out sites where video and human (5) Both the 60–day and draft com- observer monitoring is done. prehensive technical reports will be (ii) Acoustic recordings will be sup- subject to review and comment by the plemented by the use of radar and te- National Marine Fisheries Service. Any lemetry systems to obtain the trajec- recommendations made by the Na- tory of target missiles in three dimen- tional Marine Fisheries Service must sions. be addressed in the final comprehen- (iii) Acoustic equipment used to sive report prior to acceptance by the record launch sounds will be suitable National Marine Fisheries Service. for collecting a wide range of param- (f) Activities related to the moni- eters, including the magnitude, charac- toring described in paragraph (d) of teristics, and duration of each target this section, or in the Letter of Au- missile. thorization issued under § 216.106, may (e) The holder of the Letter of Au- be conducted without the need for a thorization must implement the fol- separate scientific research permit. lowing reporting requirements: (g) In coordination and compliance (1) For each target missile launch, with appropriate Navy regulations, at the lead contractor or lead observer for its discretion, the National Marine the holder of the Letter of Authoriza- Fisheries Service may place an ob- tion must provide a status report on server on San Nicolas Island for any the information required under activity involved in marine mammal § 216.155(d)(1)(iii) to the National Ma- monitoring either prior to, during, or rine Fisheries Service, Southwest Re- after a missile launch in order to mon- gional Office, unless other arrange- itor the impact on marine mammals. ments for monitoring are agreed in writing. § 216.156 Letter of Authorization. (2) An initial report must be sub- (a) A Letter of Authorization, unless mitted to the Office of Protected Re- suspended or revoked, will be valid for sources, and the Southwest Regional a period of time specified in the Letter Office at least 60 days prior to the expi- of Authorization but may not exceed ration of each annual Letter of Author- the period of validity of this subpart. ization. This report must contain the (b) A Letter of Authorization with a following information: period of validity less than the period (i) Timing and nature of launch oper- of validity of this subpart may be re- ations; newed subject to renewal conditions in (ii) Summary of pinniped behavioral § 216.157. observations; (c) A Letter of Authorization will set (iii) Estimate of the amount and na- forth: ture of all takes by harassment or by (1) Permissible methods of incidental other means. taking;

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(2) Specified geographic area for tak- ISTER within 30 days of a determina- ing; tion. (3) Means of effecting the least practicable adverse impact on the species § 216.158 Modifications to the Letter of of marine mammals authorized for tak- Authorization. ing and its habitat; and (a) Except as provided in paragraph (4) Requirements for monitoring and (b) of this section, no substantive reporting incidental takes. modification, including withdrawal or (d) Issuance of a Letter of Authoriza- suspension, to the Letter of Authoriza- tion will be based on a determination tion issued pursuant to § 216.106 and that the number of marine mammals subject to the provisions of this sub- taken by the activity will be small, and part shall be made until after notice that the level of taking will be con- and an opportunity for public com- sistent with the findings made for the ment. total taking allowable under these reg- (b) If the Assistant Administrator de- ulations. termines that an emergency exists that (e) Notice of issuance or denial of a poses a significant risk to the well- Letter of Authorization will be pub- being of the species or stocks of marine lished in the FEDERAL REGISTER within mammals specified in § 216.151(b), the 30 days of a determination. Letter of Authorization issued pursuant to § 216.106 may be substantively § 216.157 Renewal of a Letter of Au- modified without prior notice and an thorization. opportunity for public comment. Noti- (a) A Letter of Authorization issued fication will be published in the FED- under § 216.106 and § 216.156 for the ac- ERAL REGISTER subsequent to the activity specified in § 216.151 will be re- tion. newed annually upon: (1) Notification to the National Ma- Subpart O [Reserved] rine Fisheries Service that the activity described in the application for a Let- Subpart P—Taking of Marine ter of Authorization submitted under § 216.156 will be undertaken and that Mammals Incidental to Oper- there will not be a substantial modi- ating a Low Frequency fication to the described work, mitiga- Acoustic Source by the North tion, or monitoring undertaken during Pacific Acoustic Laboratory the upcoming season; (2) Timely receipt of the monitoring SOURCE: 66 FR 43458, Aug. 17, 2001, unless reports required under § 216.155, and ac- otherwise noted. ceptance by the National Marine Fish- EFFECTIVE DATE NOTE: At 66 FR 43458, Aug. eries Service; 17, 2001, subpart P was added, effective Sept. (3) A determination by the National 17, 2001, to Sept. 17, 2006. Marine Fisheries Service that the mitigation, monitoring, and reporting § 216.170 Specified activity and speci- measures required under §§ 216.153 and fied geographical region. 216.155 and the Letter of Authorization (a) Regulations in this subpart apply were undertaken and will be under- only to the incidental taking of small taken during the upcoming period of numbers of marine mammals specified validity of a renewed Letter of Author- in paragraph (b) of this section by U.S. ization; and citizens engaged in conducting acous- (4) A determination that the number tic research using a moored, low-fre- of marine mammals taken by the ac- quency acoustic source by the North tivity continues to be small and that Pacific Acoustic Laboratory off Kauai, the level of taking will be consistent Hawaii. with the findings made for the total (b) The incidental harassment of ma- taking allowable under these regula- rine mammals under the activity iden- tions. tified in paragraph (a) of this section is (b) A notice of issuance or denial of a limited to small numbers of the fol- renewal of a Letter of Authorization lowing species: humpback whales will be published in the FEDERAL REG- (Megaptera novaengliae), fin whales

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

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(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. (f) The holder of a Letter of Author- lished in the FEDERAL REGISTER within ization must annually submit a report 30 days of a determination. 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 the conclusion of the humpback whale (a) A Letter of Authorization issued aerial survey monitoring program. under § 216.106 and § 216.176 for the ac- This report must contain all the infor- tivity identified in § 216.170(a) will be mation required by the Letter of Au- renewed annually upon: thorization, including the results, if (1) Notification to the National Ma- any, of coordination with coastal marine Fisheries Service that the activity rine mammal stranding networks. described in the application for a Let- (g) A final comprehensive report ter of Authorization submitted under § must be submitted to the Director, Of- 216.176 will be undertaken and that fice of Protected Resources, National there will not be a substantial modi- Marine Fisheries Service no later than fication to the described work, mitiga- 240 days after completion of the final tion, or monitoring undertaken during year of humpback whale aerial survey the upcoming season; monitoring conducted under § 216.175. (2) Timely receipt of the monitoring This report must contain all the infor- reports required under § 216.175, which mation required by the Letter of Au- have been reviewed by the National thorization. Marine Fisheries Service and deter- § 216.176 Letter of authorization. mined to be acceptable; (3) A determination by the National (a) A Letter of Authorization, unless Marine Fisheries Service that the miti- suspended or revoked, will be valid for gation, monitoring, and reporting a period of time specified in the Letter measures required under §§ 216.174 and of Authorization but may not exceed 216.175 and the Letter of Authorization the period of validity of this subpart. were undertaken and will be under- (b) A Letter of Authorization with a taken during the upcoming period of period of validity less than the period validity of a renewed Letter of Author- of validity of this subpart may be renewed subject to renewal conditions in ization; and § 216.177. (4) Renewal of a Letter of Authoriza- (c) A Letter of Authorization will set tion will be based on a determination forth: that the number of marine mammals (1) Permissible methods of incidental taken by the activity continues to be taking; small and that the number of marine (2) Authorized geographic area for mammals taken by the activity, speci- taking; fied in § 216.170(b), will have no more (3) Means of effecting the least prac- than a negligible impact on the species ticable adverse impact on the species or stock of affected marine mammal(s). of marine mammals authorized for tak- (b) A notice of issuance or denial of a ing and its habitat; and renewal of a Letter of Authorization

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will be published in the FEDERAL REG- systems conducting active sonar oper- ISTER within 30 days of a determina- ations, in areas specified in paragraph tion. (a) of this section. The authorized activities, as specified in a Letter of Au- § 216.178 Modifications to a letter of thorization issued under §§ 216.106 and authorization. 216.188, include the transmission of low (a) In addition to complying with the frequency sounds from the SURTASS provisions of §§ 216.106 and 216.176, ex- LFA sonar and the transmission of cept as provided in paragraph (b) of high frequency sounds from the mitiga- this section, no substantive modification sonar described in § 216.185 during tion (including withdrawal or suspen- training, testing, and routine military sion) to the Letter of Authorization operations of SURTASS LFA sonar. issued pursuant to §§ 216.106 and 216.176 (a) With the exception of those areas and subject to the provisions of this specified in § 216.183(d), the incidental subpart shall be made by the National taking by harassment may be author- Marine Fisheries Service until after a ized in the following areas as specified notification and an opportunity for in a Letter of Authorization: public comment has been provided. For (1) Atlantic Polar Biome: purposes of this paragraph, a renewal (i) Boreal Polar Province (1/ of a Letter of Authorization under § BPLR)(i.e., LFA sonar 180-dB exclusion 216.177 without modification, except for zone); the period of validity, is not considered (ii) Atlantic Arctic Province (2/ a substantive modification. ARCT); (b) If the Assistant Administrator de- (iii) Atlantic Subarctic Province (3/ termines that an emergency exists that SARC); poses a significant risk to the well- (2) North Atlantic Coastal Biome: being of the species or stocks of marine (i) Northeast Atlantic Shelves Prov- mammals specified in § 216.170(b), a ince (11/NECS), Letter of Authorization issued pursu- (A) North/Irish Sea Subprovince, ant to §§ 216.106 and 216.176 may be sub- (B) English Channel Subprovince, stantively modified without prior noti- (C) Southern Outer Shelf Subprov- fication and an opportunity for public ince, comment. Notification will be pub- (D) Northern Outer Shelf Subprov- lished in the FEDERAL REGISTER within ince, and 30 days subsequent to the action. (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, SOURCE: 67 FR 46785, July 16, 2002, unless (D) Georges Bank/New York Bight otherwise noted. Coastal Subprovince, (E) Middle Atlantic Bight Coastal EFFECTIVE DATE NOTE: At 67 FR 46785, July 16, 2002, subpart Q was added, effective Aug. Subprovince, 15, 2002, through Aug. 15, 2007. (F) South Atlantic Bight Coastal Subprovince; § 216.180 Specified activity and speci- (3) South Atlantic Coastal Biome: fied geographical region. (i) Benguela Current Coastal Prov- Regulations in this subpart apply ince (22/BENG); only to the incidental taking of those (ii) Brazil Current Coastal Province marine mammal species specified in (20/BRAZ); paragraph (b) of this section by the (iii) Eastern (Canary) Coastal Prov- U.S. Navy, Department of Defense, ince (12/CNRY); while engaged in the operation of no (iv) Southwest Atlantic Shelves more than two SURTASS LFA sonar Province (21/FKLD);

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(v) Guianas Coastal Province (14/ (B) Point Conception/Cape Mendicino GUIA); Coastal Subprovince, (vi) Guinea Current Coastal Province (C) Southern California Bight Sub- (13/GUIN), province, and (A) Guiana Coastal Subprovince, and (D) Baja California Subprovince; (B) Central African Coastal Subprov- (iii) Central American Coastal Prov- ince; ince (67/CAMR); (4) Atlantic Westerly Winds Biome: (iv) China Sea Coastal Province (69/ (i) Gulf Stream Province (5/GFST); CHIN); (ii) North Atlantic Drift Province (4/ (10) South Pacific Coastal Biome: NADR); (i) East Australian Coastal Province (iii) North Atlantic Subtropical (71/AUSE); Gyral East Province (18/NASTE); and (ii) Humboldt Current Coastal Prov- (iv) North Atlantic Subtropical Gyral ince (68/HUMB); West Province (6/NASTW); (A) Chilean Coastal Subprovince and (5) Atlantic Trade Wind Biome: (B) Peruvian Coastal Subprovince; (i) Caribbean Province (17/CARB); (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); (7) Indian Ocean Coastal Biome: Province (56/NPTGW); (i) Australia/Indonesia Coastal Prov- (iii) North Pacific Tropical Gyre East ince (37/AUSW); Province (60/NPTGE); (ii) Eastern India Coastal Province (iv) Pacific Equatorial Divergence (35/INDE); Province (62/PEQD); (iii) Northwestern Arabian Upwelling (v) North Pacific Equatorial Province (34/ARAB); Countercurrent Province (61/PNEC); (iv) Eastern Africa Coastal Province (vi) South Pacific Subtropical Gyre (32/EAFR); Province (59/SPGS); (v) Western India Coastal Province (vii) Western Pacific Warm Pool (36/INDW); Province (63/WARM); (vi) Red Sea, Persian Gulf Province (13) Pacific Westerly Winds Biome: (33/REDS); (i) Kuroshio Current Province (53/ (8) Indian Ocean Trade Wind Biome: KURO); (i) Indian South Subtropical Gyre (ii) North Pacific Transition Zone Province (31/ISSG); Province (54/NPPF); (ii) Indian Monsoon Gyres Province (iii) Pacific Subarctic Gyres (East) (30/MONS); Province (51/PSAGE); (9) North Pacific Coastal Biome: (iv) Pacific Subarctic Gyres (West) (i) Alaska Downwelling Coastal Prov- Province (52/PSAGW); ince (65/ALSK), (14) Antarctic Westerly Winds Biome: (A) Canadian/Alaskan Coastal Sub- (i) Subantarctic Water Ring Province province, (81/SANT), (B) Aleutian Stream Coastal Sub- (A) Atlantic Subantarctic Ring Sub- province, province; (ii) California Current Province (66/ (B) Indian Ocean Subantarctic Ring CALC), Subprovince; (A) Oregon-British Columbia Coastal (C) Pacific Ocean Subantarctic Water Subprovince, Ring Subprovince;

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(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- (Balaenoptera musculus), fin whale tive from August 15, 2002 through Au- (Balaenoptera physalus), minke whale 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), north- (a) Under Letters of Authorization ern right whale (Eubalaena glacialis), issued pursuant to §§ 216.106 and 216.188, southern right whale (Eubalaena the Holder of the Letter of Authoriza- australis), pygmy right whale (Capera tion may incidentally, but not inten- marginata), bowhead whale (Balaena tionally, take marine mammals by mysticetus), and gray whales Level A and Level B harassment within (Eschrichtius robustus). the areas described in § 216.180(a), pro- (2) Odontocete whales—Risso’s dol- vided the activity is in compliance phin (Grampus griseus), rough-toothed with all terms, conditions, and require- dolphin (Steno bredanensis), Fraser’s ments of these regulations and the ap- dolphin (Lagenodelphis hosei), right- propriate Letter of Authorization. whale dolphin (Lissodelphis spp.), (b) The activities identified in bottlenose dolphin (Tursiops truncatus), § 216.180 must be conducted in a manner common dolphin (Delphinus delphis), that minimizes, to the greatest extent Dall’s porpoise (Phocoenoides dalli), har- practicable, any adverse impacts on bor porpoise (Phocoena phocoena), marine mammals, their habitat, and beluga whale (Delphinapterus leucas), the availability of marine mammals Stenella spp. Lagenorhynchus spp., for subsistence uses. Cephalorhynchus spp. melon-headed whale (Peponocephala spp.), beaked § 216.183 Prohibitions. whales (Berardius spp., Hyperoodon spp., Notwithstanding takings authorized Mesoplodon spp.), Cuvier’s beaked by § 216.180 and by a Letter of Author- whale (Ziphius cavirostris), Shepard’s ization issued under §§ 216.106 and beaked whale (Tasmacetus shepherdi), 216.188, no person in connection with Longman’s beaked whale (Indopacetus the activities described in § 216.180 pacificus), killer whale (Orcinus orca), shall: false killer whale (Pseudorca (a) Take any marine mammal not crassidens), pygmy killer whale (Feresa specified in § 216.180(b); attenuata), sperm whale (Physeter (b) Take any marine mammal speci- macrocephalus), dwarf and pygmy sperm fied in § 216.180(b) other than by inci- whales (Kogia simus and K. breviceps), dental, unintentional Level A and and short-finned and long-finned pilot Level B harassment; whales (Globicephala macrorhynchus and (c) Take any marine mammal by re- G. melas). ceiving a sound pressure level greater

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

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§ 216.185 Requirements for moni- ness of a Letter of Authorization or as toring. specified in the appropriate Letter of (a) In order to mitigate the taking of Authorization. Each quarterly mission marine mammals by SURTASS LFA report will include all active-mode mis- sonar to the greatest extent prac- sions completed during that quarter. ticable, the Holder of a Letter of Au- At a minimum, each classified mission thorization issued pursuant to §§ 216.106 report must contain the following in- and 216.188 must: formation: (1) Conduct visual monitoring from (1) Dates, times, and location of the the ship’s bridge during all daylight vessel during the mission; hours; (2) Information on sonar trans- (2) Use low frequency passive missions as detailed in the Letter of SURTASS LFA sonar to listen for vo- Authorization; and calizing marine mammals; and (3) Results of the marine mammal (3) Use the HF/M3 sonar to locate and monitoring program specified in the track marine mammals in relation to Letter of Authorization. the SURTASS LFA sonar vessel and (b) The Holder of a Letter of Author- the sound field produced by the ization must submit an annual report SURTASS LFA sonar source array. to the Director, Office of Protected Re- (b) Monitoring under paragraph (a) of sources, NMFS, no later than 90 days this section must: prior to expiration of a Letter of Au- (1) Commence at least 30 minutes be- thorization. This report must contain fore the first SURTASS LFA sonar all the information required by the transmission; Letter of Authorization. (2) Continue between transmission pings; and (c) A final comprehensive report (3) Continue either for at least 15 must be submitted to the Director, Of- minutes after completion of the fice of Protected Resources, NMFS at SURTASS LFA sonar transmission ex- least 240 days prior to expiration of ercise, or, if marine mammals are ex- these regulations. In addition to con- hibiting unusual behavioral patterns, taining all the information required by for a period of time until behavior pat- any final year Letter of Authorization, terns return to normal or conditions this report must contain an analysis of prevent continued observations; new passive technologies and an assess- (c) Holders of Letters of Authoriza- ment of whether such a system is fea- tion for activities described in § 216.180 sible as an alternative to SURTASS are required to cooperate with the Na- LFA sonar. tional Marine Fisheries Service and any other federal agency for moni- § 216.187 Applications for Letters of Authorization. toring the impacts of the activity on marine mammals. (a) To incidentally take marine (d) Holders of Letters of Authoriza- mammals pursuant to these regulation must designate qualified on-site tions, the U.S. Navy authority con- individuals to conduct the mitigation, ducting the activity identified in monitoring and reporting activities § 216.180 must apply for and obtain a specified in the Letter of Authoriza- Letter of Authorization in accordance tion. with § 216.106. (e) Holders of Letters of Authoriza- (b) The application for an initial or a tion must conduct all monitoring and renewal of a Letter of Authorization research required under the Letter of must be submitted to the Director, Of- Authorization. fice of Protected Resources, NMFS, at least 60 days before the date that ei- § 216.186 Requirements for reporting. ther the vessel is scheduled to begin (a) The Holder of the Letter of Au- conducting SURTASS LFA sonar oper- thorization must submit quarterly mis- ations or the previous Letter of Au- sion reports to the Director, Office of thorization is scheduled to expire. Protected Resources, NMFS, no later (c) All applications for a Letter of than 30 days after the end of each quar- Authorization must include the fol- ter beginning on the date of effective- lowing information:

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(1) The date(s), duration, and the impact on the availability of species or specified geographical region where the stocks of marine mammals for taking vessel’s activity will occur; for subsistence uses. (2) The species and/or stock(s) of ma- (d) Notice of issuance or denial of an rine mammals likely to be found with- application for a Letter of Authoriza- in each specified geographical region; tion will be published in the FEDERAL (3) The type of incidental taking au- REGISTER within 30 days of a deter- thorization requested (i.e., take by mination. Level A and/or Level B harassment); (4) The estimated percentage of ma- § 216.189 Renewal of Letters of Author- rine mammal species/stocks poten- ization. tially affected in each specified geo- (a) A Letter of Authorization issued graphic region for the 12-month period under § 216.106 and § 216.188 for the ac- of effectiveness of the Letter of Au- tivity identified in § 216.180 will be re- thorization; and newed 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; (3) Timely receipt of the monitoring § 216.188 Letters of Authorization. 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 ing, their habitat, and the availability § 216.180, as a whole will have no more of the species for subsistence uses; and than a negligible impact on the species (4) Requirements for monitoring and or stock of affected marine mammal(s), reporting incidental takes. and that the total taking will not have (c) Issuance of each Letter of Author- an unmitigable adverse impact on the ization will be based on a determina- availability of species or stocks of mation that the number of marine mam- rine mammals for taking for subsist- mals taken by the activity will be ence uses. small, that the total number of marine (b) If a request for a renewal of a Let- mammals taken by the activity speci- ter of Authorization issued under fied in § 216.180 as a whole will have no §§ 216.106 and 216.188 indicates that a more than a negligible impact on the substantial modification to the de- species or stock of affected marine scribed work, mitigation or monitoring mammal(s), and that the total taking will occur, or if NMFS proposes a sub- will not have an unmitigable adverse stantial modification to the Letter of

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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 another, is not considered a substantial coastline, including offshore islands, or modification. within non-operating areas for (b) If the National Marine Fisheries SURTASS LFA sonar are not eligible Service determines that an emergency for consideration; exists that poses a significant risk to (d) If a petition is received without the well-being of the species or stocks sufficient information for the National of marine mammals specified in Marine Fisheries Service to proceed, § 216.180(b), a Letter of Authorization NMFS will determine whether the issued pursuant to §§ 216.106 and 216.188 nominated area warrants further may be substantially modified without study. If so, NMFS will begin a sci- prior notice and opportunity for public entific review of the area. comment. Notification will be pub- (e)(1) If through a petition or inde- lished in the FEDERAL REGISTER within pendently, NMFS makes a preliminary 30 days subsequent to the action. determination that an area is biologically important for marine mam- § 216.191 Designation of Biologically Important Marine Mammal Areas. mals and is not located within a previously designated area, NMFS will (a) Biologically important areas for propose to add the area to § 216.184(f) marine mammals may be nominated and provide a public comment period of under this paragraph by the National at least 45 days from the date of publi- Marine Fisheries Service or by the public. cation in the FEDERAL REGISTER. (b) In order for the National Marine (2) The National Marine Fisheries Fisheries Service to designate offshore Service will publish its final deter- areas of biological importance for ma- mination in the FEDERAL REGISTER. rine mammals under this rule, pro- ponents must petition NMFS by re-

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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 with all terms, conditions, and require- Offshore Oil and Gas Facilities ments of the regulations in this sub- in the U.S. Beaufort Sea part 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 § 216.200, the mitigation measures con- § 216.201 Effective dates. tained in the Letter of Authorization Regulations in this subpart are effec- issued under §§ 216.106 and 216.208 must tive from May 25, 2000, until May 25, be utilized. 2005. § 216.205 Measures to ensure avail- § 216.202 Permissible methods of tak- ability of species for subsistence ing. uses. (a) Under Letters of Authorization When applying for a Letter of Au- issued pursuant to §§ 216.106 and 216.208, thorization pursuant to § 216.207, or a the Holder of the Letter of Authoriza- renewal of a Letter of Authorization tion may incidentally, but not inten- pursuant to § 216.209, the applicant tionally, take marine mammals by must submit a Plan of Cooperation

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that identifies what measures have 90 days after completion of the winter been taken and/or will be taken to min- monitoring season (approximately Sep- imize any adverse effects on the avail- tember 15th), and 90 days after the ability of marine mammals for subsist- open water monitoring season (approxi- ence uses. A plan must include the fol- mately February 1st). This report must lowing: contain all information required by the (a) A statement that the applicant Letter of Authorization. has notified and met with the affected (e) A draft annual comprehensive re- subsistence communities to discuss port must be submitted by May 1st of proposed activities and to resolve po- the year following the issuance of a tential conflicts regarding timing and LOA; methods of operation; (f) A final annual comprehensive re- (b) A description of what measures port must be submitted within the the applicant has taken and/or will time period specified in the governing take to ensure that oil development ac- Letter of Authorization. tivities will not interfere with subsist- (g) A final comprehensive report on ence whaling or sealing; all marine mammal monitoring and re- (c) What plans the applicant has to search conducted during the effective continue to meet with the affected period of the regulations in this sub- communities to notify the commu- part must be submitted to the Direc- nities of any changes in operation. 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 these regulations or 240 days after the (a) Holders of Letters of Authoriza- expiration of these regulations if re- tion issued pursuant to §§ 216.106 and newal of the regulations will not be re- 216.208 for activities described in quested. § 216.200 are required to cooperate with the National Marine Fisheries Service, § 216.207 Applications for Letters of and any other Federal, state or local 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. and reporting activities specified in the (c) Applications for initial Letters of Letter of Authorization issued pursu- Authorization must include all infor- ant to § 216.106 and § 216.208. mation items identified in § 216.104(a). (c) Holders of Letters of Authoriza- (d) NMFS will review an application tion must conduct all monitoring and/ for an initial Letter of Authorization or research required under the Letter in accordance with § 216.104(b) and, if of Authorization. adequate and complete, will publish a (d) Unless specified otherwise in the notice of receipt of a request for inci- Letter of Authorization, the Holder of dental taking and, in accordance with that Letter of Authorization must sub- Administrative Procedure Act require- mit interim reports to the Director, Of- ments, a proposed amendment to fice of Protected Resources, National § 216.200(a). In conjunction with amend- Marine Fisheries Service, no later than ing § 216.200(a), the National Marine

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

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§ 216.210 Modifications to Letters of 222.304 Renewal of permits. Authorization. 222.305 Rights of succession and transfer of permits. (a) In addition to complying with the 222.306 Modification, amendment, suspen- provisions of §§ 216.106 and 216.208, ex- sion, cancellation, and revocation of per- cept as provided in paragraph (b) of mits. this section, no substantive modifica- 222.307 Permits for incidental taking of spe- tion (including withdrawal or suspen- cies. sion) to the Letter of Authorization by 222.308 Permits for scientific purposes or for the National Marine Fisheries Service, the enhancement of propagation or sur- issued pursuant to §§ 216.106 and 216.208 vival of species. 222.309 Permits for listed species of sea tur- and subject to the provisions of this tles involving the Fish and Wildlife Serv- subpart shall be made until after noti- ice. fication and an opportunity for public comment has been provided. For pur- AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 U.S.C. 9701. poses of this paragraph, a renewal of a Section 222.403 also issued under 16 U.S.C. Letter of Authorization under § 216.209, 1361 et seq. without modification (except for the period of validity), is not considered a SOURCE: 64 FR 14054, Mar. 23, 1999, unless substantive modification. otherwise noted. (b) If the Assistant Administrator determines that an emergency exists that Subpart A—Introduction and poses a significant risk to the well- General Provisions being of the species or stocks of marine mammals specified in § 216.200(b), a § 222.101 Purpose and scope of regula- Letter of Authorization issued pursu- tions. ant to §§ 216.106 and 216.208 may be sub- (a) The regulations of parts 222, 223, stantively modified without prior noti- and 224 of this chapter implement the fication and an opportunity for public Endangered Species Act (Act), and gov- comment. Notification will be pub- ern the taking, possession, transpor- lished in the FEDERAL REGISTER within tation, sale, purchase, barter, expor- 30 days subsequent to the action. tation, importation of, and other requirements pertaining to wildlife and PARTS 217–221 [RESERVED] plants under the jurisdiction of the Secretary of Commerce and determined PART 222—GENERAL ENDANGERED to be threatened or endangered pursu- AND THREATENED MARINE SPECIES ant to section 4(a) of the Act. These regulations are implemented by the National Marine Fisheries Service, Na- Subpart A—Introduction and General tional Oceanic and Atmospheric Ad- Provisions ministration, U.S. Department of Com- Sec. merce, This part pertains to general 222.101 Purpose and scope of regulations. provisions and definitions. Specifically, 222.102 Definitions. parts 223 and 224 pertain to provisions 222.103 Federal/state cooperation in the con- to threatened species and endangered servation of endangered and threatened species. species, respectively. Part 226 enumerates designated critical habitat for en- Subpart B—Certificates of Exemption for dangered and threatened species. Cer- Pre-Act Endangered Species Parts tain of the endangered and threatened marine species enumerated in §§ 224.102 222.201 General requirements. and 223.102 are included in Appendix I 222.202 Certificate renewal. 222.203 Modification, amendment, suspen- or II to the Convention on Inter- sion, and revocation of certificates. national Trade of Endangered Species 222.204 Administration of certificates. of Wild Fauna and Flora. The importa- 222.205 Import and export requirements. tion, exportation, and re-exportation of such species are subject to additional Subpart C—General Permit Procedures regulations set forth at 50 CFR part 23, 222.301 General requirements. chapter I. 222.302 Procedure for obtaining permits. (b) For rules and procedures relating 222.303 Issuance of permits. to species determined to be threatened

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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: wise apply if the unlisted species cov- (1) Any commissioned, warrant, or ered by the plan were actually listed. petty officer of the U.S. Coast Guard; For the Services to cover a species (2) Any special agent or enforcement under a conservation plan, it must be officer of the National Marine Fish- listed on the section 10(a)(1)(B) permit. eries Service; Alaska Regional Administrator means (3) Any officer designated by the head the Regional Administrator for the of a Federal or state agency that has

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

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

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measures to respond to changed cir- the raw material for such product was cumstances. lawfully held within the United States Permit means any document so des- on December 28, 1973, in the course of a ignated by the National Marine Fish- commercial activity. eries Service and signed by an author- Properly implemented conservation plan ized official of the National Marine means any conservation plan, imple- Fisheries Service, including any documenting agreement, or permit whose ment which modifies, amends, extends, commitments and provisions have been or renews any permit. or are being fully implemented by the Person means an individual, corpora- permittee. tion, partnership, trust, association, or Pusher-head trawl (chopsticks) means any other private entity, or any offi- a trawl that is spread by two poles sus- cer, employee, agent, department, or pended from the bow of the trawler in instrumentality of the Federal govern- an inverted ‘‘V’’ configuration. ment of any state or political subdivi- Resident species means, for purposes sion thereof or of any foreign govern- of entering into cooperative agreement. ments with any state pursuant to sec- Possession means the detention and tion 6(c) of the Act, a species that ex- control, or the manual or ideal custody ists in the wild in that state during any of anything that may be the subject of part of its life. property, for one’s use and enjoyment, Right whale means, as used in § 224.103 either as owner or as the proprietor of of this chapter, any whale that is a a qualified right in it, and either held member of the western North Atlantic personally or by another who exercises population of the North Atlantic right it in one’s place and name. Possession whale species (Eubalaena glacialis). includes the act or state of possessing Roller trawl means a variety of beam and that condition of facts under which trawl that is used, usually by small persons can exercise their power over a vessels, for fishing over uneven or vege- corporeal thing at their pleasure to the tated sea bottoms. exclusion of all other persons. Posses- Scrimshaw product means any art sion includes constructive possession form which involves the substantial that which means not an actual but an etching or engraving of designs upon, assumed existence one claims to hold or the substantial carving of figures, by virtue of some title, without having patterns, or designs from any bone or actual custody. tooth of any marine mammal of the Pound net leader means a long order Cetacea. For purposes of this straight net that directs the fish off- part, polishing or the adding of minor shore towards the pound, an enclosure superficial markings does not con- that captures the fish. Some pound net stitute substantial etching, engraving, leaders are all mesh, while others have or carving. stringers and mesh. Stringers are Secretary means the Secretary of vertical lines in a pound net leader Commerce or an authorized representa- that are spaced a certain distance tive. apart and are not crossed by horizontal Shrimp means any species of marine lines to form mesh. An offshore pound shrimp (Order Crustacea) found in the net leader refers to a leader with the Atlantic Area or the Gulf Area, includ- inland end set greater than 10 hori- ing, but not limited to: zontal feet (3 m) from the mean low (1) Brown shrimp (Penaeus aztecus). water line. A nearshore pound net lead- (2) White shrimp (Penaeus setiferus). er refers to a leader with the inland (3) Pink shrimp (Penaeus duorarum). end set 10 horizontal feet (3 m) or less (4) Rock shrimp (Sicyonia brevirostris). from the mean low water line. (5) Royal red shrimp (Hymenopenaeus Pre-Act endangered species part means robustus). any sperm whale oil, including deriva- (6) Seabob shrimp (Xiphopenaeus tives and products thereof, which was kroyeri). lawfully held within the United States Shrimp trawler means any vessel that on December 28, 1973, in the course of a is equipped with one or more trawl nets commercial activity; or any finished and that is capable of, or used for, fish- scrimshaw product, if such product or ing for shrimp, or whose on-board or

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

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Triple-wing trawl means a trawl with § 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 Wildlife means any member of the active. animal kingdom, including without (b) Allocation and availability of funds. limitation any mammal, fish, bird (in- (1) The Assistant Administrator shall cluding any migratory, nonmigratory, allocate funds, appropriated for the or endangered bird for which protec- purpose of carrying out section 6 of the tion is also afforded by treaty or other Act, to various states using the fol- international agreement), amphibian, lowing as the basis for the determina- reptile, mollusk, crustacean, arthropod tion: or other invertebrate, and includes any (i) The international commitments of part, product, egg, or offspring thereof, the United States to protect endan- or the dead body or parts thereof. gered or threatened species; Wing net (butterfly trawl) means a (ii) The readiness of a state to pro- trawl that is fished along the side of ceed with a conservation program con- the vessel and that is held open by a sistent with the objectives and pur- four-sided, rigid frame attached to the poses of the Act; outrigger of the vessel. (iii) The number of federally listed [64 FR 14054, Mar. 23, 1999, as amended at 64 endangered and threatened species FR 60731, Nov. 8, 1999; 67 FR 13101, Mar. 21, within a state; 2002; 67 FR 41203, June 17, 2002; 67 FR 71899, (iv) The potential for restoring en- Dec. 3, 2002; 68 FR 8467, Feb. 21, 2003; 68 FR dangered and threatened species within 17562, Apr. 10, 2003; 69 FR 25011, May 5, 2004] a state; and

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(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.

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(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,

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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

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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

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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 (2), which contain informa- (c) Each person intending to engage tion collection and recordkeeping require- in an activity for which a permit is re- ments and will not become effective until ap- quired by parts 222, 223, and 224 of this proval has been given by the Office of Man- chapter or by the Act shall, before agement and Budget. commencing such activity, obtain a valid permit authorizing such activity. Subpart C—General Permit Any person who desires to obtain per- Procedures mit privileges authorized by parts 222, 223, and 224 of this chapter must apply § 222.301 General requirements. for such permit in accordance with the (a)(1) The regulations in this subpart requirements of these sections. If the C provide uniform rules and procedures information required for each specific,

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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.

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(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 FED- (3) Each permit shall bear a serial ERAL REGISTER within 10 days after the number. Upon renewal, such a number date of the issuance or denial and indi- may be reassigned to the permittee to cate where copies of the permit, if whom issued so long as the permittee issued, may be obtained. maintains continuity of renewal. (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

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(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) Except as otherwise provided in thorized in the notice of denial, the ap- this section, permits issued pursuant plicant may submit further informa- to parts 222, 223, and 224 of this chapter tion or reasons why the permit should are not transferable or assignable. In not be denied. Such further informa- the event that a permit authorizes cer- tion shall not be considered a new ap- tain business activities in connection plication. The final action by the As- with a business or commercial enter- sistant Administrator shall be consid- prise, which is then subject to any sub- ered the final administrative decision sequent lease, sale or transfer, the suc- of the Department of Commerce. cessor to that enterprise must obtain a (f) If a permit is issued under § 222.308, permit prior to continuing the per- the Assistant Administrator shall pub- mitted activity, with the exceptions lish notice thereof in the FEDERAL provided in paragraphs (a)(2) and (a)(3) REGISTER, including the Assistant Ad- of this section. 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- (3) Incidental take permits issued lowing the issuance of the permit. under § 222.307, and enhancement permits issued under § 222.308, as part of a § 222.304 Renewal of permits. Safe Harbor Agreement with Assur- When the permit is renewable and a ances or Candidate Conservation permittee intends to continue the ac- Agreement with Assurances, may be tivity described in the permit during transferred in whole or in part through any portion of the year ensuing its ex- a joint submission by the permittee piration, the permittee shall, unless and the proposed transferee, or in the otherwise notified in writing by the As- case of a deceased permittee, the de- sistant Administrator, file a request ceased permittee’s legal representative for permit renewal, together with a and the proposed transferee, provided certified statement, verifying that the NMFS determines in writing that: information in the original application (i) The proposed transferee meets all is still currently correct. If the infor- of the qualifications under parts 222, mation is incorrect the permittee shall 223, or 224 (as applicable) for holding a file a statement of all changes in the permit; original application, accompanied by (ii) The proposed transferee has pro- any required fee at least 30 days prior vided adequate written assurances that to the expiration of the permit. Any it will provide sufficient funding for person holding a valid renewable per- the conservation plan or other agree- mit, who has complied with the fore- ment or plan associated with the per- going provision of this section, may mit and will implement the relevant continue such activities as were au- terms and conditions of the permit, in- thorized by the expired permit until cluding any outstanding minimization the renewal application is acted upon. and mitigation requirements; and

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(iii) The proposed transferee has pro- Fisheries Service reserves the right to vided such other information as NMFS amend the provisions of a permit for determines is relevant to process the just cause at any time during its term. transfer. Such amendments take effect on the (b) Except as otherwise stated on the date of notification, unless otherwise face of the permit, any person who is specified. under the direct control of the per- (d) When any permittee discontinues mittee, or who is employed by or under the permitted activity, the permittee contract to the permittee for purposes shall, within 30 days thereof, mail the authorized by the permit, may carry permit and a request for cancellation out the activity authorized by the per- to the issuing officer, and the permit mit. shall be deemed void upon receipt. No EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. refund of any part of an amount paid as 23, 1999, part 222 was revised, effective Mar. a permit fee shall be made when the op- 23, 1999, with the exception of § 222.305, para- erations of the permittee are, for any graph (a), which contains information collec- reason, discontinued during the tenure tion and recordkeeping requirements and will not become effective until approval has of an issued permit. been given by the Office of Management and (e) Any violation of the applicable Budget. provisions of parts 222, 223, or 224 of [64 FR 14054, Mar. 23, 1999, as amended at 67 this chapter, or of the Act, or of a term FR 57973, Sept. 13, 2002] or condition of the permit may subject the permittee to both the penalties § 222.306 Modification, amendment, provided in the Act and suspension, suspension, cancellation, and rev- revocation, or amendment of the per- ocation of permits. mit, as provided in subpart D to 15 CFR (a) When circumstances have changed part 904. so that an applicant or a permittee desires to have any term or condition of § 222.307 Permits for incidental taking the application or permit modified, the of species. applicant or permittee must submit in (a) Scope. (1) The Assistant Adminis- writing full justification and sup- trator may issue permits to take en- porting information in conformance dangered and threatened species inci- with the provisions of this part and the dentally to an otherwise lawful activ- part under which the permit has been ity under section 10(a)(1)(B) of the Act. issued or requested. Such applications The regulations in this section apply to for modification are subject to the all endangered species, and those same issuance criteria as original ap- threatened species for which the prohi- plications. bitions of section 9(a)(1) of the Act, (b) Notwithstanding the require- under the jurisdiction of the Secretary ments of paragraph (a) of this section, of Commerce, apply. a permittee may change the mailing address or trade name under which (2) If the applicant represents an in- business is conducted without obtain- dividual or a single entity, such as a ing a new permit or being subject to corporation, the Assistant Adminis- the same issuance criteria as original trator will issue an individual inci- permits. The permittee must notify the dental take permit. If the applicant Assistant Administrator, in writing represents a group or organization within 30 days, of any change in ad- whose members conduct the same or a dress or of any change in the trade similar activity in the same geo- name for the business or activity speci- graphical area with similar impacts on fied in the permit. The permit with the listed species for which a permit is re- change of address or in trade name quired, the Assistant Administrator must be endorsed by the Assistant Ad- will issue a general incidental take ministrator, who shall provide an permit. To be covered by a general in- amended permit to the person to whom cidental take permit, each individual it was issued. conducting the activity must have a (c) All permits are issued subject to certificate of inclusion issued under the condition that the National Marine paragraph (f) of this section.

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(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 to monitor, minimize, and mitigate section will contain such terms and such impacts, and the funding avail- conditions as the Assistant Adminis- able to implement such measures; trator deems necessary and appro- (iv) The alternative actions to such priate, including, but not limited to taking that were considered and the the following: reasons why those alternatives are not (1) Reporting requirements or rights being used; and of inspection for determining whether (v) A list of all sources of data used the terms and conditions are being in preparation of the plan, including complied with; reference reports, environmental as- (2) The species and number of ani- sessments and impact statements, and mals covered;

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(3) The authorized method of taking; (ii) The applicant has made adequate (4) The procedures to be used to han- assurances that the applicable meas- dle or dispose of any animals taken; ures of the conservation plan will be and funded and implemented. (5) The payment of an adequate fee to (g) Assurances provided to permittee in the National Marine Fisheries Service case of changed or unforeseen cir- to process the application. cumstances. The assurances in this (e) Duration of permits. The duration paragraph (g) apply only to incidental of permits issued under this section take permits issued in accordance with will be such as to provide adequate as- paragraph (c) of this section where the surances to the permit holder to com- conservation plan is being properly im- mit funding necessary for the activities plemented, and apply only with respect authorized by the permit, including to species adequately covered by the conservation activities. In determining conservation plan. These assurances the duration of a permit, the Assistant cannot be provided to Federal agencies. Administrator will consider the dura- This rule does not apply to incidental tion of the proposed activities, as well take permits issued prior to March 25, as the possible positive and negative 1998. The assurances provided in inci- effects on listed species associated with dental take permits issued prior to issuing a permit of the proposed dura- March 25, 1998, remain in effect, and tion, including the extent to which the those permits will not be revised as a conservation plan is likely to enhance result of this rulemaking. the habitat of the endangered species (1) Changed circumstances provided for or to increase the long-term surviv- in the plan. If additional conservation ability of the species. and mitigation measures are deemed 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 conservation plan, will comply with other natural resources beyond the their terms and conditions, and will level otherwise agreed upon for the spe- fund and implement applicable meas- cies covered by the conservation plan ures of the conservation plan. without the consent of the permittee. (2) To issue a Certificate of Inclusion, (ii) If additional conservation and the Assistant Administrator must find mitigation measures are deemed nec- that: essary to respond to unforeseen cir- (i) The applicant will be engaged in cumstances, NMFS may require addi- the activity covered by the general per- tional measures of the permittee where mit, and the conservation plan is being properly

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

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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 recommendation of any national or international (iii) Length of time in transit for the scientific body charged with research transfer of the animal(s) from the cap- or management of the endangered spe- ture site to the holding facility; cies? If so, how?; and (iv) Length of time in transit for any (v) A description of the arrange- planned future move or transfer of the ments, if any, for the disposition of any animals; dead specimen or its skeleton or other (v) The qualifications of the common remains in a museum or other institu- carrier or agent used for transpor- tional collection for the continued ben- tation of the animals; efit 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 animal, including the age, size, and (viii) A statement as to whether the sex; animals will be accompanied by a vet- (iii) A list of the probable dates of erinarian or by another similarly capture or other taking, importation, qualified person, and the qualifications exportation, and other acts which re- of such person. quire a permit for each animal and the (8) Describe the contemplated care location of capture or other taking, im- and maintenance of any live animals portation, exportation, and other acts sought, including a complete descrip- which require a permit, as specifically tion of the facilities where any such as possible; animals will be maintained including:

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(i) The dimensions of the pools or date, by location of capture, i.e., from other holding facilities and the num- which population, and the location of ber, sex, and age of animals by species such mortalities; to be held in each; (iii) The cause(s) of any such mor- (ii) The water supply, amount, and tality; and quality; (iv) The steps which have been taken (iii) The diet, amount and type, for by applicant to avoid or decrease any all animals; such mortality. (iv) Sanitation practices used; (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; propagation or survival of the affected (5) The status of the population of species; the requested species and the effect of (ii) The numbers of mortalities the proposed action on the population, among such animals by species, by both direct and indirect;

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(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 appropriate apportionment of overhead forward the application to NMFS for and administrative expenses of the De- review and processing, after which partment of Commerce. All such fees WPO will issue a combination ESA/ will be deposited in the Treasury to the CITES permit or a letter of denial.

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PART 223—THREATENED MARINE threatened species pursuant to section AND ANADROMOUS SPECIES 4(a) of the Act, and provide for the conservation of such species by estab- Subpart A—General Provisions lishing rules and procedures to governing activities involving the species. Sec. (b) The regulations contained in this 223.101 Purpose and scope. part apply only to the threatened spe- 223.102 Enumeration of threatened marine and anadromous species. cies enumerated in § 223.102. (c) The provisions of this part are in Subpart B—Restrictions Applicable to addition to, and not in lieu of, other Threatened Marine and Anadromous regulations of parts 222 through 226 of Species this chapter which prescribe additional restrictions or conditions governing 223.201 Guadalupe fur seal. threatened species. 223.202 Steller sea lion. 223.203 Anadromous fish. [64 FR 14068, Mar. 23, 1999] 223.204 Exceptions to prohibitions relating to anadromous fish. § 223.102 Enumeration of threatened 223.205 Sea turtles. marine and anadromous species. 223.206 Exceptions to prohibitions relating to sea turtles. The species determined by the Sec- 223.207 Approved TEDs. retary of Commerce to be threatened 223.209 Tribal plans. pursuant to section 4(a) of the Act, as FIGURES 1–2 TO PART 223 [RESERVED] well as species listed under the Endan- FIGURE 3 TO PART 223—MATAGORDA TED gered Species Conservation of Act of FIGURE 4 TO PART 223—GEORGIA TED 1969 by the Secretary of the Interior FIGURE 5 TO PART 223—NET DIAGRAM FOR THE EXCLUDER PANEL OF THE PARKER SOFT and currently under the jurisdiction of TED the Secretary of Commerce, are the FIGURE 6 TO PART 223—TED EXTENSION IN following: SUMMER FLOUNDER TRAWL (a) Marine and anadromous fish. (1) FIGURES 7–9b TO PART 223 [RESERVED] Snake River spring/summer chinook FIGURE 10 TO PART 223—FLOUNDER TED salmon (Oncorhynchus tshawytscha). In- FIGURE 11 TO PART 223 [RESERVED] cludes all natural population(s) of FIGURE 12 TO PART 223—ESCAPE OPENING & COVER DIMENSIONS FOR 71-INCH TED spring/summer chinook salmon in the FIGURE 13 TO PART 223—SINGLE GRID HARD mainstem Snake River and any of the TED ESCAPE OPENING following subbasins: Tucannon River, FIGURE 14a TO PART 223—MAXIMUM ANGLE OF Grande Ronde River, Imnaha River, DEFLECTOR BARS WITH STRAIGHT BARS and Salmon River. ATTACHED TO THE BOTTOM OF THE FRAME (2) Snake River fall chinook salmon FIGURE 14b TO PART 223—MAXIMUM ANGLE OF (Oncorhynchus tshawytscha). Includes DEFLECTOR BARS WITH BENT BARS AT- TACHED TO THE BOTTOM OF THE FRAME all natural population(s) of fall chi- FIGURE 15 TO PART 223—WEEDLESS TED nook in the mainstem Snake River and BRACE BAR DESCRIPTION any of the following subbasins: FIGURE 16 TO PART 223—ESCAPE OPENING AND Tucannon River, Grande Ronde River, FLAP DIMENSIONS FOR THE DOUBLE COVER Imnaha River, Salmon River, and FLAP TED Clearwater River. AUTHORITY: 16 U.S.C. 1531–1543; subpart B, (3) Central California Coast Coho § 223.12 also issued under 16 U.S.C. 1361 et seq.; Salmon (Oncorhynchus kisutch). In- 16 U.S.C. 5503(d) for § 223.206(d)(9). cludes all coho salmon naturally repro- SOURCE: 43 FR 32809, July 28, 1978, unless duced in streams between Punta Gorda otherwise noted. Redesignated at 64 FR 14068, in Humboldt County, CA, and the San Mar. 23, 1999. Lorenzo River in Santa Cruz County, CA. Subpart A—General Provisions (4) Southern Oregon/Northern Cali- fornia Coast coho salmon § 223.101 Purpose and scope. (Oncorhynchus kisutch). Includes all (a) The regulations contained in this coho salmon naturally reproduced in part identify the species under the ju- streams between Cape Blanco in Curry risdiction of the Secretary of Com- County, OR, and Punta Gorda in Hum- merce that have been determined to be boldt County, CA.

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(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- (13) Columbia River chum salmon fornia (inclusive), and the drainages of (Oncorhynchus keta). Includes all natu- San Francisco and San Pablo Bays rally spawned populations of chum eastward to the Napa River (inclusive), salmon in the Columbia River and its Napa County, California. Excludes the tributaries in Washington and Oregon. Sacramento-San Joaquin River Basin (14) Upper Willamette River of the Central Valley of California. steelhead (Oncorhynchus mykiss). In- (6) South-Central California Coast cludes all naturally spawned popu- steelhead (Oncorhynchus mykiss). In- lations of winter-run steelhead in the cludes all naturally spawned populations of steelhead (and their progeny) Willamette River, Oregon, and its trib- in streams from the Pajaro River (in- utaries upstream from Willamette clusive), located in Santa Cruz County, Falls to the Calapooia River, inclusive; California, to (but not including) the (15) Middle Columbia River steelhead 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, from the Elwha River eastward, includ- and the Willamette and Hood Rivers, ing rivers and streams flowing into Oregon, inclusive. Excluded are Hood Canal, South Sound, North Sound steelhead in the upper Willamette and the Strait of Georgia in Wash- River Basin above Willamette Falls ington. and steelhead from the Little and Big (17) Lower Columbia River chinook White Salmon Rivers in Washington; salmon (Oncorhynchus tshawytscha). In- (9) Central Valley, California cludes all naturally spawned popu- steelhead (Oncorhynchus mykiss). In- 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. bia River and north of Cape Blanco in (18) Upper Willamette River chinook Curry County, OR. salmon (Oncorhynchus tshawytscha). In- (11) Gulf sturgeon (Acipenser cludes all naturally spawned popu- oxyrinchus desotoi). lations of spring-run chinook salmon in (12) Hood Canal summer-run chum the Clackamas River and in the Wil- salmon (Oncorhynchus keta). Includes lamette River, and its tributaries, all naturally spawned populations of above Willamette Falls, Oregon.

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(19) Ozette Lake sockeye salmon Subpart B—Restrictions Applicable (Oncorhynchus nerka). Includes all nat- to Threatened Marine and urally spawned populations of sockeye Anadromous Species salmon in Ozette Lake and streams and tributaries flowing into Ozette Lake, § 223.201 Guadalupe fur seal. Washington. (a) Prohibitions. The prohibitions of (20) Central Valley spring-run chi- section 9 of the Act (16 U.S.C. 1538) re- nook salmon (Oncorhynchus lating to endangered species apply to tshawytscha). Includes all naturally the Guadalupe fur seal except as pro- spawned populations of spring-run chi- vided in paragraph (b) of this section. nook salmon in the Sacramento River (b) Exceptions. (1) The Assistant Ad- Basin, and its tributaries, California. ministrator may issue permits author- (21) California coastal chinook salm- izing activities which would otherwise on (Oncorhynchus tshawytscha). In- be prohibited under paragraph (a) of cludes all naturally spawned popu- this section in accordance with the lations of chinook salmon from Red- subject to the provisions of part 222 wood Creek (Humboldt County, Cali- subpart C—General Permit Procedures. fornia) through the Russian River (2) Any Federal, State or local gov- (Sonoma County, California). ernment official, employee, or des- (22) Northern California steelhead ignated agent may, in the course of of- (Oncorhynchus mykiss). Includes all nat- ficial duties, take a stranded Guada- urally spawned populations of lupe fur seal without a permit if such steelhead (and their progeny) in coast- taking: al river basins ranging from Redwood (i) Is accomplished in a humane man- Creek in Humboldt County, California ner; to the Gualala River, inclusive, in (ii) Is for the protection or welfare of Mendocino County, California. the animal, is for the protection of the (b) Marine plants. Johnson’s seagrass public health or welfare, or is for the (Halophila johnsonii). salvage or disposal of a dead specimen; (c) Marine mammals. Guadalupe fur (iii) Includes steps designed to ensure seal (Arctocephalus townsendi); Steller the return of the animal to its natural sea lion (Eumetopias jubatus), eastern habitat, if feasible; and population, which consists of all (iv) Is reported within 30 days to the Steller sea lions from breeding colonies Regional Administrator, Southwest located east of 144° W. longitude. Region, National Marine Fisheries (d) Sea turtles. Green turtle (Chelonia Service, 501 West Ocean Blvd., Suite mydas) except for those populations 4200, Long Beach, CA 90802. listed under § 224.101(c) of this chapter; (3) Any animal or specimen taken Loggerhead turtle (Caretta caretta); under paragraph (b)(2) of this section Olive ridley turtle (Lepidochelys may only be retained, disposed of, or olivacea) except for those populations salvaged in accordance with directions listed under § 224.101(c) of this chapter. from the Director, Southwest Region. NOTE TO § 223.201(d): Jurisdiction for sea turtles by the Department of Commerce, Na- [50 FR 51258, Dec. 16, 1985. Redesignated and tional Oceanic and Atmospheric Administra- amended at 64 FR 14068, Mar. 23, 1999] tion, National Marine Fisheries Service, is limited to turtles while in the water. § 223.202 Steller sea lion. (a) General prohibitions. The prohibi- [64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999; 64 FR 14517, 14528, tions of section 9 of the Act (16 U.S.C. 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999; 1538) and the following regulatory pro- 65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, visions shall apply to the eastern popu- 2000] lation of Steller sea lions:

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(1) No discharge of firearms. Except as statutory miles (0.8 kilometers) or provided in paragraph (b) of this sec- within sight of a Steller sea lion rook- tion, no person subject to the jurisdic- ery site listed in paragraph (a)(3) of tion of the United States may dis- this section, whichever is greater, ex- charge a firearm at or within 100 yards cept on Marmot Island; and (91.4 meters) of a Steller sea lion. A (iii) No person may approach on land firearm is any weapon, such as a pistol not privately owned within one and or rifle, capable of firing a missile one-half statutory miles (2.4 kilo- using an explosive charge as a propel- meters) or within sight of the eastern lant. (2) No approach in buffer areas. Except shore of Marmot Island, including the as provided in paragraph (b) of this sec- Steller sea lion rookery site listed in tion: paragraph (a)(3) of this section, which- (i) No owner or operator of a vessel ever is greater. may allow the vessel to approach with- (3) Listed sea lion rookery sites. Listed in 3 nautical miles (5.5 kilometers) of a Steller sea lion rookery sites consist of Steller sea lion rookery site listed in the rookeries in the Aleutian Islands paragraph (a)(3) of this section; and the Gulf of Alaska listed in Table (ii) No person may approach on land 1. not privately owned within one-half

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°18.0 N 165°32.5 W 54°18.0 N 165°31.5 W 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°10.0 N 175°31.5 W 52°10.5 N 175°29.0 W 16480 N half of island. 21. Adak I...... 51°36.5 N 176°59.0 W 51°38.0 N 176°59.5 W 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°22.5 N 179°28.0 E 51°21.5 N 179°25.0 E 16440 East Cape. 27. Amchitka I...... 51°32.5 N 178°49.5 E 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°54.5 N 172°28.5 E 52°57.5 N 172°31.5 E 16681 S Quadrant. 1 Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower low water.

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(4) Commercial Fishing Operations. The (b) Exceptions—(1) Permits. The Assist- incidental mortality and serious injury ant Administrator may issue permits of endangered and threatened Steller authorizing activities that would oth- sea lions in commercial fisheries can erwise be prohibited under paragraph be authorized in compliance with sec- (a) of this section in accordance with tions 101(a)(5) and 118 of the Marine and subject to the provisions of part Mammal Protection Act. 222, subpart C—General Permit Proce- dures.

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(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 tivity has been conducted historically chapter implementing such exceptions, or traditionally in the buffer zones, and also apply to the threatened species of there is no readily available and ac- salmonids listed in § 223.102(a)(1) ceptable alternative to or site for the through (a)(10), and (a)(12) through activity. (a)(22). (6) Navigational transit. Paragraph (2) The prohibitions of paragraph (a) (a)(2) of this section does not prohibit a of this section relating to threatened vessel in transit from passing through species of salmonids listed in § 223.102 a strait, narrows, or passageway listed (a)(5) through (a)(10), and (a)(12) in this paragraph if the vessel proceeds through (a)(19) do not apply to activi- in continuous transit and maintains a ties specified in an application for a minimum of 1 nautical mile from the permit for scientific purposes or to en- rookery site. The listing of a strait, hance the conservation or survival of narrows, or passageway does not indi- the species, provided that the applica- cate that the area is safe for navigation has been received by the Assistant

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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 official duties, takes a threatened and jurisdictional range. salmonid without a permit if such ac- (B) Utilize the concepts of ‘‘viable’’ tion is necessary to: and ‘‘critical’’ salmonid population (i) Aid a sick, injured, or stranded thresholds, consistent with the con- salmonid, cepts contained in the technical docu- (ii) Dispose of a dead salmonid, or ment entitled ‘‘Viable Salmonid Popu- (iii) Salvage a dead salmonid which lations (NMFS, 2000b).’’ The VSP paper may be useful for scientific study. provides a framework for identifying (iv) Each agency acting under this the biological requirements of listed limit on the take prohibitions of para- salmonids, assessing the effects of graph (a) of this section is to report to management and conservation actions, NMFS the numbers of fish handled and and ensuring that such actions provide their status, on an annual basis. A des- for the survival and recovery of listed ignee of the listed entities is any indi- species. Proposed management actions vidual the Federal or state fishery must recognize the significant dif- agency or other co-manager has au- ferences in risk associated with viable thorized in writing to perform the list- and critical population threshold ed functions. states and respond accordingly to mini- (4) The prohibitions of paragraph (a) mize the long-term risks to population of this section relating to threatened persistence. Harvest actions impacting species of salmonids listed in § 223.102 populations that are functioning at or (a)(5) through (a)(10), and (a)(12) above the viable threshold must be de- through (a)(19) do not apply to fishery signed to maintain the population or harvest activities provided 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

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

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(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) lection programs of listed species is to do not apply to fisheries managed sole- reestablish indigenous salmonid popu- ly by the states of Oregon, Washington, lations for conservation purposes. Such Idaho, and California until January 8, programs include restoration of simi- 2001. lar, at-risk populations within the (5) The prohibitions of paragraph (a) same ESU, and reintroduction of at- of this section relating to threatened risk populations to underseeded habi- species of salmonids listed in § 223.102 tat. After the species’ conservation (a)(5) through (a)(10), and (a)(12) needs are met and when consistent through (a)(19) do not apply to activity with survival and recovery of the ESU, associated with artificial propagation broodstock collection programs may be programs provided that: authorized by NMFS such for sec- (i) A state or Federal Hatchery and ondary purposes, as to sustain tribal, Genetics Management Plan (HGMP) recreational, and commercial fisheries. has been approved by NMFS as meeting (D) The HGMP includes protocols to the following criteria: address fish health, broodstock collec- (A) The HGMP has clearly stated tion, broodstock spawning, rearing and goals, performance objectives, and per- release of juveniles, deposition of formance indicators that indicate the hatchery adults, and catastrophic risk purpose of the program, its intended management. results, and measurements of its per- (E) The HGMP evaluates, minimizes, formance in meeting those results. and accounts for the propagation pro- Goals shall address whether the program’s genetic and ecological effects gram is intended to meet conservation on natural populations, including dis- objectives, contribute to the ultimate ease transfer, competition, predation, sustainability of natural spawning pop- and genetic introgression caused by the ulations, and/or intended to augment straying of hatchery fish. tribal, recreational, or commercial fisheries. Objectives should enumerate (F) The HGMP describes inter- the results desired from the program relationships and interdependencies that will be used to measure the pro- with fisheries management. The com- gram’s success or failure. bination of artificial propagation pro- (B) The HGMP utilizes the concepts grams and harvest management must of viable and critical salmonid popu- be designed to provide as many benefits lation threshold, consistent with the and as few biological risks as possible concepts contained in the technical for the listed species. For programs document entitled ‘‘Viable Salmonid whose purpose is to sustain fisheries, Populations’’ (NMFS, 2000b). Listed HGMPs must not compromise the abil- salmonids may be purposefully taken ity of FMEPs or other management for broodstock purposes only if the plans to conserve listed salmonids. donor population is currently at or (G) Adequate artificial propagation above the viable threshold and the col- facilities exist to properly rear progeny lection will not impair its function; if of naturally spawned broodstock, to the donor population is not currently maintain population health and diver- viable but the sole objective of the cur- sity, and to avoid hatchery-influenced rent collection program is to enhance selection or domestication. the propagation or survival of the list- (H) Adequate monitoring and evalua- ed ESU; or if the donor population is tion exist to detect and evaluate the shown with a high degree of confidence success of the hatchery program and to be above critical threshold although any risks potentially impairing the re- not yet functioning at viable levels, covery of the listed ESU. and the collection will not appreciably (I) The HGMP provides for evaluating slow the attainment of viable status monitoring data and making any revi- for that population. sions of assumptions, management (C) Taking into account health, strategies, or objectives that data show abundances, and trends in the donor are needed;

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(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 implementation and effectiveness of the States v. Oregon, the on-going Federal HGMP as defined in NMFS’ letter of court proceedings to enforce and imple- concurrence. The state shall provide ment reserved treaty fishing rights, NMFS with access to all data and re- provided that: ports prepared concerning the imple- (i) The Secretary has determined pur- mentation and effectiveness of the suant to 50 CFR 223.209 and the govern- HGMP. ment-to-government processes therein (iii) The state confers with NMFS on that implementing and enforcing the a regular basis regarding intended col- joint tribal/state plan will not appre- lections of listed broodstock to ensure ciably reduce the likelihood of survival congruity with the approved HGMP. and recovery of affected threatened (iv) Prior to final approval of an ESUs. HGMP, NMFS will publish notification (ii) The joint plan will be imple- in the FEDERAL REGISTER announcing mented and enforced within the param- its availability for public review and eters set forth in United States v. Wash- comment for a period of at least 30 ington orUnited States v. Oregon. days. (iii) In making that determination (v) NMFS’ approval of a plan shall be for a joint plan, the Secretary has a written approval by NMFS South- taken comment on how any fishery west or Northwest Regional Adminis- management plan addresses the cri- trator, as appropriate. teria in § 223.203(b)(4), or on how any (vi) On a regular basis, NMFS will hatchery and genetic management plan evaluate the effectiveness of the HGMP addresses the criteria in § 223.203(b)(5). in protecting and achieving a level of (iv) The Secretary shall publish no- salmonid productivity commensurate with the conservation of the listed tice in the FEDERAL REGISTER of any salmonids. If the HGMP is not effec- determination whether or not a joint tive, the NMFS will identify to the ju- plan, will appreciably reduce the likeli- risdiction ways in which the program hood of survival and recovery of af- needs to be altered or strengthened. If fected threatened ESUs, together with the responsible agency does not make a discussion of the biological analysis changes to respond adequately to the underlying that determination. new information, NMFS will publish (v) On a regular basis, NMFS will notification in the FEDERAL REGISTER evaluate the effectiveness of the joint announcing its intention to withdraw plan in protecting and achieving a the limit on activities associated with level of salmonid productivity com- that program. Such an announcement mensurate with conservation of the will provide for a comment period of no listed salmonids. If the plan is not ef- less than 30 days, after which NMFS fective, then NMFS will identify to the will make a final determination wheth- jurisdiction ways in which the joint er to withdraw the limit so that take plan needs to be altered or strength- prohibitions, likeall other activity not ened. If the responsible agency does not within a limit, would then apply to make changes to respond adequately to

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

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(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 action. tivity would not be undertaken but for (iv) This limit on the prohibitions of its restoration purpose. paragraph (a) of this section does not (v) Prior to approving watershed con- encompass any impacts of reduced servation plan guidelines under para- flows resulting from the diversion or graph (b)(8)(ii) of this section, NMFS impacts caused during installation of will publish notification in the FED- the diversion device. These impacts are ERAL REGISTER announcing the avail- subject to the prohibition on take of ability of the proposed guidelines for listed salmonids. public review and comment. Such an (10) The prohibitions of paragraph (a) announcement will provide for a com- of this section relating to threatened ment period on the draft guidelines of species of salmonids listed in § 223.102 no less than 30 days. (a)(5) through (a)(10), and (a)(12) (9) The prohibitions of paragraph (a) through (a)(19) do not apply to routine of this section relating to threatened road maintenance activities provided species of salmonids listed in § 223.102(a)(5) through (a)(10), and (a)(12) that: through (a)(19) do not apply to the (i) The activity results from routine physical diversion of water from a road maintenance activity conducted stream or lake, provided that: by ODOT employees or agents that (i) NMFS’ engineering staff or any re- complies with ODOT’s Transportation source agency or tribe NMFS des- Maintenance Management System ignates (authorized officer) has agreed Water Quality and Habitat Guide in writing that the diversion facility is (July, 1999); or by employees or agents screened, maintained, and operated in of a state, county, city or port that compliance with Juvenile Fish Screen complies with a program substantially Criteria, National Marine Fisheries similar to that contained in the ODOT Service, Northwest Region, Revised Guide that is determined to meet or ex- February 16, 1995, with Addendum of ceed the protections provided by the May 9, 1996, or in California with ODOT Guide; or by employees or NMFS’ Southwest Region ‘‘Fish Screen- agents of a state, county, city or port ing Criteria for Anadromous that complies with a routine road Salmonids, January 1997’’ or with any maintenance program that meets prop- subsequent revision. er functioning habitat conditions as de- (ii) The owner or manager of the di- scribed further in subparagraph (ii) fol- version allows any NMFS engineer or lowing. NMFS’ approval of state, city, authorized officer access to the diver- county, or port programs that are sion facility for purposes of inspection equivalent to the ODOT program, or of and determination of continued com- any amendments, shall be a written appliance with the criteria. proval by NMFS Northwest or South- (iii) On a case by case basis, NMFS or west Regional Administrator, which- an Authorized Officer will review and ever is appropriate. Any jurisdiction approve a juvenile fish screen design desiring its routine road maintenance and construction plan and schedule activities to be within this limit must that the water diverter proposes for first commit in writing to apply man- screen installation. The plan and agement practices that result in pro- schedule will describe interim oper- tections equivalent to or better than ation measures to avoid take of threat- those provided by the ODOT Guide, de- ened salmonids. NMFS may require a tailing how it will assure adequate commitment of compensatory mitiga- training, tracking, and reporting, and

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describing in detail any dust abate- (iv) Prior to approving any state, ment practices it requests to be cov- city, county, or port program as within ered. this limit, or approving any sub- (ii) NMFS finds the routine road stantive change in a program within maintenance activities of any state, this limit, NMFS will publish notifica- city, county, or port to be consistent tion in the FEDERAL REGISTER an- with the conservation of listed nouncing the availability of the pro- salmonids’ habitat when it contributes, gram or the draft changes for public re- as does the ODOT Guide, to the attain- view and comment. Such an announcement and maintenance of properly ment will provide for a comment pe- functioning condition (PFC). NMFS de- riod of not less than 30 days. fines PFC as the sustained presence of (v) Pesticide and herbicide spraying natural habitat-forming processes that is not included within this limit, even are necessary for the long-term sur- if in accord with the ODOT guidance. vival of salmonids through the full (11) The prohibitions of paragraph (a) range of environmental variation. Ac- of this section relating to threatened tions that affect salmonid habitat species of salmonids listed in § 223.102 must not impair properly functioning (a)(5) through (a)(10), and (a)(12) 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. other activity not within a limit. Such (v) Prior to approving any sub- an announcement will provide for a stantive change in a program within comment period of no less than 30 days, this limit, NMFS will publish notifica- after which NMFS will make a final de- tion in the FEDERAL REGISTER an- termination whether to subject the ac- nouncing the availability of the pro- tivities to the ESA section 9(a)(1) program or the draft changes for public re- hibitions. view and comment. Such an announce- (iii) Prior to implementing any ment will provide for a comment pe- changes to a program within this limit riod of no less than 30 days. the jurisdiction provides NMFS a copy (vi) NMFS’ approval of amendments of the proposed change for review and shall be a written approval by NMFS approval as within this limit. Northwest Regional Administrator.

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

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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 ment or MRCI expansion area at suffi- an ordinance or plan within this limit, cient detail to demonstrate the width NMFS will publish notification in the and vegetation condition of riparian FEDERAL REGISTER announcing the set-backs; information to demonstrate availability of the ordinance or plan or the success of stormwater management the draft changes for public review and and other conservation measures; and a comment. Such an announcement will summary of any flood damage, mainte- provide for a comment period of no less nance problems, or other issues. than 30 days. (iii) NMFS finds the MRCI develop- (13) The prohibitions of paragraph (a) ment activity to be consistent with the of this section relating to threatened conservation of listed salmonids’ habi- species of salmonids listed in § 223.102 tat when it contributes to the attain- (a)(12), (a)(13), (a)(16), (a)(17), and (a)

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(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 uting to the attainment and mainte- Assistant Administrator for Fisheries, nance of PFC. NMFS defines PFC as NOAA (AA), no later than April 9, 2002. the sustained presence of a watershed’s The prohibitions of paragraph (a) of natural habitat-forming processes that this section apply to these activities are necessary for the long-term sur- upon the AA’s rejection of the applica- vival of salmonids through the full tion as insufficient, upon issuance or range of environmental variation. Ac- denial of a permit, or September 9, tions that affect salmonid habitat 2002, whichever occurs earliest. must not impair properly functioning (15) The prohibitions of paragraph (a) habitat, appreciably reduce the func- of this section relating to threatened tioning of already impaired habitat, or species of salmonids listed in § 223.102 retard the long-term progress of im- (a)(3), and (a)(20) through (a)(22) do not

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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 Popu- (ii) Dispose of a dead salmonid, or lations 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 spatial and temporal distribution, ge- the likelihood of survival and recovery netic and phenotypic diversity, and of the entire ESU in the wild would not other appropriate identifiably unique be appreciably reduced by greater risks biological and life history traits. Popu- to that individual population. lations may be aggregated for manage- (C) Set escapement objectives or ment purposes when dictated by infor- maximum exploitation rates for each mation scarcity, if consistent with sur- management unit or population based vival and recovery of the listed ESU. In on its status and on a harvest program identifying management units, the that assures that those rates or objec- plan shall describe the reasons for tives are not exceeded. Maximum ex- using such units in lieu of population ploitation rates must not appreciably units, describe how the management reduce the likelihood of survival and

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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 the NMFS’ reasonably certain to occur after the Southwest Regional Administrator. On proposed actions cease. (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 FED- of assumptions, management strate- ERAL REGISTER announcing its inten- gies, or objectives that data show are tion to withdraw the limit for activi- needed. ties associated with that FMEP. Such (G) Provide for effective enforcement an announcement will provide for a and education. Coordination among in- 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 take of listed salmonids occurring in managed solely by the State of Cali- its fisheries and provides to NMFS on a fornia until July 8, 2002. regular basis, as defined in NMFS’ let- (17) The prohibitions of paragraph (a) ter of concurrence for the FMEP, a re- of this section relating to threatened port summarizing this information, as species of salmonids listed in § 223.102 well as the implementation and effec- (a)(3) and (a)(20) through (a)(22) do not tiveness of the FMEP. The state shall apply to activity associated with artifi- provide NMFS with access to all data cial propagation programs provided and reports prepared concerning the that: implementation and effectiveness of (i) A state or Federal Hatchery and the FMEP. Genetics Management Plan (HGMP) (iii) The state confers with NMFS on has been approved by NMFS as meeting its fishing regulation changes affecting the following criteria:

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(A) The HGMP has clearly stated (D) The HGMP includes protocols to goals, performance objectives, and per- address fish health, broodstock collec- formance 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 promise the ability of FMEPs or other purposes only if the donor population management plans to conserve listed is currently at or above the viable salmonids. threshold and the collection will not (G) The HGMP provides for adequate impair its function; if the donor popu- artificial propagation facilities to lation is not currently viable but the properly rear progeny of naturally sole objective of the current collection spawned broodstock, to maintain popu- program is to enhance the propagation lation health and diversity, and to or survival of the listed ESU; or if the avoid hatchery-influenced selection or donor population is shown with a high domestication. degree of confidence to be above crit- (H) The HGMP provides for adequate ical threshold although not yet func- monitoring and evaluation to detect tioning at viable levels, and the collec- and evaluate the success of the hatch- tion will not appreciably slow the at- ery program and any risks potentially tainment of viable status for that pop- impairing the recovery of the listed ulation. ESU. (C) Broodstock collection programs (I) The HGMP provides for evaluating reflect appropriate priorities taking monitoring data and making any revi- into account health, abundances, and sions of assumptions, management trends in the donor population. The strategies, or objectives that data show primary purpose of broodstock collec- are needed; tion programs of listed species is to re- (J) NMFS provides written concur- establish indigenous salmonid popu- rence of the HGMP which specifies the lations for conservation purposes. Such implementation and reporting require- programs include restoration of simi- ments. For federally operated or fund- lar, at-risk populations within the ed hatcheries, the ESA section 7 con- same ESU, and reintroduction of at- sultation will achieve this purpose. risk populations to underseeded habi- (ii) The state monitors the amount of tat. After the species’ conservation take of listed salmonids occurring in needs are met and when consistent its hatchery program and provides to with survival and recovery of the ESU, NMFS on a regular basis a report sum- broodstock collection programs may be marizing this information, and the im- authorized by NMFS for secondary pur- plementation and effectiveness of the poses such as to sustain tribal, rec- HGMP as defined in NMFS’ letter of reational, and commercial fisheries. concurrence. The state shall provide

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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. grams managed solely by the State of (19) The prohibitions of paragraph (a) California until July 8, 2002. of this section relating to threatened (18) The prohibitions of paragraph (a) species of salmonids listed in § of this section relating to threatened 223.102(a)(3) and (a)(20) through (a)(22) species of salmonids listed in § do not apply to habitat restoration ac- 223.102(a)(3) and (a)(20) through (a)(22) tivities, as defined in paragraph do not apply to scientific research ac- (b)(19)(iv), provided that the activity is tivities provided that: part of a watershed conservation plan, (i) Scientific research activities in- and: volving purposeful take are conducted (i) The watershed conservation plan by employees or contractors of CDFG has been certified by the State of Cali- or as a part of a monitoring and re- fornia to be consistent with the state’s

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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 Anad- (B) Will not reduce the likelihood of romous Salmonids, January 1997’’ or either survival or recovery of listed 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 pliance with the criteria. and adaptive management. (iii) On a case-by-case basis, NMFS or (F) Use the best available science and an Authorized Officer will review and technology, including watershed anal- may approve a juvenile fish screen de- ysis. sign and construction plan and sched- (G) Provide for public and scientific ule that the water diverter proposes for review and input. screen installation. The plan and (H) Include any measures that NMFS schedule will describe interim oper- determines are necessary or appro- ation measures to avoid take of threat- priate. ened salmonids. NMFS may require a (I) Include provisions that clearly commitment of compensatory mitiga- identify those activities that are part tion if implementation of the plan and of plan implementation. schedule is terminated prior to comple- (J) Control risk to listed species by tion. If the plan and schedule are not ensuring funding and implementation met, or if a schedule modification is of the above plan components. made that is not approved by NMFS or (iii) NMFS will periodically review the Authorized Officer, or if the screen state certifications of watershed con- installation deviates from the approved servation plans to ensure adherence to design, the water diversion will be sub- approved watershed conservation plan ject to take prohibitions and mitiga- guidelines. tion. (iv) ‘‘Habitat restoration activity’’ is (iv) This limit on the prohibitions of defined as an activity whose primary paragraph (a) of this section does not purpose is to restore natural aquatic or include any impacts or take caused by riparian habitat conditions or proc- reduced flows resulting from the diver- esses. ‘‘Primary purpose’’ means the ac- sion or impacts caused during installa- tivity would not be undertaken but for tion of the diversion device. These im- its restoration purpose. pacts are subject to the prohibition on (v) Prior to approving state water- take of listed salmonids. shed conservation plan guidelines (21) 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 § 223.102 the FEDERAL REGISTER announcing the (a)(3) and (a)(20) through (a)(22) do not availability of the proposed guidelines apply to routine road maintenance ac- for public review and comment. Such tivities provided that: an announcement will provide for a (i) The activity results from routine comment period on the draft guidelines road maintenance conducted by em- of not less than 30 days. ployees or agents of the State of Cali- (20) The prohibitions of paragraph (a) fornia, or any county, city or port in of this section relating to threatened California, that complies with a pro- species of salmonids listed in § gram substantially similar to that con- 223.102(a)(3) and (a)(20) through (a)(22) tained in the Oregon Department of

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Transportation’s (ODOT) Transpor- habitat characteristics and functions tation Maintenance Management Sys- originally targeted, habitat is not sup- tem Water Quality and Habitat Guide porting population productivity levels (July, 1999) or that is determined to needed to conserve the threatened meet or exceed the protections pro- ESUs. If any jurisdiction within the vided by the ODOT Guide; or by em- limit does not make changes to re- ployees or agents of the State of Cali- spond adequately to the new informa- fornia or any county, city or port in tion in the shortest amount of time California that complies with a routine feasible, but not longer than 1 year, road maintenance program that meets NMFS will publish notification in the proper functioning habitat conditions FEDERAL REGISTER announcing its in- as described further in paragraph tention to withdraw the limit so that (a)(21)(ii) of this section. NMFS’ ap- take prohibitions would then apply to proval of state, city, county, or port the program. Such an announcement programs that are equivalent to the will provide for a comment period of ODOT program, or of any amendments, not less than 30 days, after which shall be a written approval by NMFS’ NMFS will make a final determination Southwest Regional Administrator. whether to subject the activities to the Any jurisdiction desiring its routine ESA section 9(a)(1) prohibitions. road maintenance activities to be con- (iii) Prior to implementing any sidered within this limit must first changes to a program within this limit commit in writing to apply manage- the jurisdiction provides NMFS a copy ment practices that result in protec- of the proposed change for review and tions equivalent to or better than approval as to being within this limit. those provided by the ODOT Guide, de- (iv) Prior to approving any State of tailing how it will assure adequate California, city, county, or port pro- training, tracking, and reporting, and gram as being within this limit, or ap- describing in detail any dust abate- proving any substantive change in a ment practices it requests to be cov- program as being within this limit, ered. NMFS will publish notification in the (ii) NMFS finds the routine road FEDERAL REGISTER announcing the maintenance activities of the State of availability of the program or the draft California, or any city, county, or port, changes for public review and com- to be consistent with the conservation ment. Such an announcement will proof threatened salmonids’ habitat when vide for a comment period of not less it contributes to the attainment and than 30 days. maintenance of properly functioning (v) Pesticide and herbicide spraying condition (PFC). NMFS defines PFC as is not included within this limit, even the sustained presence of natural habi- if in accord with the ODOT guidance. tat-forming processes that are nec- (22) The prohibitions of paragraph (a) essary for the long-term survival of of this section relating to threatened salmonids through the full range of en- species of salmonids listed in § 223.102 vironmental variation. Actions that af- (a)(3) and (a)(20) through (a)(22) do not fect salmonid habitat must not impair apply to municipal, residential, com- properly functioning habitat, appre- mercial, and industrial (MRCI) devel- ciably reduce the functioning of al- opment (including redevelopment) ac- ready impaired habitat, or retard the tivities provided that: long-term progress of impaired habitat (i) Such development occurs pursuant toward PFC. Periodically, NMFS will to city, county, or regional govern- evaluate an approved program for its ment ordinances or plans that NMFS effectiveness in maintaining and has determined are adequately protec- achieving habitat function that pro- tive of threatened species by maintain- vides for conservation of the listed ing or restoring properly functioning salmonids. Whenever warranted, NMFS habitat conditions. NMFS approval or will identify ways in which the pro- determinations about any MRCI devel- gram needs to be altered or strength- opment ordinances or plans shall be a ened. Changes may be identified if the written approval by the NMFS South- program is not protecting desired habi- west Regional Administrator. NMFS tat functions, or where even with the will apply the following 12 evaluation

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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. strained sites. (K) The MRCI development ordinance (B) The MRCI development ordinance or plan provides necessary enforce- or plan adequately avoids stormwater ment, funding, reporting, and imple- discharge impacts to water quality and mentation mechanisms and formal quantity or to the hydrograph of the plan evaluations at intervals that do watershed, including peak and base not exceed 5 years. flows of perennial streams. (L) The MRCI development ordinance (C) The MRCI development ordinance and plan complies with all other state or plan provides adequately protective and Federal environmental and natural riparian area management require- resource laws and permits. ments to attain or maintain PFC (ii) The city, county or regional gov- around all rivers, estuaries, streams, ernment provides NMFS with annual lakes, deepwater habitats, and inter- reports regarding implementation and mittent streams. Compensatory miti- effectiveness of the ordinances, includ- gation is provided, where necessary, to ing: any water quality monitoring in- offset unavoidable damage to properly formation the jurisdiction has avail- functioning habitat conditions caused able; aerial photography (or some other by MRCI development impacts to ripar- graphic display) of each MRCI develop- ian management areas. ment or MRCI expansion area at suffi- (D) The MRCI development ordinance cient detail to demonstrate the width or plan avoids stream crossings by and vegetation condition of riparian roads, utilities, and other linear devel- set-backs; information to demonstrate opment wherever possible, and, where the success of stormwater management crossings must be provided, minimizes and other conservation measures; and a impacts through choice of mode, sizing, summary of any flood damage, mainte- and placement. nance problems, or other issues. (E) The MRCI development ordinance (iii) NMFS finds the MRCI develop- or plan adequately protects historical ment activity to be consistent with the stream meander patterns and channel conservation of threatened salmonids’ migration zones and avoids hardening habitat when it contributes to the at- of stream banks and shorelines. tainment and maintenance of properly (F) The MRCI development ordinance functioning habitat conditions. For or plan adequately protects wetlands this purpose, NMFS defines properly and wetland functions, including iso- functioning habitat conditions as the lated wetlands. sustained presence of a watershed’s (G) The MRCI development ordinance habitat-forming processes that are nec- or plan adequately preserves the hydro- essary for the long-term survival of logic capacity of permanent and inter- salmonids through the full range of en- mittent streams to pass peak flows. vironmental variation. To contribute (H) The MRCI development ordinance to the attainment and maintenance of or plan includes adequate provisions properly functioning habitat condi- for landscaping with native vegetation tions, activities that affect salmonid to reduce need for watering and appli- habitat must not impair properly func- cation of herbicides, pesticides, and tioning habitat, appreciably reduce the fertilizer. functioning of already impaired habi- (I) The MRCI development ordinance tat, or retard the long-term progress of or plan includes adequate provisions to impaired habitat toward achieving

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properly functioning habitat condi- firmative defense that must be raised, tions. Periodically, NMFS will evalu- pleaded, and proven by the proponent. ate an approved program for its effec- If proven, this defense will be an abso- tiveness in maintaining and achieving lute defense to liability under section habitat function that provides for con- 9(a)(1)(G) of the ESA with respect to servation of the listed salmonids. the alleged violation. Whenever warranted, NMFS will iden- (d) Severability. The provisions of this tify to the jurisdiction ways in which section and the various applications the program needs to be altered or thereof are distinct and severable from strengthened. Changes may be identi- one another. If any provision or the ap- fied if the program is not protecting plication thereof to any person or cir- desired habitat functions, or where cumstances is stayed or determined to even with the habitat characteristics be invalid, such stay or invalidity shall and functions originally targeted, habi- not affect other provisions, or the ap- tat is not supporting population pro- plication of such provisions to other ductivity levels needed to conserve the persons or circumstances, which can be threatened species. If any jurisdiction given effect without the stayed or in- within the limit does not make valid provision or application. changes to respond adequately to the new information in the shortest APPENDIX A TO §223.203—LIST OF GUIDANCE amount of time feasible, but not longer DOCUMENTS than 1 year, NMFS will publish notifi- The following is a list of documents cited cation in the FEDERAL REGISTER an- in the regulatory text. Copies of these docu- nouncing its intention to withdraw the ments may be obtained upon request from limit so that take prohibitions would the Northwest or Southwest Regional Ad- then apply to the program. Such an an- ministrators (see Table 1 in § 600.502 of this nouncement will provide for a com- title). ment period of not less than 30 days, 1. Oregon Department of Transportation (ODOT) Maintenance Management System after which NMFS will make a final de- Water Quality and Habitat Guide (July, termination whether to subject the ac- 1999). tivities to the ESA section 9(a)(1) pro- 2. Guidelines for Electrofishing Waters hibitions. Containing Salmonids Listed Under the En- (iv) Prior to approving any city, dangered Species Act. county, or regional government ordi- 3. Fish Screening Criteria for Anadromous nances or plans as being within this Salmonids, National Marine Fisheries Serv- limit, or approving any substantive ice, Southwest Region, 1997. change in an ordinance or plan as being 4. Viable Salmonid Populations and the within this limit, NMFS will publish Recovery of Evolutionarily Significant Units. (June 2000). notification in the FEDERAL REGISTER announcing the availability of the ordi- [65 FR 42475, July 10, 2000, as amended at 67 nance or plan or the draft changes for FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12, public review and comment. Such an 2002] announcement will provide for a comment period of not less than 30 days. § 223.204 Exceptions to prohibitions relating to anadromous fish. (c) Affirmative Defense. In connection with any action alleging a violation of (a) The following exceptions to the the prohibitions of paragraph (a) of prohibitions of § 223.203(a) of this part this section with respect to the threat- apply to the Southern Oregon/Northern ened species of salmonids listed in § California Coast (SONCC) coho salmon. 223.102 (a)(3), (a)(5) through (a)(10) and (1) Take of SONCC coho salmon with- (a)(12) through (a)(22), any person in 3 miles (approximately 5 km) of the claiming the benefit of any limit listed coast, and in the bay, estuarine or in paragraph (b) of this section or § freshwater fisheries regulated under 223.209(a) shall have a defense where the sole authority of the State of Or- the person can demonstrate that the egon is not prohibited, if the take re- limit is applicable and was in force, sults from a fisheries harvest program and that the person fully complied conducted in accordance with the Or- with the limit at the time of the al- egon Coastal Salmon Restoration Ini- leged violation. This defense is an af- tiative of March 1997 (OCSRI). NMFS

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must have issued a written concur- and a description of the techniques to rence that the fisheries regulations are be used, and a point of contact; consistent with the OCSRI, using infor- (iii) The CDFG and ODFW, respec- mation provided through the April 1997 tively, provide NMFS annually with Memorandum of Agreement (MOA) be- the results of research and monitoring tween the State of Oregon and NMFS. studies directed at SONCC coho salm- (2) Incidental take of SONCC coho on, including a report of the directed salmon in ocean fisheries within 3 take resulting from the studies; miles (approximately 5 km) of the (iv) The CDFG and ODFW, provide coast that are regulated under the sole NMFS annually with a list of all re- authority of the State of California is search and monitoring studies per- not prohibited, provided that the ocean mitted that may allow incidental take salmon fishing regulations adopted by of listed coho salmon during the com- the California Fish and Game Commis- ing year and report the level of inci- sion and CDFG for recreational and dental take of listed coho salmon from commercial fisheries within 3 miles the previous year’s research and moni- (approximately 5 km) of the coast are toring activities, for NMFS’ review and consistent with the Pacific Fishery approval. Management Council’s Fishery Man- (v) The research and monitoring ac- agement Plan for Ocean Salmon Fish- tivities do not include the use of eries and the annual ocean salmon fish- electrofishing in any body of water ing regulations issued by the Secretary known or suspected to contain coho of Commerce for the Federal EEZ. salmon. (3) Take of SONCC coho salmon in a (5) Incidental take of the SONCC hatchery program regulated under the coho salmon in Oregon resulting from a sole authority of the State of Oregon is habitat restoration activity is not pro- not prohibited, if the take results from hibited, provided that: (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 (i) Research and monitoring involv- state restoration activity guidelines ing directed take of coho salmon is that NMFS has agreed, in writing, conducted by CDFG personnel (in Cali- meet the standards set forth in fornia) and ODFW personnel (in Or- § 222.307(c) of this chapter. egon); (6) Incidental take of the SONCC (ii) The CDFG and ODFW, respec- coho salmon in California resulting tively, provide NMFS with a list of all from a habitat restoration activity, as research and monitoring activities in- defined in paragraph (a)(6)(iii) of this volving coho salmon directed take section, is not prohibited, provided planned for the coming year for NMFS’ that California has a program in effect review and approval. This report shall that NMFS finds will assure tech- include an estimate of the total di- nically supported watershed assess- rected take that is anticipated, a de- ments and coordinated long-term mon- scription of the study design, including itoring strategies for watershed protec- a justification for taking the species tion plans and activities and:

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(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; notice of tow-time or other restriction (14) Sell, barter, trade or offer to sell, specified in, or issued under, barter, or trade, a TED that is not an § 223.206(d)(3) or (d)(4); approved TED; (4) Possess fish or wildlife taken in (15) Fail to comply with the restric- violation of paragraph (b) of this sections set forth in § 223.206(d)(10) regard- tion; ing pound net leaders; or (5) Fail to follow any of the sea turtle (16) Attempt to do, solicit another to handling and resuscitation require- do, or cause to be done, any of the fore- ments specified in § 223.206(d)(1); going. (6) Possess a sea turtle in any man- (c) In connection with any action al- ner contrary to the handling and resus- leging a violation of this section, any citation requirements of § 223.206(d)(1); person claiming the benefit of any ex- (7) Fail to comply immediately, in emption, exception, or permit under the manner specified at § 600.730 (b) this subpart B has the burden of prov- through (d) of this Title, with instruc- ing that the exemption, exception, or

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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; 69 FR 25012, May 5, shall be mailed by registered or cer- 2004] tified 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 zoo- tion; logical exhibition, or to enhance the (5) Method of disposal; propagation or survival of threatened (6) Disposition of the specimen(s), in- species of sea turtles, in accordance cluding, where the specimen(s) has with and subject to the conditions of been retained in captivity, a descrip- part 222, subpart C—General Permit tion of the place and means of confine- Procedures. ment, and the measures taken for its (2) Incidental-take permits. The Assist- maintenance and care; and ant Administrator may issue permits (7) Such other information as the As- authorizing activities that would oth- sistant Administrator may require. erwise be prohibited under § 223.205(a) 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. the National Marine Fisheries Service (b) Exception for injured, dead, or or the Fish and Wildlife Service in ac- stranded specimens. If any member of cordance with section 6(c) of the Act, any threatened species of sea turtle is designated by his or her agency for found injured, dead, or stranded, any such purposes, may, when acting in the agent or employee of the National Ma- course of his or her official duties, take rine Fisheries Service, the Fish and any threatened species to carry out sci- Wildlife Service, the U.S. Coast Guard, entific research or conservation pro- or any other Federal land or water grams. All such takings shall be re- management agency, or any agent or ported within 30 days of the taking to employee of a state agency responsible the Assistant Administrator who may for fish and wildlife who is designated request additional reports of the tak- by his or her agency for such purposes, ing and research at the Assistant Ad- may, when acting in the course of his ministrator’s discretion. or her official duties, take such specimens without a permit if such taking (d) Exception for incidental taking. The is necessary to aid a sick, injured, or prohibitions against taking in stranded specimen or dispose of a dead § 223.205(a) do not apply to the inci- specimen or salvage a dead specimen dental take of any member of a threat- which may be useful for scientific ened species of sea turtle (i.e., a take study. Whenever possible, live speci- not directed towards such member)

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during fishing or scientific research ac- when the engine gears are in neutral tivities, to the extent that those in- position, and in areas where they are volved are in compliance with all appli- unlikely to be recaptured or injured by cable requirements of paragraphs (d)(1) vessels. Sea turtles that fail to respond through (d)(10) 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) In addition to 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 vessel in the Atlantic, (A) Sea turtles that are actively including the Caribbean Sea and the moving or determined to be dead as de- Gulf of Mexico, that has pelagic scribed in paragraph (d)(1)(i)(C) of this longline gear on board and that has section must be released over the stern been issued, or is required to have, a of the boat. In addition, they must be limited access permit for highly migra- released only when fishing or scientific tory species under 50 CFR 635.4, must collection gear is not in use, when the comply with the handling and release engine gears are in neutral position, requirements specified in 50 CFR 635.21. and in areas where they are unlikely to (iii) Any specimen taken incidentally be recaptured or injured by vessels. during the course of fishing or sci- (B) Resuscitation must be attempted entific research activities must not be on sea turtles that are comatose, or in- consumed, sold, landed, offloaded, active, as determined in paragraph transshipped, or kept below deck. (d)(1) of this section, by: (2) Gear requirements for trawlers—(i) (1) Placing the turtle on its bottom TED requirement for shrimp trawlers. shell (plastron) so that the turtle is Any shrimp trawler that is in the At- right side up and elevating its lantic Area or Gulf Area must have an hindquarters at least 6 inches (15.2 cm) approved TED installed in each net for a period of 4 up to 24 hours. The that is rigged for fishing. A net is amount of the elevation depends on the rigged for fishing if it is in the water, size of the turtle; greater elevations or if it is shackled, tied, or otherwise are needed for larger turtles. Periodi- connected to any trawl door or board, cally, rock the turtle gently left to or to any tow rope, cable, pole or ex- right and right to left by holding the tension, either on board or attached in outer edge of the shell (carapace) and any manner to the shrimp trawler. Ex- lifting one side about 3 inches (7.6 cm) ceptions to the TED requirement for then alternate to the other side. Gent- shrimp trawlers are provided in para- ly touch the eye and pinch the tail (re- graph (d)(2)(ii) of this section. flex test) periodically to see if there is (ii) Exemptions from the TED require- a response. ment—(A) Alternative tow-time restric- (2) Sea turtles being resuscitated tions. A shrimp trawler is exempt from must be shaded and kept damp or the TED requirements of paragraph moist but under no circumstance be (d)(2)(i) of this section if it complies placed into a container holding water. with the alternative tow-time restric- A water-soaked towel placed over the tions in paragraph (d)(3)(i) of this sec- head, carapace, and flippers is the most tion and if it: effective method in keeping a turtle (1) Has on board no power or mechan- moist. ical-advantage trawl retrieval system (3) Sea turtles that revive and be- (i.e., any device used to haul any part come active must be released over the of the net aboard); stern of the boat only when fishing or (2) Is a bait shrimper that retains all scientific collection gear is not in use, live shrimp on board with a circulating

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seawater system, if it does not possess (2) Any approved hard TED or special more than 32 lb. (14.5 kg) of dead hard TED installed in a summer floun- shrimp on board, if it has a valid origi- der trawl must be installed in a TED nal state bait-shrimp license, and if the extension. The TED extension is a cy- state license allows the licensed vessel lindrical piece of webbing distinct from to participate in the bait shrimp fish- the main trawl’s body, wings, codend, ery exclusively; and any other net extension(s). The (3) Has only a pusher-head trawl, TED extension must be constructed of skimmer trawl, or wing net rigged for webbing no larger than 3.5 inch (8.9 cm) fishing; stretched mesh. The TED extension (4) Is in an area during a period for must extend at least 24 inches (61.0 cm) which tow-time restrictions apply but not more than 36 inches (91.4 cm) under paragraphs (d)(3)(ii) or (iii) of forward of the leading edge of the TED this section, if it complies with all ap- and aft of the trailing edge of the grid. plicable provisions imposed under (B) Exemptions from the TED require- those paragraphs; or ment. Any summer flounder trawler (5) Is using a single test net (try net) north of 35°46.1′ N. lat. (Oregon Inlet, with a headrope length of 12 ft (3.6 m) NC) from January 15 through March 15 or less and with a footrope length of 15 annually is exempt from the TED re- ft (4.6 m) or less, if it is pulled imme- quirement of paragraph (d)(2)(iii)(A) of diately in front of another net or is not this section, unless the Assistant Ad- connected to another net in any way, if ministrator determines that TED use no more than one test net is used at a is necessary to protect sea turtles or time, and if it is not towed as a pri- ensure compliance, pursuant to the mary net, in which case the exemption procedures of paragraph (d)(4) of this under this paragraph (d)(2)(ii)(A) ap- section. plies to the test net. (B) Exempted gear or activities. The fol- (C) Monitoring. Summer flounder lowing fishing gear or activities are ex- trawlers must carry onboard a NMFS- empted from the TED requirements of approved observer if requested by the paragraph (d)(2)(i) of this section: Southeast Regional Administrator or (1) A beam or roller trawl, if the the Northeast Regional Administrator. frame is outfitted with rigid vertical A written notification will be sent to bars, and if none of the spaces between the address specified for the vessel in the bars, or between the bars and the either the NMFS or state fishing per- frame, exceeds 4 inches (10.2 cm); and mit application, or to the address spec- (2) A shrimp trawler fishing for, or ified for registration or documentation possessing, royal red shrimp, if royal purposes, or upon written notification red shrimp constitutes at least 90 per- otherwise served on the owner or oper- cent (by weight) of all shrimp either ator of the vessel. Owners and opera- found on board, or offloaded from that tors must comply with the terms and shrimp trawler. conditions specified in such written no- (iii) Gear requirement—summer floun- tification. All NMFS-approved observ- der trawlers—(A) TED requirement. (1) ers will report any violations of this Any summer flounder trawler in the section, or other applicable regulations summer flounder fishery-sea turtle pro- and laws. Information collected by ob- tection area must have an approved servers may be used for enforcement TED installed in each net that is purposes. rigged for fishing. A net is rigged for (D) Additional sea turtle conservation fishing if it is in the water, or if it is measures. The Assistant Administrator shackled, tied, or otherwise connected may impose other such restrictions to any trawl door or board, or to any upon summer flounder trawlers as the tow rope, cable, pole or extension, ei- Assistant Administrator deems nec- ther on board or attached in any man- essary or appropriate to protect sea ner to the summer flounder trawler. turtles and ensure compliance, pursu- Exceptions to the TED requirement for ant to the procedures of paragraph summer flounder trawlers are provided (d)(4) of this section. Such measures in paragraph (d)(2)(iii)(B) of this sec- may include, but are not limited to, a tion. requirement to use TEDs in areas other

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than summer flounder fishery-sea tur- information that one sea turtle is en- tle protection area, a requirement to tangled alive or that one sea turtle is use limited tow-times, and closure of entangled dead, and NMFS determines the fishery. that the entanglement contributed to (B) Regulated waters. The restrictions its death, in pound net leaders that are on pound net leaders described in para- in compliance with the restrictions de- graph (d)(2)(v)(A) of this section apply scribed in paragraph (d)(2)(v)(A) of this to the following waters: the Virginia section on pound net leaders in the wa- waters of the mainstem Chesapeake ters identified in paragraph (d)(2)(v)(B) Bay from the Maryland-Virginia State of this section, the AA may issue a line (approximately 37°55′ N. lat., 75°55′ final rule modifying the restrictions on W. long.) to the COLREGS line at the pound net leaders as necessary to pro- mouth of the Chesapeake Bay; the tect threatened sea turtles. Such modi- James River downstream of the Hamp- fications may include, but are not lim- ton Roads Bridge Tunnel (I–64; approxi- ited to, reducing the maximum allow- mately 36°59.55′ N. lat., 76°18.64′ W. able mesh size of pound net leaders and long.); the York River downstream of prohibiting the use of pound net lead- the Coleman Memorial Bridge (Route ers regardless of mesh size. In addition, 17; approximately 37°14.55′ N. lat, if information indicates that a signifi- 76°30.40′ W. long.); and the Rappahan- cant level of sea turtle strandings will nock River downstream of the Robert likely continue beyond June 30, the AA Opie Norris Jr. Bridge (Route 3; ap- may issue a final rule extending the ef- proximately 37°37.44′ N. lat, 76°25.40′ W. fective date of the restrictions, includ- long.). ing any additional restrictions imposed (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

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TED requirement of paragraph (d)(2)(i) section does not authorize incidental of this section, if the Assistant Admin- takings during fishing activities if the istrator determines that TEDs are inef- takings: fective in protecting sea turtles. (A) Would violate the restrictions, (iv) Notice; applicability; conditions. terms, or conditions of an incidental The Assistant Administrator will pub- take statement or biological opinion; lish notification concerning any tow- (B) Would violate the restrictions, time restriction imposed under para- terms, or conditions of an incidental graph (d)(3)(ii) or (iii) of this section in take permit; or the FEDERAL REGISTER and will an- (C) May be likely to jeopardize the nounce it in summary form on channel continued existence of a species listed 16 of the marine VHF radio. A notifica- under the Act. tion of tow-time restrictions will in- (ii) Determination; restrictions on fish- clude findings in support of these re- ing activities. The Assistant Adminis- strictions as an alternative to, or as trator may issue a determination that substitute for, the TED requirements. incidental takings during fishing ac- The notification will specify the effec- tivities are unauthorized. Pursuant tive dates, the geographic area where thereto, the Assistant Administrator tow-time restrictions apply, and any may restrict fishing activities in order applicable conditions or restrictions to conserve a species listed under the that the Assistant Administrator de- Act, including, but not limited to, re- termines are necessary or appropriate strictions on the fishing activities of to protect sea turtles and ensure com- vessels subject to paragraph (d)(2) of pliance, including, but not limited to, a this section. The Assistant Adminis- requirement to carry observers, to reg- trator will take such action if the As- ister vessels in accordance with proce- sistant Administrator determines that dures at paragraph (d)(5) of this sec- restrictions are necessary to avoid un- tion, or for all shrimp trawlers in the authorized takings that may be likely area to synchronize their tow times so to jeopardize the continued existence that all trawl gear remains out of the of a listed species. The Assistant Ad- water during certain times. A notifica- ministrator may withdraw or modify a tion withdrawing tow-time restrictions determination concerning unauthor- will include findings in support of that ized takings or any restriction on fish- action. ing activities if the Assistant Adminis- (v) Procedures. The Assistant Admin- trator determines that such action is istrator will consult with the appro- warranted. priate fishery officials (state or Fed- (iii) Notice; applicability; conditions. eral) where the affected shrimp fishery The Assistant Administrator will pub- is located in issuing a notification con- lish a notification of a determination cerning tow-time restrictions. An concerning unauthorized takings or a emergency notification can be effective notification concerning the restriction for a period of up to 30 days and may be 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

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turtles and ensure compliance. Notifi- (8) Restrictions applicable to large-mesh cation of restriction of fishing activi- gillnet fisheries in the mid-Atlantic re- ties will include findings in support of gion. No person may fish (including, the restriction, will specify the time but not limited to, setting, hauling and area where the restriction is appli- back, or leaving in the ocean) with, or cable, and will specify any applicable possess any gillnet with a stretched conditions or restrictions that the As- mesh size larger than 8 inches (20.3 sistant Administrator determines are cm), unless all gillnets are covered necessary or appropriate to protect sea with canvas or other similar material turtles and ensure compliance. Such and lashed or otherwise securely fas- conditions and restrictions may in- tened to the deck or the rail, and all clude, but are not limited to, limita- buoys larger than 6 inches (15.24 cm) in tions on the types of fishing gear that diameter, high flyers, and anchors are may be used, tow-time restrictions, al- disconnected. This restriction applies teration or extension of the periods of in the Atlantic Exclusive Economic time during which particular tow-time Zone (as defined in 50 CFR 600.10) dur- requirements apply, requirements to ing the following time periods and in use TEDs, registration of vessels in ac- the following areas: cordance with procedures at paragraph (i) Waters north of 33°51.0′ N (North (d)(5) of this section, and requirements Carolina/South Carolina border at the to provide observers. Notification of coast) and south of 35°46.0′ N (Oregon withdrawal or modification will in- Inlet) at any time; clude findings in support of that ac- (ii) Waters north of 35°46.0′ N (Oregon tion. Inlet) and south of 36°22.5′ N (Currituck (iv) Procedures. The Assistant Admin- Beach Light, NC) from March 16 istrator will consult with the appro- through January 14; priate fisheries officials (state or Fed- (iii) Waters north of 36°22.5′ N eral) where the fishing activities are (Currituck Beach Light, NC) and south located in issuing notification of a de- of 37°34.6′ N (Wachapreague Inlet, VA) termination concerning unauthorized from April 1 through January 14; and takings or notification concerning the (iv) Waters north of 37°34.6′ N restriction of fishing activities. An (Wachapreague Inlet, VA) and south of emergency notification will be effec- 37°56.0′ N (Chincoteague, VA) from tive for a period of up to 30 days and April 16 through January 14. may be renewed for additional periods (9) Restrictions applicable to Pacific pe- of up to 30 days each. The Assistant lagic longline vessels. In addition to the Administrator may invite comments general prohibitions specified in on such action, and may withdraw or § 600.725 of Chapter VI, it is unlawful for modify the action by following proce- any person who is not operating under dures similar to those for implementa- a western Pacific longline permit tion. The Assistant Administrator will under § 660.21 to do any of the following implement any permanent determina- on the high seas of the Pacific Ocean tion or restriction through rule- east of 150° W. long. and north of the making. equator (0° N. lat.): (5) [Reserved] (i) Direct fishing effort toward the (6) [Reserved] harvest of swordfish (Xiphias gladius) (7) Restrictions applicable to gillnet using longline gear. fisheries in North Carolina. No person (ii) Possess a light stick on board a may fish with gillnet fishing gear longline vessel. A light stick as used in which has a stretched mesh size larger this paragraph is any type of light than 4 1⁄4 inches (10.8 cm), annually emitting device, including any fluores- from September 1 through December cent glow bead, chemical, or elec- 15, in the inshore waters of Pamlico trically powered light that is affixed Sound, North Carolina, and all contig- underwater to the longline gear. uous tidal waters, bounded on the (iii) An operator of a longline vessel north by 35°46.3′ N. lat., on the south by subject to this section may land or pos- 35°00′ N. lat., and on the west by 76°30′ sess no more than 10 swordfish from a W. long. fishing trip where any part of the trip

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included fishing east of 150° W. long. Rappahannock River downstream of and north of the equator (0° N. lat.). the Robert Opie Norris Jr. Bridge (iv) Fail to employ basket-style (Route 3; approximately 37°37.44′ N. lat, longline gear such that the mainline is 76°25.40′ W. long.), and the Piankatank deployed slack when fishing. River downstream of the Route 3 (v) When a conventional Bridge (approximately 37°30.62′ N. lat, monofilament longline is deployed by a 76°25.19′ W. long.) to the COLREGS line vessel, no fewer than 15 branch lines at the mouth of the Chesapeake Bay, may be set between any two floats. must have only mesh size less than 12 Vessel operators using basket-style inches (30.5 cm) stretched mesh and longline gear must set a minimum of 10 may not employ stringers. South of branch lines between any 2 floats. 37°19.0 N. lat. and west of 76°13.0′ W. (vi) Longline gear must be deployed long., and all waters south of 37°13.0′ N. such that the deepest point of the main lat. to the Chesapeake Bay Bridge Tun- longline between any two floats, i.e., nel (extending from approximately the deepest point in each sag of the 37°05′ N. lat., 75°59′ W. long. to 36°55′ N. main line, is at a depth greater than lat., 76°08′ W. long.), the leader restric- 100 m (328.1 ft or 54.6 fm) below the sea tion applies to nearshore pound nets, surface. as defined in the definition for pound (10) Restrictions applicable to pound net leader in § 222.102. Any pound net nets in Virginia—(i) Area closed to use leader with stretched mesh measuring of pound net leaders. During the time 12 inches (30.5 cm) or greater or any period of May 6 through July 15 each pound net leader with stringers must year, any offshore pound net leader, as be removed from the waters described defined in the definition for pound net in this paragraph (d) prior to May 6 and leader in § 222.102, in the Virginia wa- may not be reset until July 16. ters of the mainstem Chesapeake Bay, south of 37°19.0′ N. lat. and west of (iii) Reporting requirement. At any 76°13.0′ W. long., and all waters south of time during the year, if a sea turtle is 37°13.0′ N. lat. to the Chesapeake Bay taken live and uninjured in a pound net Bridge Tunnel (extending from ap- operation, the operator of the vessel proximately 37°05′ N. lat., 75°59′ W. must report the incident to the NMFS long. to 36°55′ N. lat., 76°08′ W. long.) at Northeast Regional Office, (978) 281– the mouth of the Chesapeake Bay, and 9328 or fax (978) 281–9394, within 24 the portion of the James River down- hours of returning from the trip in stream of the Hampton Roads Bridge which the incidental take was discov- Tunnel (I–64; approximately 36°59.55′ N. ered. The report shall include a de- lat., 76°18.64′ W. long.) and the York scription of the sea turtles condition at River downstream of the Coleman Me- the time of release and the measures morial Bridge (Route 17; approximately taken as required in paragraph (d)(1) of 37°14.55′ N. lat, 76°30.40′ W. long.) must this section. At any time during the be removed from the water so that no year, if a sea turtle is taken in a pound part of the leader contacts the water. net operation, and is determined to be All pound net leaders must be removed injured, or if a turtle is captured dead, from the waters described in this sub- the operator of the vessel shall imme- paragraph prior to May 6 and may not diately notify NMFS Northeast Re- be reset until July 16. gional Office and the appropriate reha- (ii) Area with pound net leader mesh bilitation or stranding network, as de- size restrictions. During the time period termined by NMFS Northeast Regional of May 6 to July 15 each year, any Office. pound net leader in the Virginia waters (iv) Monitoring. Owners or operators of the Chesapeake Bay outside the area of pound net fishing operations must described in (i), extending to the Mary- allow access to the pound net gear so it land-Virginia State line (approxi- may be observed by a NMFS-approved mately 37°55′ N. lat., 75°55′ W. long.), observer if requested by the Northeast the Great Wicomico River downstream Regional Administrator. All NMFS-ap- of the Jessie Dupont Memorial High- proved observers will report any viola- way Bridge (Route 200; approximately tions of this section, or other applica- 37°50.84′ N. lat, 76°22.09′ W. long.), the ble regulations and laws. Information

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collected by observers may be used for ance with this section is subject to law enforcement purposes. measurement, regardless of whether it (v) Expedited modification of restric- is wet or dry. Any such measurement tions and effective dates. From May 6 to will be of the stretched mesh size. July 15 of each year, if NMFS receives (a) Hard TEDs. Hard TEDs are TEDs information that one sea turtle is en- with rigid deflector grids and are cat- tangled alive or that one sea turtle is egorized as ‘‘hooped hard TEDs’’ and entangled dead, and NMFS determines ‘‘single-grid hard TEDs’’ such as the that the entanglement contributed to Matagorda and Georgia TED (Figures 3 its death, in pound net leaders that are & 4 to this part). Hard TEDs complying in compliance with the restrictions de- with the following generic design cri- scribed in paragraph (d)(10)(ii) of this teria are approved TEDs: section, NMFS may issue a final rule (1) Construction materials—(i) Single- modifying the restrictions on pound grid and inshore hooped hard TED. A net leaders as necessary to protect single-grid hard TED or an inshore threatened sea turtles. Such modifica- hooped hard TED must be constructed tions may include, but are not limited of one or a combination of the fol- to, reducing the maximum allowable lowing materials, with minimum di- mesh size of pound net leaders and pro- mensions as follows: hibiting the use of pound net leaders (A) Solid steel rod with a minimum regardless of mesh size. In addition, if outside diameter of 1/4 inch (0.64 cm); information indicates that a signifi- (B) Fiberglass or aluminum rod with cant level of sea turtle entanglements, a minimum outside diameter of 1/2 inch impingements or strandings will likely (1.27 cm); or continue beyond July 15, NMFS may (C) Steel or aluminum tubing with a issue a final rule extending the effec- minimum outside diameter of 1/2 inch tive date of the restrictions, including (1.27 cm) and a minimum wall thick- any additional restrictions imposed ness of 1/8 inch (0.32 cm) (also known as under this subparagraph, for an addi- schedule 40 tubing). tional 15 days, but not beyond July 30, (ii) Offshore hooped hard TED. An off- to protect threatened sea turtles. shore hooped hard TED must be con- [64 FR 14070, Mar. 23, 1999, as amended at 64 structed of aluminum, with minimum FR 55863, Oct. 15, 1999; 66 FR 1603, Jan. 9, 2001; dimensions as follows: 66 FR 44551, Aug. 24, 2001; 66 FR 50354, Oct. 3, (A) Solid rod with a minimum out- 2001; 66 FR 52362, Oct. 15, 2001; 66 FR 67496, side diameter of 5/8 inch (1.59 cm); or Dec. 31, 2001; 67 FR 13101, Mar. 21, 2002; 67 FR (B) Tubing with a minimum outside 41203, June 17, 2002; 67 FR 56934, Sept. 6, 2002; diameter of 1 inch (2.54 cm) and a min- 67 FR 71899, Dec. 3, 2002; 67 FR 78392, Dec. 24, imum wall thickness of 1/8 inch (0.32 2002; 68 FR 8467, Feb. 21, 2003; 68 FR 41945, cm). July 16, 2003; 68 FR 69967, Dec. 16, 2003; 69 FR 11545, Mar. 11, 2004; 69 FR 25012, May 5, 2004; (2) Method of attachment. A hard TED 69 FR 18453, Apr. 7, 2004; 69 FR 40753, July 6, must be sewn into the trawl around the 2004] entire circumference of the TED with heavy twine. EFFECTIVE DATE NOTES: 1. At 64 FR 14070, Mar. 23, 1999, newly redesignated § 223.206 was (3) Angle of deflector bars. (i) The revised. Paragraph (d)(5) contains informa- angle of the deflector bars must be be- tion collection and recordkeeping require- tween 30° and 55° from the normal, hor- ments and will not become effective until ap- izontal flow through the interior of the proval has been given by the Office of Man- trawl, except as provided in paragraph agement and Budget. (a)(3)(ii) of this section. 2. At 67 FR 41203, June 17, 2002, § 223.206 was (ii) For any shrimp trawler fishing in amended by adding paragraph (d)(2)(v). Para- graph (d)(2)(v)(C) contains information col- the Gulf SFSTCA or the Atlantic lection and recordkeeping requirements and SFSTCA, a hard TED with the position will not become effective until approval has of the escape opening at the bottom of been given by the Office of Management and the net when the net is in its deployed Budget. position, the angle of the deflector bars from the normal, horizontal flow § 223.207 Approved TEDs. through the interior of the trawl, at Any netting, webbing, or mesh that any point, must not exceed 55°, and the may be measured to determine compli- angle of the bottom-most 4 inches (10.2

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cm) of each deflector bar, measured except it may not be used in the along the bars, must not exceed 45° inshore waters of Georgia and South (Figures 14a and 14b to this part). Carolina. (4) Space between bars. The space be- (B) Escape opening for offshore hooped tween deflector bars and the deflector hard TED. The offshore hooped hard bars and the TED frame must not ex- TED escape opening must have a hori- ceed 4 inches (10.2 cm). zontal measurement of no less than 40 (5) Direction of bars. The deflector inches (102 cm) wide and a forward bars must run from top to bottom of measurement of no less than 35 inches the TED, as the TED is positioned in (89 cm). A hinged door frame may be the net, except that up to four of the used to partially cover the escape open- bottom bars and two of the top bars, ing as provided in paragraph (d)(7) of including the frame, may run from side this section. Alternatively, a webbing to side of the TED. The deflector bars flap may be used as provided in para- must be permanently attached to the graph (d)(3)(ii) of this section. The re- TED frame or to the horizontal bars, if sultant escape opening with a webbing used, at both ends. flap must have a stretched mesh cir- (6) Position of the escape opening. The cumference of no less than 142 inches escape opening must be made by re- (361 cm). moving a rectangular section of web- (ii) Single-grid hard TEDs. On a single- bing from the trawl, except for a TED grid hard TED, the horizontal cut(s) for with an escape opening size described the escape opening may not be nar- at paragraph (a)(7)(ii)(A) for which the rower than the outside width of the escape opening may alternatively be TED frame minus 4 inches (10.2 cm) on made by making a horizontal cut along both sides of the grid, when measured the same plane as the TED. The escape as a straight line width. Fore-and-aft opening must be centered on and im- cuts to remove a rectangular piece of mediately forward of the frame at ei- webbing must be made from the ends of ther the top or bottom of the net when the horizontal cuts along a single row the net is in the deployed position. The of meshes along each side. The overall escape opening must be at the top of size of the escape opening must match the net when the slope of the deflector one of the following specifications: bars from forward to aft is upward, and (A) 44–inch inshore opening. The es- must be at the bottom when such slope cape opening must have a minimum is downward. The passage from the width of 44 inches (112 cm) and a min- mouth of the trawl through the escape imum height of 20 inches (51 cm) with opening must be completely clear of each measurement taken separately. A any obstruction or modification, other webbing flap, as described in paragraph than those specified in paragraph (d) of (d)(3)(i) of this section, may be used this section. with this escape hole, so long as this (7) Size of escape opening—(i) Hooped minimum opening size is achieved. hard TEDs—(A) Escape opening for This opening may only be used in inshore hooped hard TED. The inshore inshore waters, except it may not be hooped hard TED escape opening must used in the inshore waters of Georgia have a horizontal measurement of no and South Carolina. less than 35 inches (89 cm) wide and a (B) The 71–inch offshore opening: The forward measurement of no less than 27 two forward cuts of the escape opening inches (69 cm). A hinged door frame must not be less than 26 inches (66 cm) may be used to partially cover the es- long from the points of the cut imme- cape opening as provided in paragraph diately forward of the TED frame. The (d)(7) of this section. Alternatively, a resultant length of the leading edge of webbing flap may be used as provided the escape opening cut must be no less in paragraph (d)(3)(i) of this section. than 71 inches (181 cm) with a resultant The resultant opening with a webbing circumference of the opening being 142 flap must be a minimum width of 35 inches (361 cm) (Figure 12 to this part). inches (89 cm) and a minimum height A webbing flap, as described in para- of 20 inches (51 cm), with each measure- graph (d)(3)(ii) of this section, may be ment taken simultaneously. This open- used with this escape hole, so long as ing may only be used in inshore waters, this minimum opening size is achieved.

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Either this opening or the one de- twine or rope. Floats must be con- scribed in paragraph (a)(7)(ii)(C) of this structed of aluminum, hard plastic, ex- section must be used in all offshore wa- panded polyvinyl chloride, or expanded ters and in all inshore waters in Geor- ethylene vinyl acetate unless otherwise gia and South Carolina, but may also specified. The requirements of this be used in other inshore waters. paragraph may be satisfied by compli- (C) Double cover offshore opening. The ance with either the dimension require- two forward cuts of the escape opening ments of paragraph (a)(9)(i) of this sec- must not be less than 20 inches (51 cm) tion, or the buoyancy requirements of long from the points of the cut imme- paragraph (a)(9)(ii) of this section, or diately forward of the TED frame. The the buoyancy-dimension requirements resultant length of the leading edge of of paragraph (a)(9)(iii) of this section. the escape opening cut must be no less If roller gear is used pursuant to para- than 56 inches (142 cm)(Figure 16 to graph (d)(5) of this section, the roller this part illustrates the dimensions of gear must be included in the circum- these cuts). A webbing flap, as de- ference measurement of the TED or the scribed in paragraph (d)(3)(iii) of this total weight of the TED. section, may be used with this escape hole. Either this opening or the one de- (i) Float dimension requirements. (A) scribed in paragraph (a)(7)(ii)(B) of this For hard TEDs with a circumference of section must be used in all offshore wa- 120 inches (304.8 cm) or more, a min- ters but also in all inshore waters in imum of either one round, aluminum Georgia and South Carolina, and may or hard plastic float, no smaller than be used in other inshore waters. 9.8 inches (25.0 cm) in diameter, or two (8) Size of hoop or grid—(i) Hooped expanded polyvinyl chloride or ex- hard TED—(A) Inshore hooped hard panded ethylene vinyl acetate floats, TED. The front hoop on an inshore each no smaller than 6.75 inches (17.2 hooped hard TED must have an inside cm) in diameter by 8.75 inches (22.2 cm) horizontal measurement of at least 35 in length, must be attached. inches (89 cm) and an inside vertical (B) For hard TEDs with a circum- measurement of at least 30 inches (76 ference of less than 120 inches (304.8 cm). The minimum clearance between cm), a minimum of either one round, the deflector bars and the forward edge aluminum or hard plastic float, no of the escape opening must be at least smaller than 9.8 inches (25.0 cm) in di- 20 inches (51 cm). ameter, or one expanded polyvinyl (B) Offshore hooped hard TED. The chloride or expanded ethylene vinyl ac- front hoop on an offshore hooped hard etate float, no smaller than 6.75 inches TED must have an inside horizontal (17.2 cm) in diameter by 8.75 inches measurement of at least 40 inches (102 (22.2 cm) in length, must be attached. cm) and an inside vertical measure- (ii) Float buoyancy requirements. ment of at least 30 inches (76 cm). The Floats of any size and in any combina- minimum clearance between the de- tion must be attached such that the flector bars and the forward edge of the combined buoyancy of the floats, as escape opening must be at least 23 1/4 inches (59 cm). 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 a minimum on the TED. The buoyancy of the floats outside horizontal and vertical meas- and the weight of the TED must be urement of 32 inches (81 cm). The re- clearly marked on the floats and the quired outside measurements must be TED as follows: at the mid-point of the deflector grid. (A) Float buoyancy markings. Mark- (9) Flotation. Floats must be attached ings on floats must be made in clearly to the top one-half of all hard TEDs legible raised or recessed lettering by with bottom escape openings. The the original manufacturer. The mark- floats may be attached either outside ing must identify the buoyancy of the or inside the net, but not to a flap. float in water, expressed in grams or Floats attached inside the net must be kilograms, and must include the met- behind the rear surface of the TED. ric unit of measure. The marking may Floats must be attached with heavy additionally include the buoyancy in

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English units. The marking must iden- Flounder TED is not an approved TED tify the nominal buoyancy for the for use by shrimp trawlers. The Floun- manufactured float. der TED must be constructed of at (B) TED weight markings. The mark- least 1 1/4 inch (3.2 cm) outside diame- ing must be made by the original TED ter aluminum or steel pipe with a wall manufacturer and must be permanent thickness of at least 1/8 inch (0.3 cm). It and clearly legible. The marking must must have a rectangular frame with identify the in-air, dry weight of the outside dimensions which can be no TED, expressed in grams or kilograms, less than 51 inches (129.5 cm) in length and must include the metric unit of and 32 inches (81.3 cm) in width. It measure. The marking may addition- must have at least five vertical deflec- ally include the weight in English tor bars, with bar spacings of no more units. The marked weight must rep- than 4 inches (10.2 cm). The vertical resent the actual weight of the individual TED as manufactured. Pre- bars must be connected to the top of viously manufactured TEDs may be the frame and to a single horizontal marked upon return to the original bar near the bottom. The horizontal manufacturer. Where a TED is com- bar must be connected at both ends to prised of multiple detachable compo- the sides of the frame and parallel to nents, the weight of each component the bottom bar of the frame. There must be separately marked. must be a space no larger than 10 (iii) Buoyancy-dimension requirements. inches (25.4 cm) between the horizontal Floats of any size and in any combina- bar and the bottom bar of the frame. tion, provided that they are marked One or more additional vertical bars pursuant to paragraph (a)(9)(ii)(A) of running from the bottom bar to the this section, must be attached such horizontal bar must divide the opening that the combined buoyancy of the at the bottom into two or more rectan- floats equals or exceeds the following gles, each with a maximum height of 10 values: inches (25.4 cm) and a maximum width (A) For floats constructed of alu- of 14 1/2 inches (36.8 cm). This TED minum or hard plastic, regardless of must comply with paragraph (a)(2) of the size of the TED grid, the combined this section. The angle of the deflector buoyancy must equal or exceed 14 lb bars must be between 30 and 55 from (6.4 kg); the normal, horizontal flow through (B) For floats constructed of ex- the interior of the trawl. The entire panded polyvinyl chloride or expanded width of the escape opening from the ethylene vinyl acetate, where the cir- trawl must be centered on and imme- cumference of the TED is 120 inches (304.8 cm) or more, the combined buoy- diately forward of the frame at the top ancy must equal or exceed 20 lb (9.1 of the net when the net is in its de- kg); or ployed position. The escape opening (C) For floats constructed of ex- must be at the top of the net and the panded polyvinyl chloride or expanded slope of the deflector bars from forward ethylene vinyl acetate, where the cir- to aft is upward. The escape opening cumference of the TED is less than 120 must be cut horizontally along the inches (304.8 cm), the combined buoy- same plane as the TED, and may not be ancy must equal or exceed 10 lb (4.5 cut in a fore-and-aft direction. The cut kg). in the trawl webbing for the escape (b) Special Hard TEDs. Special hard opening cannot be narrower than the TEDs are hard TEDs which do not meet outside width of the grid minus 4 all of the design and construction cri- inches (10.2 cm) on both sides of the teria of the generic standards specified grid, when measured as a straight line in paragraph (a) of this section. The width. The resulting escape opening in following special hard TEDs are ap- the net webbing must measure at least proved TEDs: 35 inches (88.9 cm) in horizontal taut (1) Flounder TED. (Figure 10 to this length and, simultaneously, 12 inches part). The Flounder TED is approved (30.5 cm) in vertical taut height. The for use only in the Atlantic summer vertical measurement must be taken at flounder bottom trawl fishery. The

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the midpoint of the horizontal meas- zoidal pieces of 4-inch (10.2-cm) urement. This TED may not be config- stretched mesh webbing. The webbing ured with a bottom escape opening. In- must consist of number 48 (3-mm thick) stallation of an accelerator funnel is or larger polypropylene or poly- not permitted with this TED. ethylene webbing that is heat-set knot- (2) Weedless TED. The weedless TED ted or braided. The leading edge of the must meet all the requirements of 8-inch (20.3-cm) mesh panel must be 36 paragraph (a) of this section for single- meshes wide. The 8-inch (20.3-cm) mesh grid hard TEDs, with the exception of panel must be tapered on each side paragraphs (a)(1) and (a)(5) of this sec- with all-bar cuts to converge on an tion. The weedless TED must be con- apex, such that the length of each side structed of at least 1–1/4 inch (3.2 cm) is 36 bars. The leading edges of the 4- outside diameter aluminum with a wall inch (10.2-cm) mesh panels must be 8 thickness of at least 1/8 inch (0.3 cm). meshes wide. The edges of the 4-inch The deflector bars must run from top (10.2-cm) mesh panels must be cut with to bottom of the TED, as the TED is all-bar cuts running parallel to each positioned in the net. The ends of the other, such that the length of the inner deflectors bars on the side of the frame edge is 72 bars and the length of the opposite to the escape opening must be outer edge is 89 bars and the resulting permanently attached to the frame. fore-and-aft edge is 8 meshes deep. The The ends of the deflector bars nearest two 4-inch (10.2-cm) mesh panels must the escape opening are not attached to be sewn to the 8-inch (20.3-cm) mesh the frame and must lie entirely for- panel to create a single triangular ex- ward of the leading edge of the outer cluder panel. The 72-bar edge of each 4- frame. The ends of the unattached de- inch (10.2-cm) mesh panel must be se- flector bars must be no more than 4 curely joined with twine to one of the inches (10.2 cm) from the frame and 36-bar edges of the 8-inch (20.3-cm) may not extend past the frame. A hori- mesh panel, tied with knots at each zontal brace bar to reinforce the deflec- knot of the 4-inch (10.2-cm) webbing tor bars, constructed of the same size and at least two wraps of twine around or larger pipe as the deflector bars, each bar of 4-inch (10.2-cm) mesh and must be permanently attached to the the adjoining bar of the 8-inch (20.3-cm) frame and the rear face of each of the mesh. The adjoining fore-and-aft edges deflector bars at a position anywhere of the two 4-inch (10.2-cm) mesh panels between the vertical mid-point of the must be sewn together evenly. frame and the unattached ends of the (ii) Limitations on which trawls may deflector bars. The horizontal brace bar have a Parker TED installed. The Parker may be offset behind the deflector bars, TED must not be installed or used in a using spacer bars, not to exceed 5 two-seam trawl with a tongue, nor in a inches (12.7 cm) in length and con- triple-wing trawl (a trawl with a structed of the same size or larger pipe tongue along the headrope and a sec- as the deflector bars. See Figure 15. ond tongue along the footrope). The (c) Soft TEDs. Soft TEDs are TEDs Parker TED may be installed and used with deflector panels made from poly- in any other trawl if the taper of the propylene or polyethylene netting. The body panels of the trawl does not ex- following soft TEDs are approved ceed 4b1p and if it can be properly in- TEDs: stalled in compliance with paragraph (1) Parker TED. The Parker TED is a (c)(1)(iii) of this section. soft TED, consisting of a single tri- (iii) Panel installation—(A) Leading angular panel, composed of webbing of edge attachment. The leading edge of two different mesh sizes, that forms a the excluder panel must be attached to complete barrier inside a trawl and the inside of the bottom of the trawl that angles toward an escape opening across a straight row of meshes. For a in the top of the trawl. two-seam trawl or a four-seam, ta- (i) Excluder Panel. (Figure 5 to this pered-wing trawl, the row of meshes for part) The excluder panel of the Parker attachment to the trawl must run the TED must be constructed of a single entire width of the bottom body panel, triangular piece of 8-inch (20.3 cm) from seam to seam. For a four-seam, stretched mesh webbing and two trape- straight-wing trawl, the row of meshes

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for attachment to the trawl must run (9) For a mesh size of 11⁄4 inches (3.2 the entire width of the bottom body cm), 137–146 meshes. panel and half the height of each wing (C) Side attachment. The sides of the panel of the trawl. Every mesh of the excluder panel must be attached evenly leading edge of the excluder panel must to the inside of the trawl from the out- be evenly sewn to this row of meshes; side attachment points of the excluder meshes may not be laced to the trawl. panel’s leading edge to the apex of the The row of meshes for attachment to excluder panel. Each side must be sewn the trawl must contain the following with the same sewing sequence, and, if number of meshes, depending on the the sides of the excluder panel cross stretched mesh size used in the trawl: rows of bars in the trawl, the crossings (1) For a mesh size of 21⁄4 inches (5.7 must be distributed evenly over the cm), 152–168 meshes; length of the side attachment. (2) For a mesh size of 21⁄8 inches (5.4 (iv) Escape opening. The escape open- cm), 161–178 meshes; ing for the Parker soft TED must (3) For a mesh size of 2 inches (5.1 match one of the following specifica- cm), 171–189 meshes; tions: (4) For a mesh size of 17⁄8 inches (4.8 (A) Inshore opening. This opening is cm), 182–202 meshes; the minimum size opening that may be (5) For a mesh size of 13⁄4 inches (4.4 used in inshore waters, except it may cm), 196–216 meshes; not be used in the inshore waters of Georgia and South Carolina, in which a (6) For a mesh size of 15⁄8 inches (4.1 cm), 211–233 meshes; larger minimum opening is required. A slit at least 56 inches (1.4 m) in taut (7) For a mesh size of 11⁄2 inches (3.8 cm), 228–252 meshes; length must be cut along the centerline of the top body panel of the trawl net (8) For a mesh size of 13⁄8 inches (3.5 cm), 249–275 meshes; and immediately forward of the apex of the panel webbing. The slit must not be (9) For a mesh size of 11⁄4 inches (3.2 covered or closed in any manner. The cm), 274–302 meshes. edges and end points of the slit must (B) Apex attachment. The apex of the not be reinforced in any way; for exam- triangular excluder panel must be at- ple, by attaching additional rope or tached to the inside of the top body webbing or by changing the orientation panel of the trawl at the centerline of of the webbing. the trawl. The distance, measured aft (B) Offshore opening. A horizontal cut along the centerline of the top body extending from the attachment of one panel from the same row of meshes for side of the deflector panel to the trawl attachment of the excluder panel to to the attachment of the other side of the bottom body panel of the trawl, to the deflector panel to the trawl must the apex attachment point must con- be made in a single row of meshes tain the following number of meshes, across the top of the trawl and measure depending on the stretched mesh size at least 96 inches (244 cm) in taut used in the trawl: width. All trawl webbing above the de- 1 (1) For a mesh size of 2 ⁄4 inches (5.7 flector panel between the 96-inch (244- cm), 78–83 meshes; cm) cut and edges of the deflector 1 (2) For a mesh size of 2 ⁄8 inches (5.4 panel must be removed. A rectangular cm), 83–88 meshes; flap of nylon webbing not larger than 2- (3) For a mesh size of 2 inches (5.1 inch (5.1-cm) stretched mesh may be cm), 87–93 meshes; sewn to the forward edge of the escape (4) For a mesh size of 17⁄8 inches (4.8 opening. The width of the flap must cm), 93–99 meshes; not be larger than the width of the for- (5) For a mesh size of 13⁄4 inches (4.4 ward edge of the escape opening. The cm), 100–106 meshes; flap must not extend more than 12 (6) For a mesh size of 15⁄8 inches (4.1 inches (30.4 cm) beyond the rear point cm), 107–114 meshes; of the escape opening. The sides of the (7) For a mesh size of 11⁄2 inches (3.8 flap may be attached to the top of the cm), 114–124 meshes; trawl but must not be attached farther (8) For a mesh size of 13⁄8 inches (3.5 aft than the row of meshes through the cm), 127–135 meshes; and rear point of the escape opening. One

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row of steel chain not larger than3⁄16 celerator funnel must be at least 71 inch (4.76 mm) may be sewn evenly to inches (180 cm). the back edge of the flap. The stretched (3) Webbing flap. A webbing flap may length of the chain must not exceed 96 be used to cover the escape opening inches (244 cm). A Parker TED using under the following conditions: No de- the escape opening described in this vice holds it closed or otherwise re- paragraph meets the requirements of stricts the opening; it is constructed of § 223.206(d)(2)(iv)(B). This opening or webbing with a stretched mesh size no one that is larger must be used in all larger than 1–5/8 inches (4 cm); it lies offshore waters and in the inshore wa- on the outside of the trawl; it is at- ters of Georgia and South Carolina. It tached along its entire forward edge also may be used in other inshore wa- forward of the escape opening; it is not ters. attached on the sides beyond the row of (2) [Reserved] meshes that lies 6 inches (15 cm) behind (d) Allowable modifications to hard the posterior edge of the grid; the sides TEDs and special hard TEDs. Unless of the flap are sewn on the same row of otherwise prohibited in paragraph (b) meshes fore and aft; and the flap does of this section, only the following not overlap the escape hole cut by modifications may be made to an ap- more than 5 inches (13 cm) on either proved hard TED or an approved spe- side. cial hard TED: (i) 44–inch inshore TED flap. This flap (1) Floats. In addition to floats re- may not extend more than 24 inches (61 quired pursuant to paragraph (a)(9) of cm) beyond the posterior edge of the this section, floats may be attached to grid. the top one-half of the TED, either out- (ii) 71–inch offshore TED Flap. The side or inside the net, but not to a flap. flap must be a 133–inch (338–cm) by 52– Floats attached inside the net must be inch (132–cm) piece of webbing. The 133– behind the rear surface at the top of inch (338–cm) edge of the flap is at- the TED. tached to the forward edge of the open- (2) Accelerator funnel. An accelerator ing (71–inch (180–cm) edge). The flap funnel may be installed in the trawl, if may extend no more than 24 inches (61 it is made of net webbing material with cm) behind the posterior edge of the a stretched mesh size of not greater grid (Figure 12 to this part illustrates than 1 5/8 inches (4 cm), if it is inserted this flap). in the net immediately forward of the (iii) Double cover flap offshore TED TED, and if its rear edge does not ex- flap. This flap must be composed of two tend past the bars of the TED. The equal size rectangular panels of web- trailing edge of the accelerator funnel bing. Each panel must be no less than may be attached to the TED on the 58 inches (147 cm) wide and may over- side opposite the escape opening if not lap each other no more than 15 inches more than one-third of the circum- (38 cm). The panels may only be sewn ference of the funnel is attached, and if together along the leading edge of the the inside horizontal opening as de- cut. The trailing edge of each panel scribed above in maintained. In a bot- must not extend more than 24 inches tom opening TED only the top one- (61 cm) past the posterior edge of the third of the circumference of the fun- grid (Figure 16 to this part). Each panel nel may be attached to the TED. In a may be sewn down the entire length of top opening TED only the bottom one- the outside edge of each panel. Chafing third of the circumference of the fun- webbing described in paragraph (d)(4) nel may be attached to the TED. of this section may not be used with (i) In inshore waters, other than the this type of flap. inshore waters of Georgia and South (A) Edge lines. Optional edge lines can Carolina in which a larger opening is be used in conjunction with this flap. required, the inside horizontal opening The line must be made of polyethylene of the accelerator funnel must be at with a maximum diameter of 3/8 inches least 44 inches (112 cm). (.95 cm). A single length of line must be (ii) In offshore waters and the inshore used for each flap panel. The line must waters of Georgia and South Carolina, be sewn evenly to the unattached, in- the inside horizontal opening of the ac- side edges and trailing edges, of each

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flap panel. When edge lines are inter of the roller tubing. The roller shall stalled, the outside edge of each flap lie flush against the TED. The max- panel must be attached along the en- imum outside diameter of the roller tire length of the flap panel. shall be 31⁄2 inches (8.0 cm), the min- (B) [Reserved] 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 (6) Water deflector fin for hooped hard webbing may be attached along its TEDs. On a hooped hard TED, a water leading edge only. This webbing may deflector fin may be welded to the for- not extend beyond the trailing edge or ward edge of the escape opening. The sides of the existing escape opening fin must be constructed of a flat alu- webbing flap, and it must not interfere minum bar, up to 3/8 inch (0.95 cm) or otherwise restrict the turtle escape thick and up to 4 inches (10.2 cm) deep. opening. The fin may be as wide as the width of (5) Roller gear. Roller gear may be at- the escape opening, minus 1 inch (2.5 tached to the bottom of a TED to pre- cm). The fin must project aft into the vent chafing on the bottom of the TED TED with an angle between 5° and 45° and the trawl net. When a webbing flap from the normal, horizontal plane of is used in conjunction with roller gear, the trawl. On an inshore hooped hard the webbing flap must be of a length TED, the clearance between the deflec- such that no part of the webbing flap tor bars and the posterior edge of the can touch or come in contact with any deflector fin must be at least 20 inches part of the roller gear assembly or the (51 cm). On an offshore hooped hard means of attachment of the roller gear TED, the clearance between the deflec- assembly to the TED, when the trawl tor bars and the posterior edge of the net is in its normal, horizontal posi- deflector fin must be at least 23–1/4 tion. Roller gear must be constructed inches (59 cm). according to one of the following de- (7) Hinged door frame for hooped hard sign criteria: TEDs. A hinged door frame may be at- (i) A single roller consisting of hard tached to the forward edge of the es- plastic shall be mounted on an axle cape opening on a hooped hard TED. rod, so that the roller can roll freely The door frame must be constructed of about the axle. The maximum diame- materials specified at paragraphs ter of the roller shall be 6 inches (15.24 (a)(1)(i) or (a)(1)(ii) of this section for cm), and the maximum width of the inshore and offshore hooped hard axle rod shall be 12 inches (30.4 cm). TEDs, respectively. The door frame The axle rod must be attached to the may be covered with a single panel of TED by two support rods. The max- mesh webbing that is taut and securely imum clearance between the roller and attached with twine to the perimeter the TED shall not exceed 1 inch (2.5 of the door frame, with a mesh size not cm) at the center of the roller. The greater than that used for the TED ex- support rods and axle rod must be tension webbing. The door frame must made from solid steel or solid alu- be at least as wide as the TED escape minum rod no larger than 1⁄2 inch (1.28 opening. The door frame may be a max- cm) in diameter. The attachment of imum of 24 inches (61 cm) long. The the support rods to the TED shall be door frame must be connected to the such that there are no protrusions forward edge of the escape opening by a (lips, sharp edges, burrs, etc.) on the hinge device that allows the door to front face of the grid. The axle rod and open outwards freely. The posterior support rods must lie entirely behind edge of the door frame, in the closed the plane of the face of the TED grid. position, must lie at least 12 inches (30 (ii) A single roller consisting of hard cm) forward of the posterior edge of the plastic tubing shall be tightly tied to escape opening. A water deflector fin the back face of the TED grid with rope may be welded to the posterior edge of or heavy twine passed through the cen- the hinged door frame. The fin must be

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constructed of a flat aluminum bar, up under the supervision of the Assistant to 3/8 inch (0.95 cm) thick and up to Administrator, and shall be subject to four inches (10.2 cm) deep. The fin may all such conditions and restrictions as be as wide as the width of the escape the Assistant Administrator deems ap- opening, minus one inch (2.5 cm). The propriate. Any person wishing to par- fin must project aft into the TED with ticipate in such testing should contact an angle between 5° and 45° from the the Director, Southeast Fisheries normal, horizontal plane of the trawl, Science Center, NMFS, 75 Virginia when the door is in the closed position. Beach Dr., Miami, FL 33149–1003. The clearance between the posterior (2) Upon application, the Assistant edge of the escape opening and the pos- Administrator may issue permits, sub- terior edge of the door frame or the ject to such conditions and restrictions posterior edge of the water deflector as the Assistant Administrator deems fin, if installed, must be no less than 12 appropriate, authorizing public or pri- inches (30 cm), when the door is in the vate experimentation aimed at improv- closed position. Two stopper ropes or a ing shrimp retention efficiency of ex- hinge limiter may be used to limit the isting approved TEDs and at devel- maximum opening height of the hinged oping additional TEDs, or conducting door frame, as long as they do not ob- fishery research, that would otherwise struct the escape opening in any way be subject to § 223.206(d)(2). Applica- or restrict the free movement of the tions should be made to the Southeast door to its fully open position. When Regional Administrator (see § 222.102 the door is in its fully open position, definition of ‘‘Southeast Regional Ad- the minimum clearance between any ministrator’’). part of the deflector bars and any part of the door, including a water deflector [64 FR 14073, Mar. 23, 1999, as amended at 64 FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; fin if installed, must be at least 20 66 FR 24288, May 14, 2001; 68 FR 8467, Feb. 21, inches (51 cm) for an inshore hooped 2003; 68 FR 51514, Aug. 27, 2003; 68 FR 54934, hard TED and at least 23 1/4 inches (59 Sept. 19, 2003; 69 FR 31037, June 2, 2004] cm) for an offshore hooped hard TED. EFFECTIVE DATE NOTE: At 64 FR 14073, Mar. The hinged door frame may not be used 23, 1999, § 223.207 was added. Paragraphs in combination with a webbing flap (a)(9)(ii) (A) and (B) contain information col- specified at paragraph (d)(3) of this sec- lection and recordkeeping requirements and tion or with a water deflection fin spec- will not become effective until approval has ified at paragraph (d)(6) of this section. been given by the Office of Management and (e) Revision of generic design criteria, Budget. and approval of TEDs, of allowable modifications of hard TEDs, and of special § 223.209 Tribal plans. hard TEDs. (1) The Assistant Adminis- (a) Limits on the prohibitions. The pro- trator may revise the generic design hibitions of § 223.203(a) of this subpart criteria for hard TEDs set forth in relating to threatened species of paragraph (a) of this section, may ap- salmonids listed in § 223.102 do not prove special hard TEDs in addition to apply to any activity undertaken by a those listed in paragraph (b) of this tribe, tribal member, tribal permittee, section, may approve allowable modi- tribal employee, or tribal agent in fications to hard TEDs in addition to compliance with a Tribal resource those authorized in paragraph (d) of management plan (Tribal Plan), pro- this section, or may approve other vided that the Secretary determines TEDs, by regulatory amendment, if, that implementation of such Tribal according to a NMFS-approved sci- Plan will not appreciably reduce the entific protocol, the TED demonstrates likelihood of survival and recovery of a sea turtle exclusion rate of 97 percent the listed salmonids. In making that or greater (or an equivalent exclusion determination the Secretary shall use rate). Two such protocols have been the best available biological data (in- published by NMFS (52 FR 24262, June cluding any tribal data and analysis) to 29, 1987; and 55 FR 41092, October 9, determine the Tribal Plan’s impact on 1990) and will be used only for testing the biological requirements of the spe- relating to hard TED designs. Testing cies, and will assess the effect of the under any protocol must be conducted Tribal Plan on survival and recovery,

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consistent with legally enforceable tion over the subject matter of a Tribal tribal rights and with the Secretary’s Plan, the plan may be developed and trust responsibilities to tribes. implemented within the ongoing Fed- (b) Consideration of a Tribal Plan. (1) A eral Court proceeding. In such cir- Tribal Plan may include but is not lim- cumstances, compliance with the Trib- ited to plans that address fishery har- al Plan’s terms shall be determined vest, artificial production, research, or within that Federal Court proceeding. water or land management, and may be (3) The Secretary shall seek com- developed by one tribe or jointly with ment from the public on the Sec- other tribes. The Secretary will con- retary’s pending determination wheth- sult on a government-to-government basis with any tribe that so requests er or not implementation of a Tribal and will provide to the maximum ex- Plan will appreciably reduce the likeli- tent practicable technical assistance in hood of survival and recovery of the examining impacts on listed salmonids listed salmonids. and other salmonids as tribes develop (4) The Secretary shall publish notifi- Tribal resource management plans that cation in the FEDERAL REGISTER of any meet the management responsibilities determination regarding a Tribal Plan and needs of the tribes. A Tribal Plan and the basis for that determination. must specify the procedures by which the tribe will enforce its provisions. [65 FR 42485, July 10, 2000] (2) Where there exists a Federal court FIGURES 1–2 TO PART 223 [RESERVED] proceeding with continuing jurisdic-

FIGURE 3 TO PART 223—MATAGORDA TED

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

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FIGURE 4 TO PART 223—GEORGIA TED

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

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

[63 FR 17958, Apr. 13, 1998]

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

[64 FR 55864, Oct. 15, 1999]

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FIGURES 7–9b TO PART 223 [RESERVED]

FIGURE 10 TO PART 223—FLOUNDER TED

[58 FR 54069, Oct. 20, 1993]

FIGURE 11 TO PART 223 [RESERVED]

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FIGURE 12 TO PART 223—ESCAPE OPENING & COVER DIMENSIONS FOR 71-INCH TED

[68 FR 8469, Feb. 21, 2003]

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

[60 FR 15520, Mar. 24, 1995]

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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]

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FIGURE 15 TO PART 223— WEEDLESS TED BRACE BAR DESCRIPTION

[68 FR 8469, Feb. 21, 2003]

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

[69 FR 31037, June 2, 2004]

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PART 224—ENDANGERED MARINE stream of the Rock Island Dam and AND ANADROMOUS SPECIES downstream of Chief Joseph Dam in Washington (excluding the Okanogan Sec. River), the Columbia River from a 224.101 Enumeration of endangered marine straight line connecting the west end and anadromous species. of the Clatsop jetty (south jetty, Or- 224.102 Permits for endangered marine and egon side) and the west end of the Pea- anadromous species. cock jetty (north jetty, Washington 224.103 Special prohibitions for endangered marine mammals. side) upstream to Chief Joseph Dam in 224.104 Special requirements for fishing ac- Washington, and the Chiwawa River tivities to protect endangered sea tur- (spring run), Methow River (spring tles. run), Twisp River (spring run), AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C. Chewuch River (spring run), White 1361 et seq. River (spring run), and Nason Creek (spring run) hatchery stocks (and their SOURCE: 64 FR 14066, Mar. 23, 1999, unless otherwise noted. progeny); Sacramento River winter-run chinook salmon (Oncorhynchus § 224.101 Enumeration of endangered tshawytscha). marine and anadromous species. (b) Marine mammals. Blue whale The marine and anadromous species (Balaenoptera musculus); Bowhead determined by the Secretary of Com- whale (Balaena mysticetus); Caribbean merce to be endangered pursuant to monk seal (Monachus tropicalis); Chi- section 4(a) of the Act, as well as spe- nese river dolphin (Lipotes vexillifer); cies listed under the Endangered Spe- Cochito (Phocoena sinus); Fin or cies Conservation Act of 1969 by the finback whale (Balaenoptera physalus); Secretary of the Interior and currently Hawaiian monk seal (Monachus under the jurisdiction of the Secretary schauinslandi); Humpback whale of Commerce, are the following: (Megaptera novaeangliae); Indus River (a) Marine and anadromous fish. dolphin (Platanista minor); Mediterra- Shortnose sturgeon (Acipenser nean monk seal (Monachus monachus); brevirostrum); Smalltooth sawfish Right whales (Eubalaena spp.); Saimaa (Pristis pectinata) in the United States; seal (Phoca hispida saimensis); Sei whale Atlantic salmon (Salmo salar) Gulf of (Balaenoptera borealis); Sperm whale Maine population, including naturally (Physeter catodon); Western North Pa- reproducing populations and those cific (Korean) gray whale ( river-specific hatchery populations cul- Eschrichtius tured from them; Totoaba (Cynoscian robustus); Steller sea lion, western pop- macdonaldi); Snake River sockeye ulation, (Eumetopias jubatus), which salmon (Oncorhynchus nerka); Southern consists of Stellar sea lions from breed- California steelhead (Oncorhynchus ing colonies located west of 144° W. lon- mykiss), which includes all naturally gitude. 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 der; Upper Columbia River spring-run turtles by the Department of Commerce, Na- chinook salmon (Oncorhynchus tional Oceanic and Atmospheric Administra- tshawytscha), including all naturally tion, National Marine Fisheries Service, is spawned populations of chinook salmon limited to turtles while in the water. in Columbia River tributaries up-

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(d) Marine invertebrates. White aba- (b) Approaching humpback whales in lone (Haliotis sorenseni). Alaska—(1) Prohibitions. Except as provided under paragraph (b)(2) of this sec- [64 FR 14066, Mar. 23, 1999, as amended 64 FR tion, it is unlawful for any person sub- 14328, Mar. 24, 1999; 65 FR 20918, Apr. 19, 2000; 65 FR 69481, Nov. 17, 2000; 66 FR 29055, May 29, ject to the jurisdiction of the United 2001; 67 FR 21598, May 1, 2002; 68 FR 15680, States to commit, to attempt to com- Apr. 1, 2003] mit, to solicit another to commit, or to cause to be committed, within 200 nau- § 224.102 Permits for endangered ma- tical miles (370.4 km) of Alaska, or rine and anadromous species. within inland waters of the state, any No person shall take, import, export, of the acts in paragraphs (b)(1)(i) or engage in any activity prohibited by through (b)(1)(iii) of this section with section 9 of the Act involving any ma- respect to humpback whales (Megaptera rine species that has been determined novaeangliae): to be endangered under the Endangered (i) Approach, by any means, includ- Species Conservation Act of 1969 or the ing by interception (i.e., placing a ves- Act, and that is under the jurisdiction sel in the path of an oncoming hump- of the Secretary, without a valid per- back whale so that the whale surfaces mit issued pursuant to part 222, sub- within 100 yards (91.4 m) of the vessel), part C of this chapter. within 100 yards (91.4 m) of any humpback whale; § 224.103 Special prohibitions for en- (ii) Cause a vessel or other object to dangered marine mammals. approach within 100 yards (91.4 m) of a (a) Approaching humpback whales in humpback whale; or Hawaii. Except as provided in part 222, (iii) Disrupt the normal behavior or subpart C, of this chapter (General Per- prior activity of a whale by any other mit Procedures), it is unlawful for any act or omission, as described in para- person subject to the jurisdiction of graph (a)(4) of this section. the United States to commit, to at- (2) Exceptions. The following excep- tempt to commit, to solicit another to tions apply to this paragraph (b), but commit, or to cause to be committed, any person who claims the applica- within 200 nautical miles (370.4 km) of bility of an exception has the burden of the Islands of Hawaii, any of the fol- proving that the exception applies: lowing acts with respect to humpback (i) Paragraph (b)(1) of this section whales (Megaptera novaeangliae): does not apply if an approach is au- (1) Operate any aircraft within 1,000 thorized by the National Marine Fish- feet (300 m) of any humpback whale; eries Service through a permit issued (2) Approach, by any means, within under part 222, subpart C, of this chap- 100 yard (90 m) of any humpback whale; ter (General Permit Procedures) or (3) Cause a vessel or other object to through a similar authorization. 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).

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(iv) Paragraph (b)(1) of this section (3) Exceptions. The following excep- does not apply to state, local, or Fed- tions apply to this section, but any eral government vessels operating in person who claims the applicability of the course of official duty. an exception has the burden of proving (v) Paragraph (b)(1) of this section that the exception applies: does not affect the rights of Alaska Na- (i) Paragraphs (b)(1) and (b)(2) of this tives under 16 U.S.C. 1539(e). section do not apply if a right whale (vi) These regulations shall not take approach is authorized by the National precedence over any more restrictive Marine Fisheries Service through a conflicting Federal regulation per- permit issued under part 222, subpart C, taining to humpback whales, including of this chapter (General Permit Proce- the regulations at 36 CFR 13.65 that dures) or through a similar authoriza- pertain specifically to the waters of tion. Glacier Bay National Park and Pre- (ii) Paragraphs (b)(1) and (b)(2) of this serve. section do not apply where compliance 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 mean- ‘‘ ’’ right whale, provided that permission ing as the term is defined in 33 U.S.C. is received from the National Marine 2006 and the International Regulations Fisheries Service or designee prior to for Preventing Collisions at Sea 1972 the approach. (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.

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(b) Summer flounder fishermen in ERVOIRS REPRESENTING THE UPSTREAM the Summer flounder fishery-sea turtle EXTENT OF CRITICAL HABITAT protection area who comply with rules TABLE 6 TO PART 226—HYDROLOGIC UNITS AND for threatened sea turtles specified in COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTHERN OREGON/NORTHERN CALI- § 223.206 of this chapter will not be sub- FORNIA COASTS COHO SALMON, TRIBAL ject to civil penalties under the Act for LANDS WITHIN THE RANGE OF THE ESU, incidental captures of endangered sea AND DAMS/RESERVOIRS REPRESENTING THE turtles by summer flounder gear. UPSTREAM EXTENT OF CRITICAL HABITAT (c) Special prohibitions relating to AUTHORITY: 16 U.S.C. 1533. sea turtles are provided at § 223.206 (d)(2)(iv). § 226.101 Purpose and scope. [64 FR 14066, Mar. 23, 1999, as amended at 66 The regulations contained in this FR 44552, Aug. 24, 2001; 66 FR 67496, Dec. 31, part identify those habitats designated 2001; 68 FR 8471, Feb. 21, 2003; 69 FR 18453, by the Secretary of Commerce as crit- Apr. 7, 2004] ical under section 4 of the Act, for endangered and threatened species under PART 225 [RESERVED] the jurisdiction of the Secretary of Commerce. Those species are enumer- PART 226—DESIGNATED CRITICAL ated at § 223.102 of this chapter, if HABITAT threatened and at § 224.101 of this chapter, if endangered. For regulations per- Sec. taining to the designation of critical 226.101 Purpose and scope. habitat, see part 424 of this title, and 226.201 Critical habitat for Hawaiian monk for regulations pertaining to prohibi- seals. tions against the adverse modification 226.202 Critical habitat for Steller sea lions. or destruction of critical habitat, see 226.203 Critical habitat for North Atlantic part 402 of this title. Maps and charts right whales. identifying designated critical habitat 226.204 Critical habitat for Sacramento winter-run chinook salmon. that are not provided in this section 226.205 Critical habitat for Snake River may be obtained upon request to the sockeye salmon, Snake River fall chi- Office of Protected Resources (see nook salmon, and Snake River spring/ § 222.102, definition of ‘‘Office of Pro- summer chinook salmon. tected Resources’’). 226.206 [Reserved] 226.207 Critical habitat for leatherback tur- [64 FR 14067, Mar. 23, 1999] tle. 226.208 Critical habitat for green turtle. § 226.201 Critical habitat for Hawaiian 226.209 Critical habitat for hawksbill turtle. monk seals. 226.210 Central California Coast Coho Salm- on (Oncorhynchus kisutch), Southern Or- HAWAIIAN MONK SEAL egon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch). (Monachus schauinslandi) 226.212 [Reserved] 226.213 Critical habitat for Johnson’s All beach areas, sand spits and islets, seagrass. including all beach crest vegetation to 226.214 Critical habitat for Gulf sturgeon. its deepest extent inland, lagoon wa- TABLE 1 TO PART 226—MAJOR STELLER SEA ters, inner reef waters, and ocean wa- LION ROOKERY SITES ters out to a depth of 20 fathoms TABLE 2 TO PART 226—MAJOR STELLER SEA around the following: LION HAULOUT SITES IN ALASKA Kure Atoll (28°24′ N, 178°20′ W) TABLE 3 TO PART 226—HYDROLOGIC UNITS Midway Islands, except Sand Island and its CONTAINING CRITICAL HABITAT FOR SNAKE harbor (28°14′ N, 177°22′ W) RIVER SOCKEYE SALMON AND SNAKE RIVER ° ′ ° SPRING/SUMMER AND FALL CHINOOK SALM- Pearl and Hermes Reef (27 55 N, 175 W) ° ′ ° ′ ON Lisianski Island (26 46 N, 173 58 W) TABLE 4 TO PART 226 [RESERVED] Laysan Island (25°46′ N, 171°44′ W) TABLE 5 TO PART 226—HYDROLOGIC UNITS AND Maro Reef (25°25′ N, 170°35′ W) COUNTIES CONTAINING CRITICAL HABITAT Gardner Pinnacles (25°00′ N, 168°00′ W) FOR CENTRAL CALIFORNIA COAST COHO French Frigate Shoals (23°45′ N, 166°00′ W) SALMON, TRIBAL LANDS WITHIN THE Necker Island (23°34′ N, 164°42′ W) RANGE OF THE ESU, AND DAMS/RES- Nihoa Island (23°03.5′ N, 161°55.5′ W).

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

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§ 226.202 Critical habitat for Stellar lands (connected by the shortest lines); sea lions. bounded on the west by a line 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 North At- each major rookery in California and lantic right whales. Oregon, measured vertically from sea NORTH ATLANTIC RIGHT WHALE level. Critical habitat includes an aquatic zone that extends 3,000 feet (0.9 (Eubalaena glacialis) km) seaward in State and Federally (a) Great South Channel. The area managed waters from the baseline or bounded by 41°40′ N/69°45′ W; 41°00′ N/ basepoint of each major rookery in 69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/ California and Oregon. 68°31′ W. (c) Three special aquatic foraging areas (b) Cape Cod Bay, Massachusetts. The in Alaska. Three special aquatic for- area bounded by 42°04.8′ N/70°10′ W; aging areas in Alaska, including the ° ′ ° ′ ° ′ ° ′ ° ′ Shelikof Strait area, the Bogoslof area, 42 12 N/70 15 W; 42 12 N/70 30 W; 41 46.8 ° ′ and the Seguam Pass area. N/70 30 W and on the south and east by (1) Critical habitat includes the the interior shore line of Cape Cod, Shelikof Strait area in the Gulf of Massachusetts. Alaska and consists of the area be- (c) Southeastern United States. The tween the Alaska Peninsula and coastal waters between 31°15′ N and Tugidak, Sitkinak, Aiaktilik, Kodiak, 30°15′ N from the coast out 15 nautical Raspberry, Afognak and Shuyak Is- miles; and the coastal waters between

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30°15′ N and 28°00′ N from the coast out Washington, 1974; State of Idaho, 1974, 5 nautical miles (Figure 8 to part 226). which are incorporated by reference. This incorporation by reference was ap- [59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999; 68 FR proved by the Director of the Federal 17562, Apr. 10, 2003] 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 National Archives ters from Chipps Island westward to and Records Administration (NARA). Carquinez Bridge, including Honker For information on the availability of Bay, Grizzly Bay, Suisun Bay, and this material at NARA, call 202–741– Carquinez Strait, all waters of San 6030, or go to: http://www.archives.gov/ Pablo Bay westward of the Carquinez federallregister/ Bridge, and all waters of San Francisco codeloflfederallregulations/ Bay (north of the San Francisco/Oak- ibrllocations.html. land Bay Bridge) from San Pablo Bay (a) Snake River Sockeye Salmon to the Golden Gate Bridge. (Oncorhynchus nerka). The Columbia River from a straight line connecting [58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. Mar. 23, 1999] the west end of the Clatsop jetty (south jetty, Oregon side) and the west end of § 226.205 Critical habitat for Snake the Peacock jetty (north jetty, Wash- River sockeye salmon, Snake River ington side) and including all Columbia fall chinook salmon, and Snake River estuarine areas and river reaches River spring/summer chinook salm- upstream to the confluence of the Co- on. lumbia and Snake Rivers; all Snake The following areas consisting of the River reaches from the confluence of water, waterway bottom, and adjacent the Columbia River upstream to the riparian zone of specified lakes and confluence of the Salmon River; all river reaches in hydrologic units pres- Salmon River reaches from the con- ently or historically accessible to list- fluence of the Snake River upstream to ed Snake River salmon (except reaches Alturas Lake Creek; Stanley, Redfish, above impassable natural falls, and Yellow Belly, Pettit, and Alturas Dworshak and Hells Canyon Dams). Lakes (including their inlet and outlet Adjacent riparian zones are defined as creeks); Alturas Lake Creek, and that those areas within a horizontal dis- portion of Valley Creek between Stan- tance of 300 feet (91.4 m) from the nor- ley Lake Creek and the Salmon River. mal line of high water of a stream Critical habitat is comprised of all channel (600 feet or 182.8 m, when both river lakes and reaches presently or sides of the stream channel are in- historically accessible (except reaches cluded) or from the shoreline of a above impassable natural falls, and standing body of water. The complete Dworshak and Hells Canyon Dams) to text delineating critical habitat for Snake River sockeye salmon in the fol- each species follows. Hydrologic units lowing hydrologic units: Lower Salm- (table 3) are those defined by the De- on, Lower Snake, Lower Snake-Asotin, partment of the Interior (DOI), U.S. Lower Snake-Tucannon, Middle Salm- Geological Survey (USGS) publication, on-Chamberlain, Middle Salmon-Pan- ‘‘Hydrologic Unit Maps, United States ther, and Upper Salmon. Critical habi- Geological Survey Water Supply Paper tat borders on or passes through the 2294, 1987’’, and the following DOI, following counties in Oregon: Clatsop, USGS, 1:500,000 scale hydrologic unit Columbia, Gillium, Hood River, Mor- map: State of Oregon, 1974; State of row, Multnomah, Sherman, Umatilla,

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Wallowa, Wasco; the following counties all Columbia River estuarine areas and in Washington: Asotin, Benton, Clark, river reaches proceeding upstream to Columbia, Cowlitz, Franklin, Garfield, the confluence of the Columbia and Klickitat, Pacific, Skamania, Snake Rivers; the Snake River, all Wahkiakum, Walla, Whitman; and the river reaches from the confluence of following counties in Idaho: Blaine, the Columbia River, upstream to Hells 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 jetty, Oregon side) and the west end of fluence with the Clearwater River up- the Peacock jetty (north jetty, Wash- stream to Dworshak Dam. Critical ington side) and including all Columbia habitat also includes river reaches River estuarine areas and river reaches presently or historically accessible (ex- proceeding upstream to the confluence cept reaches above impassable natural of the Columbia and Snake Rivers; all falls, and Dworshak and Hells Canyon Snake River reaches from the con- Dams) to Snake River fall chinook fluence of the Columbia River up- salmon in the following hydrologic stream to Hells Canyon Dam. Critical units; Clearwater, Hells Canyon, habitat also includes river reaches Imnaha, Lower Grande Ronde, Lower presently or historically accessible (ex- North Fork Clearwater, Lower Salmon, cept reaches above impassable natural Lower Snake, Lower Snake-Asotin, falls (including Napias Creek Falls) and Lower Snake-Tucannon, and Palouse. Dworshak and Hells Canyon Dams) to Critical habitat borders on or passes Snake River spring/summer chinook through the following counties in Or- salmon in the following hydrologic egon: Baker, Clatsop, Columbia, units: Hells Canyon, Imnaha, Lemhi, Gillium, Hood River, Morrow, Mult- Little Salmon, Lower Grande Ronde, nomah, Sherman, Umatilla, Wallowa, Lower Middle Fork Salmon, Lower Wasco; the following counties in Wash- Salmon, Lower Snake-Asotin, Lower ington: Adams, Asotin, Benton, Clark, Snake-Tucannon, Middle Salmon- Columbia, Cowlitz, Franklin, Garfield, Chamberlain, Middle Salmon-Panther, Klickitat, Lincoln, Pacific, Skamania, Pahsimeroi, South Fork Salmon, Upper Spokane, Wahkiakum, Walla, Whit- Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, Wallowa. Crit- man; and the following counties in ical habitat borders on or passes Idaho: Adams, Benewah, Clearwater, through the following counties in Or- Idaho, Latah, Lewis, Nez Perce, Sho- egon: Baker, Clatsop, Columbia, shone, Valley. Gillium, Hood River, Morrow, Mult- [58 FR 68551, Dec. 28, 1993, as amended at 63 nomah, Sherman, Umatilla, Union, FR 1393, Jan. 9, 1998. Redesignated and Wallowa, Wasco; the following counties amended at 64 FR 14067, Mar. 23, 1999; 64 FR in Washington: Asotin, Benton, Clark, 57403, Oct. 25, 1999; 69 FR 18803, Apr. 9, 2004] Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, § 226.206 [Reserved] Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, § 226.207 Critical habitat for Blaine, Custer, Idaho, Lemhi, Lewis, leatherback turtle. Nez Perce, Valley. (c) Snake River Fall Chinook Salmon LEATHERBACK SEA TURTLE (Oncorhynchus tshawytscha). The Co- (DERMOCHELYS CORIACEA) lumbia River from a straight line con- The waters adjacent to Sandy Point, necting the west end of the Clatsop St. Croix, U.S. Virgin Islands, up to jetty (south jetty, Oregon side) and the and inclusive of the waters from the west end of the Peacock jetty (north hundred fathom curve shoreward to the jetty, Washington side) and including

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level of mean high tide with boundaries to this part. Hydrologic units are those at 17°42′12″ North and 64°50′00″ West. defined by the Department of the Inte- rior (DOI), U.S. Geological Survey [44 FR 17711, Mar. 23, 1979. Redesignated and amended at 64 FR 14067, Mar. 23, 1999] (USGS) publication, ‘‘Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987, § 226.208 Critical habitat for green tur- and the following DOI, USGS, 1:500,000 tle. scale hydrologic unit maps: State of (a) Culebra Island, Puerto Rico—Wa- Oregon, 1974 and State of California, ters surrounding the island of Culebra 1978 which are incorporated by ref- 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– 2737, or NMFS, Office of Protected Re- [63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999] sources, 1315 East-West Highway, Sil- ver Spring, MD 20910, or at the Na- § 226.209 Critical habitat for hawksbill tional Archives and Records Adminis- turtle. tration (NARA). For information on (a) Mona and Monito Islands, Puerto the availability of this material at Rico—Waters surrounding the islands NARA, call 202–741–6030, or go to: http:// of Mona and Monito, from the mean www.archives.gov/federallregister/ high water line seaward to 3 nautical codeloflfederallregulations/ miles (5.6 km). ibrllocations.html. (b) [Reserved] (a) Central California Coast Coho Salm- on (Oncorhynchus kisutch). Critical [63 FR 46701, Sept. 2, 1998. Redesignated and habitat is designated to include all amended at 64 FR 14067, Mar. 23, 1999] river reaches accessible to listed coho § 226.210 Central California Coast salmon from Punta Gorda in northern Coho Salmon (Oncorhynchus California south to the San Lorenzo kisutch), Southern Oregon/North- River in central California, including ern California Coasts Coho Salmon Arroyo Corte Madera Del Presidio and (Oncorhynchus kisutch). Corte Madera Creek, tributaries to San Critical habitat is designated to in- Francisco Bay. Critical habitat conclude all river reaches accessible to sists of the water, substrate, and adja- listed coho within the range of the cent riparian zone of estuarine and ESUs listed, except for reaches on In- riverine reaches (including off-channel dian lands defined in Tables 5 and 6 to habitats) in hydrologic units and coun- this part. Critical habitat consists of ties identified in Table 5 of this part. the water, substrate, and adjacent ri- Accessible reaches are those within the parian zone of estuarine and riverine historical range of the ESU that can reaches in hydrologic units and coun- still be occupied by any life stage of ties identified in Tables 5 and 6 to this coho salmon. Inaccessible reaches are part for all of the coho ESUs listed in those above specific dams identified in this section. Accessible reaches are Table 5 of this part or above long- those within the historical range of the standing, naturally impassable barriers ESUs that can still be occupied by any (i.e., natural waterfalls in existence for life stage of coho salmon. Inaccessible at least several hundred years). reaches are those above longstanding, (b) Southern Oregon/Northern Cali- naturally impassable barriers (i.e., nat- fornia Coasts Coho Salmon ural waterfalls in existence for at least (Oncorhynchus kisutch). Critical habitat several hundred years) and specific is designated to include all river dams within the historical range of reaches accessible to listed coho salm- each ESU identified in Tables 5 and 6 on between Cape Blanco, Oregon, and

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Punta Gorda, California. Critical habi- Inlet, from South Nettles Island to the tat consists of the water, substrate, Florida Oceanographic Institute, de- and adjacent riparian zone of estuarine fined by the following coordinates and and riverine reaches (including off- excluding the Federally-marked navi- channel habitats) in hydrologic units gation channel of the Intracoastal Wa- and counties identified in Table 6 of terway (ICW): this part. Accessible reaches are those Northwest corner: 27°16′44.04″N, 80°14′00.00″W within the historical range of the ESU Northeast corner: 27°16′44.04″N, 80°12′51.33″W that can still be occupied by any life Southwest corner: 27°12′49.70″N, 80°11′46.80″W stage of coho salmon. Inaccessible Southeast corner: 27°12′49.70″N, 80°11′02.50″W reaches are those above specific dams identified in Table 6 of this part or (e) Hobe Sound beginning at State ° ′ ″ ° ′ ″ above longstanding, naturally impass- Road 708 (27 03 49.90 N, 80 07 20.57 W) ° ′ ″ able barriers (i.e., natural waterfalls in and extending south to 27 00 00.00 N, ° ′ ″ existence for at least several hundred 80 05 32.54 W and excluding the feder- years). ally-marked navigation channel of the ICW. [64 FR 24061, May 5, 1999, as amended at 69 (f) Jupiter Inlet at a site located just FR 18803, Apr. 9, 2004] west of the entrance to Zeek’s Marina on the south side of Jupiter Inlet and § 226.212 [Reserved] defined by the following coordinates § 226.213 Critical habitat for Johnson’s (note a south central point was in- seagrass. cluded to better define the shape of the Critical habitat is designated to in- southern boundary): clude substrate and water in the fol- Northwest corner: 26°56′43.34″N, 80°04′47.84″W lowing ten portions of the Indian River Northeast corner: 26°56′40.93″N, 80°04′42.61″W Lagoon and Biscayne Bay within the Southwest corner: 26°56′40.73″N, 80°04′48.65″W current range of Johnson’s seagrass. South central point: 26°56′38.11″N, (a) A portion of the Indian River, 80°04′45.83″W ° ′ ″ ° ′ ″ Florida, north of Sebastian Inlet Chan- Southeast corner: 26 56 38.31 N, 80 04 42.41 W nel, defined by the following coordi- (g) A portion of Lake Worth, Florida, nates: just north of Bingham Island defined Northwest corner: 27°51′15.03″N, 80°27′55.49″W by the following coordinates and ex- Northeast corner: 27°51′16.57″N, 80°27′53.05″W cluding the Federally-marked naviga- Southwest corner: 27°51′08.85″N, 80°27′50.48″W tion channel of the ICW: Southeast corner: 27°51′11.58″N, 80°27′47.35″W Northwest corner: 26°40′44.00″N, 80°02′39.00″W (b) A portion of the Indian River, Northeast corner: 26°40′40.00″N, 80°02′34.00″W Florida, south of the Sebastian Inlet Southwest corner: 26°40′32.00″N, 80°02′44.00″W Channel, defined by the following co- Southeast corner: 26°40′33.00″N, 80°02′35.00″W ordinates: (h) A portion of Lake Worth Lagoon, Northwest corner: 27°51′01.32″N, 80°27′46.10″W Florida, located just north of the Boyn- Northeast corner: 27°51′02.69″N, 80°27′45.27″W ton Inlet, on the west side of the ICW, Southwest corner: 27°50′59.08″N, 80°27′41.84″W defined by the following coordinates Southeast corner: 27°51′01.07″N, 80°27′40.50″W and excluding the Federally-marked (c) A portion of the Indian River La- navigation channel of the ICW: goon in the vicinity of the Fort Pierce Northwest corner: 26°33′28.00″N, 80°02′54.00″W Inlet. This site is located on the north Northeast corner: 26°33′30.00″N, 80°03′04.00″W side of the entrance channel just west Southwest corner: 26°32′50.00″N, 80°03′11.00″W of a small mangrove vegetated island Southeast corner: 26°32′50.00″N, 80°02′58.00″W where the main entrance channel bifur- (i) A portion of northeast Lake cates to the north. The area is defined Wyman, Boca Raton, Florida, defined by the following coordinates: by the following coordinates and ex- Northwest corner: 27°28′06.00″N, 80°18′48.89″W cluding the Federally-marked naviga- Northeast corner: 27°28′04.43″N, 80°18′42.25″W tion channel of the ICW: Southwest corner: 27°28′02.86″N, 80°18′49.06″W Southeast corner: 27°28′01.46″N, 80°18′42.42″W Northwest corner: 26°22′27.00″N, 80°04′23.00″W Northeast corner: 26°22′27.00″N, 80°04′18.00″W (d) A portion of the Indian River La- Southwest corner: 26°22′05.00″N, 80°04′16.00″W goon, Florida, north of the St. Lucie Southeast corner: 26°22′05.00″N, 80°04′18.00″W

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(j) A portion of Northern Biscayne beyond their mouths, the federally- Bay, Florida, defined by the following: marked navigation channel of the ICW, The northern boundary of Biscayne and all existing federally authorized Bay Aquatic Preserve, NE 163rd Street, navigation channels, basins, and berths and including all parts of the Biscayne at the Port of Miami to the currently Bay Aquatics Preserve as defined in 18- documented southernmost range of 18.002 of the Florida Administrative Johnson’s seagrass, Central Key Bis- Code (F.A.C.) excluding the Oleta cayne (25°45′N). River, Miami River and Little River

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[65 FR 17795, Apr. 5, 2000]

§ 226.214 Critical habitat for Gulf stur- for recovery actions and NMFS will as- geon. sist in and continue to fund recovery Gulf sturgeon is under the joint juris- actions pertaining to estuarine and diction of the U.S. Fish and Wildlife marine habitats. In riverine units, the Service (FWS) and National Marine FWS will be responsible for all con- Fisheries Service (NMFS). The FWS sultations regarding Gulf sturgeon and will maintain primary responsibility critical habitat. In estuarine units, we

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will divide responsibility based on the sheltering, resting, and larvae staging; action agency involved. The FWS will water quality, including temperature, consult with the Department of Trans- salinity, pH, hardness, turbidity, oxy- portation, the Environmental Protec- gen content, and other chemical char- tion Agency, the U.S. Coast Guard, and acteristics, necessary for normal be- the Federal Emergency Management havior, growth, and viability of all life Agency. NMFS will consult with the stages; sediment quality, including tex- Department of Defense, U.S. Army ture and other chemical characteris- Corps of Engineers, Minerals Manage- tics, necessary for normal behavior, ment Service and any other Federal growth, and viability of all life stages; agencies not mentioned here explicitly. and safe and unobstructed migratory In marine units, NMFS will be respon- pathways necessary for passage within sible for all consultations regarding and between riverine, estuarine, and Gulf sturgeon and critical habitat. Any marine habitats (e.g. a river unob- Federal projects that extend into the structed by any permanent structure, jurisdiction of both the Services will be or a dammed river that still allows for consulted on by the FWS with internal passage). coordination with NMFS. Each agency The river reaches within Units 1 to 7 will conduct its own intra-agency con- as critical habitat lie within the ordi- sultations as necessary. nary high water line. As defined in 33 The primary constituent elements es- CFR 329.11, the ordinary high water sential for the conservation of Gulf line on non-tidal rivers is the line on sturgeon are those habitat components the shore established by the fluctua- that support feeding, resting, and shel- tions of water and indicated by phys- tering, reproduction, migration, and ical characteristics such as a clear, physical features necessary for main- natural line impressed on the bank; taining the natural processes that sup- shelving; changes in the character of port these habitat components. The soil; destruction of terrestrial vegeta- primary constituent elements include: tion; the presence of litter and debris; abundant prey items within riverine or other appropriate means that con- habitats for larval and juvenile life sider the characteristics of the sur- stages, and within estuarine and ma- rounding areas. rine habitats and substrates for juve- The downstream limit of the riverine nile, subadult, and adult life stages; units is the mouth of each river. The riverine spawning sites with substrates mouth is defined as rkm 0 (rmi 0). Al- suitable for egg deposition and develop- though the interface of fresh and salt- ment, such as limestone outcrops and water, referred to as the saltwater cut limestone banks, bedrock, large wedge, occurs within the lower-most gravel or cobble beds, marl, soapstone reach of a river, for ease in delineating or hard clay; riverine aggregation critical habitat units, we are defining areas, also referred to as resting, hold- the boundary between the riverine and ing, and staging areas, used by adult, estuarine units as rkm 0 (rmi 0). subadult, and/or juveniles, generally, Regulatory jurisdiction in coastal but not always, located in holes below areas extends to the line on the shore normal riverbed depths, believed nec- reached by the plane of the mean (aver- essary for minimizing energy expendi- age) high water (MHW) (33 CFR tures during fresh water residency and 329.12(a)(2)). All bays and estuaries possibly for osmoregulatory functions; within Units 8 to 14, therefore, lie a flow regime (i.e., the magnitude, fre- below the MHW lines. Where precise quency, duration, seasonality, and determination of the actual location rate-of-change of fresh water discharge becomes necessary, it must be estab- over time) necessary for normal behav- lished by survey with reference to the ior, growth, and survival of all life available tidal datum, preferably aver- stages in the riverine environment, in- aged over a period of 18.6 years. Less cluding migration, breeding site selec- precise methods, such as observation of tion, courtship, egg fertilization, rest- the ‘‘apparent shoreline’’ which is deter- ing, and staging; and necessary for mined by reference to physical mark- maintaining spawning sites in suitable ings, lines of vegetation, may be used condition for egg attachment, eggs only where an estimate is needed

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of the line reached by the mean high (a) Unit 1: Pearl River System in St. water. Tammany and Washington Parishes in The term 72 COLREGS is defined as Louisiana and Walthall, Hancock, Pearl demarcation lines which delineate River, Marion, Lawrence, Simpson, those waters upon which mariners Copiah, Hinds, Rankin, and Pike Coun- shall comply with the International ties in Mississippi. Regulations for Preventing Collisions (1) Unit 1 includes the Pearl River at Sea, 1972 and those waters upon main stem from the spillway of the which mariners shall comply with the Ross Barnett Dam, Hinds and Rankin Inland Navigation Rules (33 CFR 80.01). Counties, Mississippi, downstream to The waters inside of these lines are In- land Rules waters and the waters out- where the main stem river drainage side the lines are COLREGS waters. discharges at its mouth joining Lake These lines are defined in 33 CFR part Borgne, Little Lake, or The Rigolets in 80, and have been used for identifica- Hancock County, Mississippi, and St. tion purposes to delineate boundary Tammany Parish, Louisiana. It in- lines of the estuarine and marine habi- cludes the main stems of the East tat Units 8, 9, 11, and 12. Pearl River, West Pearl River, West Critical habitat does not include ex- Middle River, Holmes Bayou, Wilson isting developed sites such as dams, Slough, downstream to where these piers, marinas, bridges, boat ramps, ex- main stem river drainages discharge at posed oil and gas pipelines, oil rigs, and the mouths of Lake Borgne, Little similar structures or designated public Lake, or The Rigolets. Unit 1 also in- swimming areas. cludes the Bogue Chitto River main Critical habitat units are depicted for stem, a tributary of the Pearl River, Louisiana, Mississippi, Alabama and from Mississippi State Highway 570, Florida on the maps below. The textual Pike County, Mississippi, downstream unit descriptions below are definitive to its confluence with the West Pearl sources for determining the critical River, St. Tammany Parish, Louisiana. habitat boundaries. General location maps by unit are provided for general The lateral extent of Unit 1 is the ordi- guidance purposes only, and not as a nary high water line on each bank of definitive source for determining crit- the associated rivers and shorelines. ical habitat boundaries. (2) Maps of Unit 1 follow:

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(b) Unit 2: Pascagoula River System in main stem of the Chickasawhay River Forrest, Perry, Greene, George, Jackson, from the mouth of Oaky Creek, Clarke Clarke, Jones, and Wayne Counties, Mis- County, Mississippi, downstream to its sissippi. confluence with the Leaf River, George (1) Unit 2 includes all of the County, Mississippi is included. Unit 2 Pascagoula River main stem and its also includes Big Black Creek main distributaries, portions of the Bouie, stem from its confluence with Black Leaf, and Chickasawhay tributaries, and Red Creeks, Jackson County, Mis- and all of the Big Black Creek tribu- sissippi, to its confluence with the tary. It includes the Bouie River main Pascagoula River, Jackson County, stem beginning on the southern-most Mississippi. All of the main stem of the road crossing of Interstate 59, Forrest Pascagoula River from its confluence County, Mississippi, downstream to its with the Leaf and Chickasawhay Riv- confluence with the Leaf River, Forrest ers, George County, Mississippi, to the County, Mississippi. The Leaf River discharge of the East and West main stem beginning from Mississippi Pascagoula Rivers into Pascagoula State Highway 588, Jones County, Mis- Bay, Jackson County, Mississippi, is sissippi, downstream to its confluence included. The lateral extent of Unit 2 is with the Chickasawhay River, George the ordinary high water line on each County, Mississippi is included. The

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bank of the associated rivers and (2) Major shipping channels in this shorelines. unit are excluded under section 4(b)(2) of the Act. (3) Maps of Unit 2 follow:

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(c) Unit 3: Escambia River System in Santa Rosa Counties, Florida. All of Santa Rosa and Escambia Counties, Flor- the distributaries of the Escambia ida and Escambia, Conecuh, and Cov- River including White River, Little ington Counties, Alabama. White River, Simpson River, and Dead (1) Unit 3 includes the Conecuh River River, Santa Rosa County, Florida are main stem beginning just downstream included. The Sepulga River main stem of the spillway of Point A Dam, Cov- from Alabama County Road 42, ington County, Alabama, downstream Conecuh and Escambia Counties, Ala- to the Florida State line, where its bama, downstream to its confluence name changes to the Escambia River, with the Conecuh River, Escambia Escambia County, Alabama, and County, Alabama, is also included. The Escambia and Santa Rosa Counties, Florida. It includes the entire main lateral extent of Unit 3 is the ordinary stem of the Escambia River down- high water line on each bank of the as- stream to its discharge into Escambia sociated lakes, rivers, and shorelines. Bay and Macky Bay, Escambia and (2) Maps of Unit 3 follow:

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(d) Unit 4: Yellow River System in Florida, to its confluence with the Yel- Santa Rosa and Okaloosa Counties, Flor- low River, is included. The Blackwater ida and Covington County, Alabama. River from its confluence with Big (1) Unit 4 includes the Yellow River Coldwater Creek, Santa Rosa County, main stem from Alabama State High- Florida, downstream to its discharge way 55, Covington County, Alabama, into Blackwater Bay is included. downstream to its discharge at Wright Basin and Cooper Basin, Santa Blackwater Bay, Santa Rosa County, Rosa County, on the Blackwater River Florida. All Yellow River distributaries are included. The lateral extent of Unit (including Weaver River and Skim 4 is the ordinary high water line on Lake) discharging into Blackwater Bay each bank of the associated lakes, riv- are included. The Shoal River main ers, and shorelines. stem, a Yellow River tributary, from Florida Highway 85, Okaloosa County, (2) Maps of Unit 4 follow:

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(e) Unit 5: Choctawhatchee River Sys- Choctawhatchee River main stem, and tem in Holmes, Washington, and Walton Holmes Creek, Washington County, Counties, Florida and Dale, Coffee, Gene- Florida, are included. The section of va, and Houston Counties, Alabama. Holmes Creek from Boynton Cutoff to (1) Unit 5 includes the the mouth of Holmes Creek, Wash- Choctawhatchee River main stem from ington County, Florida, is included. its confluence with the west and east The Pea River main stem, a fork of the Choctawhatchee River, Dale Choctawhatchee River tributary, from County, Alabama, downstream to its the Elba Dam, Coffee County, Ala- discharge at Choctawhatchee Bay, Wal- bama, to its confluence with the ton County, Florida. The distributaries Choctawhatchee River, Geneva County, discharging into Choctawhatchee Bay Alabama, is included. The lateral ex- known as Mitchell River, Indian River, tent of Unit 5 is the ordinary high Cypress River, and Bells Leg are in- water line on each bank of the associ- cluded. The Boynton Cutoff, Wash- ated rivers and shorelines. ington County, Florida, which joins the (2) Maps of Unit 5 follow:

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(f) Unit 6: Apalachicola River System in Marks River, Franklin County, Flor- Franklin, Gulf, Liberty, Calhoun, Jack- ida, to their discharge into East Bay son, and Gadsen Counties, Florida. and/or Apalachicola Bay are included. (1) Unit 6 includes the Apalachicola The entire main stem of the Brothers River mainstem, beginning from the River, Franklin and Gulf Counties, Jim Woodruff Lock and Dam, Gadsden Florida, a tributary of the Apalachi- and Jackson Counties, Florida, down- cola River, is included. The lateral ex- stream to its discharge at East Bay or tent of Unit 6 is the ordinary high Apalachicola Bay, Franklin County, water line on each bank of the associ- Florida. All Apalachicola River ated rivers and shorelines. distributaries, including the East River, Little St. Marks River, St. (2) Maps of Unit 6 follow:

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(g) Unit 7: Suwannee River System in Pass, Dixie and Levy Counties, Florida, Hamilton, Suwannee, Madison, Lafayette, to their discharge into the Suwannee Gilchrist, Levy, Dixie, and Columbia Sound or the Gulf of Mexico. The Counties, Florida. Withlacoochee River main stem from (1) Unit 7 includes the Suwannee Florida State Road 6, Madison and River main stem, beginning from its Hamilton Counties, Florida, to its con- confluence with Long Branch Creek, fluence with the Suwannee River is in- Hamilton County, Florida, downstream cluded. The lateral extent of Unit 7 is to the mouth of the Suwannee River. It the ordinary high water line on each includes all the Suwannee River bank of the associated rivers and distributaries, including the East Pass, shorelines. West Pass, Wadley Pass, and Alligator (2) Maps of Unit 7 follow:

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(h) Unit 8: Lake Pontchartrain, Lake The northern boundary of the Mis- St. Catherine, The Rigolets, Little Lake, sissippi Sound is the shorelines of the Lake Borgne, and Mississippi Sound in mainland between Heron Bay Point, Jefferson, Orleans, St. Tammany, and St. MS and Point aux Pins, AL. Designated Bernard Parish, Louisiana, Hancock, critical habitat excludes St. Louis Bay, Jackson, and Harrison Counties in Mis- north of the railroad bridge across its sissippi, and in Mobile County, Alabama. mouth; Biloxi Bay, north of the U.S. (1) Unit 8 encompasses Lake Pont- Highway 90 bridge; and Back Bay of Bi- chartrain east of the Lake Pont- loxi. The southern boundary follows chartrain Causeway, all of Little Lake, along the broken shoreline of Lake The Rigolets, Lake St. Catherine, Lake Borgne created by low swampy islands Borgne, including Heron Bay, and the from Malheureux Point to Isle au Mississippi Sound. Critical habitat fol- Pitre. From the northeast point of Isle lows the shorelines around the perim- au Pitre, the boundary continues in a eters of each included lake. The Mis- straight north-northeast line to the sissippi Sound includes adjacent open point 1 nm (1.9 km) seaward of the bays including Pascagoula Bay, Point western most extremity of Cat Island aux Chenes Bay, Grand Bay, Sandy (30°13″N, 89°10″W). The southern bound- Bay, and barrier island passes, includ- ary continues 1 nm (1.9 km) offshore of ing Ship Island Pass, Dog Keys Pass, the barrier islands and offshore of the Horn Island Pass, and Petit Bois Pass. 72 COLREGS lines at barrier island

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passes (defined at 33 CFR 80.815 (c)), (d) tion with the southern boundary. The and (e) to the eastern boundary. Be- lateral extent of Unit 8 is the MHW tween Cat Island and Ship Island there line on each shoreline of the included is no 72 COLREGS line. We therefore, water bodies or the entrance to rivers, have defined that section of the south- bayous, and creeks. ern boundary as 1 nm (1.9 km) offshore (2) Major shipping channels in this of a straight line drawn from the unit, as identified on standard naviga- southern tip of Cat Island to the west- tion charts and marked by buoys, are ern tip of Ship Island. The eastern excluded under section 4(b)(2) of the boundary is the line of longitude Act. 88°18.8″W from its intersection with the shore (Point aux Pins) to its intersec- (3) Maps of Unit 8 follow:

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(i) Unit 9: Pensacola Bay System in boundary is the 72 COLREGS line be- Escambia and Santa Rosa Counties, Flor- tween Perdido Key and Santa Rosa Is- ida. land (defined at 33 CFR 80.810(g)). The (1) Unit 9 includes Pensacola Bay and eastern boundary is the Florida State its adjacent main bays and coves. Highway 399 Bridge at Gulf Breeze, FL. These include Big Lagoon, Escambia The lateral extent of Unit 9 is the Bay, East Bay, Blackwater Bay, Bayou MHW line on each included bay’s shore- Grande, Macky Bay, Saultsmar Cove, line. Bass Hole Cove, and Catfish Basin. All (2) Major shipping channels in this other bays, bayous, creeks, and rivers unit, as identified on standard naviga- are excluded at their mouths. The tion charts and marked by buoys, are western boundary is the Florida State excluded under section 4(b)(2) of the Highway 292 Bridge crossing Big La- Act. goon to Perdido Key. The southern (3) A Map of Unit 9 follows:

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(j) Unit 10: Santa Rosa Sound in (1) Unit 10 includes the Santa Rosa Escambia, Santa Rosa, and Okaloosa Sound, bounded on the west by the Counties, Florida. Florida State Highway 399 bridge in Gulf Breeze, FL. The eastern boundary

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is the U.S. Highway 98 bridge in Fort line or by the entrance to rivers, bay- Walton Beach, FL. The northern and ous, and creeks. southern boundaries of Unit 10 are (2) A Map of Unit 10 follows: formed by the shorelines to the MHW

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(k) Unit 11: Florida Nearshore Gulf of boundary is the MHW of the mainland Mexico Unit in Escambia, Santa Rosa, shoreline and the 72 COLREGS lines at Okaloosa, Walton, Bay, and Gulf Coun- passes as defined at 30 CFR 80.810 (a–g). ties, Florida. The southern boundary is 1 nm (1.9 km) (1) Unit 11 includes a portion of the offshore of the northern boundary. The Gulf of Mexico as defined by the fol- eastern boundary is the line of lon- lowing boundaries. The western bound- gitude 85°17.0′W from its intersection ary is the line of longitude 87°20.0′W with the shore (near Money Bayou be- (approximately 1 nm (1.9 km) west of tween Cape San Blas and Indian Penin- Pensacola Pass) from its intersection sula) to its intersection with the south- with the shore to its intersection with ern boundary. the southern boundary. The northern (2) A Map of Unit 11 follows:

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(l) Unit 12: Choctawhatchee Bay in Jolly Bay, Bunker Cove, and Grassy Okaloosa and Walton Counties, Florida. Cove. All other bayous, creeks, rivers (1) Unit 12 includes the main body of are excluded at their mouths/en- Choctawhatchee Bay, Hogtown Bayou, trances. The western boundary is the

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U.S. Highway 98 bridge at Fort Walton 80.810(f). The lateral extent of Unit 12 is Beach, FL. The southern boundary is the MHW line on each shoreline of the the 72 COLREGS line across East included water bodies. (Destin) Pass as defined at 33 CFR (2) A Map of Unit 12 follows:

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(m) Unit 13: Apalachicola Bay in Gulf lands and from 72 COLREGS lines be- and Franklin County, Florida. tween the barrier islands (defined at 33 (1) Unit 13 includes the main body of CFR 80.805 (e–h)). The western bound- Apalachicola Bay and its adjacent ary is the line of longitude 85°17.0′W sounds, bays, and the nearshore waters from its intersection with the shore of the Gulf of Mexico. These consist of (near Money Bayou between Cape San St. Vincent Sound, including Indian Blas and Indian Peninsula) to its inter- Lagoon; Apalachicola Bay including section with the southern boundary. Horseshoe Cove and All Tides Cove; The eastern boundary is formed by a East Bay including Little Bay and Big straight line drawn from the shoreline Bay; and St George Sound, including of Lanark Village at 29°53.1′N, 84°35.0′W Rattlesnake Cove and East Cove. Bar- rier Island passes (Indian Pass, West to a point that is 1 nm (1.9 km) offshore Pass, and East Pass) are also included. from the northeastern extremity of Sike’s cut is excluded from the lighted Dog Island at 29°49.6′N, 84°33.2′W. The buoys on the Gulf of Mexico side to the lateral extent of Unit 13 is the MHW day boards on the bay side. The south- line on each shoreline of the included ern boundary includes water extending water bodies or the entrance of ex- into the Gulf of Mexico 1 nm (1.9 km) cluded rivers, bayous, and creeks. from the MHW line of the barrier is- (2) A Map of Unit 13 follows:

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(n) Unit 14: Suwannee Sound in Dixie ico waters extending 9 nm from shore and Levy Counties, Florida. (16.7 km) out to the State territorial (1) Unit 14 includes Suwannee Sound water boundary. Its northern boundary and a portion of adjacent Gulf of Mex- is formed by a straight line from the

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northern tip of Big Pine Island (at ap- 29°04′N. The lateral extent of Unit 14 is proximately 29°23′N, 83°12′W) to the the MHW line along the shorelines and Federal-State boundary at 29°17′N, the mouths of the Suwannee River 83°21′W. The southern boundary is (East and West Pass), its formed by a straight line from the distributaries, and other rivers, creeks, southern tip of Richards Island (at ap- or water bodies. ° ′ ° ′ proximately 83 04 W, 29 11 N) to the (2) A Map of Unit 14 follows: Federal-State boundary at 83°15′W,

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[68 FR 13454, Mar. 19, 2003]

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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

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. Ste- 51 52.5N ...... 177 13.0E ...... 51 53.5N ...... 177 12.0E phen 1. 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. 55 28.0N ...... 163 12.0W. (Amak) 1. 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.

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

California: Ano Nuevo I...... 37 06.3N ...... 122 20.3W. Southeast Farallon I...... 37 41.3N ...... 123 00.1W. Sugarloaf I. & Cape Mendocino .. 40 26.0N ...... 124 24.0W. 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.

[58 FR 45278, Aug. 27, 1993]

TABLE 2 TO PART 226—MAJOR STELLAR 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. Har- 52 02.0N ...... 173 23.0W ...... bor 1. 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 & 51 50.0N ...... 177 20.0E ...... 51 48.5N ...... 177 20.5E Vega 1. 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 51 34.0N ...... 179 04.0W ...... 51 34.5N ...... 179 03.0W Rocks 1. 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 & Is- 53 50.5N ...... 166 05.0W ...... land 1. 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 ......

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

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 57 15.0N ...... 170 06.5W ...... Point 1. Sea Lion Rock 1 57 06.0N ...... 170 17.5W ...... St. George I: S Rookery 1 ..... 56 33.5N ...... 169 40.0W ...... Dalnoi Point 1 .. 56 36.0N ...... 169 46.0W ...... St. Lawrence I: S Punuk I.1 ...... 64 04.0N ...... 168 51.0W ...... SW Cape 1 ...... 63 18.0N ...... 171 26.0W ...... Western Gulf of Alaska: Bird I. 1 ...... 54 40.5N ...... 163 18.0W ...... Castle Rock 1 ...... 55 17.0N ...... 159 30.0W ...... Caton I.1 ...... 54 23.5N ...... 162 25.5W ...... Jude I.1 ...... 55 16.0N ...... 161 06.0W ...... Lighthouse Rocks 1 ...... 55 47.5N ...... 157 24.0W ...... Nagai I.1 ...... 54 52.5N ...... 160 14.0W ...... 54 56.0N ...... 160 15.0W Nagai Rocks 1 ...... 55 50.0N ...... 155 46.0W ...... Sea Lion Rocks (Unga) 1 55 04.5N ...... 160 31.0W ...... South Rock 1 ...... 54 18.0N ...... 162 43.5W ...... Spitz I.1 ...... 55 47.0N ...... 158 54.0W ...... The Whaleback 1 ...... 55 16.5N ...... 160 06.0W ...... 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 58 21.0N ...... 151 48.5W ...... (Marmot) 1. 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.

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

Gran Point ...... 59 08.0N ...... 135 14.5W. Lull Point ...... 57 18.5N ...... 134 48.5W. Sunset I...... 57 30.5N ...... 133 35.0W ...... Timbered I...... 55 42.0N ...... 133 48.0W ...... 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.

[58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]

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

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

Hells Canyon ...... 17060101 17060101 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 HABI- TAT FOR CENTRAL CALIFORNIA COAST COHO SALMON, TRIBAL LANDS WITHIN THE RANGE OF THE ESU, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT 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).

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

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]

TABLE 6 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABI- TAT FOR SOUTHERN OREGON/NORTHERN CALIFORNIA COASTS COHO SALMON, TRIB- AL 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 (Wil- low Lake); Lost Creek Dam (Lost Creek Reservoir). Sixes ...... 17100306 Curry (OR).

[64 FR 24061, May 5, 1999]

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PART 228—NOTICE AND HEARING case of a waiver, on the determination ON SECTION 103(d) REGULATIONS by the Assistant Administrator to waive the moratorium pursuant to sec- Sec. tion 101(a)(3)(A) of the Act (16 U.S.C. 228.1 Basis and purpose. 1371(a)(3)(A)). 228.2 Definitions. (b) The purpose of this part is to es- 228.3 Scope of regulations. tablish rules of practice and procedure 228.4 Notice of hearing. for all hearings conducted pursuant to 228.5 Notification by interested persons. section 103(d) of the Act. 228.6 Presiding officer. 228.7 Direct testimony submitted as written § 228.2 Definitions. documents. 228.8 Mailing address. (a) Party means, for the purposes of 228.9 Inspection and copying of documents. this subpart: 228.10 Ex parte communications. (1) The Assistant Administrator or 228.11 Prehearing conference. the Assistant Administrator’s rep- 228.12 Final agenda of the hearing. 228.13 Determination to cancel the hearing. resentative; 228.14 Rebuttal testimony and new issues of (2) A person who has notified the As- fact in final agenda. sistant Administrator by specified 228.15 Waiver of right to participate. dates of his or her intent to participate 228.16 Conduct of the hearing. in the hearing pursuant to §§ 228.5 and 228.17 Direct testimony. 228.14(b). 228.18 Cross-examination. 228.19 Oral and written arguments. (b) Witness means, for the purpose of 228.20 Recommended decision, certification this part, any person who submits writ- of the transcript and submission of com- ten direct testimony on the proposed ments on the recommended decision. regulations. A person may be both a 228.21 Assistant Administrator’s decision. party and a witness. AUTHORITY: 16 U.S.C. 1361 et seq. § 228.3 Scope of regulations. SOURCE: 65 FR 39560, June 27, 2000, unless otherwise noted. The procedural regulations in this part govern the practice and procedure § 228.1 Basis and purpose. in hearings held under section 103(d) of (a) Sections 101(a)(2), 101(a)(3)(A), and the Act. These hearings will be gov- 101(b) of the Marine Mammal Protec- erned by the provisions of 5 U.S.C. 556 tion Act of 1972 (16 U.S.C. 1371(a)(2), and section 557 of the Administrative 1371(a)(3)(A), and 1371(b)) and these reg- 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 § 228.4 Notice of hearing. taking and importing of animals from 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;

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(3) The legal authority under which hearing agenda, and cause to be pub- the hearing is to be held; lished in the FEDERAL REGISTER a final (4) The proposed regulations and hearing agenda; waiver, where applicable, and a sum- (3) Rule upon motions, requests and mary of the statements required by admissibility of direct testimony; section 103(d) of the Act (16 U.S.C. (4) Administer oaths and affirma- 1373(d)); tions, question witnesses and direct (5) Issues of fact which may be in- witnesses to testify; volved in the hearing; (5) Modify or waive any rule (after (6) If a draft Environmental Impact notice) when determining that no Statement is required, the date of pub- party will be prejudiced; lication of the draft and the place(s) (6) Receive written comments and where the draft and comments thereon hear oral arguments; may be viewed and copied; (7) Render a recommended decision; (7) Any written advice received from and the Marine Mammal Commission; (8) Do all acts and take all measures, (8) The place(s) where records and including regulation of media cov- submitted direct testimony will be erage, for the maintenance of order at kept for public inspection; and the efficient conduct of the pro- (9) The final date for filing with the ceeding. Assistant Administrator a notice of in- (c) In case of the absence of the origi- tent to participate in the hearing pur- nal presiding officer or the original suant to § 228.5; presiding officer’s inability to act, the (10) The final date for submission of powers and duties to be performed by direct testimony on the proposed regu- the original presiding officer under this lations and waiver, if applicable, and subpart in connection with a pro- the number of copies required; ceeding may, without abatement of the (11) The docket number assigned to proceeding, be assigned to any other the case which shall be used in all sub- presiding officer unless otherwise or- sequent proceedings; and dered by the Assistant Administrator. (12) The place and date of the pre- (d) The presiding officer may upon hearing conference. the presiding officer’s own motion withdraw as presiding officer in a pro- § 228.5 Notification by interested per- ceeding if the presiding officer deems sons. himself or herself to be disqualified. Any person desiring to participate as (e) A presiding officer may be re- a party shall notify the Assistant Ad- quested to withdraw at any time prior ministrator, by certified mail, on or be- to the recommended decision. Upon the fore the date specified in the notice. filing by an interested person in good faith of a timely and sufficient affi- § 228.6 Presiding officer. davit alleging the presiding officer’s (a) Upon publication of the notice of personal bias, malice, conflict of inter- hearing pursuant to § 228.4, the Assist- est or other basis which might result in ant Administrator shall appoint a pre- prejudice to a party, the hearing shall siding officer pursuant to 5 U.S.C. 3105. recess. The Assistant Administrator No individual who has any conflict of shall immediately determine the mat- interest, financial or otherwise, shall ter as a part of the record and decision serve as presiding officer in such pro- in the proceeding, after making such ceeding. investigation or holding such hearings, (b) The presiding officer, in any pro- or both, as the Assistant Administrator ceeding under this subpart, shall have may deem appropriate in the cir- power to: cumstances. (1) Change the time and place of the hearing and adjourn the hearing; § 228.7 Direct testimony submitted as (2) Evaluate direct testimony sub- written documents. mitted pursuant to these regulations, (a) Unless otherwise specified, all di- make a preliminary determination of rect testimony, including accom- the issues, conduct a prehearing con- panying exhibits, must be submitted to ference to determine the issues for the the presiding officer in writing no later

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than the dates specified in the notice of be clearly marked with the docket the hearing (§ 228.4), the final hearing number of the proceedings. agenda (§ 228.12), or within 15 days after the conclusion of the prehearing con- § 228.9 Inspection and copying of doc- ference (§ 228.14) as the case may be. All uments. direct testimony shall be in affidavit Any document in a file pertaining to form and exhibits constituting part of any hearing authorized by this subpart 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.

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(c) The purpose of the prehearing presiding officer shall publish such conference shall be to enable the pre- conclusion and notice in the FEDERAL siding officer to determine, on the REGISTER that a hearing shall not be basis of the direct testimony submitted held and shall also publish a date for and prehearing discussions: filing written comments on the pro- (1) Whether the presiding officer’s posed regulations. Written comments preliminary determination of issues of may include proposed findings and con- fact for the hearing has omitted any clusions, arguments or briefs. significant issues; (b) A person need not be a party to (2) What facts are not in dispute; submit any written comments. (3) Which witnesses may appear at (c) Promptly after expiration of the the hearing; and period for receiving written comments, (4) The nature of the interest of each 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 in the FEDERAL REGISTER within 10 § 228.14 Rebuttal testimony and new days after the conclusion of the con- issues of fact in final agenda. ference. 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 may also specify a final date for sub- (1) Any person interested in partici- mission of direct testimony to rebut pating at the hearing on such issues testimony previously submitted during presented shall notify the Assistant the time specified in the notice of the Administrator by certified mail of an hearing. intent to participate not later than 10 (c) The presiding officer shall publish days after publication of the final with the final agenda a list of wit- agenda. Such person may present di- nesses who may appear at the hearing, rect testimony or cross-examine wit- a list of parties, the nature of the in- nesses only on such issues presented terest of each party, and which parties’ unless that person previously notified interests are adverse on the issues pre- the Assistant Administrator pursuant sented. to § 228.5; and (2) Additional written direct testi- § 228.13 Determination to cancel the mony concerning such issues may be hearing. submitted within the time provided in (a) If the presiding officer concludes the final agenda. Such direct testi- that no issues of fact are presented by mony will comply with the require- the direct testimony submitted, the ments of § 228.7.

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§ 228.15 Waiver of right to participate. subject to review at the same time and Persons who fail to notify the Assist- in the same manner as the Assistant ant Administrator pursuant to §§ 228.5 Administrator’s final decision. Only and 228.14 shall be deemed to have objections made before the presiding waived their right to participate as officer may subsequently be relied parties in any part of the hearing. upon in the proceedings. (e) All motions and requests shall be § 228.16 Conduct of the hearing. addressed to, and ruled on by, the presiding officer, if made prior to his cer- (a) The hearing shall be held at the tification of the transcript or by the time and place fixed in the notice of Assistant Administrator if made there- the hearing, unless the presiding officer changes the time or place. If a after. change occurs, the presiding officer § 228.17 Direct testimony. shall publish the change in the FED- ERAL REGISTER and shall expeditiously (a) Only direct testimony submitted notify all parties by telephone or by by affidavit as provided in these regu- mail: Provided, that if that change in lations and introduced at the hearing time or place of hearing is made less by a witness shall be considered part of than 5 days before the date previously the record. Such direct testimony shall fixed for the hearing, the presiding offi- not be read into evidence but shall be- cer shall also announce, or cause to be come a part of the record subject to ex- announced, the change at the time and clusion of irrelevant and immaterial place previously fixed for the hearing. parts thereof; (b) The presiding officer shall, at the (b) The witness introducing direct commencement of the hearing, intro- testimony shall: duce into the record: the notice of (1) State his or her name, address and hearing as published in the FEDERAL occupation; REGISTER; all subsequent documents (2) State qualifications for intro- published in the FEDERAL REGISTER; ducing the direct testimony. If an ex- the draft Environmental Impact State- pert, the witness shall briefly state the ment if it is required and the com- scientific or technical training which ments thereon and agency responses to qualifies the witness as an expert; the comments; and a list of all parties. (3) Identify the direct testimony pre- Direct testimony shall then be received viously submitted in accordance with with respect to the matters specified in these regulations; and the final agenda in such order as the (4) Submit to appropriate cross and presiding officer shall announce. With direct examination. Cross-examination respect to direct testimony submitted shall be by a party whose interests are as rebuttal testimony or in response to adverse on the issue presented, to the new issues presented by the prehearing witness’, if the witness is a party, or to conference, the presiding officer shall the interests of the party who predetermine the relevancy of such testi- sented the witness. mony. (c) A party shall be deemed to have (c) The hearing shall be publicly con- waived the right to introduce direct ducted and reported verbatim by an of- testimony if such party fails to present ficial reporter. a witness to introduce the direct testi- (d) If a party objects to the admission mony. or rejection of any direct testimony or (d) Official notice may be taken of to any other ruling of the presiding of- such matters as are judicially noticed ficer during the hearing, he or she shall by the courts of the United States: state briefly the grounds of such objec- Provided, that parties shall be given tion, whereupon an automatic excep- adequate notice, by the presiding offi- tion will follow if the objection is over- cer, at the hearing, of matters so no- ruled by the presiding officer. The ticed and shall be given adequate op- transcript shall not include argument portunity to show that such facts are or debate thereon except as ordered by inaccurate or are erroneously noticed. the presiding officer. The ruling by the presiding officer on any objection shall § 228.18 Cross-examination. be a part of the transcript and shall be (a) The presiding officer may:

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(1) Require the cross-examiner to including proposed findings and conclu- outline the intended scope of the cross- sions and written arguments or briefs, examination; which are based upon the record and (2) Prohibit parties from cross-exam- citing where practicable the relevant ining witnesses unless the presiding of- page or pages of the transcript. If a ficer has determined that the cross-ex- party filing a brief desires the pre- aminer has an adverse interest on the siding officer to reconsider any objec- facts at issue to the party-witness or tion made by such party to a ruling of the party presenting the witness. For the presiding officer, the party shall the purposes of this subsection, the As- specifically identify such rulings by sistant Administrator’s or his or her reference to the pertinent pages of the representative’s interest shall be con- transcript and shall state their argu- sidered adverse to all parties; ments thereon as a part of the brief. (3) Limit the number of times any (c) Oral or written arguments shall party or parties having a common in- be limited to issues arising from direct terest may cross-examine an ‘‘adverse’’ testimony on the record. witness on the same matter; and (4) Exclude cross-examination ques- § 228.20 Recommended decision, cer- tions that are immaterial, irrelevant tification of the transcript and sub- or unduly repetitious. mission of comments on the rec- (b) Any party shall be given an op- ommended decision. portunity to appear, either in person or (a) Promptly after expiration of the through an authorized counsel or rep- period for receiving written briefs, the resentative, to cross-examine wit- presiding officer shall make a rec- nesses. Before cross-examining a wit- ommended decision based on the record ness, the party or counsel shall state and transmit the decision to the As- his or her name, address and occupa- sistant Administrator. The rection. If counsel cross-examines the wit- ommended decision shall include: ness, counsel shall state for the record (1) A statement containing a descrip- the authority to act as counsel. Cross- tion of the history of the proceedings; examiners shall be assumed to be fa- (2) Findings on the issues of fact with miliar with the direct testimony. the reasons therefor; and (c) Any party or party’s counsel who (3) Rulings on issues of law. fails to appear at the hearing to cross- (b) The presiding officer shall also examine an ‘‘adverse’’ witness shall be transmit to the Assistant Adminis- deemed to have waived the right to trator the transcript of the hearing, cross-examine that witness. the original and all copies of the direct (d) Scientific, technical or commer- testimony, and written comments. The cial publications may only be utilized presiding officer shall attach to the for the limited purposes of impeaching original transcript of the hearing a cer- witnesses under cross-examination un- tificate stating that, to the best of his less previously submitted and intro- knowledge and belief, the transcript is duced in accordance with these regula- a true transcript of the testimony tions. given at the hearing except in such particulars as are specified. § 228.19 Oral and written arguments. (c) Immediately after receipt of the (a) The presiding officer may, in his recommended decision, the Assistant or her discretion, provide for oral argu- Administrator shall give notice thereof ment at the end of the hearing. Such in the FEDERAL REGISTER, send copies argument, when permitted, may be of the recommended decision to all par- limited by the presiding officer to the ties, and provide opportunity for the 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

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

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(c) The regulations of Subpart B also net, that is set anywhere in the water govern the incidental taking by com- column and which is anchored, secured mercial fishers of marine mammals or weighted to the bottom of the sea. from species or stocks designated Also called a set gillnet. under the Act as depleted on the basis Assistant Administrator means the As- of their listing as threatened species or sistant Administrator for Fisheries of 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 authoriza- Buoy line means a line connecting tion under subpart B of this part is re- fishing gear in the water to a buoy at quired. the surface of the water. (f) Authorizations under this part do Category I fishery means a commer- not apply to the intentional lethal tak- cial fishery determined by the Assist- ing of marine mammals in the course ant Administrator to have frequent in- of commercial fishing operations ex- cidental mortality and serious injury cept as provided for under §§ 229.4(k) of marine mammals. A commercial and 229.5(f). fishery that frequently causes mor- (g) The purposes of the regulations in tality or serious injury of marine mam- this part are to: mals is one that is by itself responsible (1) Reduce the incidental mortality for the annual removal of 50 percent or or serious injury of marine mammals more of any stock’s potential biologi- occurring in the course of commercial cal removal level. fishing operations below the potential Category II fishery means a commer- biological removal level for a par- cial fishery determined by the Assist- ticular stock, and ant Administrator to have occasional (2) Reduce the incidental mortality incidental mortality and serious injury or serious injury of marine mammals of marine mammals. A commercial occurring in the course of commercial fishery that occasionally causes mor- fishing operations to insignificant lev- tality or serious injury of marine mam- els approaching a zero mortality and mals is one that, collectively with serious injury rate by the statutory other fisheries, is responsible for the deadline of April 30, 2001. annual removal of more than 10 per- [60 FR 45100, Aug. 30, 1995, as amended at 64 cent of any marine mammal stock’s po- FR 9086, Feb. 24, 1999] tential biological removal level and that is by itself responsible for the an- § 229.2 Definitions. nual removal of between 1 and 50 per- In addition to the definitions con- cent, exclusive, of any stock’s poten- tained in the Act and § 216.3 of this tial biological removal level. In the ab- chapter, and unless the context other- sence of reliable information indi- wise requires, in this part 229: cating the frequency of incidental mor- Act or MMPA means the Marine tality and serious injury of marine Mammal Protection Act of 1972, as mammals by a commercial fishery, the amended (16 U.S.C. 1361 et seq.). Assistant Administrator will deter- American lobster or lobster means mine whether the incidental serious in- Homarus americanus. jury or mortality is ‘‘occasional’’ by Anchored gillnet means any gillnet evaluating other factors such as fishing gear, including a sink gillnet or stab techniques, gear used, methods used to

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deter marine mammals, target species, depleted under the Act and is listed in seasons and areas fished, qualitative § 216.15 of this chapter or part 18, sub- data from logbooks or fisher reports, part E of this title, or any endangered stranding data, and the species and dis- or threatened species of marine mam- tribution of marine mammals in the mal. area, or at the discretion of the Assist- Driftnet, drift gillnet, or drift entangle- ant Administrator. Eligible commer- ment gear means a gillnet or gillnets cial fisheries not specifically identified that is/are unattached to the ocean in the list of fisheries are deemed to be bottom and not anchored, secured or Category II fisheries until the next list weighted to the bottom, regardless of of fisheries is published. whether attached to a vessel. Category III fishery means a commer- Fisher or fisherman means the vessel cial fishery determined by the Assist- owner or operator, or the owner or op- ant Administrator to have a remote erator of gear in a nonvessel fishery. likelihood of, or no known incidental 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 used for, equipped to be used for, or of itself is responsible for the annual re- a type normally used for, fishing. moval of 1 percent or less of that Float-line means the rope at the top stock’s potential biological removal of a gillnet from which the mesh por- level. In the absence of reliable infor- tion of the net is hung. mation indicating the frequency of in- Gillnet means fishing gear consisting cidental mortality and serious injury of a wall of webbing (meshes) or nets, of marine mammals by a commercial designed or configured so that the web- fishery, the Assistant Administrator bing (meshes) or nets are placed in the will determine whether the incidental water column, usually held approxi- serious injury or mortality is ‘‘remote’’ mately vertically, and are designed to by evaluating other factors such as capture fish by entanglement, gilling, fishing techniques, gear used, methods or wedging. The term ‘‘gillnet’’ includes used to deter marine mammals, target gillnets of all types, including but not species, seasons and areas fished, quali- limited to sink gillnets, other anchored tative data from logbooks or fisher re- gillnets (e.g. stab and set nets), and ports, stranding data, and the species drift gillnets. Gillnets may or may not and distribution of marine mammals in be attached to a vessel. the area or at the discretion of the As- Groundline, with reference to lobster sistant Administrator. trap gear, means a line connecting lob- Commercial fishing operation means ster traps in a lobster trap trawl, and, the catching, taking, or harvesting of with reference to gillnet gear, means a fish from the marine environment (or line connecting a gillnet or gillnet bri- other areas where marine mammals dle to an anchor or buoy line. occur) that results in the sale or barter Incidental means, with respect to an of all or part of the fish harvested. The act, a non-intentional or accidental act term includes licensed commercial pas- that results from, but is not the pur- senger fishing vessel (as defined in pose of, carrying out an otherwise law- § 216.3 of this chapter) activities and ful action. aquaculture activities. Injury means a wound or other phys- Depleted species means any species or ical harm. Signs of injury to a marine population that has been designated as mammal include, but are not limited

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to, visible blood flow, loss of or damage Lead-line means the rope, weighted or to an appendage or jaw, inability to use otherwise, to which the bottom edge of one or more appendages, asymmetry in a gillnet is attached. the shape of the body or body position, List of Fisheries means the most re- noticeable swelling or hemorrhage, lac- cent final list of commercial fisheries eration, puncture or rupture of eyeball, published in the FEDERAL REGISTER by listless appearance or inability to de- the Assistant Administrator, cat- fend itself, inability to swim or dive egorized according to the likelihood of upon release from fishing gear, or signs incidental mortality and serious injury of equilibrium imbalance. Any animal of marine mammals during commercial that ingests fishing gear, or any ani- fishing operations. mal that is released with fishing gear Lobster trap means any trap, pot or entangling, trailing or perforating any other similar type of enclosure that is part of the body will be considered in- placed on the ocean bottom and is de- jured regardless of the absence of any signed to or is capable of catching lob- wound or other evidence of an injury. sters. This definition includes but is Insignificance threshold means the not limited to lobster pots, black sea upper limit of annual incidental mor- bass pots and scup pots. tality and serious injury of marine Lobster trap trawl means two or more mammal stocks by commercial fish- lobster traps attached to a single eries that can be considered insignifi- groundline. cant levels approaching a zero mor- Mesh size means the distance between tality and serious injury rate. An insig- inside knot to inside knot. Mesh size is nificance threshold is estimated as 10 measured as described in § 648.80(f)(1) of percent of the Potential Biological Re- this title. moval level for a stock of marine mam- Mid-Atlantic coastal waters means wa- mals. If certain parameters (e.g., max- ters bounded by the line defined by the imum net productivity rate or the re- following points: The southern shore- covery factor in the calculation of the line of Long Island, New York at stock’s potential biological removal 72°30′W, then due south to 33°51′N lat., level) can be estimated or otherwise thence west to the North Carolina/ modified from default values, the As- South Carolina border. sistant Administrator may use a modi- Minimum population estimate means fication of the number calculated from an estimate of the number of animals the simple formula for the insignifi- in a stock that: cance threshold. The Assistant Admin- (1) Is based on the best available sci- istrator may also use a modification of entific information on abundance, in- the simple formula when information corporating the precision and varia- is insufficient to estimate the level of bility associated with such informa- mortality and serious injury that tion; and would have an insignificant effect on (2) Provides reasonable assurance the affected population stock and pro- that the stock size is equal to or great- vide a rationale for using the modifica- er than the estimate. tion. 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 § 216.103 of this chapter. otherwise captured by commercial fish- Net productivity rate means the an- ing gear. nual per capita rate of increase in a Large mesh gillnet means a 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.

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Neutrally buoyant line means line council established under section 302 of with a specific gravity near that of sea the Magnuson Fishery Conservation water, so that the line neither sinks to and Management Act. the ocean floor nor floats at the sur- Reliable report means a credible right face, but remains close to the bottom. whale sighting report based upon which Night means any time between one a DAM zone would be triggered. half hour before sunset and one half Serious injury means any injury that hour after sunrise. will likely result in mortality. NMFS means the National Marine Shark gillnetting means to fish a Fisheries Service. gillnet in waters south of the South Nonvessel fishery means a commercial Carolina/Georgia border with webbing fishing operation that uses fixed or of 5 inches or greater stretched mesh. other gear without a vessel, such as Sink gillnet or stab net means any gear used in set gillnet, trap, beach gillnet, anchored or otherwise, that is seine, weir, ranch, and pen fisheries. designed to be, or is fished on or near Observer means an individual author- the bottom in the lower third of the ized by NMFS, or a designated con- water column. tractor, to record information on ma- Sinking line means rope that sinks rine mammal interactions, fishing op- and does not float at any point in the erations, marine mammal life history water column. Polypropylene rope is information, and other scientific data, not sinking line unless it contains a and collect biological specimens during lead core. commercial fishing activities. Small mesh gillnet means a gillnet Operator, with respect to any vessel, constructed with a mesh size of greater means the master, captain, or other in- than 5 inches (12.7 cm) to less than 7 dividual in charge of that vessel. inches (17.78 cm). Potential biological removal level means Southern Mid-Atlantic waters means the maximum number of animals, not all state and Federal waters off the including natural mortalities, that States of Delaware, Maryland, Vir- may be removed from a marine mam- ginia, and North Carolina, bounded on mal stock while allowing that stock to the north by a line extending eastward 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 ade- (2) Which, based on the best available quate by NMFS. scientific information, is declining and Regional Fishery Management Council is likely to be listed as a threatened means a regional fishery management species under the Endangered Species

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Act of 1973 within the foreseeable fu- Vessel of the United States has the ture; same meaning as in section 3 of the (3) Which is listed as a threatened Magnuson Fishery Conservation and species or endangered species under the Management Act (16 U.S.C. 1802). Endangered Species Act of 1973; or Waters off New Jersey means all state (4) Which is designated as depleted and Federal waters off New Jersey, under the Marine Mammal Protection bounded on the north by a line extend- Act of 1972, as amended. ing eastward from the southern shore- Strikenet or to fish with strikenet gear line of Long Island, NY at 40°40′ N. lati- means a gillnet that is designed so tude, on the south by a line extending that, when it is deployed, it encircles eastward from the northern shoreline or encloses an area of water either with of Delaware at 38°47′ N. latitude (the the net or by utilizing the shoreline to latitude that corresponds with Cape complete encirclement, or to fish with Henlopen, DE), and on the east by the such a net and method. 72°30′ W. longitude. This area includes Take Reduction Plan means a plan de- the Mudhole. veloped to reduce the incidental mor- Weak link means a breakable compo- tality and serious injury of marine nent of gear that will part when sub- mammals during commercial fishing ject to a certain tension load. operations in accordance with section 118 of the Marine Mammal Protection [60 FR 45100, Aug. 30, 1995, as amended at 62 Act of 1972, as amended. FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, Take Reduction Team means a team 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. established to recommend methods of 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1141, reducing the incidental mortality and Jan. 9, 2002; 67 FR 1313, Jan. 10, 2002; 69 FR serious injury of marine mammals due 6584, Feb. 11, 2004; 69 FR 43345, July 20, 2004] to commercial fishing operations, in accordance with section 118 of the Ma- § 229.3 Prohibitions. rine Mammal Protection Act of 1972, as (a) It is prohibited to take any ma- amended. rine mammal incidental to commercial Tended gear or tend means fishing fishing operations except as otherwise gear that is physically attached to a provided in part 216 of this chapter or vessel in a way that is capable of har- in this part 229. vesting fish, or to fish with gear at- (b) It is prohibited to assault, harm, tached to the vessel. harass (including sexually harass), op- Tie-down refers to twine used be- pose, impede, intimidate, impair, or in tween the floatline and the lead line as any way influence or interfere with an a way to create a pocket or bag of net- observer, or attempt the same. This ting to trap fish alive. prohibition includes, but is not limited To strikenet for sharks means to fish to, any action that interferes with an with strikenet gear in waters south of observer’s responsibilities, or that cre- the South Carolina/Georgia border with ates an intimidating, hostile, or offen- webbing of 5 inches or greater sive environment. stretched mesh. (c) It is prohibited to provide false in- U.S. waters means both state and formation when registering for an Au- Federal waters to the outer boundaries thorization Certificate, applying for re- of the U.S. exclusive economic zone newal of the Authorization Certificate, along the east coast of the United reporting the injury or mortality of States from the Canadian/U.S. border southward to a line extending eastward any marine mammal, or providing in- from the southernmost tip of Florida formation to any observer. on the Florida shore. (d) It is prohibited to tamper with or Vessel owner or operator means the destroy observer equipment in any owner or operator of: way. (1) A fishing vessel that engages in a (e) It is prohibited to retain any ma- commercial fishing operation; or rine mammal incidentally taken in (2) Fixed or other commercial fishing commercial fishing operations unless gear that is used in a nonvessel fishery.

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authorized by NMFS personnel, by des- does not apply to the use of a single pe- ignated contractors or an official ob- lagic gillnet (as described and used as server, or by a scientific research per- set forth in § 648.81(f)(2)(ii) of this title). mit that is in the possession of the ves- (m) It is prohibited to fish with, set, sel operator. haul back, possess on board a vessel (f) It is prohibited to intentionally unless stowed, or fail to remove any lethally take any marine mammal in gillnet gear from the areas and for the the course of commercial fishing oper- times as specified in § 229.34 (b)(1) (ii) or ations unless imminently necessary in (iii) or (b)(2)(ii). self-defense or to save the life of a per- (n) It is prohibited to fish with, set, son in immediate danger, and such tak- haul back, possess on board a vessel ing is reported in accordance with the unless stowed, or fail to remove any requirements of § 229.6. large mesh or small mesh gillnet gear (g) It is prohibited to violate any reg- from the areas and for the times speci- ulation in this part or any provision of fied in § 229.34 (c)(1) through (c)(4) un- section 118 of the Act. less the gear complies with the speci- (h) It is prohibited to fish with lob- fied gear restrictions set forth in those ster trap gear in the areas and for the provisions. times specified in § 229.32 (b)(2) and (o) Beginning on January 1, 1999, it is (c)(2) through (c)(8) unless the lobster prohibited to fish with, set, or haul trap gear complies with the closures, back sink gillnets or gillnet gear, or marking requirements, modifications, leave such gear in closed areas where and restrictions specified in § 229.32 pingers are required, as specified under (b)(3)(i), (b)(3)(ii), and (c)(1) through § 229.33 (c)(1) through (c)(4), unless a (c)(9). person on board the vessel during fish- (i) It is prohibited to fish with an- ing operations possesses a valid pinger chored gillnet gear in the areas and for certification training certificate issued the times specified in § 229.32(b)(2) and by NMFS. (d)(2) through(d)(7) unless that gillnet (p) Beginning on January 1, 2000, it is gear complies with the closures, mark- prohibited to fish with, set, haul back, ing requirements, modifications, and or possess any large mesh or small restrictions specified in § 229.32(b)(3)(i), mesh gillnet gear in Mid-Atlantic wa- (b)(3)(ii), and (d)(1) through (d)(8). ters in the areas and during the times (j) It is prohibited to fish with drift specified under § 229.34(d), unless the gillnet gear in the areas and for the gear is properly tagged in compliance times specified in § 229.32 (d)(7) and with that provision and unless a net (e)(1) unless the drift gillnet gear com- tag certificate is on board the vessel. It plies with the restrictions specified in is prohibited to refuse to produce a net § 229.32 (e)(1). tag certificate or net tags upon the re- (k) It is prohibited to fish with quest of an authorized officer. gillnet gear in the areas and for the (q) Net tag requirement. Beginning on times specified in § 229.32(f)(1) through January 1, 2000, all gillnets fished, (f)(4), unless the gear or the person hauled, possessed, or deployed during with gillnet gear complies with the the times and areas specified below gear marking requirements specified in must have one tag per net, with one § 229.32(f)(2), the requirements for ob- tag secured to every other bridle of server coverage as specified in every net and with one tag secured to § 229.32(f)(3), and the closures, require- every other bridle of every net within a ments, and other restrictions as speci- string of nets. This applies to small fied in § 229.32(f)(4). mesh and large mesh gillnet gear in (l) It is prohibited to fish with, set, New Jersey waters from January 1 haul back, possess on board a vessel through April 30 or in southern Mid-At- unless stowed, or fail to remove sink lantic waters from February 1 through gillnet gear or gillnet gear capable of April 30. The owner or operator of fish- catching multispecies, from the areas ing vessels must indicate to NMFS the and for the times specified in § 229.33 number of gillnet tags that they are re- (a)(1) through (a)(6), except with the questing up to the maximum number of use of pingers as provided in § 229.33 nets allowed in those paragraphs and (d)(1) through (d)(4). This prohibition must include a check for the cost of

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the tags. Vessel owners and operators (2) Unless a notice is published in the will be given notice with instructions FEDERAL REGISTER announcing an inte- informing them of the costs associated grated registration program, the owner with this tagging requirement and di- of a vessel, or for nonvessel fishery, the rections for obtaining tags. Tag num- owner of the gear must register for and bers will be unique for each vessel and receive an Authorization Certificate. recorded on a certificate. The vessel To register, owners must submit the operator must produce the certificate following information using the format and all net tags upon request by an au- specified by NMFS: thorized officer. (i) Name, address, and phone number of owner. [60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, (ii) Name, address, and phone number 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. of operator, if different from owner, un- 24, 1999; 65 FR 80377, Dec. 21, 2000; 67 FR 1313, less the name of the operator is not Jan. 10, 2002; 67 FR 59477, Sept. 23, 2002] known or has not been established at the time the registration is submitted. § 229.4 Requirements for Category I (iii) For a vessel fishery, vessel name, and II fisheries. length, home port; U.S. Coast Guard (a) General. (1) For a vessel owner or documentation number or state reg- crew members to lawfully incidentally istration number, and if applicable; take marine mammals in the course of state commercial vessel license num- a commercial fishing operation in a ber and for a nonvessel fishery, a de- Category I or II fishery, the owner or scription of the gear and state commer- authorized representative of a fishing cial license number, if applicable. vessel or nonvessel fishing gear must (iv) A list of all Category I and II have in possession a valid Certificate of fisheries in which the fisher may ac- Authorization. The owner of a fishing tively engage during the calendar year. vessel or nonvessel fishing gear is re- (v) 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 ac- (3) If a notice is published in the FED- tion is required on the part of the af- ERAL REGISTER announcing an inte- fected fisher. NMFS will make addi- grated registration program, the owner tional efforts to contact participants in of a vessel, or for nonvessel fishery, the the affected fishery via other appro- owner of the gear may register by fol- priate means of notification. lowing the directions provided in that (b) Registration. (1) The owner of a notice. If a person receives a registra- vessel, or for nonvessel gear fisheries, tion to which he or she is not entitled the owner of gear, who participates in or if the registration contains incor- a Category I or II fishery is required to rect, inaccurate or incomplete infor- be registered for a Certificate of Au- mation, the person shall notify NMFS thorization. within 10 days following receipt. If a

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fisher participating in a Category I or (3) If a person receives a renewed Au- II fishery who expects to receive auto- thorization Certificate or a decal to matic registration does not receive which he or she is not entitled, the per- that registration within the time speci- son shall notify NMFS within 10 days fied in the notice announcing the inte- following receipt. grated registration program, the per- (e) Authorization Certificate and decal son shall notify NMFS as directed in requirements. (1) If a decal has been the notice or may apply for registra- issued under the conditions specified in tion by submitting the information re- paragraph (e)(2) of this section, the quired under paragraph (b)(1)(i) decal must be attached to the vessel on through (b)(1)(vi) of this section. the port side of the cabin or, in the ab- (c) Address. Unless the granting and sence of a cabin, on the forward port administration of authorizations under side of the hull, and must be free of ob- this part 229 is integrated and coordi- struction and in good condition. The nated with existing fishery licenses, decal must be attached to the Author- registrations, or related programs pur- ization Certificate for nonvessel fish- suant to paragraph (a) of this section, eries. requests for registration forms and (2) The Authorization Certificate, or completed registration and renewal a copy, must be on board the vessel forms should be sent to the NMFS Re- while it is operating in a Category I or gional Offices as follows: II fishery, or, in the case of nonvessel (1) Alaska Region, NMFS, P.O. Box fisheries, the Authorization Certificate 21668, 709 West 9th Street, Juneau, AK with decal attached, or copy must be in 99802; telephone: 907–586-7235; the possession of the person in charge (2) Northwest Region, NMFS, 7600 of the fishing operation. The Author- Sand Point Way NE., Seattle, WA ization Certificate, or copy, must be 98115-0070; telephone: 206–526-4353; made available upon request to any (3) Southwest Region, NMFS, 501 state or Federal enforcement agent au- West Ocean Blvd., Suite 4200, Long thorized to enforce the Act, any des- Beach, CA 90802–4213; telephone: 562– ignated agent of NMFS, or any con- 980–4001; tractor providing observer services to NMFS. (4) Northeast Region, NMFS, 1 (3) Authorization Certificates and de- Blackburn Drive, Gloucester, MA 01930; cals are not transferable. In the event telephone: 978–281–9254; or of the sale or change in ownership of (5) Southeast Region, NMFS, 9721 Ex- the vessel, the Authorization Certifi- ecutive Center Drive North, St. Peters- cate is void and the new owner must burg, FL 33702; telephone: 727–570–5312. register for an Authorization Certifi- (d) Issuance. (1) For integrated fish- cate and decal. eries, an Authorization Certificate or (4) An Authorization Certificate hold- other proof of registration will be er must notify the issuing office in issued annually to each fisher reg- writing: istered for that fishery. (i) If the vessel or nonvessel fishing (2) For all other fisheries (i.e., non- gear will engage in any Category I or II integrated fisheries), NMFS will issue fishery not listed on the initial reg- an Authorization Certificate and, if istration form at least 30 days prior to necessary, a decal to an owner or au- engaging in that fishery; and, thorized representative who: (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

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personnel, a designated contractor or (d) Monitoring. Vessel owners engaged an official observer, or authorized oth- in a Category III fishery must comply erwise by a scientific research permit with the observer requirements speci- that is in the possession of the oper- fied under § 229.7(d). ator. (e) Deterrence. When necessary to (h) Monitoring. Authorization Certifi- deter a marine mammal from dam- cate holders must comply with the ob- aging fishing gear, catch, or other pri- server or other monitoring require- vate property, or from endangering ments specified under § 229.7. personal safety, vessel owners and crew (i) Deterrence. When necessary to members engaged in commercial fish- deter a marine mammal from dam- ing operations must comply with all aging fishing gear, catch, or other pri- deterrence provisions set forth in the vate property, or from endangering Act and all guidelines and prohibitions personal safety, vessel owners and crew published thereunder. members engaged in a Category I or II (f) Self-defense. When imminently fishery must comply with all deter- necessary in self-defense or to save the rence provisions set forth in the Act life of a person in immediate danger, a and all guidelines and prohibitions pub- marine mammal may be lethally taken lished thereunder. if such taking is reported to NMFS in (j) Self defense. When imminently nec- accordance with the requirements of § 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 (k) Take reduction plans and emer- FR 9087, Feb. 24, 1999] gency regulations. Authorization Cer- tificate holders must comply with any § 229.6 Reporting requirements. 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 specified by the Assistant Adminis- § 229.5 Requirements for Category III 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) Reporting. Vessel owners engaged 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 (4) The species and number of each in the possession of the operator. marine mammal incidentally killed or

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injured, and the date, time, and ap- vessel is required to carry an observer, proximate geographic location of such the vessel owner/operator must comply occurrence. A description of the ani- with the notification by providing in- mal(s) killed or injured must be pro- formation requested within the speci- vided if the species is unknown. fied time on scheduled or anticipated (b) Participants in nonvessel fisheries fishing trips. must provide all of the information in (3) NMFS, or a designated contractor paragraphs (a)(1) through (a)(4) of this providing observer services to NMFS, section except, instead of providing the may waive the observer requirement vessel name and vessel registration based on a finding that the facilities number, participants in nonvessel fish- for housing the observer or for carrying eries must provide the gear permit out observer functions are so inad- number. equate or unsafe that the health or [60 FR 45100, Aug. 30, 1995, as amended at 64 safety of the observer or the safe oper- FR 9087, Feb. 24, 1999] ation of the vessel would be jeopard- ized. § 229.7 Monitoring of incidental mor- (4) The vessel owner/operator and talities and serious injuries. crew must cooperate with the observer (a) Purpose. The Assistant Adminis- in the performance of the observer’s trator will establish a program to mon- duties including: itor incidental mortality and serious (i) Providing, at no cost to the ob- injury of marine mammals during the server, the United States government, course of commercial fishing oper- or the designated observer provider, ations in order to: food, toilet, bathing, sleeping accom- (1) Obtain statistically reliable esti- modations, and other amenities that mates of incidental mortality and seri- are equivalent to those provided to the ous injury; crew, unless other arrangements are (2) Determine the reliability of re- approved in advance by the Regional ports of incidental mortality and in- Administrator; jury under § 229.6; and (ii) Allowing for the embarking and (3) Identify changes in fishing meth- debarking of the observer as specified ods or technology that may increase or by NMFS personnel or designated con- decrease incidental mortality and seri- tractors. The operator of a vessel must ous injury. ensure that transfers of observers at (b) Observer program. Pursuant to sea are accomplished in a safe manner, paragraph (a) of this section, the As- via small boat or raft, during daylight sistant Administrator may observe hours if feasible, as weather and sea Category I and II vessels as necessary. conditions allow, and with the agree- Observers may, among other tasks: ment of the observer involved; (1) Record incidental mortality and (iii) Allowing the observer access to injury, and bycatch of other nontarget all areas of the vessel necessary to con- species; duct observer duties; (2) Record numbers of marine mam- (iv) Allowing the observer access to mals sighted; and communications equipment and navi- (3) Perform other scientific inves- gation equipment, when available on tigations, which may include, but are the vessel, as necessary to perform ob- not limited to, sampling and server duties; photographing incidental mortalities (v) Providing true vessel locations by and serious injuries. latitude and longitude, accurate to the (c) Observer requirements for partici- minute, or by loran coordinates, upon pants in Category I and II fisheries. (1) If request by the observer; requested by NMFS or by a designated (vi) Sampling, retaining, and storing contractor providing observer services of marine mammal specimens, other to NMFS, a vessel owner/operator must protected species specimens, or target take aboard an observer to accompany or non-target catch specimens, upon the vessel on fishing trips. request by NMFS personnel, designated (2) After being notified by NMFS, or contractors, or the observer, if ade- by a designated contractor providing quate facilities are available and if fea- observer services to NMFS, that the sible;

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(vii) Notifying the observer in a rine mammals incidentally taken in timely fashion of when all commercial the course of commercial fishing oper- fishing operations are to begin and end; ations. The alternative observer pro- (viii) Not impairing or in any way gram may include direct observation of interfering with the research or obser- fishing activities from vessels, air- vations being carried out; and planes, or points on shore. (ix) Complying with other guidelines [60 FR 45100, Aug. 30, 1995, as amended at 64 or regulations that NMFS may develop FR 9087, Feb. 24, 1999] to ensure the effective deployment and use of observers. § 229.8 Publication of List of Fisheries. (5) Marine mammals or other speci- (a) The Assistant Administrator will mens identified in paragraph (c)(4)(vi) publish in the FEDERAL REGISTER a proof this section, which are readily acces- posed revised List of Fisheries on or sible to crew members, must be about July 1 of each year for the pur- 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 significant adverse impact on a species or [60 FR 45100, Aug. 30, 1995, as amended at 64 stock listed as a threatened species or FR 9087, Feb. 24, 1999] endangered species under the Endan- gered Species Act of 1973 (16 U.S.C. 1531 § 229.9 Emergency regulations. et seq.); and (a) If the Assistant Administrator (ii) Has complied with § 229.9(a)(3)(i) finds that the incidental mortality or and (ii); or serious injury of marine mammals (iii) Has the consent of the vessel from commercial fisheries is having, or owner. is likely to have, an immediate and (2) If an observer is placed on a Cat- significant adverse impact on a stock egory III vessel, the vessel owner and/ or species, the Assistant Administrator or operator must comply with the re- will: quirements of § 229.7(c). (1) In the case of a stock or species (e) Alternative observer program. The for which a take reduction plan is in ef- Assistant Administrator may establish fect— an alternative observer program to (i) Prescribe emergency regulations provide statistically reliable informa- that, consistent with such plan to the tion on the species and number of ma- maximum extent practicable, reduce

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

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(e) For fishers operating in Category apply or corrective actions have been I or II fisheries, failure to report all in- taken. cidental injuries and mortalities with- [60 FR 45100, Aug. 30, 1995, as amended at 64 in 48 hours of the end of each fishing FR 9088, Feb. 24, 1999] trip, or failure to comply with requirements to carry an observer, will sub- § 229.11 Confidential fisheries data. ject such persons to the penalties of (a) Proprietary information collected sections 105 and 107 and may subject under this part is confidential and in- them to the penalties of section 106 of cludes information, the unauthorized the Act, which will result in suspen- disclosure of which could be prejudicial sion, revocation, or denial of an Au- or harmful, such as information or thorization Certificate until such re- data that are identifiable with an indi- quirements have been fulfilled. vidual fisher. Proprietary information (f) For fishers operating in Category obtained under part 229 will not be dis- III fisheries, failure to report all inci- closed, in accordance with NOAA Ad- dental injuries and mortalities within ministrative Order 216–100, except: 48 hours of the end of each fishing trip (1) To Federal employees whose du- will subject such persons to the pen- ties require access to such information; alties of sections 105 and 107, and may (2) To state employees under an subject them to section 106, of the Act. agreement with NMFS that prevents (g) Suspension, revocation or denial of public disclosure of the identity or business of any person; Authorization Certificates. (1) Until the (3) When required by court order; or Authorization Certificate holder com- (4) In the case of scientific informa- plies with the regulations under this tion involving fisheries, to employees part, the Assistant Administrator shall of Regional Fishery Management Coun- suspend or revoke an Authorization cils who are responsible for fishery Certificate or deny an annual renewal management plan development and of an Authorization Certificate in ac- monitoring. cordance with the provisions in 15 CFR (5) To other individuals or organiza- part 904 if the Authorization Certifi- tions authorized by the Assistant Ad- cate holder fails to report all inci- ministrator to analyze this informa- dental mortality and injury of marine tion, so long as the confidentiality of mammals as required under § 229.6; or individual fishers is not revealed. fails to take aboard an observer if re- (b) Information will be made avail- quested by NMFS or its designated able to the public in aggregate, sum- contractors. mary, or other such form that does not (2) The Assistant Administrator may disclose the identity or business of any suspend or revoke an Authorization person in accordance with NOAA Ad- Certificate or deny an annual renewal ministrative Order 216–100. Aggregate of an Authorization Certificate in ac- or summary form means data struc- cordance with the provisions in 15 CFR tured so that the identity of the subpart 904 if the Authorization Certifi- mitter cannot be determined either cate holder fails to comply with any from the present release of the data or applicable take reduction plan, take in combination with other releases. reduction regulations, or emergency [60 FR 45100, Aug. 30, 1995, as amended at 64 regulations developed under this sub- FR 9088, Feb. 24, 1999] part or subparts B and C of this part or if the Authorization Certificate holder § 229.12 Consultation with the Sec- retary of the Interior. fails to comply with other requirements of these regulations; The Assistant Administrator will (3) A suspended Authorization Cer- consult with the Secretary of the Inte- 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.

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Subpart B—Takes of Endangered lish in the FEDERAL REGISTER a list of and Threatened Marine Mammals the fisheries for which the determinations listed in paragraph (a) of this sec- § 229.20 Issuance of permits. tion have been made. This publication (a) Determinations. During a period of will set forth a summary of the infor- up to 3 consecutive years, NMFS will mation used to make the determina- allow the incidental, but not the intentions. tional, taking by persons using vessels (c) Issuance of authorization. The As- of the United States or foreign vessels sistant Administrator will issue appro- that have valid fishing permits issued priate permits for vessels in fisheries by the Assistant Administrator in ac- that are required to register under cordance with section 204(b) of the § 229.4 and for which determinations Magnuson Fishery Conservation and under the procedures of paragraph (b) Management Act (16 U.S.C. 1824(b)), of this section can be made. while engaging in commercial fishing (d) Category III fisheries. Vessel own- operations, of marine mammals from a ers engaged only in Category III fish- species or stock designated as depleted eries for which determinations are because of its listing as an endangered made under the procedures of para- species or threatened species under the graph (b) of this section will not be Endangered Species Act of 1973 if the subject to the penalties of this Act for Assistant Administrator determines the incidental taking of marine mam- that: mals to which this subpart applies, as (1) The incidental mortality and seri- long as the vessel owner or operator of ous injury from commercial fisheries such vessel reports any incidental mor- will have a negligible impact on such tality or injury of such marine mam- species or stock; mals in accordance with the require- (2) A recovery plan has been devel- ments of § 229.6. oped or is being developed for such spe- (e) Emergency authority. During the cies or stock pursuant to the Endan- course of the commercial fishing sea- gered Species Act of 1973; and son, if the Assistant Administrator de- (3) Where required under regulations termines that the level of incidental in subpart A of this part: mortality or serious injury from com- (i) A monitoring program has been mercial fisheries for which such a de- established under § 229.7; termination was made under this sec- (ii) Vessels engaged in such fisheries tion has resulted or is likely to result are registered in accordance with in an impact that is more than neg- § 229.4; and ligible on the endangered or threatened (iii) A take reduction plan has been species or stock, the Assistant Admin- developed or is being developed for istrator will use the emergency author- such species or stock in accordance ity of § 229.9 to protect such species or with regulations at subpart C of this stock, and may modify any permit part. granted under this paragraph as nec- (b) Procedures for making determina- essary. tions. In making any of the determina- (f) Suspension, revocation, modification tions listed in paragraph (a) of this sec- and amendment. The Assistant Admin- tion, the Assistant Administrator will istrator may, pursuant to the provi- publish an announcement in the FED- sions of 15 CFR part 904, suspend or re- ERAL REGISTER of fisheries having voke a permit granted under this sec- takes of marine mammals listed under tion if the Assistant Administrator de- the Endangered Species Act, including termines that the conditions or limita- a summary of available information re- tions set forth in such permit are not garding the fisheries interactions with being complied with. The Assistant Ad- listed species. Any interested party ministrator may amend or modify, 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

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the information or conditions used to (2) While at sea, operators of drift determine such a list. gillnet vessels with gillnets onboard (g) Southern sea otters. This subpart must carry enough pingers on the ves- does not apply to the taking of South- sel to meet the requirements set forth ern (California) sea otters. under paragraphs (c)(3) through(6) of this section. [60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999] (3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of the floatline and spaced no more than 300 Subpart C—Take Reduction Plan ft (91.44 m) apart. Regulations and Emergency (4) Leadline. Pingers shall be attached Regulations within 36 ft (10.97 m) of the leadline and spaced no more than 300 ft (91.44 m) § 229.30 Basis. apart. Section 118(f)(9) of the Act authorizes (5) Staggered Configuration. Pingers the Director, NMFS, to impose regula- attached within 30 ft (9.14 m) of the tions governing commercial fishing op- floatline and within 36 ft (10.97 m) of erations, when necessary, to imple- the leadline shall be staggered such ment a take reduction plan in order to that the horizontal distance between protect or restore a marine mammal them is no more than 150 ft (45.5 m). stock or species covered by such a plan. (6) Any materials used to weight pingers must not change its specifica- [64 FR 9088, Feb. 24, 1999] tions set forth under paragraph (c)(1) of § 229.31 Pacific Offshore Cetacean this section. Take Reduction Plan. (7) The pingers must be operational 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 fishing season is defined as beginning (d) Skipper education workshops. After May 1 and ending on January 31 of the notification from NMFS, vessel opera- following year. tors must attend a skipper education workshop before commencing fishing (b) Extenders. An extender is a line each fishing season. For the 1997/1998 that attaches a buoy (float) to a drift fishing season, all vessel operators gillnet’s floatline. The floatline is at- must have attended one skipper edu- tached to the top of the drift gillnet. cation workshop by October 30, 1997. All extenders (buoy lines) must be at NMFS may waive the requirement to least 6 fathoms (36 ft; 10.9 m) in length attend these workshops by notice to all during all sets. Accordingly, all vessel operators. floatlines must be fished at a minimum of 36 feet (10.9 m) below the surface of [62 FR 51813, Oct. 3, 1997, as amended at 63 FR the water. 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999] (c) Pingers. (1) For the purposes of this paragraph (c), a pinger is an acous- § 229.32 Atlantic large whale take re- tic deterrent device which, when im- duction plan regulations. mersed in water, broadcasts a 10 kHz (a)(1) Regulated waters. The regula- (±2 kHz) sound at 132 dB (±4 dB) re 1 tions in this section apply to all U.S. micropascal at 1 m, lasting 300 milli- waters in the Atlantic except for the seconds (+15 milliseconds), and repeat- areas exempted in paragraph (a)(2) of ing every 4 seconds (+ .2 seconds); and this section. remains operational to a water depth (2) Exempted waters. The regulations of at least 100 fathoms (600 ft or 182.88 in this section do not apply to waters m). landward of the first bridge over any

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embayment, harbor, or inlet and to wa- gear and gillnet gear set in specified ters landward of the following lines: areas. (2) Specified areas. The following Rhode Island areas are specified for gear marking 41°27.99′ N 71°11.75′ W TO 41°28.49′ N 71°14.63′ W purposes: CCB Restricted Area, (Sakonnet River) Stellwagen Bank/Jeffreys Ledge Re- 41°26.96′ N 71°21.34′ W TO 41°26.96′ 71°25.92″ W stricted Area, Northern Nearshore Lob- (Narragansett Bay) ster Waters Area, GSC Restricted Lob- ° ′ ° ′ ° ′ ° ′ 41 22.41 N 71 30.80 W TO 41 22.41 N 71 30.85 W ster Area, GSC Restricted Gillnet Area, (Pt. Judith Pond Inlet) 41°21.31′ 71°38.30′ W TO 41°21.30′ N 71°38.33′ W GSC Sliver Restricted Area, Southern (Ninigret Pond Inlet) Nearshore Lobster Waters Area, Off- 41°19.90′ N 71°43.08′ W TO 41°19.90′ N 71°43.10′ W shore Lobster Waters Area, Other (Quonochontaug Pond Inlet) Northeast Gillnet Waters Area, and 41°19.66′ N 71°45.75′ W TO 41°19.66′ N 71°45.78′ W Southeast U.S. Observer Area. (Weekapaug Pond Inlet) (3) Requirements for Southeast U.S. Ob- New York server Area. Any person who owns or fishes with specified fishing gear in the West of the line from the Northern fork of the eastern end of Long Island, NY (Orient Southeast U.S. Observer Area must Pt.) to Plum Island to Fisher’s Island to mark that gear in accordance with Watch Hill, RI. (Long Island Sound) (b)(3)(i) and (b)(3)(ii) of this section, un- 41°11.40′ N 72°09.70′ W TO 41°04.50′ N less otherwise required by the Assist- 71°51.60;min; W (Gardiners Bay) ant Administrator under paragraph (g) 40°50.30′ 72°28.50′ W TO 40°50.36′ N 72°28.67′ W of this section. (Shinnecock Bay Inlet) (i) Color code. Specified gear in the ° ′ ° ′ ° ′ ° ′ 40 45.70 N 72 45.15 W TO 40 45.72 N 72 45.30 W Southeast U.S. Observer Area must be (Moriches Bay Inlet) 40°37.32′ N 73°18.40′ W TO 40°38.00′ N 73°18.56′ W marked with the appropriate color code (Fire Island Inlet) to designate gear types and areas as 40°34.40′ N 73°34.55′ W TO 40°35.08′ N 73°35.22′ W follows: (Jones Inlet) (A) Gear type code—Gillnet gear. New Jersey Gillnet gear must be marked with a green marking. ° ′ ° ′ ° ′ ° ′ 39 45.90 N 74 05.90 W TO 39 45.15 N 74 06.20 W (B) Area code. Gear set in the South- (Barnegat Inlet) 39°30.70′ N 74°16.70′ W TO 39°26.30′ N 74°19.75′ W east U.S. Observer Area must be (Beach Haven to Brigantine Inlet) marked with a blue marking. 38°56.20′ N 74°51.70′ W TO 38°56.20′ N 74°51.90′ W (ii) Markings. All specified gear in (Cape May Inlet) specified areas must be marked with 39°16.70′ N 75°14.60′ W TO 39°11.25′ N 75°23.90′ W two color codes, one designating the (Delaware Bay) gear type, the other indicating the area Maryland/Virginia where the gear is set. Each color of the two-color code must be permanently 38°19.48′ N 75°05.10′ W TO 38°19.35′ N 75°05.25′ W (Ocean City Inlet) marked on or along the line or lines 37°52.50′ N 75°24.30′ W TO 37°11.90′ N 75°48.30′ W specified under (f)(2) of this section. (Chincoteague to Ship Shoal Inlet) Each color mark of the color codes 37°11.10′ N 75°49.30′ W TO 37°10.65′ N 75°49.60′ W must be clearly visible when the gear is (Little Inlet) hauled or removed from the water. ° ′ ° ′ ° ′ ° ′ 37 07.00 N 75 53.75 W TO 37 05.30 N 75 56.50 W Each mark must be at least 4 inches (Smith Island Inlet) (10.2 cm) long. The two color marks North Carolina to Florida must be placed within 6 inches (15.2 All marine and tidal waters landward of cm) of each other. If the color of the the 72 COLREGS demarcation line (Inter- rope is the same as or similar to a national Regulations for Preventing Colli- color code, a white mark may be sub- sions at Sea, 1972), as depicted or noted on stituted for that color code. In mark- 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

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

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in accordance with paragraph (g) of Assistant Administrator revises that this section. period in accordance with paragraph (A) Winter restricted period. The win- (g) of this section. ter restricted period for the CCB Re- (B) Gear requirements—(1) State-water stricted Area is from January 1 portion. No person may fish with lob- through May 15 of each year unless the ster trap gear in the state-water por- Assistant Administrator changes that tion of the CCB Restricted Area during area in accordance with paragraph (g) the other restricted period unless that of this section. person’s gear complies with the re- (B) Weak links. All buoy lines shall be quirements for the Northern Inshore attached to the main buoy with a weak State Lobster Waters Area listed in link meeting the following specifica- (c)(6) of this section. The Assistant Ad- tions: ministrator may revise these require- (1) The breaking strength of the weak ments in accordance with paragraph (g) link must not exceed 500 lb (226.7 kg). of this section. (2) The weak link must be chosen (2) Federal-water portion. No person from the following list of combinations may fish with lobster trap gear in the approved by the NMFS gear research federal-water portion of the CCB Re- program: swivels, plastic weak links, stricted Area during the other re- rope of appropriate diameter, hog stricted period unless that person’s rings, rope stapled to a buoy stick, or gear complies with the requirements other materials or devices approved in for the Northern Nearshore Lobster writing by the Assistant Adminis- Waters Area in (c)(7) of this section. trator. The Assistant Administrator may re- (C) Single traps and multiple-trap vise these requirements in accordance trawls. Single traps and three-trap with paragraph (g) of this section. trawls are prohibited. All traps must (3) Great South Channel Restricted Lob- be set in either a two-trap string or in ster Area—(i) Area. The GSC Restricted a trawl of four or more traps. A two- Lobster Area consists of the GSC right trap string must have no more than whale critical habitat area specified one buoy line. under 50 CFR 226.203(a) unless the As- (D) Sinking buoy lines. All buoy lines sistant Administrator changes that must be comprised of sinking line ex- area in accordance with paragraph (g) cept the bottom portion of the line, of this section. which may be a section of floating line (ii) Closure during the spring restricted not to exceed one-third the overall period—(A) Spring restricted period. The length of the buoy line. spring restricted period for the GSC (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)

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of this section, and the area-specific re- Point Latitude Longitude quirements listed here for the other re- (°N) (°W) stricted period. The Assistant Adminis- N ...... 40°45.5′ 71°34′ trator may revise these requirements M ...... 40°27.5′ 72°14′ in accordance with paragraph (g) of U ...... 40°12.5′ 72°48.5′ V ...... 39°50′ 73°01′ this section. X ...... 38°39.5′ 73°40′ (A) Other restricted period. The other Y ...... 38°12′ 73°55′ restricted period for the GSC Re- Z ...... 37°12′ 74°44′ ZA ...... 35°34′ 74°51′ stricted Lobster Area is July 1 through ZB ...... 35°14.5′ 75°31′1 March 31, unless the Assistant Admin- 1 From Point ZB east to the EEZ boundary, thence along istrator revises the timing in accord- the seaward EEZ boundary to Point A. ance with paragraph (g) of this section. (B) Weak links. All buoy lines must be (ii) Area-specific gear requirements. No attached to the main buoy with a weak person may fish with lobster trap gear link meeting the specifications listed in the Offshore Lobster Waters Area in subparagraph (c)(5)(ii)(A) below for unless that person’s gear complies with the Offshore Lobster Waters Area. the gear marking requirements in (4) Stellwagen Bank/Jeffreys Ledge Re- paragraph (b) of this section, the uni- stricted Area—(i) Area. The Stellwagen versal lobster trap gear requirements Bank/Jeffreys Ledge Restricted Area in (c)(1) of this section, and the gear re- includes all federal waters of the Gulf quirements listed here. The Assistant of Maine, except those designated as Administrator may revise these re- right whale critical habitat under 50 quirements in accordance with para- CFR 226.203(b), that lie south of 43°15’ graph (g) of this section. (A) Weak links on all buoy lines. All N. lat. and west of 70° W long. The As- buoy lines must be attached to the sistant Administrator may change that main buoy with a weak link meeting area in accordance with paragraph (g) the following specifications: of this section. (1) The weak link must be chosen (ii) Area-specific gear requirements. No from the following list of combinations person may fish with lobster trap gear approved by the NMFS gear research in the Stellwagen Bank/Jeffreys Ledge program: swivels, plastic weak links, Restricted Area unless that person’s rope of appropriate diameter, hog gear complies with the gear marking rings, rope stapled to a buoy stick, or requirements in paragraph (b) of this other materials or devices approved in section, the universal lobster trap gear writing by the Assistant Adminis- requirements in (c)(1) of this section, trator. and the requirements listed for the (2) The breaking strength of these Northern Nearshore Lobster Waters weak links may not exceed 2,000 lb Area in (c)(7) of this section. The As- (906.9 kg). sistant Administrator may revise these (3) Weak links must be designed such requirements in accordance with para- that the bitter end of the buoy line is graph (g) of this section. clean and free of any knots when the (5) Offshore Lobster Waters Area—(i) link breaks. Splices are not considered Area. The Offshore Lobster Waters to be knots for the purposes of this pro- Area includes all waters bounded by vision. straight lines connecting the following (B) [Reserved] points in the order stated (including (6) Northern Inshore State Lobster Wa- the area known as the Area 2/3 Overlap ters Area—(i) Area. The Northern in the American Lobster Fishery regu- Inshore State Lobster Waters Area in- lations at 50 CFR 697.18 but not includ- cludes the state waters of Rhode Is- ing the GSC Restricted Lobster Area): land, Massachusetts, New Hampshire, Latitude Longitude and Maine but does not include waters Point (°N) (°W) exempted under (a)(2) of this section. (ii) Area-specific gear requirements. No A ...... 43°58′ 67°22′ B ...... 43°41′ 68°00′ person may fish with lobster trap gear C ...... 43°12′ 69°00′ in the Northern Inshore State Lobster D ...... 42°49′ 69°40′ Waters Area unless that person’s gear E ...... 42°15.5′ 69°40′ F ...... 42°10′ 69°56′ complies with the universal lobster K ...... 41°10′ 69°6.5′ trap gear requirements in (c)(1) of this

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

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(i) Through December 31, 2002, all (ii) No wet storage of gear. Anchored buoy lines must be 7/16 inches (1.11 cm) gillnet gear must be hauled out of the or less in diameter. water at least once every 30 days. (ii) All buoys must be attached to the (2) Cape Cod Bay Restricted Area—(i) buoy line with a weak link meeting the Area. The CCB Restricted Area consists following specifications: of the CCB right whale critical habitat (A) The weak link must be chosen area specified under 50 CFR 226.203(b), from the following list of combinations unless the AA changes the boundaries approved by the NMFS gear research in accordance with paragraph (g) of program: swivels, plastic weak links, this section. rope of appropriate diameter, hog (ii) Closure during the winter restricted rings, rope stapled to a buoy stick, or period—(A) Winter restricted period. The other materials or devices approved in winter restricted period for this area is writing by the Assistant Adminis- from January 1 through May 15 of each trator. year, unless the AA revises the timing (B) The breaking strength of these in accordance with paragraph (g) of weak links must not exceed 600 lb (272.4 this section. kg). (B) Closure. During the winter restricted period, no person may fish (C) Weak links must be designed such with anchored gillnet gear in the CCB that the bitter end of the buoy line is Restricted Area unless the AA specifies clean and free of any knots when the gear restrictions or alternative fishing link breaks. Splices are not considered practices in accordance with paragraph to be knots for the purposes of this pro- (g) of this section and the gear or prac- vision. tices comply with those specifications. (iii) All buoy lines must be comprised The AA may waive this closure for the entirely of sinking and/or neutrally remaining portion of the winter re- buoyant line. stricted period in any year through a (iv) All ground lines must be com- notification in the Federal Register if prised entirely of sinking and/or neu- NMFS determines that right whales trally buoyant line. have left the critical habitat and are (d) Restrictions applicable to anchored unlikely to return for the remainder of gillnet gear—(1) Universal anchored the season. gillnet gear requirements. In addition to (iii) Area-specific gear requirements for the area-specific measures listed in the other restricted period—(A) Other re- (d)(2) through (d)(7) of this section, all stricted period. The other restricted pe- anchored gillnet gear in regulated wa- riod for the CCB Restricted Area is ters must comply with the universal from May 16 through December 31 of gear requirements listed here 2. The AA each year unless the AA revises that may revise these requirements in ac- period in accordance with paragraph cordance with paragraph (g) of this sec- (g) of this section. tion. (B) No person may fish with anchored (i) No line floating at the surface. No gillnet gear in the CCB Restricted Area person may fish with anchored gillnet during the other restricted period un- gear that has any portion of the buoy less that person’s gear complies with line that is directly connected to the the gear marking requirements speci- gear on the ocean bottom floating at fied in paragraph (b) of this section, the surface at any time. If more than the universal anchored gillnet gear re- one buoy is attached to a single buoy quirements specified in (d)(1) of this line or if a high flyer and a buoy are section, and the area-specific require- used together on a single buoy line, ments listed in (d)(6)(ii) of this section floating line may be used between for the Other Northeast Gillnet Waters these objects. Area. The AA may revise these requirements in accordance with paragraph (g) of this section. 2 Fishers are also encouraged to maintain their buoy lines to be as knot-free as pos- (3) Great South Channel Restricted sible. Splices are not considered to be an en- Gillnet Area—(i) Area. The GSC Re- tanglement threat and are thus preferable to stricted Gillnet Area consists of the knots. area bounded by lines connecting the

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following four points: 41°02.2′ N/69°02′ W, gear in the GSC Sliver Restricted Area 41°43.5′ N/69°36.3′ W, 42°10′ N/68°31′ W, unless that gear complies with the gear and 41°38′ N/68°13′ W. This area includes marking requirements specified in most of the GSC right whale critical paragraph (b) of this section, the uni- habitat area specified under 50 CFR versal anchored gillnet gear require- 226.203(a), with the exception of the ments specified in (d)(1) of this section, sliver along the western boundary de- and the area-specific requirements list- scribed in (d)(4)(i) here. The AA may ed in subparagraph (d)(6)(ii) of this sec- revise these boundaries in accordance tion for the Other Northeast Gillnet with paragraph (g) of this section. Waters Area. The AA may revise these (ii) Closure during the spring restricted requirements in accordance with para- period—(A) Spring restricted period. The graph (g) of this section. spring restricted period for the GSC (5) Stellwagen Bank/Jeffreys Ledge Re- Restricted Gillnet Area is from April 1 stricted Area—(i) Area. The Stellwagen through June 30 of each year unless the Bank/Jeffreys Ledge Restricted Area AA revises that period in accordance includes all Federal waters of the Gulf with paragraph (g) of this section. of Maine, except those designated as (B) Closure. During the spring re- right whale critical habitat under 50 stricted period, no person may set or CFR 226.203(b), that lie south of 43°15′ fish with anchored gillnet gear in the N. lat. and west of 70° W long. The AA GSC Restricted Gillnet Area unless the may change these boundaries in ac- AA specifies gear restrictions or alter- cordance with paragraph (g) of this sec- native fishing practices in accordance tion. with paragraph (g) of this section and (ii) Area-specific gear requirements. No the gear or practices comply with person may fish with anchored gillnet those specifications. gear in the Stellwagen Bank/Jeffreys (iii) Area-specific gear requirements for Ledge Restricted Area unless that gear the other restricted period—(A) Other re- complies with the gear marking restricted period. The other restricted pe- quirements specified in paragraph (b) riod for the GSC Restricted Gillnet of this section, the universal anchored Area is from July 1 though March 31 of gillnet gear requirements specified in each year unless the AA revises that 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- (4) Great South Channel Sliver Re- stricted Area, Mid-Atlantic Coastal stricted Area—(i) Area. The GSC Sliver Waters Area, and exempted waters list- Restricted Area consists of the area ed in (a)(2) of this section. bounded by lines connecting the fol- (ii) Area-specific gear requirements. No lowing points: 41°02.2′ N/69°02′ W, 41°43.5′ person may fish with anchored gillnet N/69°36.3′ W, 41°40′ N/69°45′ W, and 41°00′ gear in the Other Northeast Gillnet N/69°05′ W. The AA may revise these Waters Area unless that person’s gear boundaries in accordance with para- complies with the gear marking re- graph (g) of this section. quirements specified in paragraph (b) (ii) Area-specific gear requirements. No of this section, the universal anchored person may fish with anchored gillnet gillnet gear requirements specified in

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

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(i) All buoy lines are attached to the server area unless that gear is marked buoy line with a weak link having a according to the gear marking code maximum breaking strength of up to specified under paragraph (b) of this 1,100 lb (498.8 kg). Weak links may in- section. All buoy lines must be marked clude swivels, plastic weak links, rope within 2 ft (0.6 m) of the top of the of appropriate diameter, hog rings, buoy line and midway along the length rope stapled to a buoy stick, or other of the buoy line. From November 15, materials or devices approved in writ- 1999, each net panel must be marked ing by the Assistant Administrator. along both the float line and the lead (ii) Weak links with a breaking line at least once every 100 yards (92.4 strength of up to 1,100 lb (498.8 kg) m). must be inserted in the center of the (3) Observer requirement. No person floatline (headrope) of each 50 fathom may fish with shark gillnet gear in the net panel or every 25 fathoms for southeast U.S. observer area from No- longer panels. vember 15 through March 31 of the fol- (iii) All buoy lines must be comprised lowing year unless the operator of the entirely of sinking and/or neutrally vessel calls the SE Regional Office in buoyant line. St. Petersburg, FL not less than 48 (e) Restrictions applicable to mid-Atlan- hours prior to departing on any fishing tic driftnet gear—(1) Restrictions. From trip in order to arrange for observer December 1 through March 31 of the coverage. If the Regional Office re- following year, no person may fish with quests that an observer be taken on driftnet gear at night in the mid-Atlan- board a vessel during a fishing trip at tic coastal waters area unless that gear any time from November 15 through is tended. During that time, all March 31 of the following year, no per- driftnet gear set by that vessel in the son may fish with shark gillnet gear mid-Atlantic coastal waters area must aboard that vessel in the southeast be removed from the water and stowed U.S. observer area unless an observer is on board the vessel before a vessel re- on board that vessel during the trip. turns to port. The Assistant Adminis- (4) Restricted period, closure and re- trator may revise these requirements strictions, and exemption. (i) Restricted in accordance with paragraph (g) of period. The restricted period for the this section. southeast U.S. restricted area is from (f) Restrictions applicable to the south- November 15 through March 31 of the east U.S. restricted area and the southeast following year, unless the Assistant U.S. observer area—(1) Management Administrator revises this restricted areas—(i) Southeast U.S. restricted area. period in accordance with paragraph The southeast U.S. restricted area con- (g) of this section. sists of the area from 32°00′ N lat. (near (ii) Closure for shark gillnet gear. Ex- Savannah, GA) south to 27°51′ N lat. cept as provided under paragraph (near Sebastian Inlet, FL), extending (f)(4)(iv) of this section, no person may from the shore eastward to 80°00′ W fish with shark gillnet gear in the long., unless the Assistant Adminis- southeast U.S. restricted area during trator changes that area in accordance the restricted period. with paragraph (g) of this section. (iii) Restrictions for straight sets. Ex- (ii) Southeast U.S. observer area. The cept as provided for shark gillnet gear southeast U.S. observer area consists under paragraph (f)(4)(iv) of this sec- of the southeast U.S. restricted area tion, no person may fish with a and an additional area along the coast straight set of gillnet gear at night in south to 26°46.5′ N lat. (near West Palm the southeast U.S. restricted area dur- Beach, FL) and extending from the ing the restricted period. A straight set shore eastward out to 80°00′ W long., is defined as a set in which the gillnet unless the Assistant Administrator is placed in a line in the water column, changes that area in accordance with as opposed to a circular set in which paragraph (g) of this section. the gillnet is placed to encircle an area (2) Gear marking requirements. From in the water column. November 15 through March 31 of the (iv) Special provision for strikenets. following year, no person may fish with Fishing for sharks with strikenet gear gillnet gear in the southeast U.S. ob- is exempt from the restrictions under

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paragraphs (f)(4)(ii) and (f)(4)(iii) of this (v) NMFS determines that right section if: whales are remaining longer than ex- (A) No nets are set at night or when pected in a closed area or have left ear- visibility is less than 500 yards (460m); lier than expected; (B) Each set is made under the obser- (vi) NMFS determines that the vation of a spotter plane; boundaries of a closed area are not ap- (C) No net is set within 3 nautical propriate; miles of a right, humpback or fin (vii) Gear testing operations are con- whale; and sidered appropriate; or (D) If a right, humpback or fin whale (viii) Similar situations occur. moves within 3 nautical miles of the (3) For the purpose of reducing the set gear, the gear is removed imme- risk of fishery interactions with right diately from the water. whales, NMFS may establish a temporary Dynamic Area Management (g) Other provisions. In addition to (DAM) zone in the following manner: any other emergency authority under (i) Trigger. Upon receipt of a single the Marine Mammal Protection Act, reliable report from a qualified indi- the Endangered Species Act, the Mag- vidual of three or more right whales nuson-Stevens Fishery Conservation within an area NMFS will plot each in- and Management Act, or other appro- dividual sighting (event) and draw a priate authority, the Assistant admin- circle with a 2.8 nm (5.2 km) radius istrator may take action under this around it, which will be adjusted for section in the following situations: the number of right whales sighted (1) Entanglements in critical habitat. If such that a density of at least 0.04 a serious injury or mortality of a right right whales per nm2 (1.85 km2) is whale occurs in the Cape Cod Bay crit- maintained within the circle. If any ical habitat from January 1 through circle or group of contiguous circles in- May 15, in the Great South Channel cludes 3 or more right whales, NMFS Restricted Area from April 1 through would consider this core area and its June 30, or in the Southeast U.S. Re- surrounding waters a candidate DAM stricted Area from November 15 zone. through March 31 as a result of an en- (ii) DAM zone. Areas for consider- tanglement by lobster or gillnet gear ation for DAM zones are limited to allowed to be used in those areas and areas north of 40o N latitude. Having times, the Assistant Administrator identified any circle or group of contig- shall close that area to that gear type uous circles including 3 or more right for the rest of that time period and for whales as candidates for protection, as that same time period in each subse- identified in paragraph (g)(3)(i) of this quent year, unless the Assistant Ad- section, NMFS will determine the ex- ministrator revises the restricted petent of the DAM zone as follows: riod in accordance with paragraph (A) A larger circular zone will be (g)(2) of this section or unless other drawn to extend 15 nm (27.8 km) from measures are implemented under para- the perimeter of a circle around each graph (g)(2). core area. (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:

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(A) Require owners of gillnet and lob- Bay Restricted Area (May 16 through ster gear set within the DAM zone to December 31) and Stellwagen Bank/Jef- remove all such gear within 2 days freys Ledge Restricted Area are the after notice is published in the FED- same as requirements for Northern ERAL REGISTER, Nearshore Lobster Waters and North- (B) Allow fishing within a DAM zone ern Inshore State Lobster Waters. Re- with anchored gillnet and lobster trap quirements for lobster trap gear in the gear, provided such gear satisfies the Great South Channel Restricted Lob- requirements specified in paragraphs ster Area (July 1 through March 31) are (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this the same as requirements for Offshore section, except that a second buoy line Lobster Waters. and a section of floating line in the (C) Issue an alert to fishermen using bottom portion of each line not to ex- appropriate media to inform them of ceed one-third the overall length of the the fact that right whale density in a buoy line are allowed within a DAM certain area has triggered a DAM zone. zone. These requirements are in addi- In the alert, NMFS will provide de- tion to requirements found in § 229.32 tailed information on the location of (b) through (d) but supersede them the DAM zone and the number of ani- when the requirements in paragraphs mals sighted within it. Furthermore, (g)(4)(i)(B)(1) and (g)(4)(i)(B)(2) of this NMFS will request that fishermen vol- section, with the exception that a sec- untarily remove lobster trap and an- ond buoy line and a section of floating chored gillnet gear from the DAM zone line in the bottom portion of each line and ask that no additional gear be set not to exceed one-third the overall inside it for 15 days or until NMFS re- length of the buoy line are allowed scinds the alert. within a DAM zone, are more restric- (D) The determination of whether re- tive than those in § 229.32 (b) through strictions will be imposed within a (d). Requirements for anchored gillnet DAM zone would be based on NMFS’ re- gear in Other Northeast Gillnet Waters view of a variety of factors, including are as specified in paragraphs but not limited to: the location of the (g)(4)(i)(B)(1) of this section, except DAM zone with respect to other fishery that a second buoy line and a section of closure areas, weather conditions as floating line in the bottom portion of they relate to the safety of human life each line not to exceed one-third the at sea, the type and amount of gear al- overall length of the buoy line are already present in the area, and a review lowed within a DAM zone. Require- of recent right whale entanglement and ments for lobster trap gear in Offshore mortality data. Lobster Waters, Northern Nearshore (iv) Restricted period. Any DAM zone Lobster Waters and Northern Inshore will remain in effect for a minimum pe- State Lobster Waters are as specified riod of 15 days. At the conclusion of the in paragraph (g)(4)(i)(B)(2) of this sec- 15-day period, the DAM zone will expire tion, except that a second buoy line automatically unless it is extended by and a section of floating line in the subsequent publication in the FEDERAL bottom portion of each line not to ex- REGISTER. ceed one-third the overall length of the (v) Extensions of the restricted period. buoy line are allowed within a DAM Any 15-day period may be extended if zone. Requirements for anchored NMFS determines that the trigger es- gillnet gear in Cape Cod Bay Restricted tablished in paragraph (g)(3)(i) of this Area (May 16 through December 31), section continues to be met. Stellwagen Bank/Jeffreys Ledge Re- (vi) Reopening of restricted zone. stricted Area, Great South Channel Re- NMFS may remove any gear restric- stricted Gillnet Area (July 1 through tion or prohibition and reopen the March 31), Great South Channel Sliver DAM zone prior to its automatic expi- Restricted Area (July 1 through March ration if there are no confirmed 31), and Mid-Atlantic Coastal Waters sightings of right whales for at least 1 are the same as requirements for Other week, or other credible evidence indi- Northeast Gillnet Waters. Require- cates that right whales have left the ments for lobster trap gear in Southern DAM zone. NMFS will notify the public Nearshore Lobster Waters, Cape Cod of the reopening of a DAM zone prior to

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the expiration of the 15-day period by (ii) Buoy weak links—All buoy lines issuing a document in the FEDERAL are attached to the buoy with a weak REGISTER and through other appro- link having a maximum breaking priate media. strength of up to 1,100 lb (498.9 kg). (4) Seasonal Area Management (SAM) Weak links may include swivels, plas- Program. In addition to existing re- tic weak links, rope of appropriate di- quirements for vessels deploying an- ameter, hog rings, rope stapled to a chored gillnet or lobster trap gear in buoy stick, or other materials or de- the Other Northeast Gillnet Waters, vices approved in writing by the Assist- Northern Inshore State Lobster Wa- ant Administrator. ters, Northern Nearshore Lobster Wa- (iii) Net panel weak link—Each net ters, and Offshore Lobster Waters panel must have a total of five weak found at § 229.32 (b) – (d), a vessel may links. The breaking strength of each of fish in the SAM Areas as described in these weak links must not exceed 1,100 paragraphs (g)(4)(i)(A) and (g)(4)(ii)(A) lb (498.9 kg). The weak link require- of this section, which overlay the pre- ments apply to all variations in panel viously mentioned areas, provided the size. Three of the five weak links must vessel complies with the gear require- be located on the floatline. One ments specified in paragraphs floatline weak link must be placed at (g)(4)(i)(B) and (g)(4)(ii)(B) of this sec- the center of the net panel, and two tion during the times specified in those weak links must be placed as close as paragraphs. The gear requirements in possible to each of the bridle ends of (g)(4)(i)(B) and (g)(4)(ii)(B) supercede the net panel. The remaining two of requirements found at § 229.32 (b) - (d) the five weak links must be placed in when the former are more restrictive the center of each of the up and down than the latter. Copies of a chart de- lines at either end of each panel. picting these areas are available from (iv) Buoy line—No more than one the Regional Administrator upon re- buoy line per net string may be used, quest. and it must be deployed at the north- (i) SAM West. (A) Area. SAM West ern or western end of the gillnet string consists of all waters bounded by depending on the direction of the set. straight lines connecting the following (v) Gillnet anchor—All anchored points in the order stated: gillnets, regardless of the number of net panels, must be securely anchored SAM WEST with a holding power of at least a 22 lb Point N. Lat. W. Long. (9.9 kg) Danforth-style anchor at each end of the net string. SAM1 ...... 42°04.8′ ...... 70°10′ SAM2 ...... 42°12′ ...... 70°15′ (2) Lobster Trap gear. (i) Ground lines SAM3 ...... 42°30′ ...... 70°15′ and Buoy lines—All ground lines and SAM4 ...... 42°30′ ...... 69°24′ buoy lines must be made entirely of ° ′ ° ′ SAM5 ...... 41 48.9 ...... 69 24 sinking or neutrally buoyant line. SAM6 ...... 41°45′ ...... 69°33′ SAM7 ...... 41°45′ ...... 69°55.8′ Floating ground lines and buoy lines are prohibited. (B) Gear requirements. Unless other- (ii) Northern Inshore State Lobster wise authorized by the Assistant Ad- Waters and Northern Nearshore Lob- ministrator for Fisheries, NMFS, in ac- ster Waters Areas buoy weak links— cordance with paragraph (g)(2) of this All buoy lines must be attached to the section, from March 1 through April 30, buoy with a weak link having a max- no person may fish with anchored imum breaking strength of up to 600–lb gillnet or lobster trap gear in SAM (272.4–kg). Weak links may include West unless that person’s gear com- swivels, plastic weak links, rope of applies with the following gear character- propriate diameter, hog rings, rope sta- istics: pled to a buoy stick, or other materials (1) Anchored gillnet gear. (i) Ground or devices approved in writing by the lines and Buoy lines—All ground lines Assistant Administrator for Fisheries. and buoy lines must be made entirely (iii) Offshore Lobster Waters Area of sinking or neutrally buoyant line. buoy weak links—All buoy lines must Floating ground lines and buoy lines be attached to the buoy with a weak are prohibited. link having a maximum breaking

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strength of up to 1,500 lb (680.4 kg). possess on board a vessel unless Weak links may include swivels, plas- stowed, or fail to remove sink gillnet tic weak links, rope of appropriate di- gear or gillnet gear capable of catching ameter, hog rings, rope stapled to a multispecies, from Northeast Closure buoy stick, or other materials or de- Area. This prohibition does not apply vices approved in writing by the Assist- to a single pelagic gillnet (as described ant Administrator. and used as set forth in § 648.81(f)(2)(ii) (iv) Buoy line—No more than one of this title). The Northeast Closure buoy line per trawl is allowed. The Area is the area bounded by straight buoy line must be attached to the lines connecting the following points in northern or western end of the trawl the order stated: string depending on the direction of the set. These requirements supersede NORTHEAST CLOSURE AREA the requirements found at § 697.21, Point N. Lat. W. Long. which require one radar reflector at each end of a trawl with more than NE1 (1) 68°55.0′ three traps. NE2 43°29.6′ 68°55.0′ NE3 44°04.4′ 67°48.7′ (ii) SAM East. (A) Area. SAM East NE4 44°06.9′ 67°52.8′ consists of all waters bounded by NE5 44°31.2′ 67°02.7′ straight lines connecting the following NE6 (1) 67°02.7′ points in the order stated: 1 Maine shoreline. (2) Mid-coast Closure Area. From Sep- SAM EAST tember 15 through May 31, it is prohib- Point N. Lat. W. Long. ited to fish with, set, haul back, possess on board a vessel unless stowed, or SAM5 ...... 41°48.9′ ...... 69°24′ SAM4 ...... 42°30′ ...... 69°24′ fail to remove sink gillnet gear or SAM8 ...... 42°30′ ...... 67°26′ gillnet gear capable of catching multi- SAM9 ...... 41°45′ ...... 66°50′ species. This prohibition does not apply SAM10 ...... 41°45′ ...... 68°17′ SAM11 ...... 42°10′ ...... 68°31′ to a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) (B) Gear requirements. Unless other- of this title). The Mid-Coast Closure wise authorized by the Assistant Ad- Area is the area bounded by straight ministrator for Fisheries, NMFS, in ac- lines connecting the following points in cordance with paragraph (g)(2) of this the order stated: section, from May 1 through July 31, no person may fish with anchored gillnet MID-COAST CLOSURE AREA or lobster trap gear in SAM East unless Point N. Lat. W. Long. that person’s gear complies with the ° ′ 1 gear characteristics found at paragraph MC1 42 30 ( ) MC2 42°30′ 70°15′ (g)(4)(i)(B) of this section. MC3 42°40′ 70°15′ NOTE TO § 229.32: Additional regulations MC4 42°40′ 70°00′ that affect fishing with lobster trap gear MC5 43°00′ 70°00′ ° ′ ° ′ have also been issued under authority of the MC6 43 00 69 30 MC7 43°30′ 69°30′ Atlantic Coastal Fisheries Cooperative Man- MC8 43°30′ 69°00′ agement Act in part 697 of this title. MC9 (2) 69°00′ [64 FR 7552, Feb. 16, 1999, as amended at 65 1 Massachusetts shoreline. FR 70317, Nov. 22, 2000; 65 FR 80377, Dec. 21, 2 Maine shoreline. 2000; 67 FR 1141, 1159, Jan. 9, 2002; 67 FR 1313, (3) Massachusetts Bay Closure Area. Jan. 10, 2002; 67 FR 15494, Apr. 2, 2002; 67 FR From December 1 through May 31, it is 59477, Sept. 23, 2002; 67 FR 65727, Oct. 28, 2002; 68 FR 19465, Apr. 21, 2003; 68 FR 51200, Aug. 26, prohibited to fish with, set, haul back, 2003] possess on board a vessel unless stowed, or fail to remove sink gillnet § 229.33 Harbor Porpoise Take Reduc- gear or gillnet gear capable of catching tion Plan Implementing Regula- multispecies from the Massachusetts tions—Gulf of Maine. Bay Closure Area, except with the use (a) Restrictions—(1) Northeast Closure of pingers as provided in paragraph Area. From August 15 through Sep- (d)(2) of this section. This prohibition tember 13 of each fishing year, it is does not apply to a single pelagic prohibited to fish with, set, haul back, gillnet (as described in § 648.81(f)(2)(ii)

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of this title). The Massachusetts Bay OFFSHORE CLOSURE AREA Closure Area is the area bounded by straight lines connecting the following Point N. Lat. W. Long. points in the order stated: OFS1 42°50′ 69°30′ OFS2 43°10′ 69°10′ OFS3 43°10′ 67°40′ MASSACHUSETTS BAY CLOSURE AREA OFS4 42°10′ 67°40′ OFS5 42°10′ 69°30′ Point N. Lat. W. Long. OFS6 42°50′ 69°30′

° ′ 1 MB1 42 30 ( ) (6) Cashes Ledge Closure Area. For the MB2 42°30′ 70°30′ MB3 42°12′ 70°30′ month of February of each fishing MB4 42°12′ 70°00′ year, it is prohibited to fish with, set, MB5 (2) 70°00′ haul back, possess on board a vessel MB6 42°00′ (2) unless stowed, or fail to remove sink MC7 42°00′ (1) gillnet gear or gillnet gear capable of 1 Massachusetts shoreline. catching multispecies from the Cashes 2 Cape Cod shoreline. Ledge Closure Area. This prohibition (4) Cape Cod South Closure Area. From does not apply to a single pelagic December 1 through May 31, it is pro- gillnet (as described in § 648.81(f)(2)(ii) of this title). The Cashes Ledge Closure hibited to fish with, set, haul back, Area is the area bounded by straight possess on board a vessel unless lines connecting the following points in stowed, or fail to remove sink gillnet the order stated: gear or gillnet gear capable of catching multispecies from Cape Cod South Clo- CASHES LEDGE CLOSURE AREA sure Area, except with the use of pingers as provided in paragraph (d)(3) Point N. Lat. W. Long. of this section. This prohibition does CL1 42°30′ 69°00′ not apply to a single pelagic gillnet (as CL2 42°30′ 68°30′ CL3 43°00′ 68°30′ described in § 648.81(f)(2)(ii) of this CL4 43°00′ 69°00′ title). The Cape Cod South Closure CL5 42°30′ 69°00′ Area is the area bounded by straight lines connecting the following points in (b) Pingers—(1) Pinger specifications. the order stated: For the purposes of this subpart, a pinger is an acoustic deterrent device CAPE COD SOUTH CLOSURE AREA which, when immersed in water, broadcasts a 10 kHz (±2 kHz) sound at 132 dB Point N. Lat. W. Long. (±4 dB) re 1 micropascal at 1 m, lasting ± CCS1 (1) 71°45′ 300 milliseconds ( 15 milliseconds), and CCS2 40°40′ 71°45′ repeating every 4 seconds (±.2 seconds). CCS3 40°40′ 70°30′ (2) Pinger attachment. An operating CCS4 (2) 70°30′ and functional pinger must be attached 1 Rhode Island shoreline. at the end of each string of the gillnets 2 Massachusetts shoreline. and at the bridle of every net within a string of nets. (5) Offshore Closure Area. From No- (c) Pinger training and certification. vember 1 through May 31, it is prohib- Beginning on January 1, 1999, the oper- ited to fish with, set, haul back, pos- ator of a vessel may not fish with, set sess on board a vessel unless stowed, or or haul back sink gillnets or gillnet fail to remove sink gillnet gear or gear, or allow such gear to be in closed gillnet gear capable of catching multi- areas where pingers are required as species from Offshore Closure Area, ex- specified under paragraph (b) of this cept for the use of pingers as provided section, unless the operator has satis- in § 229.33(d)(4). This prohibition does factorily completed the pinger certifi- not apply to a single pelagic gillnet (as cation training program and possesses described in § 648.81(f)(2)(ii) of this on board the vessel a valid pinger title). The Offshore Closure Area is the training certificate issued by NMFS. area bounded by straight lines con- Notice will be given announcing the necting the following points in the times and locations of pinger certifi- order stated: cation training programs.

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(d) Use of pingers in closed areas—(1) inadequate to reduce bycatch to the Vessels, subject to the restrictions and PBR level with the current plan. regulations specified in paragraph (2) NMFS determines that the bound- (a)(2) of this section, may fish in the ary or timing of a closed area is inap- Mid-coast Closure Area from Sep- propriate, or that gear modifications tember 15 through May 31 of each fish- (including pingers) are not reducing by- ing year, provided that pingers are catch to below the PBR level. used in accordance with the requirements of paragraphs (b) (1) and (2) of [63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, this section. 1998] (2) Vessels, subject to the restrictions § 229.34 Harbor Porpoise Take Reduc- and regulations specified in paragraph tion Plan—Mid-Atlantic. (a)(3) of this section, may fish in the Massachusetts Bay Closure Area from (a)(1) Regulated waters. The regula- December 1 through the last day of tions in this section apply to all waters February and from April 1 through in the Mid-Atlantic bounded on the ° ′ May 31 of each fishing year, provided east by 72 30 W. longitude and on the that pingers are used in accordance south by the North Carolina/South ° ′ with the requirements of paragraphs Carolina border (33 51 N. latitude), ex- (b) (1) and (2) of this section. cept for the areas exempted in para- (3) Vessels, subject to the restrictions graph (a)(2) of this section. and regulations specified in paragraph (2) Exempted waters. All waters land- (a)(4) of this section, may fish in the ward of the first bridge over any Cape Cod South Closure Area from De- embayment, harbor, or inlet will be ex- cember 1 through the last day of Feb- empted. The regulations in this section ruary and from April 1 through May 31 do not apply to waters landward of the of each fishing year, provided that following lines: pingers are used in accordance with the requirements of paragraphs (b) (1) and New York (2) of this section. 40°45.70′ N 72°45.15′ W TO 40°45.72′ N 72°45.30′ W (4) Vessels, subject to the restrictions (Moriches Bay Inlet) and regulations specified in paragraph 40°37.32′ N 73°18.40′ W TO 40°38.00′ N 73°18.56′ W (a)(5) of this section, may fish in the (Fire Island Inlet) Offshore Closure Area from November 1 40°34.40′ N 73°34.55′ W TO 40°35.08′ N 73°35.22′ W through May 31 of each fishing year, (Jones Inlet) with the exception of the Cashes Ledge New Jersey/Delaware Closure Area. From February 1 through the end of February, the area 39°45.90′ N 74°05.90′ W TO 39°45.15′ N 74°06.20′ W within the Offshore Closure Area de- (Barnegat Inlet) ° ′ ° ′ ° ′ ° ′ fined as ‘‘Cashes Ledge’’ is closed to all 39 30.70 N 74 16.70 W TO 39 26.30 N 74 19.75 W (Beach Haven to Brigantine Inlet) fishing with sink gillnets. Vessels sub- 38°56.20′ N 74°51.70′ W TO 38°56.20′ N 74°51.90′ W ject to the restrictions and regulation (Cape May Inlet) specified in paragraph (a)(5) of this sec- All marine and tidal waters landward of tion may fish in the Offshore Closure the 72 COLREGS demarcation line (Inter- Area outside the Cashes Ledge Area national Regulations for Preventing Colli- from February 1 through the end of sions at Sea, 1972), as depicted or noted on February provided that pingers are nautical charts published by NOAA (Coast used in accordance with the require- Charts 1:80,000 scale), and as described in 33 ments of paragraphs (b) (1) and (2) of CFR part 80. (Delaware Bay) this section. Maryland/Virginia (e) Other special measures. The Assist- ° ′ ° ′ ° ′ ° ′ ant Administrator may revise the re- 38 19.48 N 75 05.10 W TO 38 19.35 N 75 05.25 W (Ocean City Inlet) quirements of this section through no- 37°52.′ N 75°24.30′ W TO 37°11.90′ N 75°48.30′ W tification published in the FEDERAL (Chincoteague to Ship Shoal Inlet) REGISTER if: 37°11.10′ N 75°49.30′ W TO 37°10.65′ N 75°49.60′ W (1) After plan implementation, NMFS (Little Inlet) determines that pinger operating effec- 37°07.00′ N 75°53.75′ W TO 37°05.30′ N 75°56.′ W tiveness in the commercial fishery is (Smith Island Inlet)

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North Carolina (iv) Number of nets. The total number All marine and tidal waters landward of of individual nets or net panels for a the 72 COLREGS demarcation line (Inter- vessel, including all nets on board the national Regulations for Preventing Colli- vessel, hauled by the vessel or deployed sions at Sea, 1972), as depicted or noted on by the vessel, does not exceed 80. nautical charts published by NOAA (Coast (v) Tie-down system. The gillnet is Charts 1:80,000 scale), and as described in 33 equipped with tie-downs spaced not CFR part 80. more than 15 ft (4.6 m) apart along the (b) Closures—(1) New Jersey waters. floatline, and each tie-down is not From April 1 through April 20, it is more than 48 inches (18.90 cm) in length prohibited to fish with, set, haul back, from the point where it connects to the possess on board a vessel unless floatline to the point where it connects stowed, or fail to remove any large to the lead line. mesh gillnet gear from the waters off (vi) Tagging requirements. Beginning New Jersey. January 1, 2000, the gillnet is equipped (2) Mudhole. From February 15 with one tag per net, with one tag se- through March 15, it is prohibited to cured to each bridle of every net within fish with, set, haul back, possess on a string of nets. board a vessel unless stowed, or fail to (2) Waters off New Jersey—small mesh remove any large mesh or small mesh gillnet gear requirements and limitations. gillnet gear from the waters off New From January 1 through April 30 of Jersey known as the Mudhole. each year, no person may fish with, (3) Southern Mid-Atlantic waters. From set, haul back, possess on board a ves- February 15 through March 15, it is sel unless stowed, or fail to remove any prohibited to fish with, set, haul back, small mesh gillnet gear in waters off possess on board a vessel unless New Jersey, unless the gear complies stowed, or fail to remove any large with the specified gear characteristics. mesh gillnet gear from the southern During this period, no person who owns Mid-Atlantic waters. or operates the vessel may allow the (c) Gear requirements and limita- vessel to enter or remain in waters off tions—(1) Waters off New Jersey—large New Jersey with small mesh gillnet mesh gear requirements and limitations. gear on board, unless the gear complies From January 1 through April 30 of with the specified gear characteristics each year, no person may fish with, or unless the gear is stowed. In order to set, haul back, possess on board a ves- comply with these specified gear char- sel unless stowed, or fail to remove any acteristics, the gear must have all the large mesh gillnet gear in waters off following characteristics: New Jersey, unless the gear complies (i) Floatline length. The floatline is with the specified gear characteristics. less than 3,000 ft (914.4 m). During this period, no person who owns (ii) Twine size. The twine is at least or operates the vessel may allow the 0.031 inches (0.081 cm) in diameter. vessel to enter or remain in waters off (iii) Size of nets. Individual nets or New Jersey with large mesh gillnet net panels are not more than 300 ft (91.4 gear on board, unless the gear complies m or 50 fathoms) in length. with the specified gear characteristics (iv) Number of nets. The total number or unless the gear is stowed. In order to of individual nets or net panels for a comply with these specified gear char- vessel, including all nets on board the acteristics, the gear must have all the vessel, hauled by the vessel or deployed following characteristics: by the vessel, does not exceed 45. (i) Floatline length. The floatline is no (v) Tie-down system. Tie-downs are longer than 4,800 ft (1,463.0 m), and, if prohibited. the gear is used in the Mudhole, the (vi) Tagging requirements. Beginning floatline is no longer than 3,900 ft January 1, 2000, the gillnet is equipped (1,188.7 m). with one tag per net, with one tag se- (ii) Twine size. The twine is at least cured to each bridle of every net within 0.04 inches (0.090 cm) in diameter. a string of nets. (iii) Size of nets. Individual nets or (3) Southern Mid-Atlantic waters—large net panels are not more than 300 ft mesh gear requirements and limitations. (91.44 m, or 50 fathoms), in length. From February 1 through April 30 of

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each year, no person may fish with, plies with the specified gear character- set, haul back, possess on board a ves- istics. During this period, no person sel unless stowed, or fail to remove any who owns or operates the vessel may large mesh gillnet gear in Southern allow the vessel to enter or remain in Mid-Atlantic waters, unless the gear Southern Mid-Atlantic waters with complies with the specified gear char- small mesh gillnet gear on board, un- acteristics. During this period, no per- less the gear complies with the speci- son who owns or operates the vessel fied gear characteristics or unless the may allow the vessel to enter or re- gear is stowed. In order to comply with main in Southern Mid-Atlantic waters these specified gear characteristics, with large mesh sink gillnet gear on the gear must have all the following board, unless the gear complies with characteristics: the specified gear characteristics or (i) Floatline length. The floatline is no unless the gear is stowed. In order to longer than 2118 ft (645.6 m). comply with these specified gear char- (ii) Twine size. The twine is at least acteristics, the gear must have all the 0.03 inches (0.080 cm) in diameter. following characteristics: (i) Floatline length. The floatline is no (iii) Size of nets. Individual nets or longer than 3,900 ft (1,188.7 m). net panels are not more than 300 ft (91.4 (ii) Twine size. The twine is at least m or 50 fathoms) in length. 0.04 inches (0.090 cm) in diameter. (iv) Number of nets. The total number (iii) Size of nets. Individual nets or of individual nets or net panels for a net panels are not more than 300 ft (91.4 vessel, including all nets on board the m or 50 fathoms) in length. vessel, hauled by the vessel or deployed (iv) Number of nets. The total number by the vessel, does not exceed 45. of individual nets or net panels for a (v) Tie-down system. Tie-downs are vessel, including all nets on board the prohibited. vessel, hauled by the vessel or deployed (vi) Tagging requirements. Beginning by the vessel, does not exceed 80. January 1, 2000, the gillnet is equipped (v) Tie-down system. The gillnet is with one tag per net, with one tag se- equipped with tie-downs spaced not cured to each bridle of every net within more than 15 ft (4.6 m) apart along the a string of nets. floatline, and each tie-down is not (d) Other special measures. The Assist- more than 48 inches (18.90 cm) in length ant Administrator may revise the re- from the point where it connects to the quirements of this section through no- floatline to the point where it connects tification published in the FEDERAL to the lead line. REGISTER if: (vi) Tagging requirements. Beginning (1) After plan implementation, NMFS January 1, 2000, the gillnet is equipped determines that pinger operating effec- with one tag per net, with one tag se- tiveness in the commercial fishery is cured to each bridle of every net within inadequate to reduce bycatch to the a string of nets. PBR level with the current plan. (4) Southern Mid-Atlantic waters—small (2) NMFS determines that the bound- mesh gillnet gear requirements and limita- ary or timing of a closed area is inap- tions. From February 1 through April propriate, or that gear modifications 30 of each year, no person may fish (including pingers) are not reducing by- with, set, haul back, possess on board a catch to below the PBR level. vessel unless stowed, or fail to remove any small mesh gillnet gear in waters [63 FR 66489, Dec. 2, 1998, as amended at 66 off New Jersey, unless the gear com- FR 2338, Jan. 11, 2001]

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

[64 FR 3434, Jan. 22, 1999]

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

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

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

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

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PART 253—FISHERIES ASSISTANCE (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.

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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.

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(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

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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

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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

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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:

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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.

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§ 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

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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 agreement.’’ eries Commission. Any payment so An enforcement agreement does not re- made shall be charged against the ap- quire 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

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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 CCF lier, 60 days after the publication of 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

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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 be (a) General qualifications. To be eligi- incorporated in Schedule A of the In- ble to enter into an Interim CCF terim 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

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passengers carried or in the case of ves- (vii) Fishery of operation (which in sels operating in the foreign or domes- this section means each species or tic commerce the various uses of the group of species—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

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reconstruction. Should this consider- (2) All, or the major portion (ordi- ation materially fail, the Secretary narily, not less than 80 percent), of a shall, at his discretion, disqualify pre- 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

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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 reaction 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 tion whose central purpose clearly in- contract has been reduced to writing volves something other than an im- prior to the date upon which condi- provement that materially increases tional fishery adoption occurred. Nev- the safety of a vessel will not be con- ertheless, 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

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

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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 ‘‘Pe- continuance of the adopted conditional riod (aa)’’; the period between the 331

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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 be- effective date of an interim CCF Agree- tween the party’s tax due date and the ment, be physically deposited in money date on which ends the party’s last ex- or kind in scheduled depositories be- tension (if any) of that tax due date is fore the last date eligible ceilings for designated ‘‘Period (cc)’’. any Period (aa) of any party become in- (b) Constructive deposits and with- eligible for deposit (the last date being drawals (before Interim CCF Agreement Period (bb) or Period (cc), whichever effectiveness date). Constructive depos- applies). its and withdrawals shall be permis- (d) Ratification of withdrawals (as sible only during the Period (aa) during qualified) made without first having ob- which a written application for an in- tained Secretary’s consent. The Secre- terim CCF Agreement is submitted to 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

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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 (ei- imum annual (based on each party’s ther by ratification or otherwise), shall taxable year) deposit required by the not be permitted. If such a non-quali- Secretary in order to maintain an In- fied withdrawal adversely affects the terim CCF Agreement shall be an Interim CCF Agreement’s general sta- amount equal to 2 percent of the total tus 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

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50 percent of taxable income situation given includes all deposit and with- applies). drawal activity for the year and the ac- (2) The Secretary may, at his discre- count reported. Negative reports must tion and for good and sufficient cause be submitted in those cases where shown, consent to minimum annual de- there is no deposit and/or withdrawal posits in any given tax year or com- activity. If the party’s tax year is the bination of tax years in an amount same as the calendar year, and if the lower than prescribed herein: Provided, final deposit and withdrawal report re- The party demonstrates to the Sec- quired under paragraph (a)(2) of this retary’s satisfaction the availability of section is submitted before the due sufficient funds from any combination date for this preliminary report, then of sources to accomplish Schedule B this report is not required. objectives at the time they are sched- (2) A final deposit and withdrawal re- uled for accomplishment. port at the end of the tax year, which (b) Maximum deposits. Other than the shall be submitted not later than 30 maximum annual ceilings established days after expiration of the due date, by the Act, the Secretary shall not es- with extensions (if any), for filing the tablish a maximum annual ceiling: Pro- party’s Federal income tax return. The vided, however, That deposits can no 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

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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:

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(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.

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

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260.103 Operations and operating procedures lowing terms shall have the following shall be in accordance with an effective meanings: sanitation program. Acceptance number. ‘‘Acceptance num- 260.104 Personnel. ber’’ means the number in a sampling LABELING REQUIREMENTS plan that indicates the maximum number of deviants permitted in a sample 260.200–260.201 [Reserved] of a lot that meets a specific require- AUTHORITY: Sec. 6, 70 Stat. 1122, 16 U.S.C. ment. 742e; secs. 203, 205, 60 Stat. 1087, 1090 as Act. ‘‘Act’’ means the applicable provi- amended; 7 U.S.C. 1622, 1624; Reorganization Plan No. 4 of 1970 (84 Stat. 2090). sions 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 spe- the Fish and Wildlife Act of 1956 (16 U.S.C. cifically defined variation from a par- 742e). Reorganization Plan No. 4 of 1970 (84 Stat. 2090) transferred, among other things, ticular requirement. such functions from the U.S. Department of Director. ‘‘Director’’ means the Direc- the Interior to the U.S. Department of Com- tor of the National Marine Fisheries merce. Service.

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

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pile may be deemed to be a separate or other unit of commodity, or a com- lot. posite mixture of a product to be used Official establishment. ‘‘Official estab- for inspection. lishment’’ means any establishment Sampling. ‘‘Sampling’’ means the act which has been approved by National of selecting samples of processed prod- Marine Fisheries Service, and utilizes ucts for the purpose of inspection inspection service on a contract basis. under the regulations in this part. Officially drawn sample. Secretary. ‘‘Secretary’’ means the Sec- ‘‘Officiallydrawn sample’’ means any retary of the Department or any other sample that has been selected from a officer or employee of the Department particular lot by an inspector, licensed authorized to exercise the powers and sampler, or by any other person au- to perform the duties of the Secretary thorized by the Secretary pursuant to in respect to the matters covered by the regulations in this part. the regulations in this part. Person. ‘‘Person’’ means any individual, 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 Unofficially drawn sample. ‘‘Unoffi- of the foregoing. cially drawn sample’’ means any sam- Plant. ‘‘Plant’’ means the premises, ple that has been selected by any per- buildings, structures, and equipment son other than an inspector or licensed (including, but not being limited to, sampler, or by any other person not au- machines, utensils, and fixtures) em- thorized by the Director pursuant to ployed or used with respect to the man- the regulations in this part. ufacture or production of processed Wholesome. ‘‘Wholesome’’ means the products. minimum basis of acceptability for Processed product. ‘‘Processed product’’ human food purposes, of any fish or means any fishery product or other fishery product as defined in section food product covered under the regula- 402 of the Federal Food, Drug, and Cos- tions in this part which has been pre- metic Act, as amended. served by any recognized commercial process, including, but not limited to, [31 FR 16052, Dec. 15, 1966, as amended at 36 canning, freezing, dehydrating, drying, FR 21037, Nov. 3, 1971] the addition of chemical substances, or by fermentation. § 260.7 Designation of official certifi- Quality. Quality means the inherent cates, memoranda, marks, other ‘‘ ’’ identifications, and devices for pur- properties of any processed product poses of the Agricultural Marketing which determine the relative degree of Act. excellence of such product, and includes 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 number’’ memoranda, marks or other identifica- means the number in a sampling plan tions and devices for making such that indicates the minimum number of marks or identifications, issued or au- deviants in a sample that will cause a thorized under section 203 of said act, lot to fail a specific requirement. and certain misrepresentations con- Sample. ‘‘Sample’’ means any number cerning the inspection or grading of ag- of sample units to be used for inspec- ricultural products under said section. tion. For the purposes of said subsection and Sample unit. ‘‘Sample unit’’ means a the provisions in this part, the terms container and/or its entire contents, a listed below shall have the respective portion of the contents of a container meanings specified:

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

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

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

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

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

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

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

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8,000 HARACTER AS C 00 Over 240,000 00 Over 000 Over 120,000 000 Over IZE AND 001–420,000 Over 420,000 001–420,000 Over S UCH S NITS OF U

ONTAINING C EVELS L

1 HEREOF T CCEPTANCE EPARABLE A S RODUCTS P Lot size (number of containers) EADILY AND R LANS AND , P INGLE SAMPLING PLANS S TO BE RODUCTS AMPLING P S INGLE ISHERY S F ROCESSED P IMILARLY S 1 2 3 4 5 ANNED OR 700) ...... 2,400 or less 2,401–12,000 12,001–24,000 24,001–48,000 48,001–72,000 72,001–108,000 108,001–168,000 168,001–240,0 × I—C 407) ...... 3,600 or less 3,601–14,400 14,401–48,000 48,001–96,000 96,001–156,000 156,001–228,000 228,001–300,000 300, 812) ...... 1,200 or less 1,201–7,200 7,201–15,000 15,001–24,000 24,001–36,000 36,001–60,000 60,001–84,000 84,001–120, 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 201–800 ...... 801–1,600 25 or less . 1,601–2,400 2,401–3,600 26–80 3,601–8,000 81–200 8,001–16,000 16,001–28,000 201–400 Over 2 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 ABLE Container size group T Any type of container Any type of container Any type of container Any type of container Any type of container

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

HEREOF T

1 EPARABLE S RODUCTS P Lot size (number of containers) EADILY AND R , Single sampling plans TO BE RODUCTS P ISHERY F ROCESSED P IMILARLY S ...... 72 48 60 29 38 21 13 6 3 ...... 72 48 60 29 38 21 13 6 3 2 2 ROZEN OR 1 2 3 4 5 II—F GROUP GROUP GROUP GROUP GROUP For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Groups 1, 2, and 3—1 its entire contents. 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 2,401–12,000 over 1 pound but not 12,001–24,000 over 4 pounds net 24,001–48,000 weight 48,001–72,000 ...... 72,001–108,000 108,001–168,00 1,800 or less over 4 pounds but 1,801–8,400 not over 10 pounds 8,401–18,000 18,001–36,000 net weight ...... 36,001–60,000 60,001–96,000 900 or less over 10 pounds but 96,001–132,000 not over 100 pounds 13 901–3,600 net weight ...... 3,601–10,800 10,801–18,000 18,001–36,000 200 or less over 100 pounds net 36,001–60,000 weight ...... 60,001–84,000 201–800 84,001–12 25 or less 801–1,600 sample units) 1,601–2,400 2,401–3,600 26–80 3,601–8,000 81–200 8,001–16,000 16,001–28,000 201–400 Over 28 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 1 2 1 ABLE Container size group Acceptance number.....Sample size (number of ...... Acceptance 0 1 2 3 4 5 6 7 Any type of container Any type of container Any type of container Any type of container Any type of container number.....Sample size (number of Acceptance 0 1 2 3 4 5 6 7 8 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.

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RODUCTS

P 2 TATE S ELATED R Lot size (number of containers) OMOGENEOUS Single sampling plans H OR ISHERY AND F ROCESSED P THERWISE O OR , ROZEN , F

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

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NITS U AMPLE 72 S

, 4, and 5—1 container its entire contents or a small- comparable to the various single sampling plans refer EYOND B RODUCTS IZE P S AMPLE ELATED S R

1 NCREASING I Lot size (number of containers) ISHERY AND F SE IN Single sampling plans U EHYDRATED LANS FOR P IV—D ABLE T AMPLING S INGLE V—S 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 ....72 38 48 60 21 29 13 6 3 2 ...... 84 370 384 342 356 300 314 328 272 286 230 244 258 204 216 168 180 192 144 156 108 120 132 96 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—1 and its entire contents. Groups 2, 3 of 1 pound or less net weight ...... 1,800 or less 1,801–8,400 over 1 pound but not over 6 pounds 8,401–18,000 18,001–36,000 net weight ...... 36,001–60,000 900 or less 60,001–96,000 over 6 pounds but 96,001–132,000 not over 20 pounds 132,00 901–3,600 net weight ...... 3,601–10,800 10,801–18,000 200 or less 18,001–36,000 over 20 pounds but 36,001–60,000 not over 100 pounds net weight 201–800 60,001–84,000 .. 84,001–120, 801–1,600 48 or less over 100 pounds 1,601–3,200 net weight ...... 3,201–8,000 49–400 16 or less 8,001–16,000 401–1,200 of sample units) 16,001–24,000 1,201–2,000 24,001–32,000 17–80 2,001–2,800 Over 32 81–200 2,801–6,000 6,001–9,600 201–400 9,601–15,000 Over 15,000 401–800 801–1,200 1,201–2,000 2,001–3,200 Over 3,200 1 2 Container size group Any type of container Any type of container Any type of container Any type of container Any type of container number...Sample size (number Acceptance 0 1 2 3 4 5 6 7 8 Sample size, Acceptance numbers, table VI of this section. er sample unit when determined by the inspector to be adequate.

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c c r n c r

LANS P c r n c r

c AMPLING S c r n c r INGLE S

c NDICATED I 0,6/7 P c r n c r , 1

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

OMPARABLE TO THE S c C 26 4 5 28 3 6 38 3 7 48 4 8 58 4 8 62 5 10 62 5 58 4 8 48 4 8 38 3 7 28 3 6 26 4 5 LANS ULTIPLE P c r n c r M

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

c 6 0 2 10 0 3 14 1 4 16 0 4 20 0 5 24 1 5 28 1 6 32 1 7 28 1 6 24 1 5 42 2 8 20 0 5 38 2 7 16 0 4 32 2 6 14 1 4 26 1 6 10 0 3 20 1 5 6 0 2 18 1 4 12 1 3 8 1 2 VI—M for r, ABLE T and accept- ...... 1 2 3 4 5 6 7 8 c, c ...... 6 13 21 29 38 48 60 72 n n c, n multiple sampling. multiple 22 0 5 18 0 5 16 0 4 14 0 4 12 0 4 10 0 3 4 0 2 8 3 and rejection numbers, Single sample size, Acceptance numbers, These multiple sampling plans may be used in lieu of the single listed at heading each column. ance numbers, 1 Indicated single sampling plan: Cumulative sample sizes,

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

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

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

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

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

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

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an inspector as meeting the requirements of such quality or grade classification as may be approved by the Secretary. The inspection marks approved for use shall be similar in form and design to the examples in Figures 6, 7, and 8 of FIGURE 8 this section. (c) Combined grade and inspection marks: The grade marks set forth in Statement enclosed within a circle. paragraph (a) of this section, and the inspection marks, Figures 7 and 8, set forth in paragraph (b) of this section, may be combined into a consolidated grade and inspection mark for use on processed products that have been packed under inspection as provided in 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 FIGURE 6 marks similar in form and design to the examples in Figures 9 and 10 of this Statement without the use of the section. circle.

FIGURE 7

Statement without the use of the circle.

FIGURE 9

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

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

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

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

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

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

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

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

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

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

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

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

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

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(9) Tolerances for lot certification, be used in the evaluation of the prod- which provide the sections from Title ucts covered by the standard for grades 50 CFR that regulate lot certification. (e.g., net weight, deglazing, (10) Hygiene, which specifies the sec- debreading). tions of applicable Federal regulations (12) Defect table, which is the table of regulating the safe, wholesome produc- defects and associated points to be as- tion of food for human consumption. sessed for each defect. (11) Methods of analysis, which describe the methods of analysis that will

SUBCHAPTER H–J [RESERVED]

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

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

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

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

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

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

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

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Part Page 300 International fisheries regulations ...... 379

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VerDate Aug<04>2004 10:09 Nov 04, 2004 Jkt 203218 PO 00000 Frm 00377 Fmt 8008 Sfmt 8008 Y:\SGML\203218T.XXX 203218T VerDate Aug<04>2004 10:09 Nov 04, 2004 Jkt 203218 PO 00000 Frm 00378 Fmt 8008 Sfmt 8008 Y:\SGML\203218T.XXX 203218T PART 300—INTERNATIONAL 300.64 Fishing by U.S. treaty Indian tribes. 300.65 Catch sharing plan and domestic FISHERIES REGULATIONS management measures in waters in and off Alaska. Subpart A—General 300.66 Prohibitions. Sec. FIGURE 1 TO SUBPART E—BOUNDARIES FOR 300.1 Purpose and scope. SITKA SOUND LOCAL AREA MANAGEMENT 300.2 Definitions. PLAN (LAMP) 300.3 Relation to other laws. FIGURE 2 TO SUBPART E—KETCHIKAN NON- 300.4 General prohibitions. RURAL AREA 300.5 Facilitation of enforcement. FIGURE 3 TO SUBPART E—JUNEAU NON-RURAL AREA Subpart B—High Seas Fisheries FIGURE 4 TO SUBPART E—ANCHORAGE-MATSU- KENAI NON-RURAL AREA 300.10 Purpose. FIGURE 5 TO SUBPART E—VALDEZ NON-RURAL 300.11 Definitions. AREA 300.12 Issuing offices. 300.13 Vessel permits. Subpart F—Fraser River Sockeye and Pink 300.14 Vessel identification. Salmon Fisheries 300.15 Prohibitions. 300.16 Penalties. 300.90 Purpose and scope. 300.17 Reporting. 300.91 Definitions. 300.92 Relation to other laws. Subpart C—Pacific Tuna Fisheries 300.93 Reporting requirements. 300.94 Prohibitions and restrictions. 300.20 Purpose and scope. 300.95 Treaty Indian fisheries. 300.21 Definitions. 300.96 Penalties. 300.22 Recordkeeping and reporting. 300.97 Inseason orders. 300.23 Yellowfin tuna—Persons and vessels exempted. Subpart G—Antarctic Marine Living 300.24 Pacific bluefin tuna—Dealer permits. Resources 300.25 Pacific bluefin tuna—Dealer recordkeeping and reporting. 300.100 Purpose and scope. 300.26 Pacific bluefin tuna—Tags. 300.101 Definitions. 300.27 Pacific bluefin tuna—Documentation 300.102 Relationship to other treaties, con- requirements. ventions, laws, and regulations. 300.28 Prohibitions. 300.103 Procedure for according protection 300.29 Eastern Pacific fisheries manage- to CCAMLR Ecosystem Monitoring Pro- ment. gram Sites. 300.104 Scientific research. Subpart D—South Pacific Tuna Fisheries 300.105 Initiating a new fishery. 300.106 Exploratory fisheries. 300.30 Purpose and scope. 300.107 Reporting and recordkeeping re- 300.31 Definitions. quirements. 300.32 Vessel licenses. 300.108 Vessel and gear identification. 300.33 Compliance with applicable national 300.109 Gear disposal. laws. 300.110 Mesh size. 300.34 Reporting requirements. 300.111 Framework for annual management 300.35 Vessel and gear identification. measures. 300.36 Closed area stowage requirements. 300.112 Harvesting permits. 300.37 Radio monitoring. 300.113 Dealer permits and preapproval. 300.38 Prohibitions. 300.114 Appointment of a designated rep- 300.39 Exceptions. resentative. 300.40 Civil penalties. 300.115 Prohibitions. 300.41 Investigation notification. 300.116 Facilitation of enforcement and in- 300.42 Findings leading to removal from spection. fishing area. 300.117 Penalties. 300.43 Observers. 300.44 Other inspections. FIGURE 1 TO SUBPART G—BOUNDARIES OF THE STATISTICAL REPORTING AREA IN THE Subpart E—Pacific Halibut Fisheries SOUTHERN OCEAN FIGURE 2 TO SUBPART G—THE USE OF 300.60 Purpose and scope. STREAMER LINES TO MINIMIZE THE INCI- 300.61 Definitions. DENTAL MORTALITY OF SEABIRDS IN THE 300.62 Annual management measures. COURSE OF LONGLINE FISHING OR 300.63 Catch sharing plan and domestic LONGLINE FISHING RESEARCH OPERATIONS management measures in Area 2A. IN THE CONVENTION AREA

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Subpart H—Vessels of the United States § 300.1 Purpose and scope. Fishing in Colombian Treaty Waters The purpose of this part is to imple- 300.120 Purpose. ment the fishery conservation and 300.121 Definitions. management measures provided for in 300.122 Relation to other laws. the international treaties, conventions, 300.123 Certificates and permits. or agreements specified in each sub- 300.124 Recordkeeping and reporting. part, as well as certain provisions of 300.125 Vessel identification. 300.126 Prohibitions. the Lacey Act Amendments of 1981. 300.127 Facilitation of enforcement. The regulations in this part apply, ex- 300.128 Penalties. cept where otherwise specified in this 300.129 Fishing year. part, to all persons and all places sub- 300.130 Vessel and gear restrictions. ject to the jurisdiction of the United 300.131 Conch harvest limitations. States under the acts implemented 300.132 Lobster harvest limitations. under each subpart.

Subpart I—United States-Canada Fisheries § 300.2 Definitions. Enforcement In addition to the definitions in each 300.140 Purpose and scope. act, agreement, convention, or treaty 300.141 Definitions. specified in subparts B through K of 300.142 Prohibitions. this part, the terms used in this part 300.143 Facilitation of enforcement. 300.144 Penalties and sanctions. have the following meanings: Assistant Administrator means the As- Subpart J—U.S. Nationals Fishing in Russian sistant Administrator for Fisheries, Fisheries National Oceanic and Atmospheric Ad- ministration, Department of Com- 300.150 Purpose. merce, or a designee. Address: Room 300.151 Definitions. 14555, 1315 East-West Highway, Silver 300.152 Procedures. 300.153 Permit issuance. Spring, MD 20910. 300.154 Recordkeeping and reporting. Authorized officer means: 300.155 Requirements. (1) Any commissioned, warrant, or 300.156 Prohibited acts. petty officer of the U.S. Coast Guard; 300.157 Penalties. or any U.S. Coast Guard personnel accompanying and acting under the di- Subpart K—Transportation and Labeling of rection of a commissioned, warrant, or Fish or Wildlife petty officer of the U.S. Coast Guard; 300.160 Requirement for marking of con- (2) Any special agent or fisheries en- tainers or packages. forcement officer of NMFS; or 300.161 Alternatives and exceptions. (3) Any person designated by the head of any Federal or state agency Subpart L—Pacific Albacore Tuna Fisheries that has entered into an agreement 300.170 Purpose and scope. with the Secretary of Commerce or the 300.171 Definitions. Commandant of the U.S. Coast Guard 300.172 Vessel list. to enforce the provisions of any statute 300.173 Vessel identification. administered by the Secretary. 300.174 Logbook reports. CCAMLR inspector means a person 300.175 Hail-in and hail-out reports. designated by a member of the Com- 300.176 Prohibitions. mission for the Conservation of Ant- SOURCE: 61 FR 35550, July 5, 1996, unless arctic Marine Living Resources as an otherwise noted. inspector under Article XXIV of the EDITORIAL NOTE: Nomenclature changes to Convention on the Conservation of part 300 appear at 64 FR 44431, Aug. 16, 1999. Antarctic Marine Living Resources to verify compliance with measures in ef- Subpart A—General fect under the Convention. Director, Alaska Region, means Direc- tor, Alaska Region, NMFS, 709 West AUTHORITY: 16 U.S.C. 773 et seq.; 16 U.S.C. 951–961 and 971 et seq.; 16 U.S.C. 973–973r; 16 Ninth Street, Suite 401, P.O. Box 21668, U.S.C. 2431 et seq.; 16 U.S.C. 3371–3378; 16 Juneau, AK 99802, or a designee. U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 Director, Northeast Region, means U.S.C. 1801 et seq. Director, Northeast Region, NMFS,

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One Blackburn Drive, Gloucester, MA National of the United States or U.S. 01930–2298, or a designee. national means any person subject to Director, Northwest Region, means Di- the jurisdiction of the United States, rector, Northwest Region, NMFS, 7600 including, but not limited to, a citizen Sand Point Way, N.E., BIN C15700, or resident of the United States, or a Bldg. 1, Seattle, WA 98115, or a des- person employed on a vessel of the ignee. United States. In the case of a corpora- Director, Southeast Fisheries Science tion, partnership or other non- natural Center, means Director, Science and person, this includes, but is not limited Research, Southeast Fisheries Science to, any entity that is the owner of a Center, NMFS, 75 Virginia Beach vessel of the United States. Drive, Miami, FL 33149, or a designee. NMFS means the National Marine Director, Southeast Region, means Di- Fisheries Service, NOAA, Department rector, Southeast Region, NMFS, 9721 of Commerce. Executive Center Drive, N., St. Peters- NMFS Headquarters means NMFS, burg, FL 33702, or a designee. 1315 East-West Highway, Silver Spring, Director, Southwest Region, means Di- MD 20910. Attention: Office of Fisheries rector, Southwest Region, NMFS, 501 Conservation and Management. West Ocean Boulevard, Suite 4200, Long Official number means the docu- Beach, CA 90802–4213, or a designee. mentation number issued by the USCG Exclusive Economic Zone or EEZ or the certificate number issued by a means the zone established by Presi- state or the USCG for an undocu- dential Proclamation 5030, dated March mented vessel, or any equivalent num- 10, 1983, as defined in 16 U.S.C. 1802(6). ber if the vessel is registered in a for- Fishing or to fish means: eign nation. (1) The catching or taking of fish; Operator means, with respect to any (2) The attempted catching or taking vessel, the master or other individual of fish; aboard and in charge of that vessel. (3) Any other activity that can rea- Owner means, with respect to any sonably be expected to result in the vessel: catching or taking of fish; or (1) Any person who owns that vessel (4) Any operations at sea in support in whole or part (whether or not the of, or in preparation for, any activity vessel is leased or chartered); described in paragraphs (1) through (3) (2) Any charterer of the vessel, of this definition. whether bareboat, time, or voyage; Fishing vessel means any vessel, boat, ship, or other craft that is used for, (3) Any person who acts in the capac- equipped to be used for, or of a type ity of a charterer, including but not normally used for fishing. limited to parties to a management IATTC means the Inter-American agreement, operating agreement, or Tropical Tuna Commission, established any similar agreement that bestows pursuant to the Convention for the Es- control over the destination, function, tablishment of an Inter-American or operation of the vessel; or Tropical Tuna Commission. (4) Any agent designated as such by a Import means to land on, bring into, person described in this definition. or introduce into, or attempt to land Person means any individual (wheth- on, bring into, or introduce into, any er or not a citizen or national of the place subject to the jurisdiction of the United States), any corporation, part- United States, whether or not such nership, association, or other entity landing, bringing, or introduction, con- (whether or not organized, or existing stitutes an importation within the under the laws of any state), and any meaning of the customs laws of the Federal, state, local, or foreign govern- United States. ment or any entity of any such govern- IRCS means International Radio Call ment. Sign. Secretary means the Secretary of Magnuson Act means the Magnuson Commerce or a designee. Fishery Conservation and Management USCG means the United States Coast Act, 16 U.S.C. 1801 et seq. Guard.

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Yellowfin tuna means any fish of the enforcement of this part or any other species Thunnus albacares (synonomy: applicable law. Neothunnus macropterus). (i) Destroy, stave, or dispose of in any manner, any fish, gear, cargo, or § 300.3 Relation to other laws. other matter, upon any communication Other laws that may apply to fishing or signal from an authorized officer of activities addressed herein are set the United States, or upon the ap- forth in § 600.705 of chapter VI of this proach of such an officer, enforcement title. vessel, or aircraft, before the officer has had the opportunity to inspect § 300.4 General prohibitions. same, or in contravention of directions It is unlawful for any person subject from such an officer. to the jurisdiction of the United States (j) Intentionally destroy evidence to: that could be used to determine if a (a) Violate the conditions or restric- violation of this part has occurred. tions of a permit issued under this (k) Assault, resist, oppose, impede, part. intimidate, threaten, obstruct, delay, (b) Fail to submit information, fail prevent, or interfere, in any manner, to submit information in a timely with an authorized officer in the con- manner, or submit false or inaccurate duct of any boarding, inspection, information, with respect to any infor- search, seizure, investigation, or arrest mation required to be submitted, reported, communicated, or recorded pur- in connection with enforcement of this suant to this part. part. (c) Make any false statement, oral or (l) Resist a lawful arrest or detention written, to an authorized officer con- for any act prohibited by this part. cerning the catching, taking, har- (m) Interfere with, delay, or prevent, vesting, possession, landing, purchase, by any means, the apprehension, ar- sale, or transfer of fish, or concerning rest, or detection of another person, any other matter subject to investiga- knowing that such person has com- tion by that officer under this part. mitted any act prohibited by this part. (d) Conceal any material fact (includ- (n) Interfere with, obstruct, delay, or ing by omission), concerning any mat- prevent, by any means, an investiga- ter subject to investigation by an au- tion, search, seizure, or disposition of thorized officer under this part. seized property in connection with en- (e) Refuse to allow an authorized offi- forcement of this part. cer to inspect any report or record re- (o) Ship, transport, offer for sale, quired to be made or kept under this sell, purchase, import, export, or have part. custody, control, or possession of, any (f) Falsify, cover, or otherwise ob- living marine resource taken or re- scure, the name, home port, official tained in violation of this part. number (if any), or any other similar (p) Violate any provision of any stat- marking or identification of any fish- ute implemented by this part. ing vessel subject to this part such (q) Attempt to do any of the fore- that the vessel cannot be readily iden- going. tified from an enforcement vessel or aircraft. § 300.5 Facilitation of enforcement. (g) Fail to comply immediately with any of the enforcement and boarding (a) Compliance. The operator of, or procedures specified in this part. any other person aboard, any fishing (h) Refuse to allow an authorized of- vessel subject to this part must imme- ficer to board a fishing vessel, or enter diately comply with instructions and any other area of custody (i.e., any ves- signals issued by an authorized officer sel, building, vehicle, live car, pound, or CCAMLR inspector to stop the ves- pier, or dock facility where fish might sel, and with instructions to facilitate be found) subject to such person’s con- safe boarding and inspection of the ves- trol, for the purpose of conducting any sel, its gear, equipment, fishing record inspection, search, seizure, investiga- (where applicable), and catch for pur- tion, or arrest in connection with the poses of enforcing this part.

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(b) Communications. (1) Upon being a safe ladder, if needed, for the author- approached by a USCG vessel or air- ized officer or CCAMLR inspector and craft, or other vessel or aircraft with boarding party to come aboard. an authorized officer or CCAMLR in- (4) When necessary to facilitate the spector aboard, the operator of a fish- boarding or when requested by an au- ing vessel must be alert for commu- thorized officer or CCAMLR inspector, nications conveying enforcement in- provide a manrope or safety line, and structions. illumination for the ladder. (2) VHF–FM radiotelephone is the (5) Take such other actions as nec- preferred method of communicating be- essary to facilitate boarding and to en- tween vessels. If the size of the vessel sure the safety of the authorized officer and the wind, sea, and visibility condi- or CCAMLR inspector and the boarding tions allow, a loudhailer may be used party. instead of the radio. Hand signals, plac- (d) Signals. The following signals, ex- ards, high frequency radiotelephone, tracted from the International Code of voice, flags, whistle or horn may be Signals, may be sent by flashing light employed by an authorized officer or by an enforcement unit when condi- CCAMLR inspector, and message tions do not allow communications by blocks may be dropped from an air- loudhailer or radiotelephone. Knowl- craft. edge of these signals by vessel opera- (3) If other communications are not tors is not required. However, knowl- practicable, visual signals may be edge of these signals and appropriate transmitted by flashing light directed action by a vessel operator may pre- at the vessel signaled. USCG units will clude the necessity of sending the sig- normally use the flashing light signal nal ‘‘L’’ and the necessity for the vessel ‘‘L’’ which, in the International Code of to stop instantly. Signals, means ‘‘you should stop your (1) ‘‘AA’’ repeated (.- .-) is the call to vessel instantly.’’ an unknown station. The operator of (4) Failure of a vessel’s operator the signaled vessel should respond by promptly to stop the vessel when di- identifying the vessel by radio- rected to do so by an authorized officer telephone or by illuminating the ves- or CCAMLR inspector, or by an en- sel’s identification. forcement vessel or aircraft, using (2) ‘‘RY–CY’’ (.-. -.-- -.-. -.--) means loudhailer, radiotelephone, flashing ‘‘you should proceed at slow speed, a light, flags, whistle, horn or other boat is coming to you.’’ This signal is normally employed when conditions means constitutes prima facie evidence allow an enforcement boarding without of the offense of refusal to allow an au- the necessity of the vessel being thorized officer or CCAMLR inspector boarded coming to a complete stop, or, to board. in some cases, without retrieval of fish- (5) A person aboard a vessel who does ing gear that may be in the water. not understand a signal from an en- (3) ‘‘SQ3’’ (... --.- ...--) means ‘‘you forcement unit and who is unable to should stop or heave to; I am going to obtain clarification by loudhailer or board you.’’ radiotelephone must consider the signal to be a command to stop the vessel immediately. Subpart B—High Seas Fisheries (c) Boarding. The operator of a vessel directed to stop must: AUTHORITY: 16 U.S.C. 5501 et seq. (1) Monitor Channel 16, VHF–FM, if so equipped. § 300.10 Purpose. (2) Stop immediately and lay to or, if This subpart implements the High appropriate and/or directed to do so by Seas Fishing Compliance Act of 1995 the authorized officer or CCAMLR in- (Act), which requires the Secretary to spector, maneuver in such a way as to license U.S. vessels fishing on the high allow the safe boarding of the vessel by seas. the authorized officer or CCAMLR inspector and the boarding party. § 300.11 Definitions. (3) Except for those vessels with a In addition to the terms defined in freeboard of 4 ft (1.25 m) or less, provide section 300.2 and those in the Act and

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the Agreement to Promote Compliance authorized to be used for fishing on the with International Conservation and high seas by a foreign nation, and — Management Measures by Fishing Ves- (i) The foreign nation suspended such sels on the High Seas, adopted by the authorization, because the vessel un- Conference of the Food and Agriculture dermined the effectiveness of inter- Organization of the United Nations on national conservation and management November 24, 1993 (Agreement), the measures, and the suspension has not terms used in this subpart have the fol- expired; or lowing meanings. If a term is defined (ii) The foreign nation, within the 3 differently in § 300.2, the Act, or the years preceding application for a per- Agreement, the definition in this sec- mit under this section, withdrew such tion shall apply. authorization, because the vessel un- High seas means the waters beyond dermined the effectiveness of inter- the territorial sea or exclusive eco- national conservation and management nomic zone (or the equivalent) of any measures. Nation, to the extent that such terri- (2) The restrictions in paragraphs torial sea or exclusive economic zone (a)(1) (i) and (ii) of this section do not (or the equivalent) is recognized by the apply if ownership of the vessel has United States. changed since the vessel undermined High seas fishing vessel means any ves- the effectiveness of international con- sel of the United States used or in- servation and management measures, tended for use on the high seas for the and the new owner has provided suffi- purpose of the commercial exploitation cient evidence to the Regional Admin- of living marine resources as a har- istrator demonstrating that the owner vesting vessel, mothership, or any and operator at the time the vessel un- other support vessel directly engaged dermined the effectiveness of such in a fishing operation. measures has no further legal, bene- International conservation and manage- ficial, or financial interest in, or con- ment measures means measures to control of, the vessel. serve or manage one or more species of (3) The restrictions in paragraphs living marine resources that are adopt- (a)(1) (i) and (ii) of this section do not ed and applied in accordance with the apply if it is determined by the Re- relevant rules of international law, as gional Administrator that issuing a reflected in the 1982 United Nations permit would not subvert the purposes Convention on the Law of the Sea, and of the Agreement. that are recognized by the United (b) Application forms. The owner or States. operator of a high seas fishing vessel Regional Administrator means any one may apply for a permit under this sub- of the Directors of the five NMFS re- part by completing an application gional offices, defined under § 300.2, form. Applicants may obtain an appli- serving as the issuing office. cation form from a Regional Adminis- trator. § 300.12 Issuing offices. (c) Application information. An appli- Any Regional Administrator may cant must submit a complete and accu- issue permits required under this sub- rate permit application, signed by the part. While applicants for permits may owner or operator, to the appropriate submit an application to any Regional Regional Administrator. Administrator, applicants are encour- (d) Fees. NMFS will charge a fee to aged to submit their applications (with recover the administrative expenses of envelopes marked ‘‘Attn: HSFCA Per- permit issuance. The amount of the fee mits’’) to the Regional Administrator will be determined in accordance with with whom they normally interact on the procedures of the NOAA Finance fisheries matters. Handbook, available from a Regional Administrator, for determining admin- § 300.13 Vessel permits. istrative costs of each special product (a) Eligibility. (1) Any high seas fish- or service. The fee is specified with the ing vessel of the United States is eligi- application form. The appropriate fee ble to receive a permit under this sub- must accompany each application. part, unless the vessel was previously Failure to pay the fee will preclude

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issuance of the permit. Payment by a (1) In accordance with vessel identi- commercial instrument later deter- fication requirements specified in Fed- mined to be insufficiently funded will eral fishery regulations issued under invalidate any permit. the Magnuson-Stevens Act or under (e) Issuance. (1) Except as provided in other Federal fishery management subpart D of 15 CFR part 904, the Re- statutes; or gional Administrator will issue a per- (2) In accordance with the following mit, which will include appropriate identification requirements: conditions or restrictions, within 30 (i) A vessel must be marked with its days of receipt of a completed applica- IRCS, or, if not assigned an IRCS, must tion and payment of the appropriate be marked (in order of priority) with fee. its Federal, state, or other documenta- (2) The Regional Administrator will tion number appearing on its high seas notify the applicant of any deficiency fishing permit; in the application. (ii) The markings must be displayed (f) Validity. Permits issued under this at all times on the vessel’s side or su- subpart are valid for 5 years from the perstructure, port and starboard, as date of issuance. Renewal of a permit well as on a deck; prior to its expiration is the responsi- (iii) The markings must be placed so bility of the permit holder. For a per- that they do not extend below the wa- mit to remain valid to its expiration terline, are not obscured by fishing date, the vessel’s USCG documentation gear, whether stowed or in use, and are or state registration must be kept cur- clear of flow from scuppers or over- rent. A permit issued under this sub- board discharges that might damage or part is void when the name of the discolor the markings; owner or vessel changes, or in the (iv) Block lettering and numbering event the vessel is no longer eligible must be used; for U.S. documentation, such docu- (v) The height of the letters and mentation is revoked or denied, or the numbers must be in proportion to the vessel is removed from such docu- size of the vessel as follows: for vessels mentation. 25 meters (m) and over in length, the (g) Change in application information. height of letters and numbers must be Any changes in vessel documentation no less than 1.0 m; for vessels 20 m but status or other permit application in- less than 25 m in length, the height of formation must be reported to the Re- letters and numbers must be no less gional Administrator in writing within than 0.8 m; for vessels 15 m but less 15 days of such changes. than 20 m in length, the height of let- (h) Transfer. A permit issued under ters and numbers must be no less than this subpart is not transferable or as- 0.6 m; for vessels 12 m but less than 15 signable to another vessel or owner; it m in length, the height of letters and is valid only for the vessel and owner numbers must be no less than 0.4 m; for to which it is issued. vessels 5 m but less than 12 m in (i) Display. A valid permit, or a copy length, the height of letters and num- thereof, issued under this subpart must bers must be no less than 0.3 m; and for be on board the vessel while operating vessels under 5 m in length, the height on the high seas and available for in- of letters and numbers must be no less spection by an authorized officer. than 0.1 m; Faxed copies of permits are acceptable. (vi) The height of the letters and numbers to be placed on decks must be [61 FR 35550, July 5, 1996, as amended at 64 no less than 0.3 m; FR 15, Jan. 4, 1999] (vii) The length of the hyphen(s), if any, must be half the height (h) of the § 300.14 Vessel identification. letters and numbers; (a) General. A vessel permitted under (viii) The width of the stroke for all this subpart must be marked for identi- letters, numbers, and hyphens must be fication purposes in accordance with h/6; this section. (ix) The space between letters and/or (b) Marking. Vessels must be marked numbers must not exceed h/4 nor be either: less than h/6;

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(x) The space between adjacent let- by the Secretary, has not been paid and ters having sloping sides must not ex- is overdue. ceed h/8 nor be less than h/10; (xi) The marks must be white on a [64 FR 15, Jan. 4, 1999] black background, or black on a white § 300.17 Reporting. background; (xii) The background must extend to (a) General. The operator of any ves- provide a border around the mark of no sel permitted under this subpart must less than h/6; and report high seas catch and effort infor- (xiii) The marks and the background mation to NMFS in a manner set by must be maintained in good condition this section. Reports must include: at all times. identification information for vessel and operator; operator signature; crew [64 FR 15, Jan. 4, 1999] size; whether an observer is aboard; § 300.15 Prohibitions. target species; gear used; dates, times, locations, and conditions under which In addition to the prohibitions in sec- fishing was conducted; species and tion 300.4, it is unlawful for any person amounts of fish retained and discarded; to: and details of any interactions with sea (a) Use a high seas fishing vessel on turtles or birds. the high seas in contravention of inter- (b) Reporting options. (1) For the fol- national conservation and management lowing fisheries, a permit holder must measures. maintain and submit the listed report- (b) Use a high seas fishing vessel on ing forms to the appropriate address the high seas, unless the vessel has on board a valid permit issued under sec- and in accordance with the time limits tion 300.13. required by the relevant regulations: (c) Use a high seas fishing vessel on (i) Antarctic—CCAMLR Logbook (50 the high seas that is not marked in ac- CFR 300.107); cordance with § 300.14. (ii) Atlantic—Fishing Vessel Log Re- ports (50 CFR 648.7(b)); [61 FR 35550, July 5, 1996, as amended at 64 (iii) Atlantic Pelagic Longline— FR 15, Jan. 4, 1999] Longline Logbook (50 CFR 630.5); § 300.16 Penalties. (iv) Atlantic Purse Seine—Vessel Logbook (50 CFR 635.5); (a) Any person, any high seas fishing vessel, the owner or operator of such (v) Pacific Pelagic Longline— vessel, or any person who has been Longline Logbook (50 CFR 660.14(a)); issued or has applied for a permit, (vi) Eastern Pacific Purse Seine— found to be in violation of the Act, this IATTC Logbook (50 CFR 300.22); or subpart, or any permit issued under (vii) Western Pacific Purse Seine— this subpart will be subject to the civil South Pacific Tuna Treaty Logbook (50 and criminal penalty provisions, per- CFR 300.34). mit sanctions, and forfeiture provisions (2) For the albacore troll fisheries in prescribed by the Act, 15 CFR part 904 the North and South Pacific, a permit (Civil Procedures), and other applicable holder must report high seas catch and laws. effort by maintaining and submitting (b) Permits under this subpart may the log provided by the Regional Ad- be subject to permit sanctions pre- ministrator, Southwest Region, NMFS. scribed by the Act, 15 CFR part 904 (3) For other fisheries, a permit hold- (Civil Procedures), and other applicable er must report high seas catch and ef- laws if any amount in settlement of a fort by maintaining and submitting civil forfeiture imposed on a high seas records, specific to the fishing gear fishing vessel or other property, or any being used, on forms provided by the civil penalty or criminal fine imposed Regional Administrator of the NMFS on a high seas fishing vessel or on an Region which issued the permit hold- owner or operator of such a vessel or er’s HSFCA permit. on any other person who has been (c) Confidentiality of statistics. Infor- issued or has applied for a permit under mation submitted pursuant to this sub- any fishery resource statute enforced part will be treated in accordance with

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the provisions of 50 CFR part 600 of this 5° N. lat., 110° W. long.; title. 10° S. lat., 110° W. long.; 10° S. lat., 90° W. long.; [64 FR 15, Jan. 4, 1999, as amended at 67 FR 30° S. lat., 90° W. long.; and then eastward 64312, Oct. 18, 2002] along the 30° S. latitude parallel to the coast of South America. Subpart C—Pacific Tuna Fisheries Convention Area means the waters within the area bounded by the main- AUTHORITY: 16 U.S.C. 951–961 and 971 et seq. land of the Americas, lines extending westward from the mainland of the § 300.20 Purpose and scope. Americas along the 40° N. lat. and 40° The regulations in this subpart im- S. lat., and 150° W. long. plement the Tuna Conventions Act of Fish aggregating device (FAD) means a 1950 (Act) and the Atlantic Tunas Con- manmade raft or other floating object vention Act of 1975. The regulations used to attract tuna and make them provide a mechanism to carry out the available to fishing vessels. recommendations of the Inter-Amer- Fishing trip means a period of time ican Tropical Tuna Commission between landings when fishing is con- (IATTC) for the conservation and man- ducted. agement of highly migratory fish re- Fishing vessel means any vessel, boat, sources in the Eastern Tropical Pacific ship, or other craft that is used for, Ocean so far as they affect vessels and equipped to be used for, or of a type persons subject to the jurisdiction of that is normally used for fishing or for the United States. They also carry out assisting or supporting a vessel en- the recommendations of the Inter- gaged in fishing, except purse seine national Commission for the Conserva- skiffs. tion of Atlantic Tunas for the con- Floating object means any natural observation of bluefin tuna, so far as they ject or FAD around which fishing ves- affect vessels and persons subject to sels may catch tuna. the jurisdiction of the United States. Incidental catch or incidental species means species caught while fishing [64 FR 44430, Aug. 16, 1999] with the primary purpose of catching a different species. An incidental catch is § 300.21 Definitions. expressed as a percentage of the weight In addition to the terms defined in of the total fish on board. § 300.2, in the Act, the Convention for Land or Landing means to begin the Establishment of an Inter-Amer- transfer of fish from a fishing vessel. ican Tropical Tuna Commission, and Once transfer begins, all fish on board the International Convention for the the vessel are counted as part of the Conservation of Atlantic Tunas, the landing. terms used in this subpart have the fol- Observer means an individual placed lowing meanings. If a term is defined aboard a fishing vessel under the differently in § 300.2, the Act, or the IATTC observer program or any other Conventions, the definition in this sec- international observer program in tion shall apply. which the United States may partici- Bigeye tuna means the species pate. Thunnus obesus. Pacific bluefin tuna means the sub- Bluefin tuna means the fish species species of bluefin tuna Thunnus Thunnus thynnus that is found in any thynnus orientalis that is found in the ocean area. Pacific Ocean. Commission’s Yellowfin Regulatory Regional Administrator means the Ad- Area (CYRA) means the waters bounded ministrator, Southwest Region, NMFS, by a line extending westward from the or his designee. mainland of North America along the Tag means the dealer tag, a flexible 40° N. latitude parallel, and connecting self-locking ribbon issued by NMFS for the following coordinates: the identification of bluefin tuna under 40° N. lat., 125° W. long.; § 300.26, or the BSD tag specified under 20° N. lat., 125° W. long.; § 635.42 (a)(2) of this title. 20° N. lat., 120° W. long.; Tender vessel means a vessel that does 5° N. lat., 120° W. long.; not engage in purse seine fishing but

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tends to FADs in support of tuna fish- (a) Any person or vessel authorized ing operations. by the IATTC, the Assistant Adminis- Transship means to unload fish from trator, or any state of the United a vessel that caught fish to another States to engage in fishing for research vessel. purposes. Transshipment receiving vessel means (b) Any person or vessel engaged in any vessel, boat, ship, or other craft sport fishing for personal use. that is used to receive fish from a fishing vessel. § 300.24 Pacific bluefin tuna—Dealer permits. [61 FR 35550, July 5, 1996, as amended at 64 (a) General. A dealer importing Pa- FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, 1999] cific bluefin tuna, or purchasing or receiving for export Pacific bluefin tuna § 300.22 Recordkeeping and reporting. first landed in the United States, must have a valid permit issued under this (a) The master or other person in section. charge of a fishing vessel, or a person (b) Application. A dealer must apply authorized in writing to serve as the for a permit in writing on an appro- agent for either person, must keep an priate form obtained from NMFS. The accurate log of all operations con- application must be signed by the deal- ducted from the fishing vessel, entering er and be submitted to NMFS at least for each day the date, noon position 30 days before the date upon which the (stated in latitude and longitude or in dealer desires to have the permit made relation to known physical features), effective. The application must contain and the tonnage of fish on board, by the following information: Company species. The record and bridge log name, principal place of business, own- maintained at the request of the er’s or owners’ names, applicant’s IATTC shall be sufficient to comply name (if different from owner or own- with this paragraph, provided the ers) and mailing address and telephone items of information specified are ac- number, and any other information re- curately entered in the log. quired by NMFS. (b) The owner of any fishing vessel (c) Issuance. (1) Except as provided in that uses purse seine, longline, drift subpart D of 15 CFR part 904, NMFS gillnet, harpoon, or troll fishing gear will issue a permit within 30 days of re- to harvest tuna in the Convention Area ceipt of a completed application. for sale or a person authorized in writ- (2) NMFS will notify the applicant of ing to serve as agent for the owner any deficiency in the application. If must provide such information about the applicant fails to correct the defi- the vessel and its characteristics as the ciency within 15 days following the Regional Administrator requests to date of notification, the application conform to IATTC actions to establish will be considered abandoned. a regional register of all vessels used to (d) Duration. Any permit issued under fish for species under IATTC purview in this section is valid until December 31 the Convention Area. This initially in- of the year for which it is issued, un- cludes, but is not limited to, vessel less suspended or revoked. name and registration number; a pho- (e) Alteration. Any permit that is sub- tograph of the vessel with the registra- stantially altered, erased, or mutilated tion number showing; vessel length, is invalid. beam and moulded depth; gross ton- (f) Replacement. NMFS may issue re- nage and hold capacity in cubic meters placement permits. An application for and tonnage; engine horsepower; date a replacement permit is not considered and place where built; and type of fish- a new application. ing method or methods used. (g) Transfer. A permit issued under [61 FR 35550, July 5, 1996, as amended at 66 this section is not transferable or as- FR 49320, Sept. 27, 2001] signable; it is valid only for the dealer to whom it is issued. § 300.23 Yellowfin tuna—Persons and (h) Inspection. The dealer must keep vessels exempted. the permit issued under this section at This subpart does not apply to: his/her principal place of business. The

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permit must be displayed for inspec- kilograms (specify if round or dressed); tion upon request of any authorized of- and any other information required by ficer, or any employee of NMFS des- NMFS. At the top of each form, the ignated by NMFS for such purpose. company’s name, license number, and (i) Sanctions. The Assistant Adminis- the name of the person filling out the trator may suspend, revoke, modify, or report must be specified. In addition, deny a permit issued or sought under the beginning and ending dates of the this section. Procedures governing per- 2-week reporting period must be speci- mit sanctions and denials are found at fied by the dealer and noted at the top subpart D of 15 CFR part 904. of the form. (j) Fees. NMFS may charge a fee to (b) Must allow an authorized officer, recover the administrative expenses of or any employee of NMFS designated permit issuance. The amount of the fee by NMFS for this purpose, to inspect is calculated, at least annually, in ac- and copy any records of transfers, pur- cordance with the procedures of the NOAA Finance Handbook, available chases, or receipts of Pacific bluefin from NMFS, for determining adminis- tuna. trative costs of each special product or (c) Must retain at his/her principal service. The fee may not exceed such place of business a copy of each bi- costs and is specified on each applica- weekly report for a period of 2 years tion form. The appropriate fee must ac- from the date on which it was sub- company each application. Failure to mitted to NMFS. pay the fee will preclude issuance of [61 FR 35550, July 5, 1996, as amended at 64 the permit. Payment by a commercial FR 29133, May 28, 1999] instrument later determined to be insufficiently funded shall invalidate any § 300.26 Pacific bluefin tuna—Tags. permit. (a) Issuance. NMFS will issue num- (k) Change in application information. bered tags to each person receiving a Within 15 days after any change in the dealer’s permit under § 300.24. information contained in an application submitted under this section, the (b) Transfer. Tail tags issued under dealer issued a permit must report the this section are not transferable and change to NMFS in writing. The per- are usable only by the permitted dealer mit is void if any change in informa- to whom they are issued. tion is not reported within 15 days. (c) Affixing tags. At the discretion of dealers permitted under § 300.24, a tag [61 FR 35550, July 5, 1996, as amended at 64 issued under paragraph (a) of this sec- FR 29133, May 28, 1999] tion may be affixed to each Pacific § 300.25 Pacific bluefin tuna—Dealer bluefin tuna purchased or received by recordkeeping and reporting. the dealer. If so tagged, the tag must Any person issued a dealer permit be affixed to the tuna between the fifth under § 300.24: dorsal finlet and the keel and tag num- (a) Must submit to NMFS a biweekly bers must be recorded on NMFS reports report on bluefin imports and exports required by § 300.25(a) and any docu- on forms supplied by NMFS. ments accompanying the shipment of (1) The report required to be sub- Pacific bluefin tuna for domestic committed under this paragraph (a) must mercial use or export. be postmarked within 10 days after the (d) Removal. A NMFS-issued num- end of each 2-week reporting period in bered tag affixed to any Pacific bluefin which Pacific bluefin tuna were ex- tuna at the option of any permitted ported. The bi-weekly reporting periods dealer under paragraph (c) of this sec- are defined as the first day to the 15th tion or any tag affixed to any Pacific day of each month and the 16th day to bluefin tuna to meet the requirements the last day of the month. of § 635.42(a)(2) of this title must remain (2) Each report must specify accu- on the tuna until the tuna is cut into rately and completely for each tuna or portions. If the tuna or tuna parts sub- each shipment of bulk-frozen tuna ex- sequently are packaged for transport ported: Date of landing or import; any for domestic commercial use or for ex- tag number (if so tagged); weight in port, the number on each tag attached

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to each tuna or its parts must be writ- (g) Reuse any NMFS-issued numbered ten legibly and indelibly on the outside tag affixed to a Pacific bluefin tuna at of any package or container. the option of a permitted dealer or any (e) Reuse. Tags issued under this sec- tag affixed to a Pacific bluefin tuna to tion are separately numbered and may meet the requirements of § 635.42(a)(2) be used only once, one tail tag per fish, of this title or reuse any tag number to distinguish the purchase of one Pa- previously written on a shipping pack- cific bluefin tuna. Once affixed to a age or container as prescribed by tuna or recorded on any package, con- § 300.26. tainer or report, a tail tag and associ- (h) Fail to retain any bigeye, skip- ated number may not be reused. jack, or yellowfin tuna brought on board a purse seine vessel in the Con- [61 FR 35550, July 5, 1996, as amended at 64 vention Area, except fish unfit for FR 29133, May 28, 1999] human consumption due to spoilage, and except on the last set of the trip if § 300.27 Pacific bluefin tuna—Docu- mentation requirements. the well capacity is filled; (i) When using purse seine gear to Bluefin tuna imported into, or ex- fish for tuna in the Convention Area, ported or re-exported from the customs fail to release any non-tuna species as territory of the United States is sub- soon as practicable after being identi- ject to the documentation require- fied on board the vessel during the ments specified in §§ 635.41 through brailing operation; 635.44 of this title. (j) Land any non-tuna fish species [64 FR 29133, May 28, 1999] taken in a purse seine set in the Con- vention Area; § 300.28 Prohibitions. (k) Fail to use the sea turtle handling, release, and resuscitation proce- In addition to the prohibitions in dures in § 300.29(e); or § 300.4, it is unlawful for any person or (l) Fail to report information when vessel subject to the jurisdiction of the requested by the Regional Adminis- United States to: trator under § 300.21. (a) Land any species of tuna during the closed season for that species in ex- [61 FR 35550, July 5, 1996, as amended at 64 cess of the amount allowed by the Re- FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, 1999; 66 FR 49320, Sept. 27, 2001] gional Administrator. (b) Fish on floating objects in the § 300.29 Eastern Pacific fisheries man- Convention Area using any gear type agement. specified by the Regional Administra- (a) Notification of IATTC recommenda- tor’s notification of closure issued tions. The Regional Administrator will under § 300.29. directly notify owners or agents of U.S. (c) Use tender vessels in the Conven- tuna vessels of any fishery manage- tion Area. ment recommendations made by the (d) Transship purse seine-caught tuna IATTC and approved by the Depart- at sea within the Convention Area. ment of State that will affect fishing (e) Import Pacific bluefin tuna or or other activities by U.S. parties with purchase or receive for export Pacific fishery interests in the Convention bluefin tuna first landed in the United Area. As soon as practicable after such States without a valid dealer permit notification, the Regional Adminis- issued under § 300.24. trator will announce approved IATTC (f) Remove any NMFS-issued num- recommendations in the FEDERAL REG- bered tag affixed to any Pacific bluefin ISTER. tuna at the option of any permitted (b) Tuna quotas. (1) Fishing seasons dealer or any tag affixed to a Pacific for all tuna species begin on January 1 bluefin tuna to meet the requirements and end either on December 31 or when of § 635.42(a)(2) of this title, before re- NMFS closes the fishery for a specific moval is allowed under § 300.26, or fail species. to write the tag number on the ship- (2) The Regional Administrator may ping package or container as specified close the U.S. fishery for yellowfin, in § 300.26. bigeye, or skipjack tuna or any other

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tuna species in the Convention Area or tained for consumption aboard the ves- portion of the Convention Area when sel, as soon as practicable after being advised by the Director of Investiga- identified on board the vessel during tions of the IATTC that the associated the brailing operation. quota has been or is projected to be (3) All purse seine vessels must apply reached. Any such closure may include: special sea turtle handling and release (i) An allowance for an incidental procedures, as follows: catch that may be landed while fishing (i) Whenever a sea turtle is sighted in for other tuna species; the net, a speedboat shall be stationed (ii) A prohibition on the further set- close to the point where the net is lift- ting of specified gear types on floating ed out of the water to assist in release objects by U.S. vessels in the Conven- of the turtle; tion Area; (ii) If a turtle is entangled in the net, (iii) Provisions for vessels that are at net roll shall stop as soon as the turtle sea during an announced closure to fish comes out of the water and shall not unrestricted until the fishing trip is resume until the turtle has been dis- completed; entangled and released; (iv) Provisions for vessels at sea with (iii) If, in spite of the measures taken an observer on board during any clo- under paragraphs (e)(3)(i) and (ii) of sure to land fish unrestricted if the this section, a turtle is accidentally landing occurs after December 31; or brought onboard the vessel alive and (v) Other measures to ensure that the active, the vessel’s engine shall be dis- conservation and management meas- engaged and the turtle shall be re- ures of the IATTC are achieved. leased as quickly as practicable; (3) The Regional Administrator will (iv) If a turtle brought on board announce any such closures directly to under paragraph (e)(3)(iii) of this sec- the owners or agents of U.S. vessels tion is alive but comatose or inactive, who are fishing in or are eligible to fish the resuscitation procedures described in the Convention Area. in § 223.206(d)(1)(i)(B) of this title shall (4) As soon as practicable after being be used before release of the turtle. advised of the quota attainment or pro- [64 FR 44431, Aug. 16, 1999, as amended at 66 jection under paragraph (b)(2) of this FR 49320, Sept. 27, 2001] section, the Regional Administrator will publish an announcement of the Subpart D—South Pacific Tuna closure in the FEDERAL REGISTER. (c) Use of tender vessels. No person Fisheries subject to these regulations may use a tender vessel in the Convention Area. AUTHORITY: 16 U.S.C. 973–973r. (d) Transshipments at sea. No person subject to these regulations may trans- § 300.30 Purpose and scope. ship purse seine-caught tuna from one This subpart implements the South vessel to another vessel at sea within Pacific Tuna Act of 1988 (Act) and the the Convention Area. Treaty on Fisheries Between the Gov- (e) Bycatch reduction measures. (1) ernments of Certain Pacific Island Through December 31, 2001, all purse States and the Government of the seine vessels must retain on board and United States of America (Treaty) and land all bigeye, skipjack, and yellowfin applies to persons and vessels subject tuna brought on board the vessel after to the jurisdiction of the United a set, except fish deemed unfit for States. human consumption for other than reason of size. This requirement shall not § 300.31 Definitions. apply to the last set of a trip if the In addition to the terms defined in available well capacity is insufficient § 300.2, in the Act, and in the Treaty, to accommodate the entire fish catch and unless the context requires other- brought on board. wise, the terms used in this subpart (2) All purse seine vessels must re- have the following meanings. If a term lease all sharks, billfishes, rays, is defined differently in § 300.2, the Act, mahimahi (dorado), and other non-tuna or the Treaty, the definition in this fish species, except those being re- section shall apply.

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Administrator means the individual or Licensing Area means all waters in organization designated by the Pacific the Treaty Area except for: Island Parties to act on their behalf (1) Those waters subject to the juris- under the Treaty and notified to the diction of the United States in accord- United States. ance with international law. Applicable national law means any (2) Those waters within closed areas. provision of law of a Pacific Island (3) Those waters within limited areas Party that is described in paragraph closed to fishing. 1(a) of Annex I of the Treaty. Licensing period means the period of Authorized inspector means any indi- validity of licenses issued in accord- vidual authorized by a Pacific Island ance with the Treaty. Party or the Secretary to conduct in- Limited area(s) means those areas so spections, to remove samples of fish, identified in Schedule 3 of Annex I of and to gather any other information the Treaty. relating to fisheries in the Licensing Operator means any person who is in Area. charge of, directs or controls a vessel, Authorized officer means any officer including the owner, charterer and who is authorized by the Secretary, or master. the Secretary of Transportation, or the Pacific Island Party means a Pacific head of any Federal or state agency island nation that is a party to the that has entered into an enforcement Treaty. agreement with the Secretary under Regional Administrator means the Di- section 10(a) of the Act. rector, Southwest Region, or a des- Authorized party officer means any of- ignee. ficer authorized by a Pacific Island Transship means to unload any or all Party to enforce the provisions of the of the fish on board a licensed vessel ei- Treaty. ther ashore or onto another vessel. Closed area means any of the closed Treaty Area means the area described areas identified in Schedule 2 of Annex in paragraph 1(k) of Article I of the I of the Treaty. Treaty. Fishing means searching for, catching, taking, or harvesting fish; at- § 300.32 Vessel licenses. tempting to search for, catch, take, or (a) Each vessel fishing in the Licens- harvest fish; engaging in any other ac- ing Area must have a license issued by tivity that can reasonably be expected the Administrator for the licensing pe- to result in the locating, catching, tak- riod being fished, unless excepted by ing, or harvesting of fish; placing, § 300.39. Each licensing period begins on searching for, or recovering fish aggre- June 15 and ends on June 14 of the fol- gating devices or associated electronic lowing year. equipment such as radio beacons; any (b) Upon receipt, the license or a duly operations at sea directly in support of, certified copy, facsimile or telex con- or in preparation for, any activity de- firmation must be carried on board the scribed in this paragraph; or aircraft vessel when in the Licensing Area or use, relating to the activities described Closed Areas and must be produced at in this definition, except for flights in the request of authorized officers, au- emergencies involving the health or thorized party officers, or authorized safety of crew members or the safety of inspectors. Prior to receipt of the li- a vessel. cense, but after issuance, a vessel may Fishing arrangement means an ar- be used to fish, provided the number of rangement between a Pacific Island the issued license is available on board. Party and the owner of a U.S. fishing (c) Application forms for licenses to vessel that complies with section 6(b) use a vessel to fish in the Licensing of the Act. Area may be requested from, and upon Fishing vessel or vessel means any completion, must be returned to, the boat, ship, or other craft that is used Regional Administrator. All of the infor, equipped to be used for, or of a formation requested on the form and type normally used for commercial the following must be supplied before fishing, and that is documented under the application will be considered com- the laws of the United States. plete:

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(1) The licensing period for which the (g) An applicant will be promptly no- license is requested. tified if that applicant’s license appli- (2) The name of an agent, located in cation will not be forwarded to the Ad- Port Moresby, Papua New Guinea, who, ministrator, and of the reasons thereon behalf of the license holder, will re- for. Within 15 days of notification by ceive and respond to any legal process the Regional Administrator that the issued in accordance with the Treaty. application will not be forwarded, an (3) Documentation from an insurance applicant may request reconsideration company showing that the vessel will by providing a petition for reconsider- be fully insured for the licensing period ation accompanied by new or addi- against all risks and liabilities nor- tional information. mally covered by maritime liability insurance. § 300.33 Compliance with applicable (4) If the owner or charterer is the national laws. subject of proceedings under the bank- The operator of the vessel shall com- ruptcy laws of the United States, rea- ply with each of the applicable na- sonable assurances that the owner of tional laws, and the operator of the charterer will be financially able to vessel shall be responsible for the com- fulfill any and all responsibilities pliance by the vessel and its crew with under the Treaty, Act, and regulations, each of the applicable national laws, including the payment of any penalties and the vessel shall be operated in ac- or fines. cordance with those laws. (5) A copy of the vessel’s USCG Cer- tificate of Documentation. § 300.34 Reporting requirements. (d) The number of available licenses (a) License holders shall comply with are set forth in Schedule 2 of Annex II the reporting requirements of parts 4 of the Treaty. and 5 of Annex I to the Treaty. (e) Applications for vessels may be (b) Information provided by license submitted at any time; complete appli- holders under Schedule 5 of Annex I of cations will be forwarded to the Sec- the Treaty shall be provided on the retary of State for transmittal to the designated Forum Fisheries Agency Administrator. form(s) to the Regional Administrator (f) The Secretary, in consultation within 2 days of reaching port. with the Secretary of State, may deter- (c) Information provided by license mine that a license application for a holders under Schedule 6 of Annex I of vessel should not be forwarded to the the Treaty shall be provided on the Administrator if: designated Forum Fisheries Agency (1) The application is not in accord form(s) to the Regional Administrator with the Treaty, Act, or regulations; within 2 days of completing unloading. (2) The owner or charterer is the sub- (d) Any information required to be ject of proceedings under the bank- recorded, or to be notified, commu- ruptcy laws of the United States, and nicated or reported pursuant to a re- reasonable financial assurances have quirement of these regulations, the not been provided to the Secretary Act, or the Treaty shall be true, com- that the owner or charterer will be fi- plete and correct. Any change in cir- nancially able to fulfill any and all re- cumstances that has the effect of ren- sponsibilities under the Treaty, Act, dering any of the information provided and regulations, including the payment false, incomplete or misleading shall be of any penalties or fines; communicated immediately to the Re- (3) The owner or charterer has not es- gional Administrator. tablished to the satisfaction of the Sec- retary that the vessel will be fully in- § 300.35 Vessel and gear identification. sured for the licensing period against While a vessel is in the Licensing all risks and liabilities normally cov- Area, a Limited Area closed to fishing, ered by maritime liability insurance; or a Closed Area, a recent and up-to- or date copy of the International Code of (4) The owner or charterer has not Signals (INTERCO) shall be on board paid any final penalty assessed by the and accessible at all times. The oper- Secretary in accordance with the Act. ator shall comply with the 1989 Food

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and Agricultural Organization stand- subject to the jurisdiction of the ard specifications for the marking and United States to do any of the fol- identification of fishing vessels. The lowing: international radio call sign of the ves- (1) To violate the Act or any provi- sel shall be painted in white on a black sion of any regulation or order issued background, or in black on a white pursuant to Act. background, and be clear, distinct, and (2) To use a vessel for fishing in vio- uncovered, in the following manner: lation of an applicable national law. (a) On both sides of the vessel’s hull (3) To violate the terms and condi- or superstructure, with each letter and tions of any fishing arrangement to number being at least 1 m high and which that person is a party. having a stroke width of 16.7 cm, with (4) To use a vessel for fishing in a the background extending to provide a Limited Area in violation of the re- border around the mark of not less quirements set forth in Schedule 3 of than 16.7 cm. Annex I of the Treaty on ‘‘Limited (b) On the vessel’s deck, on the body Areas’’. of any helicopter and on the hull of any (5) To use a vessel for fishing in any skiff, with each letter and number Closed Area. being at least 30 cm high, and having a (6) To refuse to permit any author- stroke width of 5 cm with the back- ized officer or authorized party officer ground extending to provide a border to board a fishing vessel for purpose of around the mark of not less than 5 cm. conducting a search or inspection in (c) On any other equipment being connection with the enforcement of the carried by and intended to be separated Act or the Treaty. from the vessel during normal fishing (7) To refuse to comply with the in- operations, with each letter and num- structions of an authorized officer or ber being at least 10 cm high and hav- authorized party officer relating to ing a stroke width of 1.7 cm, with the fishing activities under the Treaty. background extending to provide a bor- (8) To refuse to permit an authorized der around the mark of not less than inspector full access to any place where 1.7 cm. fish taken in the Licensing Area is unloaded. § 300.36 Closed area stowage require- (9) To refuse to allow an authorized ments. inspector to remove samples of fish At all times while a vessel is in a from a vessel that fished in the Licens- Closed Area, the fishing gear of the ing Area. vessel shall be stowed in a manner as (10) To forcibly assault, resist, op- not to be readily available for fishing. pose, impede, intimidate, or interfere In particular, the boom shall be low- with: ered as far as possible so that the ves- (i) Any authorized officer, authorized sel cannot be used for fishing, but so party officer or authorized inspector in that the skiff is accessible for use in the conduct of a search or inspection in emergency situations; the helicopter, if connection with the enforcement of any shall be tied down; and launches these regulations, the Act or the Trea- shall be secured. ty; or (ii) An observer in the conduct of ob- § 300.37 Radio monitoring. server duties under the Treaty. The international distress frequency, (11) To transship fish on board a ves- 2.182 mHz, and 156.8 mHz (Channel 16, sel that fished in the Licensing Area, VHF) shall be monitored continuously except in accordance with the condi- from the vessel for the purpose of fa- tions set out in parts 3 and 4 of Annex cilitating communication with the I to the Treaty. fisheries management, surveillance and (b) Except as provided for in § 300.39, enforcement authorities of the Parties. it is unlawful for any person subject to the jurisdiction of the United States § 300.38 Prohibitions. when in the Licensing Area: (a) Except as provided for in § 300.39, (1) To use a vessel to fish unless val- in addition to the prohibitions in idly licensed as required by the Admin- § 300.4, it is unlawful for any person istrator.

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(2) To use a vessel for directed fishing tunity to present the comments, infor- for southern bluefin tuna or for fishing mation, or evidence orally to the Sec- for any kinds of fish other than tunas, retary or the Secretary’s representa- except that fish may be caught as a in- tive. cidental bycatch. (3) To use a vessel for fishing by any § 300.42 Findings leading to removal method, except the purse-seine method. from fishing area. (4) To use any vessel to engage in (a) Following an investigation con- fishing after the revocation of its li- ducted under section 10(b) of the Act, cense, or during the period of suspen- the Secretary, with the concurrence of sion of an applicable license. the Secretary of State, and upon the (5) To operate a vessel in such a way request of the Pacific Island Party con- as to disrupt or in any other way ad- cerned, may order a fishing vessel that versely affect the activities of tradi- has not submitted to the jurisdiction of tional and locally based fishermen and that Pacific Island Party to leave im- fishing vessels. mediately the Licensing Area, all Lim- (6) To use a vessel to fish in a manner ited Areas, and all Closed Areas upon inconsistent with an order issued by making a finding that: the Secretary under § 300.42 (section 11 (1) The fishing vessel— of the Act). (i) While fishing in the Licensing (7) Except for circumstances involv- Area did not have a license under the ing force majeure and other emer- Treaty to fish in the Licensing Area, gencies involving the health or safety and that under paragraph 2 of Article 3 of crew members or the safety of the of the Treaty, the fishing is not au- vessel, to use aircraft in association thorized to be conducted in the Licens- with fishing activities of a vessel, un- ing Area without a license; less it is identified on the license appli- (ii) Was involved in any incident in cation for the vessel, or any amend- which an authorized officer, authorized ment thereto. party officer, or observer was allegedly assaulted with resultant bodily harm, § 300.39 Exceptions. physically threatened, forcibly re- (a) The prohibitions of § 300.38 and the sisted, refused boarding or subjected to licensing requirements of § 300.32 do not physical intimidation or physical in- apply to fishing for albacore tuna by terference in the performance of duties vessels using the trolling method out- as authorized by the Act or the Treaty; side of the 200 nautical mile fisheries (iii) Has not made full payment with- zones of the Pacific Island Parties. in 60 days of any amount due as a re- (b) The prohibitions of § 300.38(a)(4), sult of a final judgement or other final (a)(5), and (b)(3) do not apply to fishing determination deriving from a viola- under the terms and conditions of a tion in waters within the Treaty Area fishing arrangement. of a Pacific Island Party; or (iv) Was not represented by an agent § 300.40 Civil penalties. for service of process in accordance The procedures of 15 CFR part 904 with the Treaty; or apply to the assessment of civil pen- (2) There is probable cause to believe alties, except as modified by the re- that the fishing vessel— quirements of section 8 of the Act. (i) Was used in violation of section 5(a)(4), (a)(5), (b)(2), or (b)(3) of the Act; § 300.41 Investigation notification. (ii) Used an aircraft in violation of Upon commencement of an investiga- section 5(b)(7) of the Act; or tion under section 10(b)(1) of the Act, (iii) Was involved in an incident in the operator of any vessel concerned which section 5(a)(7) of the Act was shall have 30 days after receipt of noti- violated. fication of the investigation and the (b) Upon being advised by the Sec- operator’s rights under section 10(b)(1) retary of State that proper notification to submit comments, information, or to Parties has been made under para- evidence bearing on the investigation, graph 7 of Article 5 of the Treaty that and to request in writing that the Sec- a Pacific Island Party is investigating retary provide the operator an oppor- an alleged infringement of the Treaty

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by a vessel in waters under the juris- § 300.44 Other inspections. diction of that Pacific Island Party, The operator and each member of the the Secretary shall order the vessel to crew of any vessel from which any fish leave those waters until the Secretary taken in the Licensing Area is un- of State notifies the Secretary that the loaded or transshipped shall allow, or order is no longer necessary. arrange for, and assist any authorized (c) The Secretary shall rescind any inspector, authorized party officer, or order issued on the basis of a finding authorized officer to have full access to under paragraphs (a)(1) (iii) or (iv) of any place where the fish is unloaded or this section (subsections 11(a)(1) (C) or transshipped, to remove samples, to (D) of the Act) as soon as the Secretary have full access to the vessel’s records, determines that the facts underlying including its log and documentation the finding do not apply. for the purpose of inspection and (d) An order issued in accordance photocopying, and to gather any other with this section is not subject to judi- information relating to fisheries in the cial review. Licensing Area without interfering unduly with the lawful operation of the § 300.43 Observers. vessel. (a) The operator and each member of the crew of a vessel shall allow and as- Subpart E—Pacific Halibut sist any person identified as an ob- Fisheries server under the Treaty by the Pacific Island Parties: (1) To board the vessel for scientific, AUTHORITY: 16 U.S.C. 773–773k. compliance, monitoring and other § 300.60 Purpose and scope. functions at the point and time notified by the Pacific Island Parties to the This subpart implements the North Secretary. Pacific Halibut Act of 1982 (Act) and is (2) Without interfering unduly with intended to supplement, not conflict the lawful operation of the vessel, to with, the annual fishery management have full access to and use of facilities measures adopted by the International and equipment on board the vessel that Pacific Halibut Commission (Commis- the observer may determine are nec- sion) under the Convention between essary to carry out observer duties; the United States and Canada for the have full access to the bridge, fish on Preservation of the Halibut Fishery of board, and areas that may be used to the Northern Pacific Ocean and Bering hold, process, weigh and store fish; re- Sea (Convention). move samples; have full access to vessel’s records, including its log and doc- § 300.61 Definitions. umentation for the purpose of inspec- In addition to the terms defined in tion and copying; have reasonable ac- § 300.2 and those in the Act and the cess to navigation equipment, charts, Convention, the terms used in this sub- and radios, and gather any other infor- part have the following meanings. If a mation relating to fisheries in the Li- term is defined differently in § 300.2, the censing Area. Act, or the Convention, the definition (3) To disembark at the point and in this section shall apply. time notified by the Pacific Island Par- Alaska Native tribe means, for pur- ties to the Secretary. poses of the subsistence fishery for Pa- (4) To carry out observer duties safe- cific halibut in waters in and off Alas- ly. ka, a Federally recognized Alaska Na- (b) The operator shall provide the ob- tive tribe that has customary and tra- server, while on board the vessel, at no ditional use of halibut and that is list- expense to the Pacific Island Parties, ed in § 300.65(f)(2) of this part. with food, accommodation and medical Area 2A includes all waters off the facilities of reasonable standard as States of California, Oregon, and Wash- may be acceptable to the Pacific Island ington. Party whose representative is serving Charter vessel means a vessel used for as the observer. hire in sport fishing for halibut, but

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not including a vessel without a hired Rural means, for purposes of the sub- operator. sistence fishery for Pacific halibut in Commercial fishing means fishing, the waters in and off Alaska, a community resulting catch of which either is, or is or area of Alaska in which the non- intended to be, sold or bartered but commercial, customary and traditional does not include subsistence fishing. use of fish and game for personal or Commission means the International family consumption is a principal char- Pacific Halibut Commission. acteristic of the economy or area and Commission regulatory area means an in which there is a long-term, cus- area defined by the Commission for tomary and traditional use of halibut, purposes of the Convention identified and that is listed in § 300.65(f)(1). in 50 CFR 300.60 and prescribed in the Rural resident means, for purposes of annual management measures pub- the subsistence fishery for Pacific hal- lished pursuant to 50 CFR 300.62. ibut in waters in and off Alaska, a per- Customary trade means, for purposes son domiciled in a rural community of the subsistence fishery for Pacific listed in the table in § 300.65(f)(1) of this halibut in waters in and off Alaska, the part and who has maintained a domi- non-commercial exchange of subsist- cile in a rural community listed in the ence halibut for anything other than table in § 300.65(f)(1) for the 12 consecu- items of significant value. tive months immediately preceding the Fishing means the taking, harvesting, time when the assertion of residence is or catching of fish, or any activity that made, and who is not claiming resi- can reasonably be expected to result in the taking, harvesting, or catching of dency in another state, territory, or fish, including specifically the deploy- country. ment of any amount or component part Setline gear means one or more sta- of setline gear anywhere in the mari- tionary, buoyed, and anchored lines time area. with hooks attached. Guideline harvest level (GHL) means a Sport fishing means: level of allowable halibut harvest by (1) In regulatory area 2A, all fishing the charter vessel fishery. other than commercial fishing and Halibut harvest means the catching treaty Indian ceremonial and subsist- and retaining of any halibut. ence fishing; and Individual Fishing Quota (IFQ), for (2) In waters in and off Alaska, all purposes of this subpart, means the an- fishing other than commercial fishing nual catch limit of halibut that may be and subsistence fishing. harvested by a person who is lawfully Subarea 2A–1 includes all U.S. waters allocated a harvest privilege for a spe- off the coast of Washington that are cific portion of the TAC of halibut. north of 46°53′18″ N. lat. and east of IFQ fishing trip, for purposes of the 125°44′00″ W. long., and all inland ma- subpart, means the period beginning rine waters of Washington. when a vessel operator commences har- Subsistence means, with respect to vesting IFQ halibut and ending when waters in and off Alaska, the non-com- the vessel operator lands any species. mercial, long-term, customary and tra- IFQ halibut means any halibut that is ditional use of halibut. harvested with setline or other hook Subsistence halibut means halibut and line gear while commercial fishing caught by a rural resident or a member in any IFQ regulatory area defined at of an Alaska Native tribe for direct § 679.2 of this title. personal or family consumption as Overall length of a vessel means the horizontal distance, rounded to the food, sharing for personal or family nearest ft/meter, between the foremost consumption as food, or customary part of the stem and the aftermost part trade. of the stern (excluding bowsprits, rud- Treaty Indian tribes means the Hoh, ders, outboard motor brackets, and Jamestown S’Klallam, Lower Elwha similar fittings or attachments). S’Klallam, Lummi, Makah, Port Gam- Person includes an individual, cor- ble S’Klallam, Quileute, Quinault, poration, firm, or association.

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Skokomish, Suquamish, Swinomish, the final area 2A total allowable catch and Tulalip tribes. (TAC) before submitting comments. After the Commission’s annual meet- [61 FR 35550, July 5, 1996, as amended at 64 FR 52469, Sept. 29, 1999; 68 FR 18156, Apr. 15, ing and review of public comments, 2003; 68 FR 47264, Aug. 8, 2003] NMFS will publish in the FEDERAL REGISTER the final rule governing sport § 300.62 Annual management meas- fishing in area 2A. Annual management ures. measures may be adjusted inseason by Annual management measures may NMFS. be added and modified through adop- (2) A portion of the commercial TAC tion by the Commission and publica- is allocated as incidental catch in the tion in the FEDERAL REGISTER by the salmon troll fishery in Area 2A. Each Assistant Administrator, with imme- year the landing restrictions necessary diate regulatory effect. Such measures to keep the fishery within its alloca- may include, inter alia, provisions gov- tion will be recommended by the Pa- erning: Licensing of vessels, inseason cific Fishery Management Council at actions, regulatory areas, fishing peri- its spring meetings, and will be pub- ods, closed periods, closed areas, catch lished in the FEDERAL REGISTER along limits (quotas), fishing period limits, with the annual salmon management size limits, careful release of halibut, measures. vessel clearances, logs, receipt and pos- (3) A portion of the Area 2A Wash- session of halibut, fishing gear, reten- ington recreational TAC is allocated as tion of tagged halibut, supervision of incidental catch in the primary di- unloading and weighing, and sport fish- rected longline sablefish fishery north ing for halibut. The Assistant Adminis- of 46°53′18″ N. lat, (Pt. Chehalis, WA), trator will publish the Commission’s which is regulated under 50 CFR regulations setting forth annual man- 660.323(a)(2). This fishing opportunity is agement measures in the FEDERAL only available in years in which the REGISTER by March 15 each year. An- Area 2A TAC is greater than 900,000 lb nual management measures may be ad- (408.2 mt,) provided that a minimum of justed inseason by the Commission. 10,000 lb (4.5 mt) is available above a Washington recreational TAC of 214,100 § 300.63 Catch sharing plan and do- lb (97.1 mt). Each year that this har- mestic management measures in vest is available, the landing restric- Area 2A. tions necessary to keep this fishery Catch sharing plans (CSP) and local within its allocation will be rec- area management plans (LAMP) may ommended by the Pacific Fishery Man- be developed by the appropriate re- agement Council at its spring meet- gional fishery management council, ings, and will be published in the FED- and approved by NMFS, for portions of ERAL REGISTER. These restrictions will the fishery. Any approved CSP or be designed to ensure the halibut har- LAMP may be obtained from the Ad- vest is incidental to the sablefish har- ministrator, Northwest Region, or the vest and will be based on the amounts Administrator, Alaska Region. of halibut and sablefish available to (a) A catch sharing plan (CSP) may this fishery, and other pertinent fac- be developed by the Pacific Fishery tors. The restrictions may include Management Council and approved by catch or landing ratios, landing limits, NMFS for portions of the fishery. Any or other means to control the rate of approved CSP may be obtained from halibut landings. the Administrator, Northwest Region, (i) In years when this incidental har- NMFS. vest of halibut in the directed sablefish (b)(1) Each year, before January 1, fishery north of 46°53′18″ N. lat. is al- NMFS will publish a proposal to govern lowed, it is allowed only for vessels the recreational fishery under the CSP using longline gear that are registered for the following year and will seek to groundfish limited entry permits public comment. The comment period with sablefish endorsements and that will extend until after the Commis- possess the appropriate incidental hal- sion’s annual meeting, so the public ibut harvest license issued by the Com- will have the opportunity to consider mission.

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(ii) It is unlawful for any person to Commission’s management measures possess, land or purchase halibut south governing size limits, careful release of of 46°53′18″ N. lat. that were taken and halibut, logs, and fishing gear (pub- retained as incidental catch authorized lished pursuant to § 300.62), except that by this section in the directed longline the 72-hour fishing restriction pre- sablefish fishery. ceding the opening of a halibut fishing (4) The commercial longline fishery period shall not apply to treaty Indian in area 2A is governed by the annual fishing. management measures published pur- (e) Ceremonial and subsistence fish- suant to §§ 300.62 and 300.63. ing for halibut by treaty Indians in (5) The treaty Indian fishery is gov- subarea 2A–1 is permitted with hook- erned by § 300.64 and tribal regulations. and-line gear from January 1 to De- The annual quota for the fishery will cember 31. be announced with the Commission (f) No size or bag limits shall apply to regulations under § 300.62 the ceremonial and subsistence fishery, [61 FR 35550, July 5, 1996, as amended at 63 except that when commercial halibut FR 13009, Mar. 17, 1998; 63 FR 24752, May 5, fishing is prohibited pursuant to para- 1998; 64 FR 52469, Sept. 29, 1999; 65 FR 67308, graph (b) of this section, treaty Indians Nov. 9, 2000; 65 FR 8373, Jan. 31, 2001; 66 FR may take and retain not more than 36208, July 11, 2001; 66 FR 42156, Aug. 10, 2001; two halibut per person per day. 68 FR 11003, Mar. 7, 2003; 68 FR 18156, Apr. 15, 2003; 69 FR 24532, May 4, 2004] (g) Halibut taken for ceremonial and subsistence purposes shall not be of- § 300.64 Fishing by U.S. treaty Indian fered for sale or sold. tribes. (h) Any member of a U.S. treaty In- (a) Halibut fishing in subarea 2A–1 by dian tribe who is engaged in commer- members of U.S. treaty Indian tribes cial or ceremonial and subsistence fish- located in the State of Washington is ing under this section must have on his governed by this section. or her person a valid treaty Indian (b) Commercial fishing for halibut by identification card issued pursuant to treaty Indians is permitted only in sub- 25 CFR part 249, subpart A, and must area 2A–1 with hook-and-line gear in comply with the treaty Indian vessel conformance with the season and quota and gear identification requirements of established annually by the Commis- Final Decision No. 1 and subsequent or- sion. ders in United States v. Washington 384 (c) Commercial fishing periods and F. Supp. 312 (W.D. Wash., 1974). management measures to implement (i) The following table sets forth the paragraph (b) of this section will be es- fishing areas of each of the 12 treaty tablished by treaty Indian tribal regu- Indian tribes fishing pursuant to this lations. section. Within subarea 2A–1, bound- (d) Commercial fishing for halibut by aries of a tribe’s fishing area may be treaty Indians shall comply with the revised as ordered by a Federal Court.

Tribe Boundaries

HOH ...... Between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River), and east of 125°44′00″ W. long. JAMESTOWN S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1486, to be places at which the Jamestown S’Klallam Tribe may fish under rights secured by treaties with the United States. LOWER ELWHA S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049 and 1066 and 626 F. Supp. 1443, to be places at which the Lower Elwha S’Klallam Tribe may fish under rights secured by treaties with the United States. LUMMI ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 360, as modified in Subproceeding No. 89–08 (W.D. Wash., February 13, 1990) (decision and order re: cross-motions for summary judgement), to be places at which the Lummi Tribe may fish under rights secured by treaties with the United States.

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Tribe Boundaries

MAKAH ...... North of 48°02′15″ N. lat. (Norwegian Memorial), west of 123°42′30″ W. long., and east of 125°44′00″ W. long. PORT GAMBLE S’KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1442, to be places at which the Port Gamble S’Klallam Tribe may fish under rights secured by treaties with the United States. QUILEUTE ...... Between 48°07′36″ N. lat. (Sand Point) and 47°31′42″ N. lat. (Queets River), and east of 125°44′00″ W. long. QUINAULT ...... Between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″ N. lat. (Point Chehalis), and east of 125°44′00″ W. long. SKOKOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 377, to be places at which the Skokomish Tribe may fish under rights secured by treaties with the United States. SUQUAMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Suquamish Tribe may fish under rights secured by treaties with the United States. SWINOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Swinomish Tribe may fish under rights secured by treaties with the United States. TULALIP ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1531–1532, to be places at which the Tulalip Tribe may fish under rights secured by treaties with the United States.

§ 300.65 Catch sharing plan and do- tomary and traditional exchange of mestic management measures in subsistence halibut prescribed at 50 waters in and off Alaska. CFR 300.66. (a) A catch sharing plan (CSP) may (d) The Local Area Management Plan be developed by the North Pacific Fish- (LAMP) for Sitka Sound provides ery Management Council and approved guidelines for participation in the hal- by NMFS for portions of the fishery. ibut fishery in Sitka Sound. (1) For purposes of this section, Sitka Any approved CSP may be obtained Sound means (See Figure 1 to subpart from the Administrator, Alaska Re- E): gion, NMFS. (i) With respect to paragraph (d)(2) of (b) The catch sharing plan for Com- this section, that part of the Commis- mission regulatory area 4 allocates the sion regulatory area 2C that is enclosed annual TAC among area 4 subareas and on the north and east: will be implemented by the Commis- (A) By a line from Kruzof Island at sion in annual management measures 57°20′30″ N. lat., 135°45′10″ W. long. to published pursuant to 50 CFR 300.62. Chichagof Island at 57°22′03″ N. lat., (c) A person authorized to conduct 135°43′00″ W. long., and subsistence fishing under paragraph (f) (B) By a line from Chichagof Island of this section may retain subsistence at 57°22′35″ N. lat., 135°41′18″ W. long. to halibut that are taken with setline Baranof Island at 57°22′17″ N. lat., gear in Commission regulatory areas 135°40′57″ W. long.; and 4D or 4E and that are smaller than the (C) That is enclosed on the south and size limit specified in the annual man- west by a line from Cape Edgecumbe at agement measures published pursuant 56°59′54″ N. lat., 135°51′27″ W. long. to to 50 CFR 300.62, provided that: Vasilief Rock at 56°48′56″ N. lat., (1) The total annual halibut harvest 135°32′30″ W. long., and of that person is landed in regulatory (D) To the green day marker in Doro- areas 4D or 4E; and thy Narrows at 56°49′17″ N. lat., (2) No person may sell such halibut 135°22′45″ W. long. to Baranof Island at outside the limits prescribed for cus- 56°49′17″ N. lat., 135°22′36″ W. long.

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(ii) With respect to paragraphs (d)(3) defined in (d)(1)(ii) of this section, may and (d)(4) of this section, that part of be retained onboard a charter vessel the Commission regulatory area 2C engaged in sport fishing, as defined in that is enclosed on the north and east: 50 CFR 300.61(b), for other species with- (A) By a line from Kruzof Island at in Sitka Sound, as defined in paragraph 57°20′30″ N. lat., 135°45′10″ W. long. to (d)(1)(ii) of this section, from June 1 Chichagof Island at 57°22′03″ N. lat., through August 31. 135°43′00″ W. long., and (e) Sitka Pinnacles Marine Reserve. (B) A line from Chichagof Island at (1) For purposes of this paragraph (e), 57°22′35″ N. lat., 135°41′18″ W. long. to the Sitka Pinnacles Marine Reserve Baranof Island at 57°22′17″ N. lat., means an area totaling 2.5 square nm 135°40′57″ W. lat.; and off Cape Edgecumbe, defined by (C) That is enclosed on the south and straight lines connecting the following west by a line from Sitka Point at points in a counterclockwise manner: 56°59′23″ N. lat., 135°49′34″ W. long., to 56°55.5′N lat., 135°54.0′W long; Hanus Point at 56°51′55″ N. lat., 56°57.0′N lat., 135°54.0′W long; 135°30′30″ W. long., 56°57.0′N lat., 135°57.0′W long; (D) To the green day marker in Doro- 56°55.5′N lat., 135°57.0′W long. thy Narrows at 56°49′17″ N. lat., (2) No person shall engage in com- 135°22′45″ W. long. to Baranof Island at mercial, sport or subsistence fishing, as 56°49′17″ N. lat., 135°22′36″ W. long. defined at § 300.61, for halibut within (2) A person using a vessel greater the Sitka Pinnacles Marine Reserve. than 35 ft (10.7 m) in overall length, as (3) No person shall anchor a vessel defined at 50 CFR 300.61, is prohibited within the Sitka Pinnacles Marine Re- from fishing for IFQ halibut with serve if halibut is on board. setline gear, as defined at 50 CFR (f) Subsistence fishing in and off Alas- 300.61, within Sitka Sound as defined in ka. No person shall engage in subsist- paragraph (d)(1)(i) of this section. ence fishing for halibut unless that per- (3) A person using a vessel less than son meets the requirements in para- or equal to 35 ft (10.7 m) in overall graphs (f)(1) or (f)(2) of this section. length, as defined at 50 CFR 300.61: (1) A person is eligible to harvest sub- (i) Is prohibited from fishing for IFQ sistence halibut if he or she is a rural halibut with setline gear within Sitka resident of a community with cus- Sound, as defined in paragraph (d)(1)(ii) tomary and traditional uses of halibut of this section, from June 1 through listed in the following table: August 31; and (ii) Is prohibited, during the remain- HALIBUT REGULATORY AREA 2C der of the designated IFQ season, from Rural Community Organized Entity retaining more than 2,000 lb (0.91 mt) of IFQ halibut within Sitka Sound, as de- Angoon ...... Municipality Coffman Cove ...... Municipality fined in paragraph (d)(1)(ii) of this sec- Craig ...... Municipality tion, per IFQ fishing trip, as defined in Edna Bay ...... Census Designated Place 50 CFR 300.61. Elfin Cove ...... Census Designated Place Gustavus ...... Census Designated Place (4) No charter vessel, as defined at 50 Haines ...... Municipality CFR 300.61, shall engage in sport fish- Hollis ...... Census Designated Place ing, as defined at 50 CFR 300.61(b), for Hoonah ...... Municipality halibut within Sitka Sound, as defined Hydaburg ...... Municipality Hyder ...... Census Designated Place in paragraph (d)(1)(ii) of this section, Kake ...... Municipality from June 1 through August 31. Kasaan ...... Municipality (i) No charter vessel shall retain hal- Klawock ...... Municipality Klukwan ...... Census Designated Place ibut caught while engaged in sport Metlakatla ...... Census Designated Place fishing, as defined at 50 CFR 300.61(b), Meyers Chuck ...... Census Designated Place for other species, within Sitka Sound, Pelican ...... Municipality Petersburg ...... Municipality as defined in paragraph (d)(1)(ii) of this Point Baker ...... Census Designated Place section, from June 1 through August Port Alexander ...... Municipality 31. Port Protection ...... Census Designated Place (ii) Notwithstanding paragraphs Saxman ...... Municipality Sitka ...... Municipality (d)(4) and (d)(4)(i) of this section, hal- Skagway ...... Municipality ibut harvested outside Sitka Sound, as Tenakee Springs ...... Municipality

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

Rural Community Organized Entity Rural Community Organized Entity

Thorne Bay ...... Municipality Alakanuk ...... Municipality Whale Pass ...... Census Designated Place Aleknegik ...... Municipality Wrangell ...... Municipality Bethel ...... Municipality Brevig Mission ...... Municipality Chefornak ...... Municipality HALIBUT REGULATORY AREA 3A Chevak ...... Municipality Clark’s Point ...... Municipality Rural Community Organized Entity Council ...... Census Designated Place Dillingham ...... Municipality Akhiok ...... Municipality Eek ...... Municipality Chenega Bay ...... Census Designated Place Egegik ...... Municipality Cordova ...... Municipality Elim ...... Municipality Karluk ...... Census Designated Place Emmonak ...... Municipality Kodiak City ...... Municipality Golovin ...... Municipality Larsen Bay ...... Municipality Goodnews Bay ...... Municipality Nanwalek ...... Census Designated Place Hooper Bay ...... Municipality Old Harbor ...... Municipality King Salmon ...... Census Designated Place Ouzinkie ...... Municipality Kipnuk ...... Census Designated Place Port Graham ...... Census Designated Place Kongiganak ...... Census Designated Place Port Lions ...... Municipality Seldovia ...... Municipality Kotlik ...... Municipality Tatitlek ...... Census Designated Place Koyuk ...... Municipality Yakutat ...... Municipality Kwigillingok ...... Census Designated Place Levelock ...... Census Designated Place Manokotak ...... Municipality HALIBUT REGULATORY AREA 3B Mekoryak ...... Municipality Naknek ...... Census Designated Place Rural Community Organized Entity Napakiak ...... Municipality Napaskiak ...... Municipality Chignik Bay ...... Municipality Newtok ...... Census Designated Place Chignik Lagoon ...... Census Designated Place Nightmute ...... Municipality Chignik Lake ...... Census Designated Place Nome ...... Municipality Cold Bay ...... Municipality Oscarville ...... Census Designated Place False Pass ...... Municipality Pilot Point ...... Municipality Ivanof Bay ...... Census Designated Place Platinum ...... Municipality King Cove ...... Municipality Port Heiden ...... Municipality Nelson Lagoon ...... Census Designated Place Quinhagak ...... Municipality Perryville ...... Census Designated Place Scammon Bay ...... Municipality Sand Point ...... Municipality Shaktoolik ...... Municipality Sheldon Point (Nunam Municipality Iqua). HALIBUT REGULATORY AREA 4A Shishmaref ...... Municipality Solomon ...... Census Designated Place Rural Community Organized Entity South Naknek ...... Census Designated Place St. Michael ...... Municipality Akutan ...... Municipality Stebbins ...... Municipality Nikolski ...... Census Designated Place Teller ...... Municipality Unalaska ...... Municipality Togiak ...... Municipality Toksook Bay ...... Municipality HALIBUT REGULATORY AREA 4B Tuntutuliak ...... Census Designated Place Tununak ...... Census Designated Place Twin Hills ...... Census Designated Place Rural Community Organized Entity Ugashik ...... Census Designated Place Adak ...... Census Designated Place Unalakleet ...... Municipality Atka ...... Municipality Wales ...... Municipality White Mountain ...... Municipality

HALIBUT REGULATORY AREA 4C (2) A person is eligible to harvest subsistence halibut if he or she is a mem- Rural Community Organized Entity ber of an Alaska Native tribe with cus- St. George ...... Municipality tomary and traditional uses of halibut St. Paul ...... Municipality listed in the following table:

HALIBUT REGULATORY AREA 4D HALIBUT REGULATORY AREA 2C

Rural Community Organized Entity Place with Tribal Head- quarters Organized Tribal Entity Gambell ...... Municipality Savoonga ...... Municipality Angoon ...... Angoon Community Association Diomede (Inalik) ...... Municipality Craig ...... Craig Community Association Haines ...... Chilkoot Indian Association

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

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

Hoonah ...... Hoonah Indian Association Akutan ...... Native Village of Akutan Hydaburg ...... Hydaburg Cooperative Associa- Nikolski ...... Native Village of Nikolski tion Unalaska ...... Qawalingin Tribe of Unalaska Juneau ...... Aukquan Traditional Council Central Council Tlingit and Haida Indian Tribes HALIBUT REGULATORY AREA 4B Douglas Indian Association Place with Tribal Head- Kake ...... Organized Village of Kake quarters Organized Tribal Entity Kasaan ...... Organized Village of Kasaan Ketchikan ...... Ketchikan Indian Corporation Atka ...... Native Village of Atka Klawock ...... Klawock Cooperative Associa- tion Klukwan ...... Chilkat Indian Village HALIBUT REGULATORY AREA 4C Metlakatla ...... Metlakatla Indian Community, Annette Island Reserve Place with Tribal Head- Organized Tribal Entity Petersburg ...... Petersburg Indian Association quarters Saxman ...... Organized Village of Saxman . Sitka ...... Sitka Tribe of Alaska St. George ...... Pribilof Islands Aleut Commu- Skagway ...... Skagway Village St. Paul ...... nities of St. Paul Island and Wrangell ...... Wrangell Cooperative Associa- St. George Island tion

HALIBUT REGULATORY AREA 4D HALIBUT REGULATORY AREA 3A Place with Tribal Head- Organized Tribal Entity Place with Tribal Head- quarters quarters Organized Tribal Entity Gambell ...... Native Village of Gambell Akhiok ...... Native Village of Akhiok Savoonga ...... Native Village of Savoonga Chenega Bay ...... Native Village of Chanega Diomede (Inalik)...... Native Village of Diomede Cordova ...... Native Village of Eyak (Inalik) Karluk ...... Native Village of Karluk Kenai-Soldotna ...... Kenaitze Indian Tribe Village of Salamatoff HALIBUT REGULATORY AREA 4E Kodiak City ...... Lesnoi Village (Woody Island) Native Village of Afognak Place with Tribal Head- quarters Organized Tribal Entity Shoonaq’ Tribe of Kodiak Larsen Bay ...... Native Village of Larsen Bay Alakanuk ...... Village of Alakanuk Nanwalek ...... Native Village of Nanwalek Aleknagik ...... Native Village of Aleknagik Ninilchik ...... Ninilchik Village Bethel ...... Orutsararmuit Native Village Old Harbor ...... Village of Old Harbor Brevig Mission ...... Native Village of Brevig Mission Ouzinkie ...... Native Village of Ouzinkie Chefornak ...... Village of Chefornak Port Graham ...... Native Village of Port Graham Chevak ...... Chevak Native Village Port Lions ...... Native Village of Port Lions Clark’s Point ...... Village of Clark’s Point Seldovia ...... Seldovia Village Tribe Council ...... Native Village of Council Tatitlek ...... Native Village of Tatitlek Dillingham ...... Native Village of Dillingham Yakutat ...... Yakutat Tlingit Tribe Native Village of Ekuk Native Village of Kanakanak Eek ...... Native Village of Eek HALIBUT REGULATORY AREA 3B Egegik ...... Egegik Village Village of Kanatak Place with Tribal Head- Elim ...... Native Village of Elim quarters Organized Tribal Entity Emmonak ...... Chuloonawick Native Village Emmonak Village Chignik Bay ...... Native Village of Chignik Golovin ...... Chinik Eskimo Community Chignik Lagoon ...... Native Village of Chignik La- Goodnews Bay ...... Native Village of Goodnews Bay goon Hooper Bay ...... Native Village of Hooper Bay Chignik Lake ...... Chignik Lake Village Native Village of Paimiut False Pass ...... Native Village of False Pass King Salmon ...... King Salmon Tribal Council Ivanof Bay ...... Ivanoff Bay Village Kipnuk ...... Native Village of Kipnuk King Cove ...... Agdaagux Tribe of King Cove Kongiganak ...... Native Village of Kongiganak Native Village of Belkofski Kotlik ...... Native Village of Hamilton Nelson Lagoon ...... Native Village of Nelson Lagoon Village of Bill Moore’s Slough Perryville ...... Native Village of Perryville Village of Kotlik Koyuk ...... Native Village of Koyuk Sand Point ...... Pauloff Harbor Village Kwigillingok ...... Native Village of Kwigillingok Native Village of Unga Levelock ...... Levelock Village Qagan Toyagungin Tribe of Manokotak ...... Manokotak Village Sand Point Village Mekoryak ...... Native Village of Mekoryak

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HALIBUT REGULATORY AREA 4E—Continued ‘‘S’’ to indicate that it is used to harvest subsistence halibut. Place with Tribal Head- quarters Organized Tribal Entity (iii) Markings on setline marker buoys shall be in characters at least 4 Naknek ...... Naknek Native Village inches (10.16 cm) in height and 0.5 inch Napakiak ...... Native Village of Napakiak Napaskiak ...... Native Village of Napaskiak (1.27 cm) in width in a contrasting Newtok ...... Newtok Village color visible above the water line and Nightmute ...... Native Village of Nightmute shall be maintained so the markings Umkumiute Native Village Nome ...... King Island Native Community are clearly visible. Nome Eskimo Community (2) The daily retention of subsistence Oscarville ...... Oscarville Traditional Village halibut in rural areas is limited to no Pilot Point ...... Native Village of Pilot Point more than 20 fish per person eligible to Platinum ...... Platinum Traditional Village Port Heiden ...... Native Village of Port Heiden conduct subsistence fishing for halibut Quinhagak ...... Native Village of Kwinhagak under paragraph (g) of this section, ex- Scammon Bay ...... Native Village of Scammon Bay cept that no daily retention limit ap- Shaktoolik ...... Native Village of Shaktoolik Sheldon Point (Nuna Iqua) Native Village of Sheldon’s plies in Areas 4C, 4D, and 4E. Point (3) Subsistence fishing may be con- Shishmaref ...... Native Village of Shishmaref ducted in any waters in and off Alaska Solomon ...... Village of Solomon except for the following four non-rural South Naknek ...... South Naknek Village St. Michael ...... Native Village of Saint Michael areas defined as follows: Stebbins ...... Stebbins Community Associa- (i) Ketchikan non-subsistence marine tion waters area in Commission regulatory Teller ...... Native Village of Mary’s Igloo Native Village of Teller area 2C (see Figure 2 to subpart E) is Togiak ...... Traditional Village of Togiak defined as those waters between a line Toksook Bay ...... Native Village of Toksook Bay from Caamano Point at 55°29.90′ N. lat., Tuntutuliak ...... Native Village of Tuntutuliak 131°58.25′ W. long. to Point Higgins at Tununak ...... Native Village of Tununak Twin Hills ...... Twin Hills Village 55°27.42′ N. lat., 131°50.00′ W. long. and a Ugashik ...... Ugashik Village point at 55°11.78′ N. lat., 131°05.13′ W. Unalakleet ...... Native Village of Unalakleet long., located on Point Sykes to a Wales ...... Native Village of Wales ° ′ ° ′ White Mountain ...... Native Village of White Moun- point at 55 12.22 N. lat., 131 05.70 W. tain long., located one-half mile northwest of Point Sykes to Point Alava at (g) Limitations on subsistence fishing. 55°11.54′ N. lat., 131°11.00′ W. long. and Subsistence fishing for halibut may be within one mile of the mainland and conducted only by persons who qualify the Gravina and Revillagigedo Island for such fishing pursuant to paragraph shorelines, including within one mile (f) of this section and who hold a valid of the Cleveland Peninsula shoreline subsistence halibut registration certifi- and east of the longitude of Niblack cate in that person’s name issued by Point at 132°07.23′ W. long., and north NMFS pursuant to paragraph (h) of of the latitude of the southernmost tip this section, provided that such fishing of Mary Island at 55°02.66′ N. lat.; is consistent with the following limita- (ii) Juneau non-subsistence marine wa- tions. ters area in Commission regulatory area (1) Subsistence fishing is limited to 2C (see Figure 3 to subpart E) is defined setline gear and hand-held gear, includ- as those waters of Stephens Passage ing longline, handline, rod and reel, and contiguous waters north of the spear, jig and hand-troll gear. latitude of Midway Island Light (i) Subsistence fishing gear must not (57°50.21′ N. lat.), including the waters have more than 30 hooks per person of Taku Inlet, Port Snettisham, Sagi- registered in accordance with para- naw Channel, and Favorite Channel, graph (h) of this section and on board and those waters of Lynn Canal and the vessel from which gear is being set contiguous waters south of the latitude or retrieved. of the northernmost entrance of (ii) All setline gear marker buoys Berners Bay (58°43.07′ N. lat.), including carried on board or used by any vessel the waters of Berners Bay and Echo regulated under this section shall be Cove, and those waters of Chatham marked with the following: first ini- Strait and contiguous waters north of tial, last name, and address (street, the latitude of Point Marsden (58°03.42′ city, and state), followed by the letter N. lat.), and east of a line from Point

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Couverden at 58°11.38′ N. lat., 135°03.40′ (ii) A person who is a resident outside W. long., to Point Augusta at 58°02.38′ the State of Alaska but who is a mem- N. lat., 134°57.11′ W. long.; ber of an Alaska Native tribe that is lo- (iii) Anchorage-Matsu-Kenai non-sub- cated in a rural area and that is listed sistence marine waters area in Commis- in the table in paragraph (f)(2) of this sion regulatory area 3A (see Figure 4 to section is limited to conducting sub- subpart E) is defined as all waters of sistence fishing for halibut only in his Alaska enclosed by a line extending or her area of tribal membership. east from Cape Douglas (58°51.10′ N. (iii) For purposes of this paragraph, lat.), and a line extending south from ‘‘area of tribal membership’’ means Cape Fairfield (148°50.25′ W. long.) ex- rural areas of the Commission regu- cept those waters north of Point Bede latory area or the Bering Sea closed which are west of a line from the east- area in which the Alaska Native tribal ern most point of Jakolof Bay headquarters is located. ° ′ (151 32.00 W. long.) north the western (h) Subsistence registration. A person ° ′ most point of Hesketh Island (59 30.04 must register as a subsistence halibut ° ′ N. lat., 151 31.09 W. long.) including fisher and possess a valid subsistence Jakolof Bay and south of a line west halibut registration certificate in his ° ′ from Hesketh Island (59 30.04 N. lat. or her name issued by NMFS before he extending to the boundary of the terri- or she begins subsistence fishing for torial sea); the waters south of Point halibut in waters in and off Alaska. Bede which are west of the eastern (1) A subsistence halibut registration most point of Rocky Bay (from the certificate will be issued to any person mainland along 151°18.41′ W. long. to who registers according to paragraph the intersection with the territorial (h)(2) of this section and who is quali- sea); but excludes those waters within fied to conduct subsistence fishing for mean lower low tide from a point one halibut according to paragraph (f) of mile south of the southern edge of the this section. The Alaska Region, Chuitna River (61°05.00′ N. lat., 151°01.00′ NMFS, may enter into cooperative W. long.) south to the easternmost tip of Granite Point (61°01.00′ N. lat., agreements with Alaska Native tribal 151°23.00′ W. long.) (Tyonek subdistrict, governments or their representative as defined in Alaska Administrative organizations for purposes of identi- Code, 5 AAC 01.555(b), May 14, 1993); and fying persons qualified to conduct sub- (iv) Valdez non-subsistence marine wa- sistence fishing for halibut according ters area Commission regulatory area 3A to paragraph (f) of this section. (see Figure 5 to subpart E) is defined as (2) Registration. To register as a sub- the waters of Port Valdez and Valdez sistence halibut fisher, a person may Arm located north of 61°02.24′ N. lat., request a cooperating Alaska Native and east of 146°43.80′ W. long. tribal government or other entity des- (4) Waters in and off Alaska that are ignated by NMFS to submit an applica- not specifically identified as non-rural tion on his or her behalf to the Alaska in paragraph (g)(3) of this section are Region, NMFS. Alternatively, a person rural for purposes of subsistence fish- may apply by submitting a completed ing for halibut. Subsistence fishing application to the Alaska Region, may be conducted in any rural area by NMFS. Applications must be mailed to: any person with a valid subsistence Restricted Access Management Pro- halibut registration certificate in his gram, NMFS, Alaska Region, PO Box or her name issued by NMFS under 21668, Juneau, AK 99802–1668. The fol- paragraph (h) of this section, except lowing information is required to be that: submitted with the application: (i) A person who is not a rural resi- (i) For a Rural Resident Registra- dent but who is a member of an Alaska tion, the person must submit his or her Native tribe that is located in a rural full name, date of birth, mailing ad- area and that is listed in the table in dress (number and street, city and paragraph (f)(2) of this section is lim- state, zip code), community of resi- ited to conducting subsistence fishing dence (the rural community or resi- for halibut only in his or her area of dence from 50 CFR 300.65(f)(1) that tribal membership. qualifies the fisher as eligible to fish

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for subsistence halibut), daytime tele- ence halibut registration certificates phone number, certification that he or to estimate the annual harvest of sub- she is a ‘‘rural resident’’ as that term is sistence halibut and related catch and defined at § 300.61, and signature and effort information. For purposes of this date of signature. paragraph, an authorized representa- (ii) For an Alaska Native Tribal Reg- tive of NMFS may include employees istration, the person must submit his of, or contract workers for, the State or her full name, date of birth, mailing of Alaska or a Federal agency or an address (number and street, city and Alaska Native tribal government rep- state, zip code), Alaska Native tribe resentative as may be prescribed by co- (the name of the Alaska Native Tribe operative agreement with NMFS. Re- from 50 CFR 300.65(f)(2) that qualifies sponding to a subsistence halibut har- the fisher as eligible to fish for subsist- vest survey will be voluntary and may ence halibut), daytime telephone num- include providing information on: ber, certification that he or she is a (i) The subsistence fisher’s identity member of an ‘‘Alaska Native tribe’’ as including his or her full name, date of that term is defined at § 300.61, and sig- birth, mailing address (number and nature and date of signature. street, city and state, zip code), com- (3) Expiration of registration. Each munity of residence, daytime phone subsistence halibut registration certifi- number, and tribal identity (if appro- cate will be valid only for the period of priate); time specified on the certificate. A person eligible to harvest subsistence hal- (ii) The subsistence halibut harvest, ibut under paragraph (f) of this section including whether the participant may renew his or her registration cer- fished for subsistence halibut during tificate that is expired or will expire the year and, if so, the number and within 3 months by following the pro- weight (in pounds) of halibut har- cedures described in paragraph (h)(2) of vested, the type of gear and number of this section. A subsistence halibut reg- hooks usually used, the Commission istration certificate will expire: regulatory area and local water body (i) 2 years from the date of its from which the halibut were harvested, issuance to a person eligible to harvest and the number of ling cod and rock- subsistence halibut under paragraph fish caught while subsistence fishing (f)(1) of this section, and for halibut; and (ii) 4 years from the date of its (iii) Any sport halibut harvest, in- issuance to a person eligible to harvest cluding whether the participant sport subsistence halibut under paragraph fished for halibut during the year and (f)(2) of this section. the number and weight (in pounds) of (4) The Administrator, Alaska Re- halibut harvested while sport fishing. gion, NMFS, or an authorized rep- (i) Guideline harvest level. (1) The an- resentative, may conduct periodic sur- nual GHLs for regulatory areas 2C and veys of persons who hold valid subsist- 3A are determined as follows:

If the Annual Total Constant Exploitation If the Annual Total Constant Exploitation Yield for Hal- Than the GHL for Yield for Halibut in Than the GHL for ibut in Area 2C is More Than: Area 2C will be: Area 3A is More Area 3A will be: Than:

(i) 9,027,000 lbs. (4094.5 mt) 1,432,000 lbs...... 21,581,000 lbs...... 3,650,000 lbs...... (649.5 mt) ...... (9,788.9 mt) ...... (1655.6 mt). (ii) 7,965,000 lbs. (3612.9 mt) 1,217,000 lbs...... 19,042,000 lbs...... 3,103,000 lbs...... (552.0 mt) ...... (8637.3 mt) ...... (1407.0 mt). (iii) 6,903,000 lbs. (3,131.2 mt) 1,074,000 lbs...... 16,504,000 lbs...... 2,734,000 lbs...... (496.7 mt) ...... (7,485.9 mt) ...... (1266.4 mt). (iv) 5,841,000 lbs. (2,649.4 mt) 931,000 lbs...... 13,964,000 lbs...... 2,373,000 lbs...... (447.2 mt) ...... (6334.0 mt) ...... (1,139.9 mt). (v) 4,779,000 lbs. (2,167.7 mt) 788,000 lbs...... 11,425,000 lbs...... 2,008,000 lbs...... (357.4 mt) ...... (5,182.3 mt) ...... (910.8 mt).

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(2) NMFS will publish a notice in the (f) Fish for subsistence halibut in and FEDERAL REGISTER on an annual basis off Alaska with gear other than that establishing the GHL for Area 2C and described at 50 CFR 300.65(g)(1) and re- Area 3B for that calendar year within tain more halibut than specified at 50 30 days of receiving information from CFR 300.65(g)(2). the Commission which establishes the (g) Fish for subsistence halibut in constant exploitation yield for that and off Alaska in a non-rural area spec- year. ified at 50 CFR 300.65(g)(3). (3) If the GHL in either Area 2C or 3A (h) Retain, on board the harvesting is exceeded, NMFS will notify the vessel, halibut harvested from subsist- Council in writing that the GHL has been exceeded within 30 days of receiv- ence fishing with halibut harvested ing information that the GHL has been from commercial fishing or from sport exceeded. fishing, as defined at 50 CFR 300.61(b), except that persons who land their [68 FR 18156, Apr. 15, 2003, as amended at 68 total annual harvest of halibut in Com- FR 47264, Aug. 8, 2003] mission regulatory area 4D or 4E may § 300.66 Prohibitions. retain, with harvests of CDQ halibut, halibut harvested in Commission regu- In addition to the general prohibi- latory areas 4D or 4E that are smaller tions specified in 50 CFR 300.4, it is un- than the size limit specified in the an- lawful for any person to do any of the nual management measures published following: pursuant to 50 CFR 300.62. (a) Fish for halibut except in accordance with the annual management (i) Retain subsistence halibut that measures published pursuant to 50 CFR were harvested using a charter vessel. 300.62. (j) Retain or possess subsistence hal- (b) Fish for halibut except in accord- ibut for commercial purposes, cause ance with the catch sharing plans and subsistence halibut to be sold, bartered domestic management measures imple- or otherwise enter commerce or solicit mented under 50 CFR 300.63 and 50 CFR exchange of subsistence halibut for 300.65. commercial purposes, except that a (c) Fish for halibut in Sitka Sound in person who qualified to conduct sub- violation of the Sitka Sound LAMP sistence fishing for halibut under 50 implemented under 50 CFR 300.65(d). CFR 300.65(f), and who holds a subsist- (d) Fish for halibut or anchor a vessel ence halibut registration certificate in with halibut on board within the Sitka the person’s name under 50 CFR Pinnacles Marine Reserve defined at 50 300.65(h) may engage in the customary CFR 300.65(e). trade of subsistence halibut through (e) Fish for subsistence halibut in monetary exchange of no more than and off Alaska unless the person is $400 per year. qualified to do so under 50 CFR (k) Fillet, mutilate, or otherwise dis- 300.65(f), has in his or her possession a figure subsistence halibut in any man- valid subsistence halibut registration ner that prevents the determination of certificate pursuant to 50 CFR the number of fish caught, possessed, 300.65(h), and makes this certificate or landed. available for inspection by an authorized officer on request. [68 FR 18156, Apr. 15, 2003]

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FIGURE 1 TO SUBPART E—SITKA LOCAL AREA MANAGEMENT PLAN

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FIGURE 2 TO SUBPART E—KETCHIKAN NON-RURAL AREA

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FIGURE 3 TO SUBPART E—JUNEAU NON-RURAL AREA

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FIGURE 4 TO SUBPART E—ANCHORAGE-MATSU-KENAI NON-RURAL AREA

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FIGURE 5 TO SUBPART E—VALDEZ NON-RURAL AREA

[64 FR 52471, Sept. 29, 1999; 66 FR 36208, July 11, 2001, as amended at 68 FR 23361, May 1, 2003]

Subpart F—Fraser River Sockeye Treaty, the terms used in this subpart and Pink Salmon Fisheries have the following meanings. If a term is defined differently in § 300.2, the Act, or the Treaty, the definition in this AUTHORITY: Pacific Salmon Treaty Act, 16 U.S.C. 3636(b). section shall apply. All-citizen means any person who is § 300.90 Purpose and scope. not a treaty Indian fishing in that treaty Indian’s tribal treaty fishing This subpart implements the Pacific places pursuant to treaty Indian tribal Salmon Treaty Act of 1985 (16 U.S.C. fishing regulations (whether in compli- 3631–3644) (Act) and is intended to sup- ance with such regulations or not). plement, not conflict with, the fishery regimes and Fraser River Panel regula- Authorized officer means, in addition tions adopted under the Treaty be- to those individuals identified under tween the Government of the United authorized officer at § 300.2, any state, States of America and the Government Federal, or other officer as may be au- of Canada Concerning Pacific Salmon, thorized by the Secretary in writing, signed at Ottawa, January 28, 1985 including any treaty Indian tribal en- (Treaty). forcement officer authorized to enforce tribal fishing regulations. § 300.91 Definitions. Commission means the Pacific Salmon In addition to the terms defined in Commission established by the Pacific § 300.2 and those in the Act and the Salmon Treaty.

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Consistent regulation or consistent straight line drawn from Amphitrite order means any Federal, state, or trea- Point to Cape Beale and all the waters ty Indian tribal regulation or order of Nitinat Lake and the entrance that is in addition to and not in con- thereto. flict with (at least as restrictive as) (2) The waters included within the any regime of the Commission, Fraser following boundaries: Beginning at River Panel regulation, inseason order Bonilla Point, Vancouver Island, of the Secretary, or these regulations. thence along the aforesaid direct line Fishing gear— drawn from Bonilla Point to Tatoosh (1) Gill net means a fishing net of sin- Lighthouse, Washington, described in gle web construction, not anchored, paragraph (1) of this definition, thence tied, staked, placed, or weighted in to the nearest point of Cape Flattery, such a manner that it cannot drift. thence following the southerly shore of (2) Purse seine means all types of fish- Juan de Fuca Strait to Point Wilson, ing gear consisting of a lead line, cork on Whidbey Island, thence following line, auxiliary lines, purse line and the western shore of the said Whidbey purse rings and of mesh net webbing Island, to the entrance to Deception fashioned in such a manner that it is Pass, thence across said entrance to used to encircle fish, and in addition the southern side of Reservation Bay, prevent their escape under the bottom on Fidalgo Island, thence following the or lead line of the net by drawing in western and northern shore line of the the bottom of the net by means of the said Fidalgo Island to Swinomish purse line so that it forms a closed bag. Slough, crossing the said Swinomish (3) Reef net means a non-self-fishing Slough, in line with the track of the open bunt square or rectangular sec- Great Northern Railway (Burlington tion of mesh netting suspended be- Northern Railroad), thence northerly tween two anchored boats fashioned in following the shoreline of the mainland such a manner that to impound salmon to Atkinson Point at the northerly en- passing over the net, the net must be trance to Burrard Inlet, British Colum- raised to the surface. bia, thence in a straight line to the (4) Troll fishing gear means one or southern end of Bowen Island, then more lines that drag hooks with bait or westerly following the southern shore lures behind a moving fishing vessel. of Bowen Island to Cape Roger Curtis, (5) Treaty Indian fishing gear means thence in a straight line to Gower fishing gear defined authorized, and Point, thence westerly following the identified under treaty Indian tribal shoreline to Welcome Point on Sechelt laws and regulations in accordance Peninsula, thence in a straight line to with the requirements of Final Deci- Point Young on Lasqueti Island, sion No. 1 and subsequent orders in thence in a straight line to Dorcas United States v. Washington, 384 F. Point on Vancouver Island, thence fol- Supp. 312 (W.D. Wash., 1974). lowing the eastern and southern shores Fraser River Panel means the Fraser of the said Vancouver Island, to the River Panel established by the Pacific starting point at Bonilla Point, as Salmon Treaty. shown on the British Admiralty Chart Fraser River Panel Area (U.S.) means Number 579, and on the U.S. Coast and the United States’ portion of the Fra- Geodetic Survey Chart Number 6300, as ser River Panel Area specified in Annex corrected to March 14, 1930, copies of II of the Treaty as follows: which are annexed to the 1930 Conven- (1) The territorial water and the high tion between Canada and the United seas westward from the western coast States of America for Protection, Pres- of Canada and the United States of ervation, and Extension of the Sockeye America and from a direct line drawn Salmon Fishery in the Fraser River from Bonilla Point, Vancouver Island, System as amended, signed May 26, to the lighthouse of Tatoosh Island, 1930. [Note: U.S. Coast and Geodetic Washington—which line marks the en- Survey Chart Number 6300 has been re- trance of Juan de Fuca Strait—and em- placed and updated by NOAA Chart braced between 48° and 49° N. lat., ex- Number 18400.] cepting therefrom, however, all the wa- (3) The Fraser River and the streams ters of Barkley Sound, eastward of a and lakes tributary thereto.

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(4) The Fraser River Panel Area of Washington or of a treaty Indian (U.S.) includes Puget Sound Manage- tribe with treaty fishing rights in the ment and Catch Reporting Areas 4B, 5, Fraser River Panel Area (U.S.) will 6, 6A, 6B, 6C, 6D, 7, 7A, 7B, 7C, 7D, and continue to have force and effect in the 7E as defined in the Washington State Fraser River Panel Area (U.S.) with re- Administrative Code at Chapter 220–22 spect to fishing activities addressed as of June 27, 1986. herein. Fraser River Panel regulations means (b) Any person fishing subject to this regulations applicable to the Fraser subpart is bound by the international River Panel Area that are rec- boundaries now recognized by the ommended by the Commission (on the United States within the Fraser River basis of proposals made by the Fraser Panel Area (U.S.) described in § 300.91, River Panel) and approved by the Sec- notwithstanding any dispute or nego- retary of State. tiation between the United States and Mesh size means the distance between Canada regarding their respective ju- the inside of one knot to the outside of risdictions, until such time as different the opposite (vertical) knot in one boundaries are published by the United mesh of a net. States. Pink salmon means Oncorhynchus (c) Any person fishing in the Fraser gorbuscha. River Panel Area (U.S.) who also fishes Sockeye salmon means the anad- for groundfish in the EEZ should con- romous form of Oncorhynchus nerka. sult Federal regulations at part 663 of Treaty fishing places (of an Indian this title for applicable requirements, tribe) means locations within the Fra- including the requirement that vessels ser River Panel Area (U.S.) as deter- engaged in commercial fishing for mined in or in accordance with Final groundfish (except commercial pas- Decision No. 1 and subsequent orders in senger vessels) have vessel identifica- United States v. Washington, 384 F. tion in accordance with § 663.6. Federal Supp. 312 (W.D. Wash. 1974), to be regulations governing salmon fishing places at which that treaty Indian in the EEZ, which includes a portion of tribe may take fish under rights secured by treaty with the United States. the Fraser River Panel Area (U.S.), are Treaty Indian means any member of a at part 661 of this title. Annual regu- treaty Indian tribe whose treaty fish- latory modifications are published in ing place is in the Fraser River Panel the FEDERAL REGISTER. Area (U.S.) or any assistant to a treaty (d) Except as otherwise provided in Indian authorized to assist in accord- this subpart, general provisions gov- ance with § 300.95(d). erning off-reservation fishing by treaty Treaty Indian tribe means any of the Indians are found at 25 CFR part 249, federally recognized Indian tribes of subpart A. Additional general and spe- the State of Washington having fishing cific provisions governing treaty In- rights secured by treaty with the dian fisheries are found in regulations United States to fish for salmon stocks and laws promulgated by each treaty subject to the Pacific Salmon Treaty Indian tribe for fishermen fishing pur- in treaty fishing places within the Fra- suant to tribal authorization. ser River Panel Area (U.S.). Currently (e) Nothing in this subpart relieves a these tribes are the Makah, Tribe, person from any other applicable re- Lower Elwha Klallam Tribe, Port Gam- quirements lawfully imposed by the ble Klallam Tribe, Jamestown Klallam United States, the State of Wash- Tribe, Suquamish Tribe, Lummi Tribe, ington, or a treaty Indian tribe. Nooksack Tribe, the Swinomish Indian Tribal Community, and the Tulalip § 300.93 Reporting requirements. Tribe. Any person fishing for sockeye or pink salmon within the Fraser River § 300.92 Relation to other laws. Panel Area (U.S.) and any person re- (a) Insofar as they are consistent ceiving or purchasing fish caught by with this part, any other applicable such persons are subject to State of Federal law or regulation, or any appli- Washington reporting requirements at cable law and regulations of the State Washington Administrative Code,

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Chapter 220–69. Treaty Indian fisher- wire tag has been implanted in the men are subject also to tribal reporting head of the fish. requirements. No separate Federal re- (2) Fail to permit an authorized offi- ports are required. cer to inspect a record or report required by the State of Washington or § 300.94 Prohibitions and restrictions. treaty Indian tribal authority. In addition to the prohibitions in (c) Notwithstanding paragraph (a) of § 300.4, the following prohibitions and this section, nothing in this subpart restrictions apply. will be construed to prohibit the reten- (a) In addition to the prohibited acts tion of sockeye or pink salmon caught set forth in the Act at 16 U.S.C. 3637(a), by any person while lawfully engaged the following restrictions apply to in a fishery for subsistence or ceremo- sockeye and pink salmon fishing in the nial purposes pursuant to treaty Indian Fraser River Panel Area (U.S.): tribal regulations, for recreational pur- (1) The Fraser River Panel Area poses pursuant to recreational fishing (U.S.) is closed to sockeye and pink regulations promulgated by the State salmon fishing, unless opened by Fra- of Washington, or as otherwise author- ser River Panel regulations or by ized by treaty Indian tribal or State of inseason orders of the Secretary issued Washington law or regulation, provided under § 300.97 that give effect to orders that such treaty Indian tribal or State of the Fraser River Panel, unless such regulation is consistent with U.S.-ap- orders are determined not to be con- proved Commission fishery regimes, sistent with domestic legal obligations. Fraser River Panel regulations, or Such regulations and inseason orders inseason orders of the Secretary appli- may be further implemented by regula- cable to fishing in the Fraser River tions promulgated by the United Panel Area (U.S.). States, the State of Washington, or (d) The following types of fishing any treaty Indian tribe, which are also gear are authorized, subject to the re- consistent with domestic legal obliga- strictions set forth in this subpart and tions. according to the times and areas estab- (2) It is unlawful for any person or lished by Fraser River Panel regula- fishing vessel subject to the jurisdictions or inseason orders of the Sec- tion of the United States to fish for, or retary: take and retain, any sockeye or pink (1) All citizens: Gill net, purse seine, salmon: reef net, and troll fishing gear. Specific (i) Except during times or in areas restrictions on all citizens gear are that are opened by Fraser River Panel contained in the Washington State Ad- regulations or by inseason order, ex- ministrative Code of Chapter 220–47. cept that this provision will not pro- (2) Treaty Indians: Treaty Indian hibit the direct transport of legally fishing gear. caught sockeye or pink salmon to off- (e) Geographic descriptions of Puget loading areas. Sound Salmon Management and Catch (ii) By means of gear or methods not Reporting Areas, which are referenced authorized by Fraser River Panel regu- in the Commission’s regimes, Fraser lations, inseason orders, or other appli- River Panel regulations, and in cable Federal, state, or treaty Indian inseason orders of the Secretary, are tribal law. found in the Washington State Admin- (iii) In violation of any applicable istrative Code at Chapter 220–22. area, season, species, zone, gear, or mesh size restriction. § 300.95 Treaty Indian fisheries. (b) It is unlawful for any person or (a) Any treaty Indian must comply fishing vessel subject to the jurisdic- with this section when fishing for sock- tion of the United States to— eye and pink salmon at the treaty In- (1) Remove the head of any sockeye dian tribe’s treaty fishing places in the or pink salmon caught in the Fraser Fraser River Panel Area (U.S.) during River Panel Area (U.S.), or possess a the time the Commission or the Sec- salmon with the head removed, if that retary exercises jurisdiction over these salmon has been marked by removal of fisheries. Fishing by a treaty Indian the adipose fin to indicate that a coded outside the applicable Indian tribe’s

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treaty fishing places will be subject to Washington in United States v. Wash- the Fraser River Panel regulations and ington, 384 F. Supp. 312 (W.D. Wash., inseason orders applicable to all citi- 1974). For purposes of this section, the zens, as well as to the restrictions set treaty Indian tribal member whom the forth in this section. assistant is authorized to assist must (b) Nothing in this section will re- be present aboard the fishing vessel at lieve a treaty Indian from any applica- all times while engaged in the exercise ble law or regulation imposed by a of treaty Indian fishing rights subject treaty Indian tribe, or from require- to this subpart. ments lawfully imposed by the United (2) No treaty Indian may, while fish- States or the State of Washington in ing at a treaty fishing place in accord- accordance with the requirements of ance with treaty-secured fishing rights, Final Decision No. 1 and subsequent or- permit any person 16 years of age or ders in United States v. Washington, 384 older other than the authorized holder F. Supp. 312 (W.D. Wash., 1974). of a currently valid identification card (c) Identification. (1) Any treaty In- issued in accordance with the require- dian fishing under the authority of this ments of paragraphs (c) (1) and (2) of subpart must have in his or her posses- this section to fish for said treaty In- sion at all times while fishing or en- dian, assist said treaty Indian in fish- gaged in any activity related to fishing ing, or use any gear or fishing location the treaty Indian identification re- identified as said treaty Indian’s gear quired by 25 CFR 249.3 or by applicable or location. tribal law. (3) Treaty Indians are prohibited (2) Any person assisting a treaty In- from participating in a treaty Indian dian under the authority of paragraph fishery under this section at any time (d) of this section must have in his or persons who are not treaty Indians are her possession at all such times a valid aboard the fishing vessel or in contact identification card issued by the Bu- with fishing gear operated from the reau of Indian Affairs or by a treaty In- fishing vessel, unless such persons are dian tribe, identifying the holder as a authorized employees or officers of a person qualified to assist a treaty In- treaty Indian tribe or tribal fisheries dian. The identification card must in- management organization, the North- clude the name of the issuing tribe, the west Indian Fisheries Commission, the name, address, date of birth, and pho- Commission, or a fisheries manage- tograph of the assistant, and the name ment agency of the United States or and identification number of the treaty the State of Washington. Indian whom the assistant is authorized to assist. § 300.96 Penalties. (3) Identification described in paragraph (c) (1) or (2) of this section must Any treaty Indian who commits any be shown on demand to an authorized act that is unlawful under this subpart officer by the treaty Indian or author- normally will be referred to the appli- ized assistant. cable tribe for prosecution and punish- (4) Any treaty Indian fishing under ment. If such tribe fails to prosecute this subpart must comply with the such persons in a diligent manner for treaty Indian vessel and gear identi- the offense(s) referred to the tribe, or if fication requirements of Final Decision other good cause exists, such treaty In- No. 1 and subsequent orders in United dian may be subject to the penalties States v. Washington, 384 F. Supp. 312 and procedures described in the Magnu- (W.D. Wash., 1974). son Act. (d) Fishing assistance. (1) Any member of a treaty Indian tribe fishing under § 300.97 Inseason orders. this subpart may, if authorized by the (a) During the fishing season, the treaty Indian’s tribe, receive fishing Secretary may issue orders that estab- assistance from, and only from, the lish fishing times and areas consistent treaty Indian tribal member’s spouse, with the annual Commission regime forebears, children, grandchildren, and and inseason orders of the Fraser River siblings, as authorized by the U.S. Dis- Panel. Inseason orders will be con- trict Court for the Western District of sistent with domestic legal obligations.

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Violation of such inseason orders is ings. If a term is defined differently in violation of this subpart. § 300.2, such Act, or such Convention, (b) Notice of inseason orders. (1) Offi- the definition in this section shall cial notice of such inseason orders is apply. available from NMFS (for orders appli- ACA means the Antarctic Conserva- cable to all-citizen fisheries) and from tion Act of 1978 (16 U.S.C. 2401 et seq.). the Northwest Indian Fisheries Com- Antarctic convergence means a line mission (for orders applicable to treaty joining the following points along the Indian fisheries) through the following parallels of latitude and meridians of Area Code 206 toll-free telephone hot- longitude: lines: All-citizen fisheries: 1–800–562– Lat. Long. 6513; Treaty Indian fisheries: 1–800–562– 50° S. 0. 6142. 50° S. 30° E. 45° S. 30° E. (2) Notice of inseason orders of the 45° S. 80° E. Secretary and other applicable tribal 55° S. 80° E. regulations may be published and re- 55° S. 150° E. leased according to tribal procedures in 60° S. 150° E. accordance with Final Decision No. 1 60° S. 50° W. and subsequent orders in United States 50° S. 50° W. ° v. Washington, 384 F. Supp. 312 (W.D. 50 S. 0. Wash., 1974). Antarctic finfishes include the fol- (3) Inseason orders may also be com- lowing: municated through news releases to radio and television stations and news- Scientific name Common name papers in the Fraser River Panel Area Gobionotothen gibberifrons ... Humped rockcod. (U.S.). Notothenia rossii ...... Marbled rockcod. Lepidorhirus squamifrons ...... Grey rockcod. (4) Inseason orders of the Secretary Lepidonotothen kempi ...... Striped-eyed rockcod. will also be published in the FEDERAL Dissostichus eleginoides ...... Patagonian toothfish. REGISTER as soon as practicable after Dissostichus mawsoni ...... Antarctic toothfish. Electrona carlsbergi ...... Lanternfish. they are issued. Patagonothen brevicauda Patagonian rockcod. guntheri. Pleuragramma antarcticum ... Antarctic silverfish. Subpart G—Antarctic Marine Trematomus spp...... Antarctic cods. Living Resources Chaenocephalus aceratus ..... Blackfin icefish. Chaenodraco wilsoni ...... Spiny icefish. Champsocephalus gunnari .... Mackerel icefish. AUTHORITY: 16 U.S.C. 2431 et seq. Chionodraco rastrospinosus .. Ocellated icefish. Pseudochaenichthys South Georgia icefish. § 300.100 Purpose and scope. georgianus. (a) This subpart implements the Ant- Antarctic marine living resources or arctic Marine Living Resources Con- AMLR(s) means: vention Act of 1984 (Act). (1) The populations of finfish, mol- (b) This subpart regulates— lusks, crustaceans, and all other spe- (1) The harvesting of Antarctic ma- cies of living organisms, including rine living resources or other associ- birds, found south of the Antarctic ated activities by any person subject to Convergence; the jurisdiction of the United States or (2) All species of Dissostichus, wher- by any vessel of the United States. ever found; and (2) The importation into the United (3) All parts or products of those pop- States of any Antarctic marine living ulations and species set forth in para- resource. graphs (1) and (2) of this definition. Commission means the Commission § 300.101 Definitions. for the Conservation of Antarctic Ma- In addition to the terms defined in rine Living Resources established § 300.2, in the Act, and in the Conven- under Article VII of the Convention. tion on the Conservation of Antarctic Convention waters means all waters Marine Living Resources, done at Can- south of the Antarctic Convergence. berra, Australia, May 7, 1980 (Conven- Dealer means the person who first re- tion). Convention, the terms used in ceives AMLRs from a harvesting vessel this subpart have the following mean- or transshipment vessel or who imports

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AMLRs into, or re-exports AMLRs title or an award letter from NSF or a from, the United States. permit from the NSF under 45 CFR Directed fishing, with respect to any part 670. Scientific research activities species or stock of fish, means any fish- may also include harvesting or other ing that results in such fish comprising associated activities if such activities more than 1 percent by weight, at any are designated as scientific research time, of the catch on board the vessel. activities by the Assistant Adminis- Dissostichus catch document (DCD) trator. means the uniquely numbered catch Specially Validated Dissostichus Catch documentation form approved by the Document (SVDCD) means a Commission and issued by a flag state Dissostichus catch document that has to its vessels authorized to harvest been specially issued by a State to ac- Dissostichus species. company seized or confiscated catch of Dissostichus species means Patagonian Dissostichus spp. offered for sale or oth- toothfish and/or Antarctic toothfish erwise disposed of by the State. and their parts or products. Transship means the transfer of fish Fish means finfish, mollusks, and or fish products from one vessel to an- crustaceans. other. Fishery means: Vessel Monitoring System (VMS) means (1) One or more stocks of fish that a system that allows a Flag State, can be treated as a unit for purposes of through the installation of satellite- conservation and management and tracking devices on board its fishing that are identified on the basis of geo- vessels to receive automatic trans- graphical, scientific, technical, rec- mission of certain information. reational, and economic characteris- [61 FR 35550, July 5, 1996, as amended at 65 tics. FR 30015, May 10, 2000; 68 FR 23227, May 1, (2) Any fishing for such stocks. 2003] Harvesting vessel means any vessel of the United States (this includes any § 300.102 Relationship to other trea- boat, ship, or other craft), that is used ties, conventions, laws, and regula- for, equipped to be used for, or of a tions. type that is normally used for har- (a) Other conventions and treaties to vesting. which the United States is a party and Individual permit means an NSF per- other Federal statutes and imple- mit issued under 45 CFR part 670; or an menting regulations may impose addi- NSF award letter (demonstrating that tional restrictions on the harvesting the individual has received an award and importation into the United States from NSF to do research in the Ant- of AMLRs. arctic); or a marine mammal permit (b) The ACA implements the Ant- issued under § 216.31 of this chapter; or arctic Treaty Agreed Measures for the an endangered species permit issued Conservation of Antarctic Fauna and under § 222.21 of this chapter. Flora (12 U.S.T. 794). The ACA and its Inspection vessel means a vessel car- implementing regulations (45 CFR part rying a CCAMLR inspector and dis- 670) apply to certain defined activities playing the pennant approved by the of U.S. citizens south of 60° S. lat. Commission to identify such vessel. (c) The Marine Mammal Protection Land or landing means to begin off- Act of 1972 (16 U.S.C. 1361 et seq.), the loading any fish, to arrive in port with Endangered Species Act of 1973 (16 the intention of offloading any fish, or U.S.C. 1531 et seq.), the Migratory Bird to cause any fish to be offloaded. Treaty Act (16 U.S.C. 701 et seq.), and NSF means National Science Founda- their implementing regulations also tion, 4201 Wilson Boulevard, Arlington, apply to the harvesting and importa- VA 22230. tion of AMLRs. Recreational fishing means fishing with hook and line for personal use and § 300.103 Procedure for according pro- not for sale. tection to CCAMLR Ecosystem Mon- Scientific research activity means any itoring Program Sites. activity for which a person has a per- (a) General. (1) Any person subject to mit from NMFS under § 216.31 of this the jurisdiction of the United States

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must apply for and be granted an entry Treaty and its Annexes when it enters permit authorizing specific activities into force), as implemented under by prior to entering a CCAMLR Eco- the ACA and any superseding legisla- system Monitoring Program (CEMP) tion. (Persons interested in conducting Protected Site designated in accord- activities subject to the Antarctic ance with the CCAMLR Conservation Treaty or the Protocol should contact Measure describing the Procedures for the Office of Polar Programs, NSF). According Protection for CEMP Sites. (2) The Convention for the Conserva- (2) If a CEMP Protected Site is also a tion of Antarctic Seals. site specially protected under the Ant- (3) The Convention and its Conserva- arctic Treaty (or the Protocol on Envi- tion Measures in force, implemented ronmental Protection to the Antarctic under the Act. Treaty and its Annexes, when it enters (d) Prohibitions on takings. Permits into force), an applicant seeking to issued under this section do not au- enter such a Protected Site must apply thorize any takings as defined in the to the Director of the NSF for a permit applicable statutes and implementing under applicable provisions of the ACA regulations governing the activities of or any superseding legislation. The per- persons in Antarctica. mit granted by NSF shall constitute a (e) Issuance criteria. Permits des- joint CEMP/ACA Protected Site permit ignated in this section may be issued and any person holding such a permit by the Assistant Administrator upon a must comply with the appropriate determination that: CEMP Protected Site Management Plan. In all other cases, an applicant (1) The specific activities meet the seeking a permit to enter a CEMP Pro- requirements of the Act. tected Site must apply to the Assistant (2) There is sufficient reason, estab- Administrator for a CEMP permit in lished in the permit application, that accordance with the provisions of this the scientific purpose for the intended section. entry cannot be served elsewhere. (b) Responsibility of CEMP permit hold- (3) The actions permitted will not ers and persons designated as agents violate any provisions or prohibitions under a CEMP permit. (1) The CEMP of the Protected Site’s Management permit holder and person designated as Plan submitted in compliance with the agents under a CEMP permit are joint- CCAMLR Conservation Measure de- ly and severally responsible for compli- scribing the Procedures for According ance with the Act, this subpart, and Protection to CEMP Sites. any permit issued under this subpart. (f) Application process. An applicant (2) The CEMP permit holder and seeking a CEMP permit from the As- agents designated under a CEMP per- sistant Administrator to enter a CEMP mit are responsible for the acts of their Protected Site shall include the fol- employees and agents constituting vio- lowing in the application. lations, regardless of whether the spe- (1) A detailed justification that the cific acts were authorized or forbidden scientific objectives of the applicant by the CEMP permit holder or agents, cannot be accomplished elsewhere and and regardless of knowledge concerning a description of how said objectives their occurrence. will be accomplished within the terms (c) Prohibitions regarding the Antarctic of the Protected Site’s Management Treaty System and other applicable trea- Plan. ties and statutes. Holders of permits to (2) A statement signed by the appli- enter CEMP Protected Sites are not cant that the applicant has read and permitted to undertake any activities fully understands the provisions and within a CEMP Protected Site that are prohibitions of the Protected Site’s not in compliance with the provisions Management Plan. Prospective appli- of: cants may obtain copies of the relevant (1) The Antarctic Treaty, including Management Plans and the CCAMLR the Agreed Measures for the Conserva- Conservation Measure describing the tion of Antarctic Fauna and Flora (in- Procedures for According Protection to cluding the Protocol on the Environ- CEMP Sites by requesting them from mental Protection to the Antarctic the Assistant Administrator.

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(g) Conditions. CEMP permits issued based upon information received by the under this section will contain special Assistant Administrator and such rev- and general conditions including a con- ocation or suspension shall be effective dition that the permit holder shall sub- upon notification to the permit holder. mit a report describing the activities (1) A CEMP permit may be revoked conducted under the permit within 30 or suspended based on a violation of days of the expiration of the CEMP the permit, the Act, or this subpart. permit. (2) Failure to report a change in the (h) Duration. Permits issued under information submitted in a CEMP per- this section are valid for a period of up mit application within 10 days of the to five years. Applicants requesting a change is a violation of this subpart permit to reenter a Protected Site and voids the application or permit, as must include the most recent report re- applicable. Title 15 CFR part 904 gov- quired by the general condition in the erns permit sanctions under this sub- previously issued CEMP permit depart. scribing the activities conducted under (l) Exceptions. Entry into a Protected authority of that permit. Site described in this section is lawful (i) Transfer. CEMP permits are not if committed under emergency condi- transferable or assignable. A CEMP tions to prevent the loss of human life, permit is valid only for the person to compromise human safety, prevent the whom it is issued. loss of vessels or aircraft, or to prevent (j) Modification. (1) CEMP permits environmental damage. can be modified by submitting a re- (m) Protected sites. (1) Sites protected quest to the Assistant Administrator. by the Antarctic Treaty and regulated Such requests shall specify: under the ACA are listed at 45 CFR (i) The action proposed to be taken part 670 subparts G and H. along with a summary of the reasons (2) The following sites have been therefore. identified as CEMP Protected Sites (ii) The steps that the permit holder subject to the regulatory authority of may take to demonstrate or achieve the Act: compliance with all lawful require- (i) Seal Islands, South Shetland Is- ments. lands—The Seal Islands are composed (2) If a requested modification is not of islands and skerries located approxi- in compliance with the terms of the mately 7 km north of the northwest Protected Site’s Management Plan, the corner of Elephant Island, South Shet- Assistant Administrator will treat the land Islands. The Seal Islands CEMP requested modification as an applica- Protected Site includes the entire Seal tion for a new CEMP permit and so no- Islands group, which is defined as Seal tify the holder. Modifications will be Island plus any land or rocks exposed acted upon within 30 days of receipt. at mean low tide within a distance of The CEMP permit holder must report 5.5 km of the point of highest elevation to the Assistant Administrator any on Seal Island. Seal Island is situated change in previously submitted infor- at 60°59′14″ S. lat., 55°23′04″ W. long. mation within 10 days of the change. (ii) Cape Shirreff and the San Telmo Is- (3) Additional conditions and restric- lands. This designation takes effect on tions. The Assistant Administrator May 1, 1995. Cape Shirreff is a low, ice- may revise the CEMP permit effective free peninsula towards the western end upon notification of the permit holder, of the north coast of Livingston Island, to impose additional conditions and re- South Shetland Islands, situated at strictions as necessary to achieve the 62°29′ S. lat., 60°47′ W. long., between purposes of the Convention, the Act Barclay Bay and Hero Bay. San Telmo and the CEMP Management Plan. The Island is the largest of a small group of CEMP permit holder must, as soon as ice-free rock islets, approximately 2 possible, notify any and all agents op- km west of Cape Shirreff. The bound- erating under the permit of any and all aries of the Cape Shirreff CEMP Pro- revisions or modifications to the per- tected Site are identical to the bound- mit. aries of the Site of Special Scientific (k) Revocation or suspension. CEMP Interest No. 32, as specified by ATCM permits may be revoked or suspended Recommendation XV–7. No manmade

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boundary markers indicate the limits Surveys in the Convention Area when of the SSSI or protected site. The the Total Catch is Expected to be More boundaries are defined by natural fea- Than 50 Tons to report the details of tures and include the entire area of the the research plan to the Assistant Ad- Cape Shirreff peninsula north of the ministrator at least 7 months in ad- glacier ice tongue margin, and most of vance of the planned starting date for the San Telmo Island group. For the the research. A copy of the format is purposes of the protected site, the en- available from the Assistant Adminis- tire area of Cape Shirreff and the San trator. Telmo Island group is defined as any (2) The format requires: land or rocks exposed at mean low tide (i) The name of the CCAMLR Mem- within the area delimited by the map ber. of SSSI No. 32 and available from the (ii) Survey details. Assistant Administrator. (iii) Description of the vessel. [61 FR 35550, July 5, 1996, as amended at 68 (iv) Description of the fishing gear to FR 23227, May 1, 2003] be used. (v) Description of acoustic gear to be § 300.104 Scientific research. used. (a) The management measures issued (vi) Survey design and methods of pursuant to the procedures at § 300.111 data analyses. do not apply to catches of less than 5 (vii) Data to be collected. tons taken by any vessel for research (3) A summary of the results of any purposes, unless otherwise indicated. research fishing subject to these provi- (b) Catches taken by any vessel for sions must be provided to the Assistant research purposes will be considered as Administrator within 150 days of the part of any catch limit. completion of the research fishing and (c) The catch reporting procedure a full report must be provided within 11 identified in management measures months. issued pursuant to the procedures at (4) Catch and effort data resulting § 300.111 applies whenever the catch from the research fishing must be re- within any 5-day reporting period exported to the Assistant Administrator ceeds 5 tons, unless more specific re- using the CCAMLR C4 haul-by-haul reporting requirements apply to the spe- porting format for research vessels. cies being fished. (d) Any person, organization or insti- § 300.105 Initiating a new fishery. tution planning to use a vessel for re- (a) A new fishery, for purposes of this search purposes, when the estimated section, is a fishery on a species using catch is expected to be less than 50 a particular method in a statistical tons, must provide the following vessel subarea for which: and research notification to the Assist- (1) Information on distribution, abun- ant Administrator at least 2 months in dance, demography, potential yield and advance of the planned research: stock identity from comprehensive re- (1) Name and registration number of search/surveys or exploratory fishing vessel. has not been submitted to CCAMLR; (2) Division and subarea in which re- (2) Catch and effort data have never search is to be carried out. been submitted to CCAMLR; or (3) Estimated dates of entering and (3) Catch and effort data from the leaving CCAMLR Convention Area. two most recent seasons in which fish- (4) Purposes of research. ing occurred have not been submitted (5) Fishing equipment to be used to CCAMLR. (bottom trawl, midwater trawl, (b) An individual subject to these longline, crab pots, other). regulations intending to develop a new (e) The following measures apply to fishery shall notify the Assistant Ad- any person planning to use any vessel ministrator no later than July 1 of the for research purposes, when the esti- year in which he or she intends to ini- mated catch is expected to be more tiate the fishery and shall not initiate than 50 tons: the fishery pending CCAMLR review. (1) The person must use the CCAMLR (c) The notification shall be accom- Format for Reporting Plans for Finfish panied by information on:

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(1) The nature of the proposed fish- CCAMLR, which receives and considers ery, including target species, methods the notice made to the Assistant Ad- of fishing, proposed region and any ministrator, has been concluded. minimum level of catches that would be required to develop a viable fishery. § 300.107 Reporting and recordkeeping (2) Biological information from com- requirements. prehensive research/survey cruises, (a) Vessels. The operator of any vessel such as distribution, abundance, demo- required to have a harvesting permit graphic data and information on stock under this subpart must: identity. (1) Accurately maintain on board the (3) Details of dependent and associ- vessel all CCAMLR reports and records ated species and the likelihood of them required by its permit. being affected by the proposed fishery. (2) Make such reports and records (4) Information from other fisheries available for inspection upon the rein the region or similar fisheries else- quest of an authorized officer or where that may assist in the valuation CCAMLR inspector. of potential yield. (3) Within the time specified in the permit, submit a copy of such reports § 300.106 Exploratory fisheries. and records to NMFS at an address des- (a) An exploratory fishery, for pur- ignated by NMFS. poses of this section, is a fishery that (4) Install a NMFS-approved VMS was previously defined as a new fishery unit on board the vessel and operate under § 300.105. the VMS unit whenever the vessel en- (b) A fishery will continue to be clas- ters Convention waters. sified as an exploratory fishery until (b) Dealers. Dealers of AMLRs re- sufficient information is available to: quired to have a permit under this sub- (1) Evaluate the distribution, abun- part must: dance, and demography of the target (1) Accurately maintain all reports species, leading to an estimate of the and records required by their permits; fishery’s potential yield. (2) Make such reports and records (2) Review the fishery’s potential im- available for inspection upon the re- pacts on dependent and related species. quest of an authorized officer or (3) Allow the CCAMLR Scientific CCAMLR inspector; and Committee to formulate and provide (3) Within the time specified in the advice to the Commission on appro- permit, submit a copy of such reports priate harvest catch levels and fishing and records to NMFS at an address des- gear. ignated by NMFS. (c) Each vessel participating in an (c) Catch documentation—(1) General. exploratory fishery must carry a sci- (i) The CCAMLR DCD must accompany entific observer. all shipments of Dissostichus species as (d) The operator of any vessel engag- required in this paragraph (c). ing in an exploratory fishery must sub- (ii) No shipment of Dissostichus spe- mit, by the date specified in the opera- cies shall be released for entry into the tor’s harvesting permit, catch, effort, United States unless accompanied by a and related biological, ecological, and complete and validated CCAMLR DCD. environmental data as required by a (iii) No shipment of Dissostichus spe- data collection plan for the fishery for- cies identified as originating from a mulated by the CCAMLR Scientific high seas area designated by the Food Committee. and Agriculture Organization of the (e) In addition to the requirements in United Nations as Statistical Area 51 § 300.112, any individual planning to or Statistical Area 57 in the eastern enter an exploratory fishery must no- and western Indian Ocean outside and tify the Assistant Administrator no north of the Convention Area shall be later than 4 months in advance of the issued a preapproval. annual meeting of CCAMLR. The As- (2) Harvesting vessels. (i) In addition sistant Administrator will not issue a to any harvesting permit or authoriza- permit to enter an exploratory fishery tion previously issued, a U.S. vessel until after the requirements of § 300.112 harvesting or attempting to harvest have been met and the meeting of Dissostichus species must possess a DCD

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issued by NMFS which is non- (iii) The master of the transshipping transferrable. The master of the har- vessel must submit all DCDs with vesting vessel must ensure that the original signatures to NMFS no later catch information specified on the DCD than 30 days after offloading and retain is accurately recorded. copies for a period of 2 years. (ii) Prior to offloading of Dissostichus (4) Receivers upon landing. Any dealer species, the master of the harvesting who receives Dissostichus species from a vessel must: harvesting vessel or from a trans- (A) electronically convey by the most shipment vessel must sign the DCD(s) rapid means possible catch information provided by the master of the vessel. to NMFS and record on the DCD a con- (5) Import. (i) Any dealer who imports firmation number received from Dissostichus species must: NMFS; (A) Obtain the DCD and stamp on the (B) Obtain on the DCD (or copies DCD showing that NMFS has certified thereof) the signature(s) of the fol- that preapproval has been granted for lowing persons: if catch is offloaded for importation (and Dissostichus re-export transshipment, the master of the ves- document if applicable) with a unique sel(s) to which the catch is transferred; export reference number that accom- or if catch is offloaded for landing, the panies the import shipment, signature of both the responsible offi- (B) Ensure that the quantity of cial(s) designated by NMFS in the har- toothfish listed on the DCD (or vesting permit, and the dealer(s) that Dissostichus re-export document if prod- receives the catch at the port(s) of uct is to be re-exported) matches the landing; and quantity listed on the preapproval ap- (C) Sign the DCD (or copies thereof), plication within a variance of 10 per- electronically convey by the most cent, rapid means possible each copy to (C) Express mail or fax the catch doc- NMFS, and provide a copy to each re- umentation described in paragraphs cipient of the catch. (c)(5)(i)(A) and (B) of this section to an (iii) The master of the harvesting address designated by NMFS so that vessel must submit the original DCD NMFS receives the documentation at (or all copies thereof with original sig- least 15 working days prior to import, natures) to NMFS no later than 30 days and after the end of the fishing season as (D) Retain a copy of the DCD for his/ authorized for that vessel on its har- her records and provide copies to ex- vesting permit. porters as needed. (3) Transshipment vessels. (i) The mas- (ii) Dealers must retain at their place ter of a U.S. vessel issued a permit to of business a copy of the DCD for a pe- transship Dissostichus species must, riod of 2 years from the date on the upon receipt of Dissostichus species, DCD. sign each DCD provided by the master (iii) Exception. For shipments of of the harvesting vessel. Dissostichus species which are fresh and (ii) Prior to landing Dissostichus spe- less than 2,000 kilograms in quantity, cies, the master of the transshipping the application for approval of catch vessel must: documents of toothfish must be sub- (A) Obtain on each DCD (or copies mitted to NMFS within 24 hours of im- thereof) the signature(s) of both the report. sponsible official(s) designated by (6) Re-export. (i) Any dealer who re- NMFS in the permit, and the dealer(s) exports Dissostichus species must com- that receives the catch at the port(s) of plete a Dissostichus re-export document landing and by indicating: (B) Sign each DCD (or copies there- (A) The amount from the original of), and electronically convey by the DCD(s) that is exported in the par- most rapid means possible each copy to ticular export shipment; NMFS and to the flag state(s) of the (B) The number of the original harvesting vessel(s) and provide a copy DCD(s); to each dealer receiving Dissostichus (C) The name of the importer and species. point of import; and

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(D) The exporter’s name, address and tached to a harvesting vessel is clearly permit number. marked at the surface with a buoy dis- (ii) The dealer must then sign the re- playing the vessel identification of the export document and obtain validation harvesting vessel (see paragraph (a) of by a responsible official(s) designated this section) to which the gear belongs, by NMFS. a light visible for 2 miles at night in (iii) The original validated good visibility, and a radio buoy. Trawl Dissostichus re-export document and codends passed from one vessel to an- copies of the original DCD(s) must ac- other are considered continuously at- company the export shipment. tached gear and do not have to be (iv) The dealer must retain a copy of marked. the re-export document and copies of (2) The operator of each harvesting the DCD(s)at his/her place of business vessel must ensure that deployed for a period of 2 years from the date on longlines, strings of traps or pots, and the DCD. gillnets are marked at the surface at [65 FR 30016, May 10, 2000, as amended at 68 each terminal end with a buoy dis- FR 23228, May 1, 2003] playing the vessel identification of the harvesting vessel to which the gear be- § 300.108 Vessel and gear identifica- longs (see paragraph (a) of this section. tion), a light visible for 2 miles at (a) Vessel identification. (1) The oper- night in good visibility, and a radio ator of each harvesting vessel assigned buoy. an IRCS must display that call sign (3) Unmarked or incorrectly identi- amidships on both the port and star- fied fishing gear may be considered board sides of the deckhouse or hull, so abandoned and may be disposed of in that it is visible from an enforcement accordance with applicable Federal or inspection vessel, and on an appro- regulations by any authorized officer priate weather deck so that it is visible or CCAMLR inspector. from the air. (d) Maintenance. The operator of each (2) The operator of each harvesting harvesting vessel must: vessel not assigned an IRCS, such as a (1) Keep the vessel and gear identi- small trawler associated with a fication clearly legible and in good re- mothership or one of a pair of trawlers, pair. must display the IRCS of the associ- (2) Ensure that nothing on the har- ated vessel, followed by a numerical vesting vessel obstructs the view of the suffix specific for the non-assigned ves- markings from an enforcement or in- sel. spection vessel or aircraft. (3) The vessel identification must be (3) Ensure that the proper naviga- in a color in contrast to the back- tional lights and shapes are displayed ground and must be permanently af- for the harvesting vessel’s activity and fixed to the harvesting vessel in block are properly functioning. roman alphabet letters and arabic numerals at least 1 m in height for har- § 300.109 Gear disposal. vesting vessels over 20 m in length, and (a) The operator of a harvesting ves- at least 0.5 m in height for all other sel may not dump overboard, jettison harvesting vessels. or otherwise discard any article or sub- (b) Navigational lights and shapes. stance that may interfere with other Each harvesting vessel must display fishing vessels or gear, or that may the lights and shapes prescribed by the catch fish or cause damage to any ma- International Regulations for Pre- rine resource, including marine mam- venting Collisions at Sea, 1972 (TIAS mals and birds, except in cases of emer- 8587, and 1981 amendment TIAS 10672), gency involving the safety of the ship for the activity in which the har- or crew, or as specifically authorized vesting vessel is engaged (as described by communication from the appro- at 33 CFR part 81). priate USCG commander or authorized (c) Gear identification. (1) The oper- officer. These articles and substances ator of each harvesting vessel must en- include, but are not limited to, fishing sure that all deployed fishing gear that gear, net scraps, bale straps, plastic is not physically and continuously at- bags, oil drums, petroleum containers,

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oil, toxic chemicals or any manmade (2) Use of the gauge. (i) The net will be items retrieved in a harvesting vessel’s stretched in the direction of the long gear. diagonal of the meshes. (b) The operator of a harvesting ves- (ii) A gauge as described in paragraph sel may not abandon fishing gear in (c)(1) of this section will be inserted by Convention waters. its narrowest extremity into the mesh (c) The operator of a harvesting ves- opening in a direction perpendicular to sel must provide a copy of the the plane of the net. CCAMLR information brochure ‘‘Ma- (iii) The gauge may be inserted into rine Debris—A Potential Threat to the mesh opening either with a manual Antarctic Marine Mammals’’ to each force or using a weight or dynamom- member of the crew of the harvesting eter, until it is stopped at the tapering vessel and must display copies of the edges by the resistance of the mesh. CCAMLR placard ‘‘Avoidance of Inci- (3) Selection of meshes to be measured. dental Mortality of Antarctic Marine (i) Meshes to be measured will form a Mammals’’ in the wheelhouse and crew series of 20 consecutive meshes chosen quarters of the harvesting vessels. Cop- in the direction of the long axis of the ies of the brochure and placard will be net, except that the meshes to be meas- provided to each holder of a harvesting ured need not be consecutive if the ap- permit by NMFS when issuing the per- plication of paragraph (c)(3)(ii) of this mit. section prevents it. (ii) Meshes less than 50 cm from § 300.110 Mesh size. lacings, ropes, or codline will not be (a) The use of pelagic and bottom measured. This distance will be meas- trawls having the mesh size in any part ured perpendicular to the lacings, ropes of a trawl less than indicated is prohib- or codline with the net stretched in the ited for any directed fishing for the fol- direction of that measurement. No lowing Antarctic finfishes: mesh will be measured which has been (1) Notothenia rossii and Dissostichus mended or broken or has attachments eleginoides—120 mm. to the net fixed at that mesh. (2) Champsocephalus gunnari—90 mm. (iii) Nets will be measured only when (3) Gobionotothen gibberifrons, wet and unfrozen. Notothenia kempi and Lepidorhirus (4) The measurement of each mesh squamifrons—80 mm. will be the width of the gauge at the (b) Any means or device that would point where the gauge is stopped, when reduce the size or obstruct the opening using this gauge in accordance with of the meshes is prohibited. paragraph (c)(2) of this section. (c) The following procedure will be (5) Determination of the mesh size of used for determining compliance with the net will be the arithmetical mean mesh size requirements. in millimeters of the measurements of (1) Description of gauges. (i) Gauges the total number of meshes selected for determining mesh sizes will be 2 and measured as provided for in para- mm thick, flat, of durable material and graphs (c) (3) and (4) of this section, the capable of retaining their shape. They arithmetical mean being rounded up to may have either a series of parallel- the next millimeter. edged sides connected by intermediate (6) Inspection procedure. (i) One series tapering edges with a taper of one to of 20 meshes, selected in accordance eight on each side, or only tapering with paragraph (c)(3) of this section, edges with the taper defined above. will be measured by inserting the They will have a hole at the narrowest gauge manually without using a weight extremity. or dynamometer. The mesh size of the (ii) Each gauge will be inscribed on net will then be determined in accord- its face with the width in millimeters ance with paragraph (c)(5) of this sec- both on the parallel-sided section, if tion. If the calculation of the mesh size any, and on the tapering section. In the shows that the mesh size does not ap- case of the latter, the width will be in- pear to comply with the rules in force, scribed every 1 mm interval, but the then two additional series of 20 meshes indication of the width may appear at selected in accordance with paragraph regular intervals other than 1 mm. (c)(3) of this section will be measured.

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The mesh size will then be recalculated Commission may recommend new in accordance with paragraph (c)(5) of measures and that established meas- this section, taking into account the 60 ures be modified, removed, or re-insti- meshes already measured; this recal- tuted. After public notice of those rec- culation will be the mesh size of the ommendations by the Secretary of net. State and opportunity for public com- (ii) If the captain of the vessel con- ment, and after considering the impact tests the mesh size determined in ac- of instituting the measures and any cordance with paragraph (c)(6)(i) of public comment received by the Sec- this section, such measurement will retary of State, the Assistant Adminis- not be considered for the determina- trator may implement the manage- tion of the mesh size and the net will ment measures by notice in the FED- be remeasured. ERAL REGISTER, with immediate force (A) A weight or dynamometer at- and effect. The notification in the FED- tached to the gauge will be used for re- ERAL REGISTER will summarize new measurement. The choice of weight or management measures, and respond to dynamometer is at the discretion of any public comments received by the the inspectors. The weight will be fixed Secretary of State on the preliminary to the hole in the narrowest extremity notice. of the gauge using a hook. The dyna- (d) Types of management measures to be mometer may either be fixed to the frameworked. Management measures hole in the narrowest extremity of the that may be implemented by regu- gauge or be applied at the largest ex- latory notice rather than by codified tremity of the gauge. regulation are those that generally will (B) The accuracy of the weight or dy- not remain in effect for more than 12 namometer must be certified by the ap- months and include catch restrictions, propriate national authority. time and area closures, and gear re- (C) For nets of a mesh size of 35 mm strictions. or less as determined in accordance (e) The fishing season for all Conven- with paragraph (c)(6)(i) of this section, tion Area species isDecember 1 through a force of 19.61 newtons (equivalent to November 30 of the following year, un- a mass of 2 kg) will be applied, and for less otherwise set in specific CCAMLR other nets, a force of 49.03 newtons conservation measures. (equivalent to a mass of 5 kg). [61 FR 35550, July 5, 1996, as amended at 68 (D) For the purposes of determining FR 23228, May 1, 2003] the mesh size in accordance with paragraph (c)(5) of this section, when using § 300.112 Harvesting permits. a weight or dynamometer, one series of (a) General. (1) Every vessel subject 20 meshes only will be measured. to the jurisdiction of the United States that attempts to reduce or reduces any § 300.111 Framework for annual man- AMLR to possession must have a har- agement measures. vesting permit authorizing the attempt (a) Introduction. New management or reduction, unless the attempt or re- measures may be added and others duction occurs during recreational modified through publication of a regu- fishing or is covered by an individual latory action in the FEDERAL REG- permit. Boats launched from a vessel ISTER. The following framework proc- issued a harvesting permit do not re- ess authorizes the implementation of quire a separate permit, but are cov- measures that may affect the operation ered by the permit issued the launch- of the commercial or exploratory fishing vessel. Any enforcement action eries, gear, area restrictions, or that results from the activities of a changes in catch and/or effort. launched boat will be taken against the (b) Preliminary notice. The Secretary launching vessel. of State shall publish preliminary no- (2) Permits issued under this section tice in the FEDERAL REGISTER of the do not authorize vessels or persons sub- management measures adopted by the ject to the jurisdiction of the United parties to the Convention. States to harass, capture, harm, kill, (c) Procedure. At its annual meeting, harvest, or import marine mammals. usually in October or November, the No marine mammals may be taken in

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the course of commercial fishing oper- 2 or 3 decades, taking into account the ations unless the taking is allowed state of available knowledge of the di- under the Marine Mammal Protection rect and indirect impact of harvesting, Act and/or the Endangered Species Act the effect of the introduction of alien pursuant to an exemption or permit species, the effects of associated activi- granted by the appropriate agency. ties on the marine ecosystem and of (b) Responsibility of owners and opera- the effects of environmental changes, tors. (1) The owners and operators of with the aim of making possible the each harvesting vessel are jointly and sustained conservation of AMLRs. severally responsible for compliance (4) Violate the management measures with the Act, this subpart, and any per- issued pursuant to § 300.111 of this submit issued under the Act and this subpart. part. (5) Violate any other conservation (2) The owners and operators of each measures in force with respect to the such vessel are responsible for the acts United States under the Convention or of their employees and agents consti- the Act. tuting violations, regardless of whether (e) Duration. A harvesting permit is the specific acts were authorized or for- valid from its date of issuance to its bidden by the owners or operators, and date of expiration unless it is revoked regardless of knowledge concerning or suspended. their occurrence. (f) Transfer. Permits are not transfer- (3) The owner of such vessel must re- able or assignable. A permit is valid port any sale, change in ownership, or only for the vessel to which it is issued. other disposition of the vessel to the (g) Display. Each harvesting vessel Assistant Administrator within 15 days when engaged in harvesting must ei- of the occurrence. ther have on board an up-to-date copy (c) Application. Application forms for of its harvesting permit or a fully com- harvesting permits are available from pleted and up-to-date harvesting vessel the Assistant Administrator (Attn: certificate and the vessel operator CCAMLR permits). A separate fully must produce it for inspection upon the completed and accurate application request of an authorized officer or must be submitted for each vessel for CCAMLR inspector. In order for the which a harvesting permit is requested certificate to be considered complete, at least 90 days before the date antici- the vessel owner or operator must pated for the beginning of harvesting. enter on it the name and IRCS of the (d) Issuance. The Assistant Adminis- vessel issued the harvesting permit, trator may issue a harvesting permit the number of the harvesting permit to a vessel if the Assistant Adminis- and its date of issuance and expiration, trator determines that the harvesting the harvesting authorized by the per- described in the application will meet mit, and all conditions and restrictions the requirements of the Act and will contained in the permit. Blank certifi- not: cates are available from the Assistant (1) Decrease the size of any harvested Administrator. population to levels below those that (h) Changes in information submitted ensure its stable recruitment. For this by permit applicants or holders—(1) purpose, the Convention recommends Changes in pending applications. Appli- that its size not be allowed to fall cants for a harvesting permit must re- below a level close to that which en- port to the Assistant Administrator in sures the greatest net annual incre- writing any change in the information ment. contained in the application. The proc- (2) Upset the ecological relationships essing period for the application will be between harvested, dependent, and re- extended as necessary to review the lated populations of AMLRs and the change. restoration of depleted populations to (2) Changes occurring after permit levels that will ensure stable recruit- issuance—(i) Changes other than in the ment. manner and amount of harvesting. The (3) Cause changes or increase the risk owner or operator of a vessel that has of changes in the marine ecosystem been issued a harvesting permit must that are not potentially reversible over report to the Assistant Administrator

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in writing any change in previously less of whether such transshipment oc- submitted information other than a curs in waters under the jurisdiction of proposed change in the location, man- CCAMLR, must obtain from NMFS a ner, or amount of harvesting within 15 harvesting permit authorizing trans- days of the change. Based on such re- shipment. Transshipment vessels must ported information, the Assistant Ad- comply with the permitting provisions ministrator may revise the permit ef- of this section with respect to har- fective upon notification to the permit vesting vessels. holder. As soon as possible, the vessel [61 FR 35550, July 5, 1996, as amended at 65 owner or operator must revise any har- FR 30017, May 10, 2000] vesting vessel certificate evidencing the permit, accordingly. § 300.113 Dealer permits and (ii) Requested changes in the location, preapproval. manner, or amount of harvesting. Any (a) General. (1) A dealer intending to changes in the manner or amount of import or re-export AMLR must obtain harvesting must be proposed in writing an AMLR dealer permit valid for one to the Assistant Administrator and year. Preapproval from NMFS is re- may not be undertaken unless author- quired for each shipment of Dissostichus ized by the Assistant Administrator species. Only those specific activities through a permit revision or issuance stipulated by the permit are authorized of a new permit. If a requested change for the permit holder. in the location, manner, or amount of (2) An AMLR may be imported into harvesting could significantly affect the United States if its harvest has the status of any Antarctic marine liv- been authorized by a U.S.-issued indi- ing resource, the Assistant Adminis- vidual permit issued under § 300.112 trator will treat the requested change (a)(1) or its importation has been au- as an application for a new permit and thorized by a NMFS-issued dealer per- so notify the holder. mit and preapproval issued under para- (i) Additional conditions and restric- graph (a) of this section. AMLRs may tions. The Assistant Administrator not be released for entry into the may revise the harvesting permit, ef- United States unless accompanied by fective upon notification to the permit the harvesting permit or the individual holder, to impose additional conditions permit and the DCD for that shipment and restrictions on the harvesting ves- which has been stamped by NMFS cer- sel as necessary to achieve the pur- tifying that preapproval has been poses of the Convention or the Act. The granted to allow import. permit holder must, as soon as pos- (3) In no event may a marine mam- sible, direct the vessel operator to re- mal be imported into the United States vise the harvesting vessel certificate, if unless authorized and accompanied by any, accordingly. an import permit issued under the Ma- (j) Revision, suspension, or revocation rine Mammal Protection Act and/or for violations. A harvesting permit may the Endangered Species Act. be revised, suspended, or revoked if the (4) A dealer permit or preapproval harvesting vessel is involved in the issued under this section does not au- commission of any violation of its per- thorize the harvest or transshipment of mit, the Act, or this subpart. Failure any AMLR by or to a vessel of the to report a change in the information United States. contained in an application within 15 (b) Application. Application forms for days of the change is a violation of this AMLR dealer permits and preapproval subpart and voids the application or are available from NMFS. A complete permit, as applicable. If a change in and accurate application must be re- vessel ownership is not reported, the ceived by NMFS for each preapproval violation is chargeable to the previous at least 15 working days before the an- owner. Title 15 CFR part 904 governs ticipated date of the first receipt, im- permit sanctions under this subpart. portation, or re-export. (k) Transshipment vessels. Any U.S. (c) Fees. A fee to recover the adminis- flagged vessel that receives or at- trative expenses associated with proc- tempts to receive Dissostichus species essing preapproval applications will be from a harvesting vessel at sea, regard- charged. The amount of the fee will be

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determined in accordance with proce- or revoked, based upon a violation of dures specified in the NOAA Finance the permit, the Act, or this subpart. Handbook for calculating administra- Failure to report a change in the infor- tive costs of special products and serv- mation contained in a permit or ices. The fee is specified with the preapproval application voids the ap- preapproval application form. The application, permit, or preapproval as appropriate fee must accompany each applicable. Title 15 CFR part 904 governs plication and be paid by check, draft, permit sanctions under this subpart. or money order. (i) Exception. For shipments of (d) Issuance. NMFS may issue a deal- Dissostichus species which are fresh and er permit or preapproval if it deter- less than 2,000 kilograms in quantity, mines that the activity proposed by the application for approval of catch the dealer meets the requirements of documents of toothfish must be sub- the Act and that the resources were mitted to NMFS within 24 hours of im- not or will not be harvested in viola- port. tion of any conservation measure in (j) SVDCD. Dealer permits will not be force with respect to the United States issued for Dissostichus spp. offered for or in violation of any regulation in this sale or other disposition under a Spe- subpart. cially Validated DCD. (e) Duration. A permit issued under (k) Registered agent. Foreign entities this section is valid from its date of shall, as a condition of possessing a issuance to its date of expiration un- dealer permit, designate and maintain less it is revoked or suspended. A a registered agent within the United preapproval is valid until the product States that is authorized to accept is imported (and re-exported, if appli- service of process on behalf of that en- cable). tity. Foreign based importers of record (f) Transfer. A permit issued under may identify to NMFS the registered this section is not transferable or as- agent identified for Customs Service signable. purposes. (g) Changes in information—(1) Pend- [68 FR 23228, May 1, 2003] ing applications. Applicants for permits and preapproval under this sec- § 300.114 Appointment of a designated tion must report in writing to NMFS representative. any change in the information sub- (a) All holders of permits authorizing mitted in their permit and preapproval fishing in subarea 48.3 must appoint a applications. The processing period for designated representative in the United the application may be extended as States. necessary to review and consider the (b) The designated representative change. will be notified of closures under (2) Issued permits and preapprovals. § 300.111 and must transmit this infor- Any entity issued a permit or mation to the vessel on the grounds. preapproval under this section must re- (c) The designated representative port in writing to NMFS any changes may receive catch reports from the in previously submitted information. vessel and transmit the reports to Any changes that would result in a NMFS in writing. change in the receipt or importation authorized by the preapproval, such as § 300.115 Prohibitions. harvesting vessel or country of origin, In addition to the prohibitions in type and quantity of the resource to be § 300.4, it is unlawful for any person to: received or imported, and Convention (a) Reduce to possession or attempt statistical subarea from which the re- to reduce to possession any AMLRs source was harvested, must be proposed without a permit for such activity as in writing to NMFS and may not be un- required by § 300.112. dertaken unless authorized by NMFS (b) Import into or export from the through issuance of a revised or new United States any AMLRs taken by preapproval. vessels without a permit to harvest (h) Revision, suspension, or revocation. those resources as required by § 300.112 A permit or preapproval issued under (a)(1), or without applicable catch doc- this section may be revised, suspended, umentation as required by § 300.107

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(c)(1), or without a dealer permit as re- ment measures issued pursuant to quired by § 300.113 (a)(1), or in violation § 300.111. of the terms and conditions for such (m) Use any means or device that import or export as specified on the would reduce the size or obstruct the permit. opening of the trawl meshes specified (c) Engage in harvesting or other as- in management measures issued pursu- sociated activities in violation of the ant to § 300.111. provisions of the Convention or in vio- (n) Possess fish in violation of the lation of a conservation measure in catch limit specified in management force with respect to the United States measures issued pursuant to § 300.111. under Article IX of the Convention. (o) Discard netting or other sub- (d) Ship, transport, offer for sale, stances in the Convention Area in vio- sell, purchase, import, export or have lation of § 300.109. custody, control or possession of, any (p) Violate or attempt to violate any AMLR that he or she knows, or reason- provision of this subpart, the Act, any ably should have known, was harvested other regulation promulgated under in violation of a conservation measure the Act or any permit issued under the in force with respect to the United Act. States under article IX of the Conven- (q) Provide incomplete or inaccurate tion or in violation of any regulation information about the harvest, trans- promulgated under this subpart, with- shipment, landing, import or re-export out regard to the citizenship of the per- of applicable species on any document son that harvested, or vessel that was required under this subpart. used in the harvesting of, the AMLR. (r) Receive AMLRs from a vessel (e) Refuse to allow any CCAMLR in- without a dealer or harvesting permit spector to board a vessel of the United issued under this subpart. States or a vessel subject to the juris- (s) Import Dissostichus spp. with a diction of the United States for the Specially Validated DCD. purpose of conducting an inspection (t) Import shipments of fresh authorized by the Act, this subpart, or Dissostichus spp. in quantities of 2,000 any permit issued under the Act. kilograms or more, or frozen (f) Refuse to provide appropriate as- Dissostichus spp., without a preapproval sistance, including access as necessary issued under § 300.113. to communications equipment, to [61 FR 35550, July 5, 1996, as amended at 65 CCAMLR inspectors. FR 30017, May 10, 2000; 68 FR 23229, May 1, (g) Refuse to sign a written notifica- 2003] tion of alleged violations of Commis- sion measures in effect prepared by a § 300.116 Facilitation of enforcement CCAMLR inspector. and inspection. (h) Assault, resist, oppose, impede, In addition to the facilitation of en- intimidate, or interfere with a forcement provisions of § 300.5, the fol- CCAMLR inspector in the conduct of lowing requirements apply to this sub- any boarding or inspection authorized part. by the Act, this subpart, or any permit (a) Access and records. (1) The owners issued under the Act. and operator of each harvesting vessel (i) Use any vessel to engage in har- must provide authorized officers and vesting after the revocation, or during CCAMLR inspectors access to all the period of suspension, of an applica- spaces where work is conducted or ble permit issued under the Act. business papers and records are pre- (j) Fail to identify, falsely identify, pared or stored, including but not lim- fail to properly maintain, or obscure ited to personal quarters and areas the identification of a harvesting ves- within personal quarters. If inspection sel or its gear as required by this sub- of a particular area would interfere part. with specific on-going scientific re- (k) Fish in a closed area. search, and if the operator of the har- (l) Trawl with a mesh size in any part vesting vessel makes such assertion of the trawl net smaller than that al- and produces an individual permit that lowed for any directed fishing for Ant- covers that specific research, the au- arctic finfishes as specified in manage- thorized officer or CCAMLR inspector

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will not disturb the area, but will lations), Department of State, Room record the information pertaining to 5801, Washington, DC 20520. the denial of access. (c) Storage of AMLRs. The operator of (2) The owner and operator of each each harvesting vessel storing AMLRs harvesting vessel must provide to au- in a storage space on board the vessel thorized officers and CCAMLR inspec- must ensure that non-resource items tors all records and documents per- are neither stowed beneath nor covered taining to the harvesting activities of by resource items, unless required to the vessel, including but not limited to maintain the stability and safety of production records, fishing logs, navi- the vessel. Non-resource items include, gation logs, transfer records, product but are not limited to, portable con- receipts, cargo stowage plans or veyors, exhaust fans, ladders, nets, fuel records, draft or displacement calcula- bladders, extra bin boards, or other tions, customs documents or records, moveable non-resource items. These and an accurate hold plan reflecting non-resource items may be in a re- the current structure of the vessel’s source storage space when necessary storage and factory spaces. for the safety of the vessel or crew or (3) Before leaving vessels that have for the storage of the items. Lumber, been inspected, the CCAMLR inspector bin boards, or other dunnage may be will give the master of the vessel a Cer- used for shoring or bracing of product tificate of Inspection and a written no- to ensure the safety of crew and to pre- tification of any alleged violations of vent shifting of cargo within the space. Commission measures in effect and will (d) Disposition of resources denied afford the master the opportunity to entry. [Reserved] comment on it. The ship’s master must sign the notification to acknowledge [61 FR 35550, July 5, 1996, as amended at 65 receipt and the opportunity to com- FR 30017, May 10, 2000] ment on it. (b) Reports by non-inspectors. All sci- § 300.117 Penalties. entists, fishermen, and other non-in- Any person or harvesting vessel spectors present in the Convention found to be in violation of the Act, this area and subject to the jurisdiction of subpart, or any permit issued under the United States are encouraged to re- this subpart will be subject to the civil port any violation of Commission con- and criminal penalty provisions and servation and management measures forfeiture provisions prescribed in the observed in the Convention area to the Act, 15 CFR part 904, and other applica- Office of Ocean Affairs (CCAMLR Vio- ble laws.

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FIGURE 1 TO SUBPART G—BOUNDARIES OF THE STATISTICAL REPORTING AREA IN THE SOUTHERN OCEAN

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FIGURE 2 TO SUBPART G—THE USE OF STREAMER LINES TO MINIMIZE THE INCI- DENTAL MORTALITY OF SEABIRDS IN THE COURSE OF LONGLINE FISHING OR LONGLINE FISHING RESEARCH OPERATIONS IN THE CONVENTION AREA

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Subpart H—Vessels of the United this title and paragraph (b) of this sec- States Fishing in Colombian tion. Particular note should be made to Treaty Waters the reference in § 600.705 to the applicability of title 46 U.S.C., under which a Certificate of Documentation is invalid AUTHORITY: 16 U.S.C. 1801 et seq. when the vessel is placed under the command of a person who is not a cit- § 300.120 Purpose. izen of the United States. This subpart implements fishery con- (b) Minimum size limitations for cer- servation and management measures tain species, such as reef fish in the as provided in fishery agreements pur- Gulf of Mexico, may apply to vessels suant to the Treaty Between the Gov- transiting the EEZ with such species ernment of the United States of Amer- aboard. ica and the Government of the Repub- lic of Colombia Concerning the Status § 300.123 Certificates and permits. of Quita Sueno, Roncador and Serrana (TIAS 10120) (Treaty). (a) Applicability. An owner of a vessel of the United States that fishes in trea- § 300.121 Definitions. ty waters is required to obtain an annual certificate issued by the Republic In addition to the terms defined in of Colombia and an annual vessel per- § 300.2, the Magnuson Act, and § 600.10 of mit issued by the Regional Adminis- this title, and in the Treaty, the terms trator. used in this subpart have the following (b) Application for certificate/permit. (1) meanings. If a term is defined dif- An application for a permit must be ferently in § 300.2, the Magnuson Act, or submitted and signed by the vessel’s the Treaty, the definition in this sec- owner. An application may be sub- tion shall apply. mitted at any time, but should be sub- Conch means Strombus gigas. mitted to the Regional Administrator Factory vessel means a vessel that not less than 90 days in advance of its processes, transforms, or packages need. Applications for the ensuing cal- aquatic biological resources on board. endar year should be submitted to the Lobster means one or both of the fol- Regional Administrator by October 1. lowing: (1) Smoothtail lobster, Panulirus (2) An applicant must provide the fol- laevicauda. lowing: (2) Spiny lobster, Panulirus argus. (i) A copy of the vessel’s valid USCG Regional Administrator means the Di- certificate of documentation or, if not rector, Southeast Region, or a des- documented, a copy of its valid state ignee. registration certificate. Science and Research Director means (ii) Vessel name and official number. the Director, Southeast Fisheries (iii) Name, address, telephone num- Science Center. ber, and other identifying information Treaty waters means the waters of one of the vessel owner or, if the owner is or more of the following: a corporation or partnership, of the re- (1) Quita Sueno, enclosed by latitudes sponsible corporate officer or general 13°55′N. and 14°43′N. between longitudes partner. 80°55′W. and 81°28′W. (iv) Principal port of landing of fish (2) Serrana, enclosed by arcs 12 nau- taken from treaty waters. tical miles from the low water line of (v) Type of fishing to be conducted in the cays and islands in the general area treaty waters. of 14°22′N. lat., 80°20′W. long. (vi) Any other information con- (3) Roncador, enclosed by arcs 12 nau- cerning the vessel, gear characteris- tical miles from the low water line of tics, principal fisheries engaged in, or Roncador Cay, in approximate position fishing areas, as specified on the appli- 13°35′N. lat., 80°05′W. long. cation form. (vii) Any other information that may § 300.122 Relation to other laws. be necessary for the issuance or admin- (a) The relation of this subpart to istration of the permit, as specified on other laws is set forth in § 600.705 of the application form.

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(c) Issuance. (1) The Regional Admin- in the application information required istrator will request a certificate from by paragraph (b)(2) of this section. The the Republic of Colombia if: permit is void if any change in the in- (i) The application is complete. formation is not reported within 30 (ii) The applicant has complied with days. all applicable reporting requirements of § 300.124 during the year immediately § 300.124 Recordkeeping and report- preceding the application. ing. (2) Upon receipt of an incomplete ap- (a) Arrival and departure reports. The plication, or an application from a per- operator of each vessel of the United son who has not complied with all ap- States for which a certificate and per- plicable reporting requirements of mit have been issued under § 300.123 § 300.124 during the year immediately must report by radio to the Port Cap- preceding the application, the Regional tain, San Andres Island, voice radio Administrator will notify the applicant call sign ‘‘Capitania de San Andres,’’ of the deficiency. If the applicant fails the vessel’s arrival in and departure to correct the deficiency within 30 days from treaty waters. Radio reports must of the Regional Administrator’s notifi- be made on 8222.0 kHz or 8276.5 kHz be- cation, the application will be consid- tween 8:00 a.m. and 12 noon, local time ered abandoned. (1300–1700, Greenwich mean time) Mon- (3) The Regional Administrator will day through Friday. issue a permit as soon as the certifi- (b) Catch and effort reports. Each ves- cate is received from the Republic of sel of the United States must report its Colombia. catch and effort on each trip into trea- (d) A certificate and permit Duration. ty waters to the Science and Research are valid for the calendar year for Director on a form available from the which they are issued, unless the per- Science and Research Director. These mit is revoked, suspended, or modified forms must be submitted to the under subpart D of 15 CFR part 904. Science and Research Director so as to (e) A certificate and permit Transfer. be received no later than 7 days after issued under this section are not trans- the end of each fishing trip. ferable or assignable. They are valid only for the fishing vessel and owner § 300.125 Vessel identification. for which they are issued. (f) Display. A certificate and permit (a) Official number. A vessel with a issued under this section must be car- permit issued pursuant to § 300.123, ried aboard the fishing vessel while it when in treaty waters, must display its is in treaty waters. The operator of a official number on the port and star- fishing vessel must present the certifi- board sides of the deckhouse or hull, cate and permit for inspection upon re- and on an appropriate weather deck, so quest of an authorized officer or an en- as to be clearly visible from an enforce- forcement officer of the Republic of Co- ment vessel or aircraft. The official lombia. number must be permanently affixed to (g) Sanctions and denials. Procedures or painted on the vessel and must be in governing enforcement-related permit block arabic numerals in contrasting sanctions and denials are found at sub- color to the background at least 18 part D of 15 CFR part 904. inches (45.7 cm) in height for fishing (h) Alteration. A certificate or permit vessels over 65 ft (19.8 m) in length, and that is altered, erased, or mutilated is at least 10 inches (25.4 cm) in height for invalid. all other vessel. (i) Replacement. A replacement cer- (b) Duties of operator. The operator of tificate or permit may be issued upon each fishing vessel must— request. Such request must clearly (1) Keep the official number clearly state the reason for a replacement cer- legible and in good repair. tificate or permit. (2) Ensure that no part of the fishing (j) Change in application information. vessel, its rigging, fishing gear, or any The owner of a vessel with a permit other material aboard obstructs the must notify the Regional Adminis- view of the official number from an en- trator within 30 days after any change forcement vessel or aircraft.

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§ 300.126 Prohibitions. (b) The operator of, or any other person aboard, any vessel of the United In addition to the general prohibi- States fishing in treaty waters must tions specified in § 600.725 of this title immediately comply with instructions and the prohibited acts specified in and signals issued by an enforcement § 300.4, it is unlawful for any person to officer of the Republic of Colombia to do any of the following: stop the vessel and with instructions to (a) Fish in treaty waters without the facilitate safe boarding and inspection certificate and permit aboard, or fail to of the vessel, its gear, equipment, fish- display the certificate and permit, as ing record, and catch for purposes of specified in § 300.123(a) and (f). enforcing this subpart. (b) Fail to notify the Regional Ad- ministrator of a change in application § 300.128 Penalties. information, as specified in § 300.123(j). (c) Fail to report a vessel’s arrival in Any person committing or fishing and departure from treaty waters, as vessel used in the commission of a vio- required by § 300.124(a). lation of the Magnuson Act or any reg- (d) Falsify or fail to display and ulation issued under the Magnuson maintain vessel identification, as re- Act, is subject to the civil and criminal quired by § 300.125. penalty provisions and civil forfeiture (e) Fail to comply immediately with provisions of the Magnuson Act, to instructions and signals issued by an part 600 of this title, to 15 CFR part 904, enforcement officer of the Republic of and to other applicable law. In addi- Colombia, as specified in § 300.127. tion, Colombian authorities may re- (f) Operate a factory vessel in treaty quire a vessel involved in a violation of waters, as specified in § 300.130(a). this subpart to leave treaty waters. (g) Use a monofilament gillnet in § 300.129 Fishing year. treaty waters, as specified in § 300.130(b). The fishing year for fishing in treaty (h) Use autonomous or semi-autono- waters begins on January 1 and ends on mous diving equipment in treaty wa- December 31. ters, as specified in § 300.130(c). (i) Use or possess in treaty waters a § 300.130 Vessel and gear restrictions. lobster trap or fish trap without a de- (a) Factory vessels. Factory vessels gradable panel, as specified in are prohibited from operating in treaty § 300.130(d). waters. (j) Possess conch smaller than the (b) Monofilament gillnets. A minimum size limit, as specified in monofilament gillnet made from nylon § 300.131(a). or similar synthetic material are pro- (k) Fish for or possess conch in the hibited from being used in treaty wa- closed area or during the closed season, ters. as specified in § 300.131(b) and (c). (c) Tanks and air hoses. Autonomous (l) Retain on board a berried lobster or semiautonomous diving equipment or strip eggs from or otherwise molest (tanks or air hoses) are prohibited from a berried lobster, as specified in being used to take aquatic biological § 300.132(a). resources in treaty waters. (m) Possess a lobster smaller than (d) Trap requirements. A lobster trap the minimum size, as specified in or fish trap used or possessed in treaty § 300.132(b). waters that is constructed of material (n) Fail to return immediately to the other than wood must have an escape water unharmed a berried or under- panel located in the upper half of the sized lobster, as specified in § 300.132(a) sides or on top of the trap that, when and (b). removed, will leave an opening no smaller than the throat or entrance of § 300.127 Facilitation of enforcement. the trap. Such escape panel must be (a) The provisions of § 600.730 of this constructed of or attached to the trap title and paragraph (b) of this section with wood, cotton, or other degradable apply to vessels of the United States material. fishing in treaty waters. (e) Poisons and explosives. [Reserved]

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§ 300.131 Conch harvest limitations. United States under the Magnuson Act. (a) Size limit. The minimum size limit This includes, but is not limited to, ac- for possession of conch in or from trea- tivities of nationals, residents and ves- ty waters is 7.94 oz (225 g) for an sels of the United States (including the uncleaned meat and 3.53 oz (100 g) for a owners and operators of such vessels) cleaned meat. within waters subject to the fisheries (b) Closed area. The treaty waters of jurisdiction of Canada as defined in Quita Sueno are closed to the harvest this subpart, as well as on the high seas or possession of conch. and in waters subject to the fisheries (c) Closed season. During the period jurisdiction of the United States. July 1 through September 30 of each year, the treaty waters of Serrana and § 300.141 Definitions. Roncador are closed to the harvest or In addition to the terms defined in possession of conch. § 300.2 and those in the Magnuson Act and the Agreement, the terms used in § 300.132 Lobster harvest limitations. this subpart have the following mean- (a) Berried lobsters. A berried (egg- ings. If a term is defined differently in bearing) lobster in treaty waters may § 300.2, the Magnuson Act, or the Agree- not be retained on board. A berried lob- ment, the definition in this section ap- ster must be returned immediately to plies. the water unharmed. A berried lobster Applicable Canadian fisheries law may not be stripped, scraped, shaved, means any Canadian law, regulation or clipped, or in any other manner mo- similar provision relating in any man- lested to remove the eggs. (b) Size limit. The minimum size limit ner to fishing by any fishing vessel for possession of lobster in or from other than a Canadian fishing vessel in treaty waters is 5.5 inches (13.97 cm), waters subject to the fisheries jurisdic- tail length. Tail length means the tion of Canada, including, but not lim- measurement, with the tail in a ited to, any provision relating to stow- straight, flat position, from the ante- age of fishing gear by vessels passing rior upper edge of the first abdominal through such waters, and to obstruc- (tail) segment to the tip of the closed tion or interference with enforcement tail. A lobster smaller than the min- of any such law or regulation. imum size limit must be returned im- Authorized officer of Canada means mediately to the water unharmed. any fishery officer, protection officer, officer of the Royal Canadian Mounted Subpart I—United States-Canada Police, or other employee authorized Fisheries Enforcement by the appropriate authority of any national or provincial agency of Canada to enforce any applicable Canadian AUTHORITY: 16 U.S.C. 1801 et seq. fisheries law. § 300.140 Purpose and scope. Canadian fishing vessel means a fishing vessel: This subpart implements the Agree- ment Between the Government of the (1) That is registered or licensed in United States of America and the Gov- Canada under the Canada Shipping Act ernment of Canada on Fisheries En- and is owned by one or more persons forcement executed at Ottawa, Canada, each of whom is a Canadian citizen, a on September 26, 1990 (Agreement), al- person resident and domiciled in Can- lowing each party to the Agreement to ada, or a corporation incorporated take appropriate measures, consistent under the laws of Canada or of a prov- with international law, to prevent its ince, having its principal place of busi- nationals, residents and vessels from ness in Canada; or violating those national fisheries laws (2) That is not required by the Can- and regulations of the other party. ada Shipping Act to be registered or li- This subpart applies, except where oth- censed in Canada and is not registered erwise specified in this subpart, to all or licensed elsewhere but is owned as persons and all places (on water and on described in paragraph (1) of this defi- land) subject to the jurisdiction of the nition.

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Waters subject to the fisheries jurisdic- cense or any other authorization grant- tion of Canada means the internal wa- ed by Canada under any such law. ters, territorial sea, and the zone that (f) Fail to comply immediately with Canada has established, extending 200 any of the enforcement and boarding nautical miles from its coasts, in which procedures specified in § 300.143. it exercises sovereign rights for the (g) Destroy, stave, or dispose of in purpose of exploration, exploitation, any manner, any fish, gear, cargo or conservation and management of living other matter, upon any communication marine resources, to the extent recog- or signal from an authorized officer of nized by the United States. Canada, or upon the approach of such an officer, enforcement vessel or air- § 300.142 Prohibitions. craft, before the officer has had the op- The prohibitions in this section apply portunity to inspect same, or in con- within waters subject to the fisheries travention of directions from such an jurisdiction of Canada and during hot officer. pursuit therefrom by an authorized of- (h) Refuse to allow an authorized officer of Canada. It is unlawful for any ficer of Canada to board a vessel for the national or resident of the United purpose of conducting any inspection, States, or any person on board a vessel search, seizure, investigation or arrest of the United States, or the owner or in connection with the enforcement of operator of any such vessel, to do any any applicable Canadian fisheries law. of the following: (i) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, (a) Engage in fishing in waters sub- prevent, or interfere, in any manner, ject to the fisheries jurisdiction of Can- with an authorized officer of Canada in ada without the express authorization the conduct of any boarding, inspec- of the Government of Canada. tion, search, seizure, investigation or (b) Take or retain fish in waters sub- arrest in connection with the enforce- ject to the fisheries jurisdiction of Can- ment of any applicable Canadian fish- ada without the express authorization eries law. of the Government of Canada. (j) Make any false statement, oral or (c) Be on board a fishing vessel in wa- written, to an authorized officer of ters subject to the fisheries jurisdic- Canada in response to any inquiry by tion of Canada, without stowing all that officer in connection with enforce- fishing gear on board either: ment of any applicable Canadian fish- (1) Below deck, or in an area where it eries law. is not normally used, such that the (k) Falsify, cover, or otherwise ob- gear is not readily available for fish- scure, the name, home port, official ing; or number (if any), or any other similar (2) If the gear cannot readily be marking or identification of any fish- moved, in a secured and covered man- ing vessel subject to this subpart such ner, detached from all towing lines, so that the vessel cannot be readily iden- that it is rendered unusable for fishing; tified from an enforcement vessel or unless the vessel has been authorized aircraft. by the Government of Canada to fish in (l) Attempt to do any of the fore- the particular location within waters going. subject to the fisheries jurisdiction of Canada in which it is operating. § 300.143 Facilitation of enforcement. (d) While on board a fishing vessel in (a) General. Persons aboard fishing waters subject to the fisheries jurisdic- vessels subject to this subpart must tion of Canada, fail to respond to any immediately comply with instructions inquiry from an authorized officer of and/or signals issued by an authorized Canada regarding the vessel’s name, officer of the United States or Canada, flag state, location, route or destina- or by an enforcement vessel or aircraft, tion, and/or the circumstances under to stop the vessel, and with instruc- which the vessel entered such waters. tions to facilitate safe boarding and in- (e) Violate the Agreement, any appli- spection for the purpose of enforcing cable Canadian fisheries law, or the any applicable Canadian fisheries law, terms or conditions of any permit, li- the Agreement, or this subpart. All of

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the provisions of § 300.5 regarding com- part 904 (Civil Procedures), and any munications, boarding, and signals other applicable law or regulation. apply to this subpart. For purposes of this subpart, authorized officer in § 305 Subpart J—U.S. Nationals Fishing means an authorized officer of the United States or Canada. (See para- in Russian Fisheries graph (b) of this section for specific requirements for complying with signals AUTHORITY: 16 U.S.C. 1801 et seq. and instructions issued by an authorized officer of Canada.) § 300.150 Purpose. (b) Canadian signals. In addition to This subpart regulates U.S. nationals signals set forth in § 300.5, persons fishing in the Russian fisheries and im- aboard fishing vessels subject to this plements the Agreement between the subpart must immediately comply with Government of the United States of the following signals by an authorized America and the Government of the officer of Canada. Union of Soviet Socialist Republics on (1) Authorized officers of Canada use Mutual Fisheries Relations, signed the following signals to require fishing May 31, 1988. vessels to stop or heave to: (i) The hoisting of a rectangular flag, § 300.151 Definitions. known as the International Code Flag ‘‘L’’, which is divided vertically and In addition to the terms defined in horizontally into quarters and colored § 300.2 and those in the Magnuson Act, so that: the terms used in this subpart have the (A) The upper quarter next to the following meanings. If a term is de- staff and the lower quarter next to the fined differently in § 300.2 or the Mag- fly are yellow; and nuson Act, the definition in this sec- (B) The lower quarter next to the tion shall apply. staff and the upper quarter next to the Affiliates means two persons (includ- fly are black; ing individuals and entities) related in (ii) The flashing of a light to indicate such a way that— the International Morse Code letter (1) One indirectly or directly controls ‘‘L’’, consisting of one short flash, fol- or has power to control the other; or lowed by one long flash, followed by (2) A third party controls or has two short flashes (. — . .); or power to control both. Indicia of con- (iii) The sounding of a horn or whis- trol include, but are not limited to, tle to indicate the International Morse interlocking management or owner- Code letter ‘‘L’’, consisting of one short ship, identity of interests among fam- blast, followed by one long blast, fol- ily members, shared facilities and lowed by two short blasts (. — . .). equipment, common use of employees, (2) Authorized officers of Canada use or a reorganized entity having the the following signals to require a fish- same or similar management, owner- ing vessel to prepare to be boarded: ship, or employees as a former entity. (i) The hoisting of flags representing Agreement means the Agreement Be- the International Code Flag ‘‘SQ3’’; or (ii) The flashing of a light, or the tween the Government of the United sounding of a horn or whistle, to indi- States of America and the Government cate the International Morse Code Sig- of the Union of Soviet Socialist Repub- nal ‘‘SQ3’’ (. . .——.—. . .——). lics on Mutual Fisheries Relations, signed May 31, 1988. § 300.144 Penalties and sanctions. Embassy of the Russian Federation Any person, any fishing vessel, or the means the Fisheries Attache of the em- owner or operator of any such vessel, bassy located in Washington, D.C. who violates any provision of the Fishery resource means any fish, any Agreement or this subpart, is subject stock of fish, any species of fish, and to the civil and criminal fines, pen- any habitat of fish. alties, forfeitures, permit sanctions, or Fishing or to fish means any activity other sanctions provided in the Magnu- that does, is intended to, or can reason- son Act, part 600 of this title, 15 CFR ably be expected to result in catching

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or removing from the water fishery re- has sovereign rights over the fishery sources. Fishing also includes the acts resources. of scouting, processing, and support. Russian Federation or Russia means Operator, with respect to any vessel, the governing entity that succeeded means the master or other individual the Union of Soviet Socialist Repub- on board and in charge of either the lics, and that is the successor party to vessel, the vessel’s fishing operation, or the Agreement of May 31, 1988. both. Russian fisheries, Russian fishery re- Owner, with respect to any vessel, sources, or fishery resources over which means any person who owns that vessel Russia exercises sovereign rights or fish- in whole or in part, whether or not it is ery management authority means fishery leased or chartered to or managed by resources within the Russian EZ, fish- another person, or any charterer, ery resources of the Russian conti- whether bareboat, time, or voyage, and nental shelf, and anadromous species any person who acts in the capacity of that originate in the waters of Russia, a charterer, or manager, including but whether found in the Russian EZ or be- not limited to parties to a management yond any exclusive economic zone or agreement, operating agreement, or its equivalent. any similar agreement that bestows Scouting means any operation by a control over the destination, function, vessel exploring (on behalf of the vessel or operation of the vessel, any officer, or another vessel) for the presence of director, manager, controlling share- fish by any means that do not involve holder of any entity described in this the catching of fish. definition, any agent designated as Support means any operation by a such by any person described in this vessel assisting fishing by another ves- definition, and any affiliate of any per- sel, including— son described in this definition. (1) Transferring or transporting fish Processing means any operation by a or fish products; or vessel to receive fish from a fishing (2) Supplying a fishing vessel with vessel and/or the preparation of fish, water, fuel, provisions, fishing equip- including but not limited to cleaning, ment, fish processing equipment, or cooking, canning, smoking, salting, other supplies. drying, or freezing, either on the vessel’s behalf or to assist another vessel. § 300.152 Procedures. Regional Administrator means Direc- (a) Application for annual permits. U.S. tor, Alaska Region, or a designee. vessel owners and operators must have Relevant laws and regulations of the a valid permit issued by the Russian Russian Federation means those Rus- Federation obtained pursuant to a sian laws and regulations that concern complete application submitted fishing for fishery resources over which through NMFS before fishing in the Russia exercises sovereign rights or Russian EZ or for Russian fishery re- fishery management authority. sources. Application forms and copies Russian and Federation mean the Rus- of applicable laws and regulations of sian Federation, its government, or the Russian Federation may be ob- any organ or entity of its government. tained from NMFS Headquarters. Russian continental shelf or conti- (b) Other application information. Ap- nental shelf of Russia means the seabed plications for motherships, processing and subsoil of the submarine areas over or transport vessels must identify the which, consistent with international type of fishing gear to be employed or law, Russia exercises sovereign rights. the fishing quotas if the vessel has re- Russian Economic Zone or Russian EZ ceived or is requesting a quota. To fa- means a zone of waters off the coast of cilitate processing, NMFS requests Russia beyond and adjacent to the Rus- that permit applications for more than sian territorial sea extending a dis- 10 vessels be grouped by type and fish- tance of up to 200 nautical miles from ing area, and provide the name, ad- the baseline from which the territorial dress, telephone, and FAX number(s) of sea is measured, within which, con- an individual who will be the official sistent with international law, Russia point of contact for an application.

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(c) Review of Applications. NMFS will (2) Such application has been ap- review each application, and, if it is proved and a permit issued by the com- complete, forward it to the Department petent authorities of the Russian Fed- of State for submission to the com- eration as provided in paragraph (a) of petent authorities of the Russian Fed- this section. eration. NMFS will notify the permit (3) The U.S. Department of State has applicant when the permit is submitted notified the competent authorities of to the Russian Federation. NMFS will the Russian Federation that it has ac- return incomplete applications to the cepted the conditions and restrictions applicant. as provided in paragraph (a) of this sec- (d) Direct Communication. U.S. appli- tion. The permit will be rendered in- cants may communicate directly with valid by: The transfer or sale of the the Russian Federation with regard to permit specified in paragraph (a) of the status of their applications or per- this section; the failure to submit to mits and are encouraged to do so. Own- NMFS any changes in permit applica- ers and operators should make direct tion information as required by para- contact and work with Russian indus- graph (a) of this section; failure to sub- try and government authorities. mit to NMFS any permit copy required by paragraph (b) of this section or any § 300.153 Permit issuance. other information or report required by any other provision of this subpart; or (a) Once the Department Acceptance. the failure to pay required permit fees. of State has accepted the conditions (d) Russian-imposed sanctions. (1) The and restrictions proposed by the Rus- Russian Federation will impose appro- sian Federation and all fees have been priate fines, penalties, or forfeitures in paid, the competent authorities of the accordance with its laws, for violations Russian Federation will approve the of its relevant laws or regulations. application. The Russian Federation (2) In the case of arrest and seizure of will issue a permit to the vessel owner a U.S. vessel by Russian authorities, for each fishing vessel for which it has notification will be given promptly approved an application. That vessel through diplomatic channels informing will thereupon be authorized by the the United States of the facts and ac- Russian Federation to fish in accord- tions taken. ance with the Agreement and the (3) The Russian Federation will re- terms and conditions set forth in the lease U.S. vessels and their crews permit. The vessel owner is prohibited promptly, subject to the posting of rea- from transferring the permit to any sonable bond or other security. other vessel or person. Any such trans- (4) The sanctions for violations of fer, or the sale or other transfer of the limitations or restrictions on fishing vessel, will immediately invalidate the operations will be appropriate fines, permit. The vessel owner must notify penalties, forfeitures, or revocations or NMFS of any change in the permit ap- suspensions of fishing privileges. plication information submitted to NMFS Headquarters under § 300.152 § 300.154 Recordkeeping and report- within 7 calendar days of the change. ing. (b) Copies. The vessel owner and oper- (a) General. The owner and operator ator must mail a copy of each permit of a vessel subject to this subpart are and any conditions and restrictions responsible for complying with all rec- issued for that vessel by the Russian ordkeeping and reporting requirements Federation within 7 calendar days of in this part in a timely and accurate its receipt to NMFS Headquarters. manner. Reports and records required (c) Validity. Any permit issued by the by this subpart must be in English, in Russian Federation with respect to a the formats specified, and unless other- vessel subject to this subpart will be wise specified, based on Greenwich deemed to be a valid permit only if: mean time (GMT). (1) A completed permit application (b) Vessel permit abstract report. (1) has been forwarded to the competent The owner and operator of a vessel sub- authorities of the Russian Federation ject to this subpart must submit to as provided in § 300.152(b)(1). NMFS Headquarters a permit abstract

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report containing the following infor- the sender’s name and telephone num- mation: ber, and FAX, TELEX, and COMSAT (i) Vessel name. numbers; the date (month and day) and (ii) Russian Federation permit num- time (hour and minute GMT) that the ber. report is submitted to NMFS; and the (iii) Duration of permit (e.g., 1/1/91–12/ intended date and U.S. port of landing. 31/91). A list of species and product codes may (iv) Authorized areas of fishing oper- be obtained from the Regional Admin- ations in geographic coordinates. istrator. (v) Authorized catch quota in tons. (d) Recordkeeping. The owner and op- (vi) Authorized fishing gear. erator of a vessel subject to this sub- (vii) Type of permit (e.g., catcher). part must retain all copies of all re- (2) The report must be telefaxed to ports required by this subpart on board (301) 713–0596 within 5 calendar days of the vessel for 1 year after the end of receipt of the Russian permit. the calendar year in which the report (c) Activity reports. The owner and op- was generated. The owner and operator erator of a vessel subject to this sub- must retain and make such records part must submit to the Regional Ad- available for inspection upon the re- ministrator by telefax to (907) 586–7313, quest of an authorized officer at any the following reports: time for 3 years after the end of the (1) Depart Report (Action code DE- calendar year in which the report was PART). At least 24 hours before the generated, whether or not such records vessel departs from the EEZ for the on board the vessel. Russian EZ, NMFS must receive the following information: § 300.155 Requirements. (i) The date (month and day), and (a) Compliance with permit require- time (hour and minute GMT), and posi- ments. (1) U.S. nationals and vessels tion (latitude and longitude to the subject to this subpart must have a nearest degree and minute), at which valid permit, as specified in § 300.153(c) the vessel will depart the EEZ for the in order to fish for Russian fishery re- Russian EZ. sources. (ii) The weight in metric tons (to the (2) U.S. nationals and vessels subject nearest hundredth of a metric ton) of to this subpart that are fishing for Rus- all fish and fish product (listed by spe- sian fishery resources must comply cies and product codes) on board the with all provisions, conditions, and re- vessel at the time it will depart the strictions of any applicable permit. EEZ. (b) Compliance with Russian law. U.S. (2) Return Report (Action code RE- nationals and vessels fishing for Rus- TURN). At least 24 hours before a ves- sian fishery resources must comply sel that has been in the Russian EZ en- with the relevant laws and regulations ters the EEZ, NMFS must receive the of the Russian Federation. following information: (c) Protection of marine mammals. U.S. (i) The date (month and day), time nationals and vessels fishing for Rus- (hour and minute GMT), and position sian fishery resources may not harass, (latitude and longitude to the nearest hunt, capture, or kill any marine mam- degree and minute), at which the vessel mal within the Russian EZ, attempt to will enter the EEZ. do so, except as may be provided for by (ii) The weight in metric tons (to the an international agreement to which nearest hundredth of a metric ton) of both the United States and Russia are all fish and fish products (listed by spe- parties, or in accordance with specific cies and product codes) on board the authorization and controls established vessel at the time it will enter the by the Russian Federation. The provi- EEZ, and the areas (Russian EZ, U.S. sions of the Marine Mammal Protec- EEZ, or other) in which such fish prod- tion Act (MMPA), 16 U.S.C. 1361 et seq. ucts were harvested or received. also apply to any person or vessel sub- (3) All reports must specify: The ap- ject to the jurisdiction of the United propriate action code (‘‘DEPART’’ or States while in the Russian EZ, and it ‘‘RETURN’’); the vessel’s name and shall not be a defense to any violation international radio call sign (IRCS); of the MMPA that the person or vessel

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was acting in accordance with any per- § 300.156 Prohibited acts. mit or authorization issued by the Rus- In addition to the prohibited acts sian Federation. specified at § 300.4, it shall be unlawful (d) Cooperation with enforcement proce- for any U.S. national or vessel, or the dures. (1) The operator of, or any per- owner or operator of any such vessel: son aboard, any U.S. vessel subject to (a) To fish for Russian fishery re- this subpart must immediately comply sources without a valid permit issued with instructions and signals issued by by the competent authorities of the an authorized officer of the Russian Russian Federation. Federation to stop the vessel and with (b) To violate the provisions, condi- instructions to facilitate safe boarding tions, and restrictions of an applicable and inspection of the vessel, its gear, permit. equipment, fishing record, and catch (c) To violate the relevant laws and for purposes of enforcing the relevant regulations of Russia. laws and regulations of Russia. (d) To harass, hunt, capture, or kill (2) The operator of, and any person any marine mammal within the Rus- aboard, any U.S. vessel subject to this sian EZ, or while fishing for Russian subpart, must comply with directions fishery resources, except as provided in issued by authorized officers of the § 300.155 (c). Russian Federation in connection with (e) To fail to comply immediately the seizure of the vessel for violation of with enforcement and boarding proce- the relevant laws or regulations of the dures specified in § 300.155 (d). Russian Federation. (f) To refuse to allow an authorized (3) U.S. nationals and vessels subject officer of the Russian Federation to to this subpart must pay all fines and board and inspect a vessel subject to penalties and comply with forfeiture this subpart for purposes of conducting sanctions imposed by the Russian Fed- any search, inspection, arrest, or sei- eration for violations of its relevant zure in connection with the enforce- laws and regulations. ment of the relevant laws and regula- (4) The operator of, and any person tions of the Russian Federation. aboard, any U.S. vessel subject to this (g) To assault, resist, oppose, impede, subpart must immediately comply with intimidate, threaten, or interfere with, instructions and signals issued by an in any manner, any authorized officer authorized officer of the United States of the Russian Federation in the con- to stop the vessel and with instructions duct of any search, inspection, seizure, to facilitate safe boarding and inspec- or arrest in connection with enforce- tion of the vessel, its gear, equipment, ment of the relevant laws and regula- fishing records, and catch for purposes tions of the Russian Federation. of enforcing the Magnuson Act, the (h) To fail to pay fines or penalties or Agreement, and this subpart. comply with forfeitures imposed for a (e) Compliance with observer require- violation of the relevant laws and regu- ments. The owner of, operator of, and lations of the Russian Federation. any person aboard, any U.S. vessel fish- (i) To refuse or fail to allow a Rus- ing in the Russian EZ or for Russian sian observer to board a vessel subject fishery resources to which a Russian to this subpart while fishing in the observer is assigned must— Russian EZ, or for Russian fishery re- (1) Allow and facilitate, on request, sources. boarding of a U.S. vessel by the ob- (j) To fail to provide to a Russian observer. server aboard a vessel fishing in the (2) Provide to the observer, at no cost Russian EZ or for Russian fishery re- to the observer or the Russian Federa- sources, the courtesies and accom- tion, the courtesies and accommoda- modations provided to ship’s officers. tions provided to ship’s officers. (k) To assault, resist, oppose, impede, (3) Cooperate with the observer in the intimidate, threaten, interfere with, conduct of his or her official duties. harass, or fail to cooperate, in any (4) Reimburse the Russian Federation manner, with a Russian observer for the costs of providing an observer placed aboard a vessel subject to this aboard the vessel. subpart.

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(l) To fail to reimburse the Russian § 300.160 Requirement for marking of Federation for the costs incurred in the containers or packages. utilization of Russian observers placed Except as otherwise provided in this aboard such vessel. subpart, all persons are prohibited (m) To possess, have custody or con- from importing, exporting, or trans- trol of, ship, transport, offer for sale, porting in interstate commerce any sell, purchase, transship, import, ex- container or package containing any port, or traffic in any manner, any fish fish or wildlife (including shellfish) un- or parts thereof taken or retained, less each container or package is con- landed, purchased, sold, traded, ac- spicuously marked on the outside with quired, or possessed, in any manner, in both the name and address of the ship- violation of the relevant laws and regu- per and consignee and an accurate list lations of the Russian Federation, the of its contents by species and number Magnuson Act, or this subpart. of each species. (n) To enter the Russian EZ to fish § 300.161 Alternatives and exceptions. unless a permit application has been (a) The requirements of § 300.160 may submitted through NMFS to the com- be met by complying with one of the petent authorities of the Russian Fed- following alternatives to the marking eration by the U.S. Department of requirement: State for such vessel as provided in (1)(i) Conspicuously marking the out- this subpart. side of each container or package con- (o) To fish for Russian fisheries or to taining fish or wildlife with the word possess fish taken in Russian fisheries ‘‘fish’’ or ‘‘wildlife’’ as appropriate for its on board a vessel subject to this sub- contents, or with the common name of part without a valid permit or other its contents by species, and valid form of authorization issued by (ii) Including an invoice, packing the competent authorities of the Rus- list, bill of lading, or similar document sian Federation on board the vessel. to accompany the shipment that accu- (p) To falsify, or fail to report to rately states the name and address of NMFS, any change in the information the shipper and consignee, states the total number of packages or containers contained in a permit application sub- in the shipment, and for each species in ject to this subpart within 7 calendar the shipment specifies: The common days of such change. name that identifies the species (exam- (q) To attempt to do, cause to be ples include: chinook (or king) salmon; done, or aid and abet in doing, any of bluefin tuna; and whitetail deer); and the foregoing. the number of that species (or other (r) To violate any other provision of appropriate measure of quantity such this subpart. as gross or net weight). The invoice, packing list, bill of lading, or equiva- § 300.157 Penalties. lent document must be securely at- In addition to any fine, penalty, or tached to the outside of one container forfeiture imposed by the Russian Fed- or package in the shipment or other- eration, nationals and vessels of the wise physically accompany the ship- United States violating the prohibi- ment in a manner that makes it read- tions of § 300.156 are subject to the ily accessible for inspection; or fines, penalties, and forfeitures and the (2) Affixing the shipper’s wildlife import/export license number preceded by adjudicative procedures provided in the ‘‘FWS’’ on the outside of each container Magnuson Act, 16 U.S.C. 1858, 1860, 1861, or package containing fish or wildlife if and any other applicable laws and reg- the shipper has a valid wildlife import/ ulations of the United States. export license issued under authority of part 14 of this title. For each ship- Subpart K—Transportation and ment marked in accordance with this Labeling of Fish or Wildlife paragraph (a)(2), the records maintained under § 14.93(d) of this title must include a copy of the invoice, packing AUTHORITY: 16 U.S.C. 3371–3378. list, bill of lading, or other

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similar document that accurately § 300.170 Purpose and scope. states the information required by The regulations in this subpart gov- paragraph (a)(1)(ii) of this section. ern fishing by U.S. vessels in waters (3) In the case of subcontainers or under the fisheries jurisdiction of Can- packages within a larger packing con- ada pursuant to the 1981 Treaty Be- tainer, only the outermost container tween the Government of the United must be marked in accordance with States of America and the Government this section, provided, that for live fish of Canada on Pacific Coast Albacore or wildlife that are packed in subcon- Tuna Vessels and Port Privileges as tainers within a larger packing con- amended in 2002. Regulations governing tainer, if the subcontainers are num- fishing by Canadian vessels in waters bered or labeled, the packing list, in- under the fisheries jurisdiction of the voice, bill of lading, or other similar United States pursuant to this Treaty document, must reflect that number or as amended in 2002 are found at § 600.530 label. of chapter VI of this title. (4) A conveyance (truck, plane, boat, § 300.171 Definitions. etc.) is not considered a container for purposes of requiring specific marking In addition to the definitions in the of the conveyance itself, provided that: Magnuson-Stevens Fishery Conserva- tion and Management Act and § 600.10 (i) The fish or wildlife within the con- of Chapter VI of this title, the terms veyance is carried loosely or is readily used in this subpart have the following identifiable, and is accompanied by the meanings: document required by paragraph Fishing under the Treaty as amended in (a)(1)(ii) of this section; or 2002 means to engage in fishing for al- (ii) The fish or wildlife is otherwise bacore tuna in waters under the fish- packaged and marked in accordance eries jurisdiction of Canada seaward of with this subpart. 12 nautical miles from the baseline (b) The requirements of § 300.160 of from which the territorial sea is meas- chapter III of this title do not apply to ured. containers or packages containing— Regional Administrator means the Re- (1) Fox, nutria, rabbit, mink, chin- gional Administrator, Southwest Re- chilla, marten, fisher, muskrat, and gion, NMFS, 501 W. Ocean Boulevard, karakul that have been bred and born Suite 4200, Long Beach, CA 90802–4213, in captivity, or their products, if a or a designee. signed statement certifying that the Reporting Office means the office des- animals were bred and born in cap- ignated by the Regional Administrator to take hail-in and hail-out reports tivity accompanies the shipping docu- from U.S. and Canadian vessel opera- ments; tors. (2) Fish or shellfish contained in re- Treaty means the 1981 Treaty Be- tail consumer packages labeled pursu- tween the Government of the United ant to the Food, Drug and Cosmetic States of America and the Government Act, 21 U.S.C. 301 et seq.; or of Canada on Pacific Coast Albacore (3) Fish or shellfish that are landed Tuna Vessels and Port Privileges as by, and offloaded from, a fishing vessel amended in 2002. (whether or not the catch has been carried by the fishing vessel interstate), as § 300.172 Vessel list. long as the fish or shellfish remain at The ‘‘vessel list’’ is the list of U.S. the place where first offloaded. vessels that are authorized to fish under the Treaty as amended in 2002. Subpart L—Pacific Albacore Tuna Only a vessel on the list for at least 7 Fisheries days may engage in fishing in Canadian waters under the Treaty as amended in 2002. At least 7 (seven) days prior to the AUTHORITY: Sec. 401, Pub. L. 108-219, 118 first day on which any fishing in Cana- Stat. 616 (16 U.S.C. 1821 note). dian waters may begin, the owner of SOURCE: 69 FR 31535, June 4, 2004, unless any U.S. vessel that wishes to be eligi- otherwise noted. ble to fish for albacore tuna under the

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Treaty as amended in 2002 must pro- dian waters in which fishing is not per- vide the Regional Administrator or his mitted, or a Canadian port. If the de- designee with the vessel name, the parture is due to exit to the high seas, owner’s name and address, phone num- the vessel operator must submit the ber where the owner can be reached, logbook within 7 days of its next land- the U.S. Coast Guard documentation ing. number (or state registration number if not documented), and vessel operator § 300.175 Hail-in and hail-out reports. (if different from the owner) and his or (a) The operator of any U.S. vessel her address and phone number. NMFS that wishes to engage in fishing in wa- will then place the vessel on the vessel ters under the fisheries jurisdiction of list. Canada must file a hail-in report to the Reporting Office at least 24 hours prior § 300.173 Vessel identification. to engaging in fishing in such waters. A U.S. vessel fishing under the Trea- (b) The operator of a U.S. vessel that ty as amended in 2002 must be marked has been fishing under the Treaty as with its name and vessel identification amended in 2002 must file a hail-out re- prominently displayed where they will port to the Reporting Office within 24 be clearly visible both from the air and hours of departing waters under the from a surface vessel. Vessel identifica- fisheries jurisdiction of Canada. tion means the U.S. Coast Guard Docu- mentation number (or if not docu- § 300.176 Prohibitions. mented, the state registration number) followed by the letter U in the same It is prohibited for the owner or oper- height and size as the numerals. Nu- ator of a U.S. fishing vessel to: merals and the letter U must meet (a) Engage in fishing in waters under thesize requirements of § 660.704 of the fisheries jurisdiction of Canada if: chapter VI of this title. (1) The vessel has not been on the list of fisheries pursuant to § 300.172 for at § 300.174 Logbook reports. least 7 days; The owner of any U.S. vessel that (2) The vessel is not clearly marked fishes for albacore tuna in Canadian as required under § 300.173; waters under the Treaty as amended in (3) The vessel operator has not filed a 2002 must maintain and submit to the hail-in report with the Reporting Office Regional Administrator a logbook of as required under § 300.175(a); or catch and effort of such fishing. The (4) The Regional Administrator has logbook form will be provided to the announced that the U.S. limit on fish- vessel owner as soon as practicable ing under the Treaty as amended in after the request to be placed on the 2002 has been reached. list of vessels. The logbook must be (b) Fail to maintain and submit log- submitted to the Regional Adminis- book records of catch and effort statis- trator within 15 days of the end of a tics as required under § 300.174; trip, regardless of whether the trip (c) Fail to report an exit from waters ends by reentry to U.S. waters or entry under the fisheries jurisdiction of Can- to Canada’s territorial sea, other Cana- ada as required by § 300.175(b).

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SUBCHAPTER A

Part Page 401 Anadromous fisheries conservation, development and enhancement ...... 449 402 Interagency cooperation—Endangered Species Act of 1973, as amended ...... 452 403 Transfer of marine mammal management authority to States ...... 470 424 Listing endangered and threatened species and designating critical habitat ...... 478

SUBCHAPTER B [RESERVED]

SUBCHAPTER C—ENDANGERED SPECIES EXEMPTION PROCESS 450 General provisions...... 487 451 Application procedure...... 488 452 Consideration of application by the Secretary ...... 490 453 Endangered Species Committee ...... 493

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

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

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grant-in-aid award or project agree- laws governing safety, health and sani- ment, the intent and purpose of the tation. Act may be better served by other ownership of such property, an appropriate § 401.18 Contracts. transfer may be made. When real or A Cooperator may use its own regula- personal property is utilized as match- tions or guidelines in obtaining serving funds, title to such property shall ices by contract or otherwise, provided be in the Cooperator unless otherwise that they adhere to applicable Federal specified in the grant-in-aid award or laws, regulations, policies, guidelines, project agreement. and requirements, as set forth in At- tachment 0 of Federal Management § 401.13 Personnel. Circular 74–7. However, the Cooperator The Cooperator shall maintain an is the responsible authority, without adequate and competent force of em- recourse to the Federal agency, regard- ployees to initiate and carry approved ing the settlement of such contractual work to satisfactory completion. issues.

§ 401.14 Inspection. § 401.19 Statements and payrolls. Cooperator supervision of each The regulations of the Secretary of project shall include adequate and con- Labor applicable to contractors and tinuous inspection. The project will be subcontractors (29 CFR part 3), made subject at all times to Federal inspec- pursuant to the Copeland ‘‘Anti-Kick- tion. back’’ Act (18 U.S.C. 874), as amended, are made a part of the regulations in § 401.15 Record retention. this part by reference. The Cooperator All records of accounts and reports will comply with the regulations in with supporting documentation there- this part and any amendments or modi- to, as set forth in Attachment C of fications thereof, and the Cooperator’s Federal Management Circular 74–7, will prime contractor will be responsible be retained by the Cooperator for a pe- for the submission of statements re- riod of 3 years after submission of the quired of subcontractors thereunder. final expenditure report on the project. The foregoing shall apply except as the Record retention for a period longer Secretary of Labor may specifically than 3 years is required if audit find- provide for reasonable limitation, vari- ings have not been resolved. ations, tolerances, and exemptions.

§ 401.16 Records and reporting. § 401.20 Officials not to benefit. Performance reports and other re- No Member of, or Delegate to, Con- ports shall be furnished as requested by gress, or resident Commissioner, shall the Secretary. Cost records shall be be admitted to any share or any part of maintained separately for each project. any project agreement made under the The accounts and records maintained Act, or to any benefit that may arise by the Cooperator, together with all therefrom. This provision shall not be supporting documents, shall be open at construed to extend to this agreement all times to the inspection of author- if made with a corporation for its gen- ized representatives of the United eral benefit. States, and copies thereof shall be furnished when requested. § 401.21 Patents and inventions. (Approved by the Office of Management and Determination of the patent rights in Budget under control number 0648–0102) any inventions or discoveries resulting [40 FR 26678, June 25, 1975, as amended at 48 from work under project agreements FR 57302, Dec. 29, 1983] entered into pursuant to the Act shall be consistent with the ‘‘Government § 401.17 Safety and accident preven- Patent Policy’’ (President’s memo- tion. randum for Heads of Executive Depart- In the performance of each project, ments and Agencies, August 23, 1971, the Cooperator shall comply with all and statement of Government Patent applicable Federal, State, and local Policy as printed in 36 FR 16889).

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§ 401.22 Civil rights. 402.31 Purpose. 402.32 Scope. Each application for Federal assist- 402.33 Procedures. ance, grant-in-aid award, or project 402.34 Oversight. agreement shall be supported by a statement of assurances executed by Subpart D—Counterpart Regulations Gov- the Cooperator providing that the proj- erning Actions by the U.S. Environ- ect will be carried out in accordance mental Protection Agency Under the with title VI, Nondiscrimination in fed- Federal Insecticide, Fungicide and erally Assisted Programs of the Civil Rodenticide Act Rights Act of 1964 and with the Sec- 402.40 Definitions. retary’s regulations promulgated 402.41 Purpose. thereunder. 402.42 Scope and applicability 402.43 Interagency exchanges of informa- § 401.23 Audits. tion. The State is required to conduct an 402.44 Advance coordination for FIFRA ac- audit at least every two years in actions. 402.45 Alternative consultation on FIFRA cordance with the provisions of Attach- actions that are not likely to adversely ment P OMB Circular A–102. Failure to affect listed species or critical habitat. conduct audits as required may result 402.46 Optional formal consultation proce- in withholding of grant payments or dure for FIFRA actions. such other sanctions as the Secretary 402.47 Special consultation procedures for may deem appropriate. complex FIFRA actions. 402.48 Conference on proposed species or [49 FR 30074, July 26, 1984] proposed critical habitat.

AUTHORITY: 16 U.S.C. 1531 et seq. PART 402—INTERAGENCY CO- SOURCE: 51 FR 19957, June 3, 1986, unless OPERATION—ENDANGERED SPE- otherwise noted. CIES ACT OF 1973, AS AMEND- ED Subpart A—General Subpart A—General § 402.01 Scope. Sec. (a) This part interprets and imple- 402.01 Scope. ments sections 7(a)–(d) [16 U.S.C. 402.02 Definitions. 1536(a)–(d)] of the Endangered Species 402.03 Applicability. Act of 1973, as amended ( Act ). Section 402.04 Counterpart regulations. ‘‘ ’’ 402.05 Emergencies. 7(a) grants authority to and imposes 402.06 Coordination with other environ- requirements upon Federal agencies re- mental reviews. garding endangered or threatened spe- 402.07 Designation of lead agency. cies of fish, wildlife, or plants (‘‘listed 402.08 Designation of non-Federal represent- species’’) and habitat of such species ative. that has been designated as critical 402.09 Irreversible or irretrievable commit- ( critical habitat ). Section 7(a)(1) of ment of resources. ‘‘ ’’ the Act directs Federal agencies, in Subpart B—Consultation Procedures consultation with and with the assistance of the Secretary of the Interior or 402.10 Conference on proposed species or of Commerce, as appropriate, to utilize proposed critical habitat. their authorities to further the pur- 402.11 Early consultation. 402.12 Biological assessments. poses of the Act by carrying out con- 402.13 Informal consultation. servation programs for listed species. 402.14 Formal consultation. Such affirmative conservation pro- 402.15 Responsibilities of Federal agency grams must comply with applicable following issuance of a biological opin- permit requirements (50 CFR parts 17, ion. 220, 222, and 227) for listed species and 402.16 Reinitiation of formal consultation. should be coordinated with the appropriate Secretary. Section 7(a)(2) of the Subpart C—Counterpart Regulations For Act requires every Federal agency, in Implementing the National Fire Plan consultation with and with the assist- 402.30 Definitions. ance of the Secretary, to insure that

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

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7(a)(4) of the Act regarding the impact pated impacts of all proposed Federal of an action on proposed species or pro- projects in the action area that have posed critical habitat and rec- already undergone formal or early sec- ommendations to minimize or avoid tion 7 consultation, and the impact of the adverse effects. State or private actions which are con- Conservation recommendations are sug- temporaneous with the consultation in gestions of the Service regarding dis- process. Indirect effects are those that cretionary measures to minimize or are caused by the proposed action and avoid adverse effects of a proposed ac- are later in time, but still are reason- tion on listed species or critical habi- ably certain to occur. Interrelated ac- tat or regarding the development of in- tions are those that are part of a larger formation. action and depend on the larger action Critical habitat refers to an area des- for their justification. Interdependent ignated as critical habitat listed in 50 actions are those that have no inde- CFR parts 17 or 226. pendent utility apart from the action Cumulative effects are those effects of under consideration. future State or private activities, not involving Federal activities, that are Formal consultation is a process be- reasonably certain to occur within the tween the Service and the Federal action area of the Federal action sub- agency that commences with the Fed- ject to consultation. eral agency’s written request for con- Designated non-Federal representative sultation under section 7(a)(2) of the refers to a person designated by the Act and concludes with the Service’s Federal agency as its representative to issuance of the biological opinion conduct informal consultation and/or under section 7(b)(3) of the Act. to prepare any biological assessment. Incidental take refers to takings that Destruction or adverse modification result from, but are not the purpose of, means a direct or indirect alteration carrying out an otherwise lawful activ- that appreciably diminishes the value ity conducted by the Federal agency or of critical habitat for both the survival applicant. and recovery of a listed species. Such Informal consultation is an optional alterations include, but are not limited process that includes all discussions, to, alterations adversely modifying any correspondence, etc., between the Serv- of those physical or biological features ice and the Federal agency or the des- that were the basis for determining the ignated non-Federal representative habitat to be critical. prior to formal consultation, if re- Director refers to the Assistant Ad- quired. ministrator for Fisheries for the Na- Jeopardize the continued existence of tional Oceanic and Atmospheric Ad- means to engage in an action that rea- ministration, or his authorized rep- sonably would be expected, directly or resentative; or the Fish and Wildlife indirectly, to reduce appreciably the Service regional director, or his au- likelihood of both the survival and re- thorized representative, for the region covery of a listed species in the wild by where the action would be carried out. reducing the reproduction, numbers, or Early consultation is a process requested by a Federal agency on behalf distribution of that species. of a prospective applicant under sec- Listed species means any species of tion 7(a)(3) of the Act. fish, wildlife, or plant which has been Effects of the action refers to the di- determined to be endangered or threat- rect and indirect effects of an action on ened under section 4 of the Act. Listed the species or critical habitat, together species are found in 50 CFR 17.11–17.12. with the effects of other activities that Major construction activity is a con- are interrelated or interdependent with struction project (or other undertaking that action, that will be added to the having similar physical impacts) which environmental baseline. The environ- is a major Federal action significantly mental baseline includes the past and affecting the quality of the human en- present impacts of all Federal, State, vironment as referred to in the Na- or private actions and other human ac- tional Environmental Policy Act tivities in the action area, the antici- [NEPA, 42 U.S.C. 4332(2)(C)].

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Preliminary biological opinion refers to § 402.05 Emergencies. an opinion issued as a result of early (a) Where emergency circumstances consultation. Proposed critical habitat means habi- mandate the need to consult in an ex- tat proposed in the FEDERAL REGISTER pedited manner, consultation may be to be designated or revised as critical conducted informally through alter- habitat under section 4 of the Act for native procedures that the Director de- any listed or proposed species. termines to be consistent with the re- Proposed species means any species of quirements of sections 7(a)–(d) of the fish, wildlife, or plant that is proposed Act. This provision applies to situa- in the FEDERAL REGISTER to be listed tions involving acts of God, disasters, under section 4 of the Act. casualties, national defense or security Reasonable and prudent alternatives emergencies, etc. refer to alternative actions identified (b) Formal consultation shall be ini- during formal consultation that can be tiated as soon as practicable after the implemented in a manner consistent emergency is under control. The Fed- with the intended purpose of the ac- eral agency shall submit information tion, that can be implemented con- on the nature of the emergency ac- sistent with the scope of the Federal tion(s), the justification for the expe- agency’s legal authority and jurisdic- dited consultation, and the impacts to tion, that is economically and techno- endangered or threatened species and logically feasible, and that the Direc- their habitats. The Service will evalu- tor believes would avoid the likelihood ate such information and issue a bio- of jeopardizing the continued existence of listed species or resulting in the de- logical opinion including the informa- struction or adverse modification of tion and recommendations given dur- critical habitat. ing the emergency consultation. Reasonable and prudent measures refer to those actions the Director believes § 402.06 Coordination with other environmental reviews. necessary or appropriate to minimize the impacts, i.e., amount or extent, of (a) Consultation, conference, and bio- incidental take. logical assessment procedures under Recovery means improvement in the section 7 may be consolidated with status of listed species to the point at interagency cooperation procedures re- which listing is no longer appropriate quired by other statutes, such as the under the criteria set out in section National Environmental Policy Act 4(a)(1) of the Act. (NEPA) (42 U.S.C. 4321 et seq., imple- Service means the U.S. Fish and Wild- mented at 40 CFR Parts 1500–1508) or life Service or the National Marine the Fish and Wildlife Coordination Act Fisheries Service, as appropriate. (FWCA) (16 U.S.C. 661 et seq.). Satis- § 402.03 Applicability. fying the requirements of these other statutes, however, does not in itself re- Section 7 and the requirements of lieve a Federal agency of its obliga- this part apply to all actions in which tions to comply with the procedures there is discretionary Federal involve- set forth in this part or the substantive ment or control. requirements of section 7. The Service § 402.04 Counterpart regulations. will attempt to provide a coordinated The consultation procedures set forth review and analysis of all environ- in this part may be superseded for a mental requirements. particular Federal agency by joint (b) Where the consultation or con- counterpart regulations among that ference has been consolidated with the agency, the Fish and Wildlife Service, interagency cooperation procedures re- and the National Marine Fisheries quired by other statutes such as NEPA Service. Such counterpart regulations or FWCA, the results should be in- shall be published in the FEDERAL REG- cluded in the documents required by ISTER in proposed form and shall be those statutes. subject to public comment for at least 60 days before final rules are published.

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§ 402.07 Designation of lead agency. Subpart B—Consultation When a particular action involves Procedures more than one Federal agency, the consultation and conference responsibil- § 402.10 Conference on proposed spe- ities may be fulfilled through a lead cies or proposed critical habitat. agency. Factors relevant in deter- (a) Each Federal agency shall confer mining an appropriate lead agency in- with the Service on any action which is clude the time sequence in which the likely to jeopardize the continued ex- agencies would become involved, the istence of any proposed species or re- magnitude of their respective involve- sult in the destruction or adverse ment, and their relative expertise with modification of proposed critical habi- respect to the environmental effects of tat. The conference is designed to as- the action. The Director shall be noti- sist the Federal agency and any appli- fied of the designation in writing by cant in identifying and resolving po- the lead agency. tential conflicts at an early stage in the planning process. § 402.08 Designation of non-Federal (b) The Federal agency shall initiate representative. the conference with the Director. The A Federal agency may designate a Service may request a conference if, non-Federal representative to conduct after a review of available information, informal consultation or prepare a bio- it determines that a conference is re- logical assessment by giving written quired for a particular action. notice to the Director of such designa- (c) A conference between a Federal tion. If a permit or license applicant is agency and the Service shall consist of involved and is not the designated non- informal discussions concerning an ac- Federal representative, then the appli- tion that is likely to jeopardize the cant and Federal agency must agree on continued existence of the proposed the choice of the designated non-Fed- species or result in the destruction or eral representative. If a biological as- adverse modification of the proposed sessment is prepared by the designated critical habitat at issue. Applicants non-Federal representative, the Fed- may be involved in these informal dis- eral agency shall furnish guidance and cussions to the greatest extent prac- supervision and shall independently re- ticable. During the conference, the view and evaluate the scope and con- Service will make advisory rec- tents of the biological assessment. The ommendations, if any, on ways to min- ultimate responsibility for compliance imize or avoid adverse effects. If the with section 7 remains with the Fed- proposed species is subsequently listed eral agency. or the proposed critical habitat is designated prior to completion of the ac- § 402.09 Irreversible or irretrievable tion, the Federal agency must review commitment of resources. the action to determine whether for- After initiation or reinitiation of mal consultation is required. consultation required under section (d) If requested by the Federal agen- 7(a)(2) of the Act, the Federal agency cy and deemed appropriate by the Serv- and any applicant shall make no irre- ice, the conference may be conducted versible or irretrievable commitment in accordance with the procedures for of resources with respect to the agency formal consultation in § 402.14. An opin- action which has the effect of fore- ion issued at the conclusion of the con- closing the formulation or implemen- ference may be adopted as the biologi- tation of any reasonable and prudent cal opinion when the species is listed or alternatives which would avoid vio- critical habitat is designated, but only lating section 7(a)(2). This prohibition if no significant new information is de- is in force during the consultation veloped (including that developed dur- process and continues until the re- ing the rulemaking process on the pro- quirements of section 7(a)(2) are satis- posed listing or critical habitat des- fied. This provision does not apply to ignation) and no significant changes to the conference requirement for pro- the Federal action are made that would posed species or proposed critical habi- alter the content of the opinion. An in- tat under section 7(a)(4) of the Act. cidental take statement provided with

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a conference opinion does not become ‘‘preliminary biological opinion’’ for the effective unless the Service adopts the purpose of this section. opinion once the listing is final. (e) Preliminary biological opinion. The (e) The conclusions reached during a contents and conclusions of a prelimi- conference and any recommendations nary biological opinion are the same as shall be documented by the Service and for a biological opinion issued after provided to the Federal agency and to formal consultation except that the in- any applicant. The style and mag- cidental take statement provided with nitude of this document will vary with a preliminary biological opinion does the complexity of the conference. If not constitute authority to take listed formal consultation also is required for species. a particular action, then the Service (f) Confirmation of preliminary biologi- will provide the results of the con- cal opinion as final biological opinion. A ference with the biological opinion. preliminary biological opinion may be confirmed as a biological opinion § 402.11 Early consultation. issued after formal consultation if the (a) Purpose. Early consultation is de- Service reviews the proposed action signed to reduce the likelihood of con- and finds that there have been no sig- flicts between listed species or critical nificant changes in the action as habitat and proposed actions and oc- planned or in the information used dur- curs prior to the filing of an applica- ing the early consultation. A written tion for a Federal permit or license. Al- request for confirmation of the pre- though early consultation is conducted liminary biological opinion should be between the Service and the Federal submitted after the prospective appli- agency, the prospective applicant cant applies to the Federal agency for should be involved throughout the con- a permit or license but prior to the sultation process. issuance of such permit or license. (b) Request by prospective applicant. If Within 45 days of receipt of the Federal a prospective applicant has reason to agency’s request, the Service shall ei- believe that the prospective action ther: may affect listed species or critical (1) Confirm that the preliminary bio- habitat, it may request the Federal logical opinion stands as a final bio- agency to enter into early consultation logical opinion; or with the Service. The prospective ap- (2) If the findings noted above cannot plicant must certify in writing to the be made, request that the Federal Federal agency that (1) it has a defini- agency initiate formal consultation. tive proposal outlining the action and its effects and (2) it intends to imple- § 402.12 Biological assessments. ment its proposal, if authorized. (a) Purpose. A biological assessment (c) Initiation of early consultation. If shall evaluate the potential effects of the Federal agency receives the pro- the action on listed and proposed spe- spective applicant’s certification in cies and designated and proposed crit- paragraph (b) of this section, then the ical habitat and determine whether Federal agency shall initiate early con- any such species or habitat are likely sultation with the Service. This re- to be adversely affected by the action quest shall be in writing and contain and is used in determining whether for- the information outlined in § 402.14(c) mal consultation or a conference is and, if the action is a major construc- necessary. tion activity, the biological assessment (b) Preparation requirement. (1) The as outlined in § 402.12. procedures of this section are required (d) Procedures and responsibilities. The for Federal actions that are ‘‘major procedures and responsibilities for construction activities’’; provided that early consultation are the same as out- a contract for construction was not en- lined in § 402.14(c)–(j) for formal con- tered into or actual construction was sultation, except that all references to not begun on or before November 10, the ‘‘applicant’’ shall be treated as the 1978. Any person, including those who ‘‘prospective applicant’’ and all ref- may wish to apply for an exemption erences to the ‘‘biological opinion’’ or from section 7(a)(2) of the Act, may the ‘‘opinion’’ shall be treated as the prepare a biological assessment under 457

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the supervision of the Federal agency quired unless the proposed listing and/ and in cooperation with the Service or designation becomes final. consistent with the procedures and re- (2) If a listed species or critical habi- quirements of this section. An exemp- tat may be present in the action area, tion from the requirements of section the Director will provide a species list 7(a)(2) is not permanent unless a bio- or concur with the species list pro- logical assessment has been prepared. vided. The Director also will provide (2) The biological assessment shall be available information (or references completed before any contract for con- thereto) regarding these species and struction is entered into and before critical habitat, and may recommend construction is begun. discretionary studies or surveys that (c) Request for information. The Fed- may provide a better information base eral agency or the designated non-Fed- for the preparation of an assessment. eral representative shall convey to the Any recommendation for studies or Director either (1) a written request for surveys is not to be construed as the a list of any listed or proposed species Service’s opinion that the Federal or designated or proposed critical habi- agency has failed to satisfy the infor- tat that may be present in the action mation standard of section 7(a)(2) of area; or (2) a written notification of the the Act. species and critical habitat that are (e) Verification of current accuracy of being included in the biological assess- species list. If the Federal agency or the ment. designated non-Federal representative does not begin preparation of the bio- (d) Director’s response. Within 30 days logical assessment within 90 days of re- of receipt of the notification of, or the ceipt of (or concurrence with) the spe- request for, a species list, the Director cies list, the Federal agency or the des- shall either concur with or revise the ignated non-Federal representative list or, in those cases where no list has must verify (formally or informally) been provided, advise the Federal agen- with the Service the current accuracy cy or the designated non-Federal rep- of the species list at the time the prep- resentative in writing whether, based aration of the assessment is begun. on the best scientific and commercial (f) Contents. The contents of a bio- data available, any listed or proposed logical assessment are at the discretion species or designated or proposed crit- of the Federal agency and will depend ical habitat may be present in the ac- on the nature of the Federal action. tion area. In addition to listed and pro- The following may be considered for in- posed species, the Director will provide clusion: a list of candidate species that may be (1) The results of an on-site inspec- present in the action area. Candidate tion of the area affected by the action species refers to any species being con- to determine if listed or proposed spe- sidered by the Service for listing as en- cies are present or occur seasonally. dangered or threatened species but not (2) The views of recognized experts on yet the subject of a proposed rule. Al- the species at issue. though candidate species have no legal (3) A review of the literature and status and are accorded no protection other information. under the Act, their inclusion will (4) An analysis of the effects of the alert the Federal agency of potential action on the species and habitat, in- proposals or listings. cluding consideration of cumulative ef- (1) If the Director advises that no fects, and the results of any related listed species or critical habitat may studies. be present, the Federal agency need (5) An analysis of alternate actions not prepare a biological assessment considered by the Federal agency for and further consultation is not re- the proposed action. quired. If only proposed species or pro- (g) Incorporation by reference. If a proposed critical habitat may be present posed action requiring the preparation in the action area, then the Federal of a biological assessment is identical, agency must confer with the Service if or very similar, to a previous action for required under § 402.10, but preparation which a biological assessment was pre- of a biological assessment is not re- pared, the Federal agency may fulfill

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the biological assessment requirement § 402.10, respectively. If the biological for the proposed action by incor- assessment indicates that there are no porating by reference the earlier bio- listed species or critical habitat logical assessment, plus any supporting present that are likely to be adversely data from other documents that are affected by the action and the Director pertinent to the consultation, into a concurs as specified in paragraph (j) of written certification that: this section, then formal consultation (1) The proposed action involves is not required. If the biological assess- similar impacts to the same species in ment indicates that the action is not the same geographic area; likely to jeopardize the continued ex- (2) No new species have been listed or istence of proposed species or result in proposed or no new critical habitat des- the destruction or adverse modifica- ignated or proposed for the action area; tion of proposed critical habitat, and and the Director concurs, then a conference (3) The biological assessment has is not required. been supplemented with any relevant (2) The Director may use the results changes in information. of the biological assessment in (i) de- (h) Permit requirements. If conducting termining whether to request the Fed- a biological assessment will involve eral agency to initiate formal con- the taking of a listed species, a permit sultation or a conference, (ii) formu- under section 10 of the Act (16 U.S.C. lating a biological opinion, or (iii) for- 1539) and part 17 of this title (with re- mulating a preliminary biological spect to species under the jurisdiction opinion. of the FWS) or parts 220, 222, and 227 of this title (with respect to species under § 402.13 Informal consultation. the jurisdiction of the NMFS) is re- (a) Informal consultation is an op- quired. tional process that includes all discus- (i) Completion time. The Federal agen- sions, correspondence, etc., between cy or the designated non- Federal rep- the Service and the Federal agency or resentative shall complete the biologi- the designated non-Federal representa- cal assessment within 180 days after its tive, designed to assist the Federal initiation (receipt of or concurrence agency in determining whether formal with the species list) unless a different consultation or a conference is re- period of time is agreed to by the Di- quired. If during informal consultation rector and the Federal agency. If a per- it is determined by the Federal agency, mit or license applicant is involved, with the written concurrence of the the 180-day period may not be extended Service, that the action is not likely to unless the agency provides the appli- adversely affect listed species or crit- cant, before the close of the 180-day pe- ical habitat, the consultation process riod, with a written statement setting is terminated, and no further action is forth the estimated length of the pro- necessary. posed extension and the reasons why (b) During informal consultation, the such an extension is necessary. Service may suggest modifications to (j) Submission of biological assessment. the action that the Federal agency and The Federal agency shall submit the any applicant could implement to completed biological assessment to the avoid the likelihood of adverse effects Director for review. The Director will to listed species or critical habitat. respond in writing within 30 days as to whether or not he concurs with the § 402.14 Formal consultation. findings of the biological assessment. (a) Requirement for formal consultation. At the option of the Federal agency, Each Federal agency shall review its formal consultation may be initiated actions at the earliest possible time to under § 402.14(c) concurrently with the determine whether any action may af- submission of the assessment. fect listed species or critical habitat. If (k) Use of the biological assessment. (1) such a determination is made, formal The Federal agency shall use the bio- consultation is required, except as logical assessment in determining noted in paragraph (b) of this section. whether formal consultation or a con- The Director may request a Federal ference is required under § 402.14 or agency to enter into consultation if he

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identifies any action of that agency quirements for considering the effects that may affect listed species or crit- of the action as a whole. ical habitat and for which there has (d) Responsibility to provide best sci- been no consultation. When such a re- entific and commercial data available. quest is made, the Director shall for- The Federal agency requesting formal ward to the Federal agency a written consultation shall provide the Service explanation of the basis for the re- with the best scientific and commer- quest. cial data available or which can be ob- (b) Exceptions. (1) A Federal agency tained during the consultation for an need not initiate formal consultation adequate review of the effects that an if, as a result of the preparation of a bi- action may have upon listed species or ological assessment under § 402.12 or as critical habitat. This information may a result of informal consultation with include the results of studies or sur- the Service under § 402.13, the Federal veys conducted by the Federal agency agency determines, with the written or the designated non-Federal rep- concurrence of the Director, that the resentative. The Federal agency shall proposed action is not likely to ad- provide any applicant with the oppor- versely affect any listed species or crit- tunity to submit information for con- ical habitat. sideration during the consultation. (2) A Federal agency need not ini- (e) Duration and extension of formal tiate formal consultation if a prelimi- consultation. Formal consultation con- nary biological opinion, issued after cludes within 90 days after its initi- early consultation under § 402.11, is ation unless extended as provided confirmed as the final biological opin- below. If an applicant is not involved, ion. the Service and the Federal agency (c) Initiation of formal consultation. A may mutually agree to extend the con- written request to initiate formal consultation for a specific time period. If sultation shall be submitted to the Di- an applicant is involved, the Service rector and shall include: and the Federal agency may mutually (1) A description of the action to be agree to extend the consultation pro- considered; vided that the Service submits to the (2) A description of the specific area applicant, before the close of the 90 that may be affected by the action; days, a written statement setting (3) A description of any listed species forth: or critical habitat that may be affected (1) The reasons why a longer period is by the action; required, (4) A description of the manner in (2) The information that is required which the action may affect any listed to complete the consultation, and species or critical habitat and an anal- (3) The estimated date on which the ysis of any cumulative effects; consultation will be completed. (5) Relevant reports, including any A consultation involving an applicant environmental impact statement, envi- cannot be extended for more than 60 ronmental assessment, or biological as- days without the consent of the appli- sessment prepared; and cant. Within 45 days after concluding (6) Any other relevant available informal consultation, the Service shall formation on the action, the affected deliver a biological opinion to the Fed- listed species, or critical habitat. eral agency and any applicant. Formal consultation shall not be initi- (f) Additional data. When the Service ated by the Federal agency until any determines that additional data would required biological assessment has provide a better information base from been completed and submitted to the which to formulate a biological opin- Director in accordance with § 402.12. ion, the Director may request an exten- Any request for formal consultation sion of formal consultation and request may encompass, subject to the ap- that the Federal agency obtain addi- proval of the Director, a number of tional data to determine how or to similar individual actions within a what extent the action may affect list- given geographical area or a segment ed species or critical habitat. If formal of a comprehensive plan. This does not consultation is extended by mutual relieve the Federal agency of the re- agreement according to § 402.14(e), the

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Federal agency shall obtain, to the ex- sion to a specific date. The applicant tent practicable, that data which can may request a copy of the draft opinion be developed within the scope of the from the Federal agency. All com- extension. The responsibility for con- ments on the draft biological opinion ducting and funding any studies be- must be submitted to the Service longs to the Federal agency and the ap- through the Federal agency, although plicant, not the Service. The Service’s the applicant may send a copy of its request for additional data is not to be comments directly to the Service. The construed as the Service’s opinion that Service will not issue its biological the Federal agency has failed to satisfy opinion prior to the 45-day or extended the information standard of section deadline while the draft is under review 7(a)(2) of the Act. If no extension of for- by the Federal agency. However, if the mal consultation is agreed to, the Di- Federal agency submits comments to rector will issue a biological opinion the Service regarding the draft biologi- using the best scientific and commer- cal opinion within 10 days of the dead- cial data available. line for issuing the opinion, the Service (g) Service responsibilities. Service re- is entitled to an automatic 10-day ex- sponsibilities during formal consulta- tension on the deadline. tion are as follows: (6) Formulate discretionary con- (1) Review all relevant information servation recommendations, if any, provided by the Federal agency or oth- which will assist the Federal agency in erwise available. Such review may in- reducing or eliminating the impacts clude an on-site inspection of the ac- that its proposed action may have on tion area with representatives of the listed species or critical habitat. Federal agency and the applicant. (7) Formulate a statement con- (2) Evaluate the current status of the cerning incidental take, if such take listed species or critical habitat. may occur. (3) Evaluate the effects of the action (8) In formulating its biological opin- and cumulative effects on the listed ion, any reasonable and prudent alter- species or critical habitat. natives, and any reasonable and pru- (4) Formulate its biological opinion dent measures, the Service will use the as to whether the action, taken to- best scientific and commercial data gether with cumulative effects, is like- available and will give appropriate con- ly to jeopardize the continued exist- sideration to any beneficial actions ence of listed species or result in the taken by the Federal agency or appli- destruction or adverse modification of cant, including any actions taken prior critical habitat. to the initiation of consultation. (5) Discuss with the Federal agency (h) Biological opinions. The biological and any applicant the Service’s review opinion shall include: and evaluation conducted under para- (1) A summary of the information on graphs (g)(1) through (3) of this section, which the opinion is based; the basis for any finding in the biologi- (2) A detailed discussion of the ef- cal opinion, and the availability of rea- fects of the action on listed species or sonable and prudent alternatives (if a critical habitat; and jeopardy opinion is to be issued) that (3) The Service’s opinion on whether the agency and the applicant can take the action is likely to jeopardize the to avoid violation of section 7(a)(2). continued existence of a listed species The Service will utilize the expertise of or result in the destruction or adverse the Federal agency and any applicant modification of critical habitat (a in identifying these alternatives. If re- ‘‘jeopardy biological opinion’’); or, the quested, the Service shall make avail- action is not likely to jeopardize the able to the Federal agency the draft bi- continued existence of a listed species ological opinion for the purpose of ana- or result in the destruction or adverse lyzing the reasonable and prudent al- modification of critical habitat (a ‘‘no ternatives. The 45-day period in which jeopardy’’ biological opinion). A ‘‘jeop- the biological opinion must be deliv- ardy’’ biological opinion shall include ered will not be suspended unless the reasonable and prudent alternatives, if Federal agency secures the written any. If the Service is unable to develop consent of the applicant to an exten- such alternatives, it will indicate that

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to the best of its knowledge there are (i)(1)(i) of this Section, is exceeded, the no reasonable and prudent alter- Federal agency must reinitiate con- natives. sultation immediately. (i) Incidental take. (1) In those cases (5) Any taking which is subject to a where the Service concludes that an statement as specified in paragraph action (or the implementation of any (i)(1) of this section and which is in reasonable and prudent alternatives) compliance with the terms and condi- and the resultant incidental take of tions of that statement is not a prohib- listed species will not violate section ited taking under the Act, and no other 7(a)(2), and, in the case of marine mam- authorization or permit under the Act mals, where the taking is authorized is required. pursuant to section 101(a)(5) of the Ma- (j) Conservation recommendations. The rine Mammal Protection Act of 1972, Service may provide with the biologi- the Service will provide with the bio- cal opinion a statement containing dis- logical opinion a statement concerning cretionary conservation recommenda- incidental take that: tions. Conservation recommendations (i) Specifies the impact, i.e., the are advisory and are not intended to amount or extent, of such incidental carry any binding legal force. taking on the species; (k) Incremental steps. When the action (ii) Specifies those reasonable and is authorized by a statute that allows prudent measures that the Director the agency to take incremental steps considers necessary or appropriate to toward the completion of the action, minimize such impact; the Service shall, if requested by the (iii) In the case of marine mammals, Federal agency, issue a biological opin- specifies those measures that are nec- ion on the incremental step being con- essary to comply with section 101(a)(5) sidered, including its views on the en- of the Marine Mammal Protection Act tire action. Upon the issuance of such a of 1972 and applicable regulations with biological opinion, the Federal agency regard to such taking; may proceed with or authorize the in- (iv) Sets forth the terms and condi- cremental steps of the action if: tions (including, but not limited to, re- (1) The biological opinion does not porting requirements) that must be conclude that the incremental step complied with by the Federal agency or would violate section 7(a)(2); any applicant to implement the meas- (2) The Federal agency continues ures specified under paragraphs consultation with respect to the entire (i)(1)(ii) and (i)(1)(iii) of this section; action and obtains biological opinions, and as required, for each incremental step; (v) Specifies the procedures to be (3) The Federal agency fulfills its used to handle or dispose of any indi- continuing obligation to obtain suffi- viduals of a species actually taken. cient data upon which to base the final (2) Reasonable and prudent measures, biological opinion on the entire action; along with the terms and conditions (4) The incremental step does not vio- that implement them, cannot alter the late section 7(d) of the Act concerning basic design, location, scope, duration, irreversible or irretrievable commit- or timing of the action and may in- ment of resources; and volve only minor changes. (5) There is a reasonable likelihood (3) In order to monitor the impacts of that the entire action will not violate incidental take, the Federal agency or section 7(a)(2) of the Act. any applicant must report the progress (l) Termination of consultation. (1) For- of the action and its impact on the spe- mal consultation is terminated with cies to the Service as specified in the the issuance of the biological opinion. incidental take statement. The report- (2) If during any stage of consulta- ing requirements will be established in tion a Federal agency determines that accordance with 50 CFR 13.45 and 18.27 its proposed action is not likely to for FWS and 50 CFR 220.45 and 228.5 for occur, the consultation may be termi- NMFS. nated by written notice to the Service. (4) If during the course of the action (3) If during any stage of consulta- the amount or extent of incidental tak- tion a Federal agency determines, with ing, as specified under paragraph the concurrence of the Director, that

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its proposed action is not likely to ad- Subpart C—Counterpart Regula- versely affect any listed species or crit- tions for Implementing the ical habitat, the consultation is termi- National Fire Plan nated.

[51 FR 19957, June 3, 1986, as amended at 54 SOURCE: 68 FR 68264, Dec. 8, 2003, unless FR 40350, Sept. 29, 1989] otherwise noted.

§ 402.15 Responsibilities of Federal § 402.30 Definitions. agency following issuance of a biological opinion. The definitions in § 402.02 are applicable to this subpart. In addition, the fol- (a) Following the issuance of a bio- lowing definitions are applicable only logical opinion, the Federal agency to this subpart. shall determine whether and in what Action Agency refers to the Depart- manner to proceed with the action in ment of Agriculture Forest Service light of its section 7 obligations and (FS) or the Department of the Interior the Service’s biological opinion. Bureau of Indian Affairs (BIA), Bureau (b) If a jeopardy biological opinion is of Land Management (BLM), Fish and issued, the Federal agency shall notify Wildlife Service (FWS), or National the Service of its final decision on the Park Service (NPS). action. Alternative Consultation Agreement (c) If the Federal agency determines (ACA) is the agreement described in that it cannot comply with the require- § 402.33 of this subpart. ments of section 7(a)(2) after consulta- Fire Plan Project is an action deter- tion with the Service, it may apply for mined by the Action Agency to be an exemption. Procedures for exemp- within the scope of the NFP as defined tion applications by Federal agencies in this section. and others are found in 50 CFR part 451. National Fire Plan (NFP) is the Sep- § 402.16 Reinitiation of formal con- tember 8, 2000, report to the President sultation. from the Departments of the Interior and Agriculture entitled ‘‘Managing the Reinitiation of formal consultation is Impact of Wildfire on Communities and required and shall be requested by the the Environment’’ outlining a new ap- Federal agency or by the Service, proach to managing fires, together where discretionary Federal involve- with the accompanying budget re- ment or control over the action has quests, strategies, plans, and direction, been retained or is authorized by law or any amendments thereto. and: Service Director refers to the FWS Di- (a) If the amount or extent of taking rector or the Assistant Administrator specified in the incidental take state- for Fisheries for the National Oceanic ment is exceeded; and Atmospheric Administration. (b) If new information reveals effects of the action that may affect listed § 402.31 Purpose. species or critical habitat in a manner The purpose of these counterpart reg- or to an extent not previously consid- ulations is to enhance the efficiency ered; and effectiveness of the consultation (c) If the identified action is subse- process under section 7 of the ESA for quently modified in a manner that Fire Plan Projects by providing an op- causes an effect to the listed species or tional alternative to the procedures critical habitat that was not consid- found in §§ 402.13 and 402.14(b) of this ered in the biological opinion; or part. These regulations permit an Ac- (d) If a new species is listed or crit- tion Agency to enter into an Alter- ical habitat designated that may be af- native Consultation Agreement (ACA) fected by the identified action. with the Service, as described in § 402.33, which will allow the Action Agency to determine that a Fire Plan

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

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(3) Training: Upon completion of the Subpart D—Counterpart Regula- ACA, the Action Agency and the Serv- tions Governing Actions by ice will implement the training pro- the U.S. Environmental Protec- gram outlined in the ACA to the mutual satisfaction of the Action Agency tion Agency Under the Fed- and the Service. eral Insecticide, Fungicide (b) The Action Agency may, at its and Rodenticide Act discretion, allow any subunit of the Ac- tion Agency to implement this subpart SOURCE: 69 FR 47759, Aug. 5, 2004, unless as soon as the subunit has fulfilled the otherwise noted. training requirements of the ACA, upon written notification to the Serv- § 402.40 Definitions. ice. The Action Agency shall at all The definitions in § 402.02 are applica- times have responsibility for the ade- ble to this subpart. In addition, the fol- quacy of all NLAA determinations it lowing definitions are applicable only makes under this subpart. to this subpart. (c) The ACA and any related over- (a) Alternative consultation agreement sight or monitoring reports shall be is the agreement described in § 402.45. made available to the public through a (b) Effects determination is a written notice of availability in the FEDERAL determination by the U.S. Environ- REGISTER. mental Protection Agency (EPA) addressing the effects of a FIFRA action § 402.34 Oversight. on listed species or critical habitat. (a) Through the periodic program The contents of an effects determina- evaluation set forth in the ACA, the tion will depend on the nature of the Service will determine whether the im- action. An effects determination sub- plementation of this subpart by the Ac- mitted under § 402.46 or § 402.47 shall tion Agency is consistent with the best contain the information described in available scientific and commercial in- § 402.14(c)(1)–(6) and a summary of the formation, the ESA, and section 7 regu- information on which the determina- lations. tion is based, detailing how the FIFRA (b) The Service Director may use the action affects the listed species or crit- results of the periodic program evalua- ical habitat. EPA may consider the fol- tion described in the ACA to rec- lowing additional sections for inclusion ommend changes to the Action Agen- in an effects determination: cy’s implementation of the ACA. If and (1) A conclusion whether or not the as appropriate, the Service Director FIFRA action is likely to jeopardize may suspend any subunit participating the continued existence of any listed in the ACA or exclude any subunit species or result in the destruction or from the ACA. adverse modification of critical habitat (c) The Service Director retains dis- and a description of any reasonable and cretion to terminate the ACA if the Ac- prudent alternatives that may be avail- tion Agency fails to comply with the able; requirements of this subpart, section 7 (2) A description of the impact of any of the ESA, or the terms of the ACA. anticipated incidental taking of such Termination, suspension, or modifica- listed species resulting from the tion of an ACA does not affect the va- FIFRA action, reasonable and prudent lidity of any NLAA determinations measures considered necessary or ap- made previously under the authority of propriate to minimize such impact, and this subpart. terms and conditions necessary to implement such measures; and (3) A summary of any information or recommendations from an applicant. An effects determination shall be based

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on the best scientific and commercial as part of the best scientific and com- data available. mercial data available to protect listed (c) FIFRA action is an action by EPA species and critical habitat. The proce- to approve, permit or authorize the dures authorized by these counterpart sale, distribution or use of a pesticide regulations will be as protective of list- under sections 136–136y of the Federal ed species and critical habitat as the Insecticide, Fungicide and Rodenticide process established in subpart B of this Act, 7 U.S.C. 136 et seq. (FIFRA). In any part. consultation under this subpart, EPA shall determine the nature and scope of § 402.42 Scope and applicability. a FIFRA action. (a) Available consultation procedures. (d) Listed species is a species listed as This subpart describes consultation endangered or threatened under section procedures available to EPA to satisfy 4 of the Act. the obligations of section 7(a)(2) of the (e) Partial biological opinion is the Act in addition to those in subpart B of document provided under § 402.47(a), this part for FIFRA actions authorized, pending the conclusion of consultation funded, or carried out by EPA in which under § 402.47(b), stating the opinion of EPA has discretionary Federal involve- the Service as to whether or not a ment or control. EPA retains discre- FIFRA action is likely to jeopardize tion to initiate early, informal, or for- the continued existence of one or more mal consultation as described in listed species or result in the destruc- §§ 402.11, 402.13, and 402.14 for any tion or adverse modification of one or FIFRA action. The procedures in this more critical habitats, and describing subpart may be employed for FIFRA the impact of any anticipated inci- actions as follows: dental taking of such listed species re- (1) Interagency exchanges of informa- sulting from the FIFRA action, reason- tion under § 402.43 and advance coordi- able and prudent measures considered nation under § 402.44 are available for necessary or appropriate to minimize any FIFRA action. such impact, and terms and conditions (2) Alternative consultation under necessary to implement such measures. § 402.45 is available for a listed species (f) Service Director refers to the Direc- or critical habitat if EPA determines tor of the U.S. Fish and Wildlife Serv- the FIFRA action is not likely to ad- ice or the Assistant Administrator for versely affect the listed species or crit- Fisheries for the National Oceanic and ical habitat. Atmospheric Administration. (3) Optional formal consultation (g) Service Representative is the person under § 402.46 is available for any or persons designated to participate in FIFRA action with respect to any list- advance coordination as provided in ed species or critical habitat. this subpart. (4) The special procedures in § 402.47 are available for consultations on § 402.41 Purpose. FIFRA actions that will be unusually The purpose of these counterpart reg- complex due to factors such as the geo- ulations is to enhance the efficiency graphic area or number of species that and effectiveness of the existing con- may be affected by the action. sultation process under section 7 of the (5) EPA shall engage in consultation Endangered Species Act (Act), 16 U.S.C. as to all listed species and critical 1531 et seq., by providing Fish and Wild- habitat that may be affected by a life Service and the National Marine FIFRA action, and may in its discre- Fisheries Service (referred to jointly as tion employ more than one of the ‘‘Services’’ and individually as ‘‘Serv- available consultation procedures for a ice’’) and EPA with additional means to FIFRA action that may affect more satisfy the requirements of section than one listed species or critical habi- 7(a)(2) of the Act for certain regulatory tat. actions under FIFRA. These additional (6) EPA shall engage in consultation means will permit the Services and on actions involving requests for emer- EPA to more effectively use the sci- gency exemptions under section 18 of entific and commercial data generated FIFRA that may affect listed species through the FIFRA regulatory process or critical habitat, and may choose to

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do so under § 402.05 or other provisions § 402.44 Advance coordination for of this subpart or subpart B of this FIFRA actions. part. Any required formal consultation (a) Advance coordination. EPA may shall be initiated as soon as practicable request the Service to designate a after the emergency is under control. Service Representative to work with For the purposes of § 402.05(b) the defi- EPA in the development of an effects nition of formal consultation in § 402.02 determination for one or more listed includes the procedures in § 402.46. species or critical habitat. EPA shall (7) EPA must prepare a biological as- make such a request in writing and sessment for a FIFRA action to the ex- shall provide sufficient detail as to a tent required by § 402.12. FIFRA action planned for consultation (8) EPA must comply with § 402.15 for to enable the Service to designate a all FIFRA actions. representative with appropriate train- (9) After a consultation under this ing and experience who shall normally subpart has been concluded, EPA shall be available to complete advance co- reinitiate consultation as required by ordination with EPA within 60 days of § 402.16 as soon as practicable after a the date of designation. Within 14 days circumstance requiring reinitiation oc- of receiving such a request, the Service curs, and may employ the procedures shall advise EPA of the designated in this subpart or subpart B of this part Service Representative. in any reinitiated consultation. (b) Participation of Service Representa- (b) Exchanges of scientific information. tive in preparation of effects determina- As part of any of the additional con- tion. The Service Representative des- sultation procedures provided in this ignated under paragraph (a) of this sec- subpart, EPA and the Services shall es- tion shall participate with EPA staff in tablish mutually-agreeable procedures the preparation of the effects deter- for regular and timely exchanges of mination identified under paragraph scientific information to achieve accu- (a) of this section. EPA shall use its rate and informed decision-making best efforts to include the designated under this subpart and to ensure that Service Representative in all relevant the FIFRA process considers the best discussions on the effects determina- scientific and commercial data avail- tion, to provide the designated Service able on listed species and critical habi- Representative with access to all docu- tat in a manner consistent with the re- mentation used to prepare the effects quirements of FIFRA and ESA. determination, and to provide the designated Service Representative office § 402.43 Interagency exchanges of in- and staff support sufficient to allow formation. the Service Representative to participate meaningfully in the preparation of EPA may convey to the Service a the effects determination. EPA shall written request for a list of any listed consider all information timely identi- species or critical habitat that may be fied by the designated Service Rep- present in any area that may be af- resentative during the preparation of fected by a FIFRA action. Within 30 the effects determination. days of receipt of such a request the Service shall advise EPA in writing § 402.45 Alternative consultation on whether, based on the best scientific FIFRA actions that are not likely to and commercial data available, any adversely affect listed species or listed species or critical habitat may critical habitat. be present in any such area. EPA may (a) Consultation obligations for FIFRA thereafter request the Service to pro- actions that are not likely to adversely af- vide available information (or ref- fect listed species or critical habitat when erences thereto) describing the applica- alternative consultation agreement is in ble environmental baseline for each effect. If EPA and the Service have en- species or habitat that EPA determines tered into an alternative consultation may be affected by a FIFRA action, agreement as provided below, EPA may and the Service shall provide such in- make a determination that a FIFRA formation within 30 days of the reaction is not likely to adversely affect quest. a listed species or critical habitat

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without informal consultation or writ- EPA’s effects determinations is timely ten concurrence from the Director, and and appropriately considered. upon making such a determination for (iv) Incorporation of scientific ad- a listed species or critical habitat, EPA vances. The alternative consultation need not initiate any additional con- agreement shall describe processes that sultation on that FIFRA action as to EPA and the Service intend to use to that listed species or critical habitat. ensure that the ecological risk assess- As part of any subsequent request for ment methodologies supporting EPA’s formal consultation on that FIFRA ac- effects determinations incorporate rel- tion under this subpart or subpart B of evant scientific advances. this part, EPA shall include a list of all (v) Oversight. The alternative con- listed species and critical habitat for sultation agreement shall describe the which EPA has concluded consultation program and associated record keeping under this section. procedures that the Service and EPA (b) Procedures for adopting and imple- intend to use to evaluate EPA’s proc- menting an alternative consultation esses for making effects determina- agreement. EPA and the Service may tions consistent with these regulations enter into an alternative consultation and the alternative consultation agree- agreement using the following proce- ment. The alternative consultation dures: agreement shall provide that the Serv- (1) Initiation. EPA submits a written ice’s oversight will be based on periodic notification to the Service Director of evaluation of EPA’s program for mak- its intent to enter into an alternative ing effects determinations under this consultation agreement. subpart. Periodic program evaluation (2) Required contents of the alternative will occur at the end of the first year consultation agreement. The alternative following signature of the alternative consultation agreement will, at a min- consultation agreement and should imum, include the following compo- normally occur at least every five nents: years thereafter. (i) Adequacy of EPA Determinations (vi) The alternative con- under the ESA. The alternative con- Records. sultation agreement shall describe ac- sultation agreement shall include a tions that EPA and the Service have provision for EPA to maintain a list of taken to ensure that EPA’s determina- FIFRA actions for which EPA has tions regarding the effects of its ac- made determinations under this sections on listed species or critical habi- tion and to provide the list to the Serv- tat are consistent with the ESA and ices on request. EPA will also maintain applicable implementing regulations. the necessary records to allow the (ii) Training. The alternative con- Service to complete program evalua- sultation agreement shall describe actions. tions that EPA and the Service intend (vii) Review of Alternative Consultation to take to ensure that EPA and Service Agreement. The alternative consulta- personnel are adequately trained to tion agreement shall include provisions carry out their respective roles under for regular review and, as appropriate, the alternative consultation agree- modification of the agreement by EPA ment. The alternative consultation and the Service, and for departure from agreement shall provide that all effects its terms in a particular case to the ex- determinations made by EPA under tent deemed necessary by both EPA this subpart have been reviewed and and the Service. concurred on by an EPA staff member (3) Training. After EPA and the Serv- who holds a current certification as ice enter into the alternative consulta- having received appropriate training tion agreement, EPA and the Service under the alternative consultation will implement the training program agreement. outlined in the alternative consulta- (iii) Incorporation of new information. tion agreement to the mutual satisfac- The alternative consultation agree- tion of EPA and the Service. ment shall describe processes that EPA (4) Public availability. The alternative and the Service intend to use to ensure consultation agreement and any re- that new information relevant to lated oversight or monitoring reports

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shall be made available to the public to (b) Additional information determina- the extent provided by law. tion. For an effects determination pre- (c) Oversight of alternative consultation pared without advance coordination agreement implementation. Through the under § 402.44, the Service may deter- program evaluations set forth in the mine that additional available infor- alternative consultation agreement, mation would provide a better informa- the Service will determine whether the tion base for the effects determination, implementation of this section by EPA in which case the Service Director is consistent with the best scientific shall notify the EPA Administrator and commercial information available, within 45 days of the date the Service the ESA, and applicable implementing receives the effects determination. The regulations. The Service Director may notification shall describe such addi- use the results of the program evalua- tional information in detail, and shall tions described in the alternative con- identify a means for obtaining that in- sultation agreement to recommend formation within the time period avail- changes to EPA’s implementation of able for consultation. EPA shall pro- the alternative consultation agree- vide a copy of the Service Director’s ment. The Service Director retains dis- notification to any applicant. EPA cretion to terminate or suspend the al- may thereafter revise its effects deter- ternative consultation agreement if, in mination, and may resubmit the re- using the procedures in this subpart, vised effects determination to the EPA fails to comply with the require- Service. If EPA advises the Service it ments of this subpart, section 7 of the will not resubmit a revised effects de- ESA, or the terms of the alternative termination to the Service, its initi- consultation agreement. Termination, ation of consultation on the effects de- suspension, or modification of an alter- termination is deemed withdrawn. native consultation agreement does (c) Service responsibilities. (1) Within not affect the validity of any NLAA de- the later of 90 days of the date the terminations made previously under Service receives EPA’s written request the authority of this subpart. for consultation or 45 days of the date the Service receives an effects deter- § 402.46 Optional formal consultation mination resubmitted under paragraph procedure for FIFRA actions. (b) of this section, and consistent with (a) Initiation of consultation. EPA may section 7(b)(1) of the Act, the Service initiate consultation on a FIFRA ac- shall take one of the following actions: tion under this section by delivering to (i) If the Service finds that the ef- the Service a written request for con- fects determination contains the infor- sultation. The written request shall be mation required by § 402.40(b) and satis- accompanied by an effects determina- fies the requirements of section 7(b)(4) tion as defined in § 402.40(b) and a list of the Act, and the Service concludes or summary of all references and data that the FIFRA action that is the sub- relied upon in the determination. All ject of the consultation complies with such references and data shall be made section 7(a)(2) of the Act, the Service available to the Service on request and will issue a written statement adopting shall constitute part of the Service’s the effects determination; or administrative record for the consulta- (ii) The Service will provide EPA a tion. The time for conclusion of the draft of a written statement modifying consultation under section 7(b)(1) of the effects determination, which shall the Act is calculated from the date the meet the requirements of § 402.14(i), and Service receives the written request as modified adopting the effects deter- from EPA. Any subsequent inter- mination, and shall provide a detailed changes regarding EPA’s submission, explanation of the scientific and com- including interchanges about the commercial data and rationale supporting pleteness of the effects determination, any modification it makes; or shall occur during consultation and do (iii) The Service will provide EPA a not extend the time for conclusion of draft of a biological opinion finding the consultation unless EPA withdraws that the FIFRA action is likely to the request for consultation. jeopardize the continued existence of a

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listed species or result in the destruc- tions under this subpart addressing tion or adverse modification of critical groupings or categories of species or habitat, and describing any reasonable habitats as established by EPA. EPA and prudent alternatives if available. may initiate consultation based upon (2) If the Service acts under para- each such effects determination using graphs (c)(1)(ii) or (c)(1)(iii) of this sec- the procedure in § 402.46(a), and the pro- tion, EPA shall, on request from an ap- visions of § 402.46(b) and (c) shall apply plicant, provide the applicant a copy of to any such consultation. When con- the draft written statement or draft bi- sultation is conducted under this sec- ological opinion received from the tion, the written statement or opinion Service. The Service shall at the re- provided by the Service under § 402.46(c) quest of EPA or an applicant discuss constitutes a partial biological opinion with EPA and the applicant the Serv- as to the species or habitats that are ice’s review and evaluation under this the subject of the consultation. While section, and the basis for its findings. not constituting completion of con- EPA and any applicant may submit sultation under section 7(a)(2), EPA re- written comments to the Service with- tains authority to use such a partial in 30 days after EPA receives the draft biological opinion along with other written statement or opinion from the available information in making a Service unless the Service, EPA and finding under section 7(d) of the Act. any applicant agree to an extended (b) Opinion of the Secretary. After con- deadline consistent with section 7(b)(1) clusion of all consultation on the of the Act. FIFRA action, the partial biological (3) The Service will issue a final writ- opinions issued under paragraph (a) of ten statement or final biological opin- this section shall then collectively con- ion within 45 days after EPA receives stitute the opinion of the Secretary the draft statement or opinion from and the incidental take statement, rea- the Service unless the deadline is ex- sonable and prudent measures, and tended under section 7(b)(1) of the Act. terms and conditions under section 7(b) (d) Opinion of the Secretary. The writ- of the Act except to the extent a par- ten statement or opinion by the Serv- tial biological opinion is modified by ice under paragraphs (c)(1) or (c)(3) of the Service in accordance with the pro- this section shall constitute the opin- cedures in § 402.46(c). The Service shall ion of the Secretary and the incidental so advise EPA in writing upon issuance take statement, reasonable and pru- of the last partial biological opinion dent measures, and terms and condi- for the consultation. tions under section 7(b) of the Act. § 402.48 Conference on proposed spe- (e) Delegation of Authority for Service cies or proposed critical habitat. decisions. Any written statement modifying an effects determination or any EPA may employ the procedures de- biological opinion issued under this scribed in § 402.10 to confer on any spe- section shall be signed by the Service cies proposed for listing or any habitat Director and such authority may not proposed for designation as critical be delegated below the level of Assist- habitat. For the purposes of § 402.10(d), ant Director for Endangered Species the procedures in § 402.46 are a permis- (FWS) or Director of Office of Pro- sible form of formal consultation. tected Resources (NOAA Fisheries). PART 403—TRANSFER OF MARINE § 402.47 Special consultation proce- MAMMAL MANAGEMENT AU- dures for complex FIFRA actions. THORITY TO STATES (a) Successive effects determinations. If EPA determines after conferring with Sec. the Service that consultation on a 403.01 Purpose and scope of regulations. FIFRA action will be unusually com- 403.02 Definitions. plex due to factors such as the geo- 403.03 Review and approval of State request for management authority. graphic area or number of species that 403.04 Determinations and hearings under may be affected by the action, EPA section 109(c) of the MMPA. may address the effects of the action 403.05 State and Federal responsibilities through successive effects determina- after transfer of management authority.

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403.06 Monitoring and review of State man- which is the largest supportable within agement program. the ecosystem to the population level 403.07 Revocation and return of State man- that results in maximum net produc- agement authority. 403.08 List of States to which management tivity. Maximum net productivity is has been transferred. the greatest net annual increment in population numbers or biomass result- AUTHORITY: 16 U.S.C. 1361 et seq., as amended by Pub. L. 97–58. ing from additions to the population due to reproduction and/or growth less SOURCE: 48 FR 22456, May 18, 1983, unless otherwise noted. losses due to natural mortality. (c) State management program means § 403.01 Purpose and scope of regula- existing and proposed state statutes, tions. regulations, policies and other authori- The regulations contained in this ties which form the framework for the part implement section 109 of the Act conservation of a species of marine which, upon a finding by the Secretary mammals. of compliance with certain require- (d) State regulation means the whole ments, provides for the transfer of ma- or part of a state agency statement of rine mammal management authority general or particular applicability and to the states. future effect designed to implement, (a) The regulations of this part apply interpret, or prescribe law or policy or the procedures for the transfer of ma- describing the organization, procedure, rine mammal management authority or practice requirements of a state to a state, the form and minimum requirements of a state application for agency and which is duly promulgated the transfer of management authority, in accordance with established proce- the relationship between Federal and dure. state wildlife agencies both prior and (e) The Act means the Marine Mam- subsequent to the transfer of manage- mal Protection Act (MMPA) of 1972, 16 ment authority, and the revocation U.S.C. 1361 et seq., as amended by Pub. and return of management authority L. 97–58. to the Federal Government. (f) The Secretary means the Secretary (b) Nothing in this part shall prevent: of the Interior or the Secretary of (1) The taking of a marine mammal Commerce, depending on the species by or on behalf of a Federal, state or involved. Under section 3(11) of the local government official, in accord- Act, the Secretary of Commerce has ju- ance with § 18.22 or § 216.22 of this Title risdiction over members of the order and section 109(h) of the Act, or (2) the Cetacea and members, other than wal- adoption or enforcement of any state ruses, of the order Pinnipedia; the Sec- law or regulation relating to any ma- retary of the Interior has jurdisdiction rine mammal taken before December 21, 1972. over all other mammals. These secre- (c) The information collection re- tarial authorities have been delegated quirements contained in §§ 403.03, 403.06, to the National Marine Fisheries Serv- and 403.07 of this part do not require ice and the Fish and Wildlife Service, approval by the Office of Management respectively. and Budget under 44 U.S.C. 3501 et seq., (g) The Service or Services means the because there are fewer than 10 re- Fish and Wildlife Service (FWS) and spondents annually. the National Marine Fisheries Service (NMFS), as appropriate depending on § 403.02 Definitions. the species involved. Any determina- The following definitions apply to tion or finding required by this part to this part: be made by the ‘‘Service’’ must be made (a) The term species includes any pop- by the Director of the FWS or by the ulation stock. Assistant Administrator of the NMFS, (b) Optimum Sustainable Population or or their delegees, as appropriate. OSP means a population size which falls within a range from the population level of a given species or stock

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§ 403.03 Review and approval of State a species is below OSP, the maximum request for management authority. numbers that can be taken for subsist- (a) Any state may request the trans- ence uses while allowing the species to fer of management authority for a spe- increase toward its OSP; cies of marine mammals by submitting (B) The determination as to OSP and a written request to the Director of the maximum take are final and imple- Fish and Wildlife Service (‘‘Director’’) mented under state law; and for species of marine mammals under (C) A cooperative allocation agree- the jurisdiction of the FWS, or to the ment, if required under § 403.05(a) of Assistant Administrator for Fisheries this part, is implemented; of the National Marine Fisheries Serv- (iii) Do not permit take in excess of ice (‘‘Assistant Administrator’’) for spe- the maximum number of animals that cies of marine mammals under the ju- may be taken as determined pursuant risdiction of the NMFS. The request to § 403.04 of this part; provided that for must include: Alaska, subsistence take may be al- (1) Copies of existing and proposed lowed in accordance with paragraph (d) statutes, regulations, policies and of this section, and if the species is other authorities of state law which below OSP, any level of take allowed comprise those aspects of the state for subsistence use shall permit the management program outlined in para- species to increase toward OSP; graph (b) of this section, and, in the (iv) Do not permit take that is for case of Alaska, paragraphs (d) (1) scientific research or public display through (3) of this section; purposes except such take by or on be- (2) A narrative discussion of the stat- half of the state, or pursuant to a Fed- utes, regulations, policies and other eral permit issued under § 18.31 or authorities which comprise those as- § 216.31 of this title; and pects of the state management pro- (v) Regulate the incidental taking of gram outlined in paragraph (b) of this the species in a manner consistent with section, and, in the case of Alaska, section 101(a) (2), (4) and (5) of the Act. paragraph (d) of this section, which ex- (3) Provisions for annually acquiring plains the program in terms of the re- and evaluating data and other new evi- quirements of the Act and the regula- dence relating to OSP of the species tions of this part; and and the maximum allowable take, and (3) Supplementary information as re- if warranted on the basis of such eval- quired by paragraph (c) of this section. uation, for requiring reevaluations of (b) A request for transfer of marine OSP and maximum allowable take de- mammal management authority will terminations pursuant to § 403.04. not be approved unless it contains the (4) Procedures for the resolution of following: differences between the state and the (1) The scientific and common names appropriate Service that might arise and estimated range of the species of during the development of a coopera- marine mammals subject to the state tive allocation agreement pursuant to management program. § 403.05(a) of this part. (2) Provisions of state law concerning (5) Procedures for the submission of the take of marine mammals that— an annual report meeting the require- (i) Require that the taking of marine ments of § 403.06(b) of this part to the mammals be humane as defined by sec- appropriate Service regarding the ad- tion 3(4) of the Act; ministration of the state management (ii) Do not permit the taking of ma- program during the reporting period. rine mammals until the following have (6) A description of— occurred: (i) The organization of state offices (A) The state, pursuant to the re- involved in the administration and en- quirements of § 403.04 of this part, has forcement of the state management determined that the species is at its program; Optimum Sustainable Population (ii) Any permit system relating to (OSP) and determined the maximum the marine mammals, the laws that number of animals that may be taken apply to such permits, and the proce- without reducing the species below its dures to be used in granting or with- OSP, and, in the case of Alaska, when holding such permits;

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(iii) State laws relating to judicial significant adverse impact on subsist- review of administrative decisions as ence uses of the species; they relate to the state management (ii) Regulate nonsubsistence con- program; sumptive uses in a manner which, to (iv) State laws relating to adminis- the maximum extent practicable, pro- trative rulemaking as they relate to vides economic opportunities, includ- the state management program; ing, but not limited to, licensing of ma- (c) In addition to the aspects of the rine mammal hunting guides and the state management program required to assignment of guiding areas, for resi- be submitted by paragraph (b) of this dents of rural coastal villages of Alas- section, the state shall submit infor- ka who engage in subsistence uses of mation, in summary form, relating to: the species; and (1) The anticipated staffing and fund- (iii) Make written findings sup- ing of state offices involved in the ad- porting the authorizations and regula- ministration and enforcement of the tions described in this paragraph based state management program; solely on the administrative record be- (2) Anticipated research and enforce- fore the agency; ment activities relating to conserva- (3) A narrative discussion of the stat- tion of the species for which manage- utes or regulations required under ment authority is sought; and paragraph (d)(2) of this section, and any additional policies or procedures (3) Such other materials and informa- concerning the regulation of non- tion as the Service may request or subsistence consumptive uses of ma- which the state may deem necessary or rine mammals. This discussion must advisable to demonstrate the compat- explain how the State’s program satis- ibility of the state management pro- fies the requirements of section 109(f) gram with the policy and purposes of of the Act, namely that the regulation the Act and the rules and regulations of nonsubsistence consumptive uses of issued under the Act. marine mammals provides, to the max- (d) In addition to the requirements imum extent praticable, economic op- contained in paragraphs (b) and (c) of portunities for the residents of rural this section, a request for the transfer coastal villages of Alaska who engage of marine mammal management au- in subsistence uses of the species. thority by the State of Alaska must (e) To assist states in preparing the contain the following concerning sub- state management program for submis- sistence use of the species— sion, the Service will also, at the writ- (1) A statute and regulations con- ten request of any state, make a pre- cerning the take of marine mammals liminary review of any aspects of the that ensure that state management program. This re- (i) The taking of marine mammals view will be advisory in nature and species for subsistence uses will be the shall not be binding upon the Services. priority consumptive uses of the spe- Notwithstanding preliminary review by cies; the Service, once any proposed aspect (ii) If restrictions on subsistence uses of the state management program has of the species are required, such re- been prepared and submitted in final strictions shall be based upon the cus- form, it shall be subject to final review tomary and direct dependence upon the and approval under paragraphs (f) species as the mainstay of livelihood, through (h) of this section. local residency, and the availability of (f)(1) After receiving the state’s re- alternative resources; and quest, for management authority, the (iii) The taking of marine mammal Service shall make an initial deter- species for subsistence uses is accom- mination on whether the state’s man- plished in a non-wasteful manner; agement program meets the require- (2) Statutes or regulations that en- ments of the Act and these regulations. sure that the appropriate state agency (2) Within 45 days after receiving the will— state’s request, unless the state and (i) Authorize nonsubsistence con- the Service agree to another time pe- sumptive uses of a marine mammal riod, the Service shall publish a gen- species only if such uses will have no eral notice of its initial determination

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in the FEDERAL REGISTER together the species below OSP. The state proc- with, in the case of a positive deter- ess must be completed before the state mination, the text of a proposed rule to may exercise any management author- transfer management authority to the ity over the subject marine mammals, state. The general notice shall contain and it must include the elements set a summary of the major components of forth below. the state’s management program and (b) Basis, purpose, and scope. The shall indicate where the full text of the process set forth in this section is ap- management program may be in- plicable to and required for only the spected or copied. The public shall be determination of the OSP of the spe- allowed to submit written comments cies and maximum number that may be and to request an informal public hear- taken without reducing it below its ing on the Service’s initial determina- OSP and, in the case of Alaska if the tion and the state’s management pro- species is below OSP, the maximum gram within 60 days of publication of number of animals that may be taken, the general notice. if any, for subsistence uses without (g) If requested, the Service may con- preventing the species from increasing duct an informal public hearing after toward its OSP. The state need not publishing 30 days’ advance notice of allow the maximum take, as deter- the date, location, and time of such mined in accordance with this process, hearing in the FEDERAL REGISTER. that is biologically permissible. The (h) After considering all comments state may change regulations estab- and other relevant information, the lishing bag limits, quotas, seasons, Service shall publish in the FEDERAL areas, manner of take, etc. within the REGISTER its final determination on maximum biologically permissible whether the state has developed and take pursuant to its other rulemaking will implement a management program criteria, authority, and procedures. that meets the requirement of the Act Compliance with the process set forth and these regulations. In the case of a in this section would not be required positive final determination, the Serv- again unless the state proposes to mod- ice shall publish with the notice a final ify its determinations of the status of regulation transferring management the species with respect to its OSP or authority for the species to the state the maximum permissible take from after the following requirements are that species. satisfied: (1) The state’s determinations pursu- (c) Initial determination by the State. ant to § 403.04 of this part are final and The state agency with responsibility implemented under state law; for managing the species in the event (2) Any cooperative allocation agree- management authority is transferred ment required under § 403.05(a) of this to the state shall make initial deter- part is implemented; and minations on the basis of the best sci- (3) The state has enacted and sub- entific evidence available of: mitted to the Service laws and policies (1) Whether or not it is at its OSP; (2) that are substantially the same as if so, the maximum number of that spe- those provided pursuant to § 403.03(a) in cies that nay be taken without reduc- proposed form in the state’s manage- ing it below its OSP; and (3) if not, in ment program. the case of Alaska, the maximum number of animals that may be taken, if § 403.04 Determinations and hearings any, for subsistence uses without pre- under section 109(c) of the MMPA. venting the species from increasing to- (a) Introduction. In order to gain ap- ward its OSP. proval of its marine mammal manage- (d) Notice and review of initial deter- ment program the state must provide minations and request for hearing. The for a process, consistent with section state agency shall provide notice of its 109(c) of the Act, to determine the opti- initial determinations to the Service mum sustainable population of the spe- and the public and shall provide access cies and the maximum number of ani- to or copies of the documentation sup- mals that may be taken from popu- porting its determinations to the Serv- lations it manages without reducing ice and the public. The state agency

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

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examination and rebuttal testimony. late the taking of the species within Any such oral or written information the zone described in section 3(14)(B) of transmitted to the presiding officer(s) the Act for subsistence uses and/or or other members of the state agency hunting in a manner consistent with responsible for the final determina- the regulation by the state of such tak- tions shall be treated as ex parte coming within the state. If such a request munications and may not be considered is made, the Service shall adopt and part of the record for decision. enforce within such zone, such of the (2) The state agency shall make final state’s regulatory provisions as the determinations of the issues set forth Service considers to be consistent with in paragraph (c) of this section and the administration within such zone of shall include in its statement of final section 101(a) of the Act. determinations a statement of findings (c) If management authority for a and conclusions and the reasons or species has been transferred to a state basis therefor. pursuant to this subpart, the Service (3) The state agency shall advise the shall provide to the state an oppor- Service and the public of its final de- tunity to review all requests for per- terminations and shall provide access mits to remove live animals from habi- to or copies of its decision document tat within the state for scientific re- and Hearing Record. search or public display purposes. If (h) Judicial review. The state agency’s the state finds that issuance of the per- final determinations after a hearing mit would not be consistent with its must be supported by substantial evi- management program for the species: dence in the record of the hearing. Op- (1) The state shall so inform the portunity for judicial review of the Service, together with the reasons for state agency’s final determinations such finding, within 30 days of its re- must be available under state law. The ceipt of the application, and the Serv- scope of judicial review shall be equiva- ice shall not issue the permit; and lent to that provided for in 5 U.S.C. (2) The Service shall provide to the 706(2) (A) through (E). permit applicant and the state an op- § 403.05 State and Federal responsibil- portunity to adjust the permit applica- ities after transfer of management tion or otherwise reconcile it with the authority. state management program for the spe- (a) After determinations required by cies. section 403.04 of this part have been (d) After management of a species made in respect to a species whose has been transferred to the state, state range extends beyond the territorial and Federal authorities shall cooperate waters of the state, the state shall not to the maximum extent practicable in exercise management authority until a conserving the species of marine mam- cooperative allocation agreement with mals. the Secretary has been signed and the Service has transferred management § 403.06 Monitoring and review of State management program. authority pursuant to § 403.03(h). The cooperative allocation agreement shall (a) The Service has responsibility to provide procedures for allocating, on a monitor and review implementation of timely basis, the maximum amount of all state management programs ap- take as determined by the state pursu- proved pursuant to this part. ant to § 403.04 of this part. Such alloca- (b) In order to facilitate such review, tion shall give first priority to inci- each state to which management au- dental take within the zone described thority has been transferred shall sub- in section 3(14)(B) of the Act as pro- mit an annual report, not later than vided for under section 101(a) of the 120 days after the close of such state’s Act, except that in the case of Alaska, first full fiscal or calendar year fol- first priority shall be given to subsist- lowing the effective date of the Serv- ence use. ice’s approval of the State manage- (b) For those species to which para- ment program, and at the same time graph (a) of this section applies, the each following year, or at such other state may request the Service to regu- time as may be agreed upon. The repot

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shall contain the following information under paragraph (c) of this section, current for each reporting period: shall be available for inspection and (1) Any changes in the state laws copying at the Office of the Chief, Divi- which comprise those aspects of the sion of Wildlife Management, U.S. Fish state management program submitted and Wildlife Service, Department of pursuant to § 403.03(b), and, in the case the Interior, Washington, DC 20240, or, of Alaska, § 403.03(d), of this part; as appropriate, at the Office of Pro- (2) Pertinent new data on the marine tected Species and Habitat Conserva- mammal species or the marine eco- tion, National Marine Fisheries Serv- systems in question including a sum- ice, National Oceanic and Atmospheric mary of the status, trend and general Administration, Department of Com- health of the species; merce, Washington, DC 20235, and at (3) A summary of available informa- the appropriate Service’s regional of- tion relating to takings under the state fice. management program; (4) A summary of state actions to § 403.07 Revocation and return of protect species’ habitat; State management authority. (5) A summary of all state research (a) Revocation of management. The activity on the species; Service shall have responsibility to re- (6) Any significant changes in the in- view management of a species trans- formation provided with the original ferred to a state under this part and to request for transfer of management au- determine whether or not the imple- thority; mentation of the state management (7) A summary of enforcement activ- program continues to comply with the ity; requirements of the Act, this part and (8) A summary of budget and staffing the state’s approved management pro- levels for the marine mammal activi- gram. ties in the categories of research, man- (1) Upon receipt of any substantial agement and enforcement; factual information suggesting that (9) Any other information which the the state management program is not Service may request, consistent with being implemented or is being imple- the Act as amended, or which the state mented in a manner inconsistent with deems necessary or advisable to facili- the Act, this part, or the state’s ap- tate review by the Service of state proved management program, the management of the species. Service shall, as soon as practicable (c) Each state having an approved but not later than 30 days after receipt, management program shall file a re- determine whether or not the state port, in a timely manner, not to exceed continues to comply with the require- 45 days from the occurrence of any of ments of the Act, this part and the the following: state’s approved management program. (1) Any change in a relevant state (2) Whenever pursuant to a review as law (amendments, repealers, or new specified in paragraph (a)(1) of this sec- legislation or regulations or judicial tion, the Service determines that any precedent) as submitted pursuant to substantial aspect of the state manage- paragraphs (b)(2) through (b)(5), and in ment program is not in compliance the case of Alaska, paragraph (d), of with the requirements of the Act, this § 403.03 of this part that may impair the part or the state’s approved manage- State’s ability to implement the pro- ment program, it shall provide written gram; notice to the state of its intent to re- (2) Any significant natural or man- voke management authority, together made occurrence or any new scientific with a statement, in detail, of those ac- information that may warrant recon- tions or failures to act upon which sideration of the determinations made such intent to revoke is based. The pursuant to § 403.04 of this part. Service shall publish notice of such in- (d) All components of the state re- tent to revoke in the FEDERAL REG- quest for transfer of management au- ISTER and invite public comment there- thority, as well as annual reports sub- on, and shall conduct an informal pub- mitted under paragraph (b) of this lic hearing on the matter if requested section and any reports submitted by the state or if the Service otherwise

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determines it to be necessary. The § 403.06(c)(1) of this part. In either case, Service shall provide to the state an the state shall provide notice to the opportunity for consultation between Service as soon as practicable but not the Service and the state concerning more than 30 days after issuance of the such actions or failures and necessary injunction. Management authority re- remedial actions to be taken by the turned to the Service pursuant to this state. paragraph may be re-transferred to the (3) If within 90 days after notice is state, notwithstanding the require- provided under paragraph (a)(2) of this ments of § 403.03, when, in the judgment section, the state has not taken such of the Service, the cause for return of remedial measures as are necessary, in management authority to the Service the judgment of the Service, to bring has been alleviated in such a way as to the state management program into allow effective conservation and man- compliance with the provision of the agement of the species consistent with Act, this part and the state’s approved the requirements of the Act and this management program, the Service part. shall revoke the transfer of manage- (c) When revocation of a management authority by written notice to ment authority pursuant to paragraph the state and publication in the FED- (a) of this section becomes final, or ERAL REGISTER. when a state returns management pur- (b) Voluntary return of management suant to paragraph (b) of this section, authority to the Service. (1) If a state de- the Service shall resume such manage- sires to return management of a spe- ment authority and provide for the cies of marine mammals to the Serv- conservation of the species within the ice, it shall provide the Service notice state in accordance with the provisions of intent to return management. The of the Act. Service shall accept the return of man- § 403.08 List of States to which management, and such return shall become agement has been transferred. effective, upon publication of a notice in the FEDERAL REGISTER to this effect The following states have received no sooner than 30 days (except in an management authority pursuant to emergency as determined by the Serv- this part for the species listed and, ice) nor longer than 60 days after the where appropriate, cooperative alloca- state has provided notice of its intent tion agreements pursuant to § 403.05(c) to return management or unless other- are in force: [Reserved] wise agreed upon. (2) If implementation of any aspect of PART 424—LISTING ENDANGERED the state management program is en- AND THREATENED SPECIES AND joined by court order, the state shall DESIGNATING CRITICAL HABITAT advise the Service of such injunction and its effect on the state management Subpart A—General Provisions program. If the state determines that the effect of the injunction is to pre- Sec. 424.01 Scope and purpose. clude effective conservation and man- 424.02 Definitions. agement of the species under the terms of the state management program, it Subpart B—Revision of the Lists shall so notify the Service and such notification shall be treated as a notice of 424.10 General. 424.11 Factors for listing, delisting, or re- intent to return management as pro- classifying species. vided in paragraph (b)(1) of this sec- 424.12 Criteria for designating critical habi- tion. If the state determines that the tat. injunction does not preclude effective 424.13 Sources of information and relevant conservation and management of ma- data. rine mammals under the terms of the 424.14 Petitions. state management program, it shall so 424.15 Notices of review. 424.16 Proposed rules. notify the Service together with the 424.17 Time limits and required actions. basis for the state’s determination and 424.18 Final rules—general. such notice shall be treated as a report 424.19 Final rules—impact analysis of crit- submitted pursuant to the terms of ical habitat.

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424.20 Emergency rules. (d) Critical habitat means (1) the spe- 424.21 Periodic review. cific areas within the geographical AUTHORITY: Pub. L. 93–205, 87 Stat. 884; area currently occupied by a species, at Pub. L. 95–632, 92 Stat. 3751; Pub. L. 96–159, 93 the time it is listed in accordance with Stat. 1225; Pub. L. 97–304, 96 Stat. 1411 (16 the Act, on which are found those phys- U.S.C. 1531 et seq.). ical or biological features (i) essential SOURCE: 49 FR 38908, Oct. 1, 1984, unless to the conservation of the species and otherwise noted. (ii) that may require special management considerations or protection, and Subpart A—General Provisions (2) specific areas outside the geographical area occupied by a species at § 424.01 Scope and purpose. the time it is listed upon a determination by the Secretary that such areas (a) Part 424 provides rules for revis- are essential for the conservation of ing the Lists of Endangered and the species. Threatened Wildlife and Plants and, where appropriate, designating or re- (e) Endangered species means a species vising their critical habitats. Criteria that is in danger of extinction through- are provided for determining species to out all or a significant portion of its be endangered or threatened and for range. designating critical habitats. Proce- (f) List or lists means the Lists of En- dures for receiving and considering pe- dangered and Threatened Wildlife and titions to revise the lists and for con- Plants found at 50 CFR 17.11(h) or ducting periodic reviews of listed spe- 17.12(h). cies also are established. (g) Plant means any member of the (b) The purpose of these rules is to plant kingdom, including, without lim- interpret and implement those portions itation, seeds, roots, and other parts of the Endangered Species Act of 1973, thereof. as amended (16 U.S.C. 1531 et seq.), that (h) Public hearing means an informal pertain to the listing of species and the hearing to provide the public with the determination of critical habitats. opportunity to give comments and to permit an exchange of information and § 424.02 Definitions. opinion on a proposed rule. (a) The definitions of terms in 50 CFR (i) Secretary means the Secretary of 402.02 shall apply to this part 424, ex- the Interior or the Secretary of Com- cept as otherwise stated. merce, as appropriate, or their author- (b) Candidate means any species being ized representatives. considered by the Secretary for listing (j) Special management considerations as an endangered or a threatened spe- or protection means any methods or pro- cies, but not yet the subject of a procedures useful in protecting physical posed rule. and biological features of the environ- (c) Conservation, conserve, and con- ment for the conservation of listed spe- serving mean to use and the use of all cies. methods and procedures that are nec- (k) Species includes any species or essary to bring any endangered or subspecies of fish, wildlife, or plant, threatened species to the point at and any distinct population segment of which the measures provided pursuant any vertebrate species that interbreeds to the Act are no longer necessary. when mature. Excluded is any species Such methods and procedures include, of the Class Insecta determined by the but are not limited to, all activities as- Secretary to constitute a pest whose sociated with scientific resources man- protection under the provisions of the agement such as research, census, law Act would present an overwhelming enforcement, habitat acquisition and and overriding risk to man. maintenance, propagation, live trap- (l) State agency means any State ping, and transplantation, and, in the agency, department, board, commis- extraordinary case where population sion, or other governmental entity pressures within a given ecosystem that is responsible for the management cannot be otherwise relieved, may in- and conservation of fish, plant, or wild- clude regulated taking. life resources within a State.

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(m) Threatened species means any spe- cause of any one or a combination of cies that is likely to become an endan- the following factors: gered species within the foreseeable fu- (1) The present or threatened de- ture throughout all or a significant struction, modification, or curtailment portion of its range. of its habitat or range; (n) Wildlife or fish and wildlife means (2) Over utilization for commercial, any member of the animal kingdom, recreational, scientific, or educational including without limitation, any purposes; vertebrate, mollusk, crustacean, ar- (3) Disease or predation; thropod, or other invertebrate, and in- (4) The inadequacy of existing regu- cludes any part, product, egg, or off- latory mechanisms; or spring thereof, or the dead body or (5) Other natural or manmade factors parts thereof. affecting its continued existence. (d) The factors considered in Subpart B—Revision of the Lists delisting a species are those in paragraph (c) of this section as they relate § 424.10 General. to the definitions of endangered or The Secretary may add a species to threatened species. Such removal must the lists or designate critical habitat, be supported by the best scientific and delete a species or critical habitat, commercial data available to the Sec- change the listed status of a species, retary after conducting a review of the revise the boundary of an area des- status of the species. A species may be ignated as critical habitat, or adopt or delisted only if such data substantiate modify special rules (see 50 CFR 17.40– that it is neither endangered nor 17.48 and parts 222 and 227) applied to a threatened for one or more of the fol- threatened species only in accordance lowing reasons: with the procedures of this part. (1) Extinction. Unless all individuals of the listed species had been pre- § 424.11 Factors for listing, delisting, viously identified and located, and or reclassifying species. were later found to be extirpated from (a) Any species or taxonomic group of their previous range, a sufficient period species (e.g., genus, subgenus) as de- of time must be allowed before fined in § 424.02(k) is eligible for listing delisting to indicate clearly that the under the Act. A taxon of higher rank species is extinct. than species may be listed only if all (2) Recovery. The principal goal of the included species are individually found U.S. Fish and Wildlife Service and the to be endangered or threatened. In de- National Marine Fisheries Service is to termining whether a particular taxon return listed species to a point at or population is a species for the pur- which protection under the Act is no poses of the Act, the Secretary shall longer required. A species may be rely on standard taxonomic distinc- delisted on the basis of recovery only if tions and the biological expertise of the best scientific and commercial data the Department and the scientific com- available indicate that it is no longer munity concerning the relevant taxo- endangered or threatened. nomic group. (3) Original data for classification in (b) The Secretary shall make any de- error. Subsequent investigations may termination required by paragraphs (c) show that the best scientific or com- and (d) of this section solely on the mercial data available when the spe- basis of the best available scientific cies was listed, or the interpretation of and commercial information regarding such data, were in error. a species’ status, without reference to (e) The fact that a species of fish, possible economic or other impacts of wildlife, or plant is protected by the such determination. Convention on International Trade in (c) A species shall be listed or reclas- Endangered Species of Wild Fauna and sified if the Secretary determines, on Flora (see part 23 of this title 50) or a the basis of the best scientific and com- similar international agreement on mercial data available after conducting such species, or has been identified as a review of the species’ status, that the requiring protection from unrestricted species is endangered or threatened be- commerce by any foreign nation, or to

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be in danger of extinction or likely to (ii) Such designation of critical habi- become so within the foreseeable fu- tat would not be beneficial to the spe- ture by any State agency or by any cies. agency of a foreign nation that is re- (2) Critical habitat is not deter- sponsible for the conservation of fish, minable when one or both of the fol- wildlife, or plants, may constitute evi- lowing situations exist: dence that the species is endangered or (i) Information sufficient to perform threatened. The weight given such evi- required analyses of the impacts of the dence will vary depending on the inter- designation is lacking, or national agreement in question, the (ii) The biological needs of the spe- criteria pursuant to which the species cies are not sufficiently well known to is eligible for protection under such au- permit identification of an area as crit- thorities, and the degree of protection ical habitat. afforded the species. The Secretary (b) In determining what areas are shall give consideration to any species critical habitat, the Secretary shall protected under such an international consider those physical and biological agreement, or by any State or foreign features that are essential to the con- nation, to determine whether the spe- servation of a given species and that cies is endangered or threatened. may require special management con- (f) The Secretary shall take into ac- siderations or protection. Such require- count, in making determinations under ments include, but are not limited to paragraph (c) or (d) of this section, the following: those efforts, if any, being made by any (1) Space for individual and popu- State or foreign nation, or any polit- lation growth, and for normal behav- ical subdivision of a State or foreign ior; nation, to protect such species, wheth- (2) Food, water, air, light, minerals, er by predator control, protection of or other nutritional or physiological habitat and food supply, or other con- requirements; servation practices, within any area (3) Cover or shelter; under its jurisdiction, or on the high (4) Sites for breeding, reproduction, seas. rearing of offspring, germination, or seed dispersal; and generally; § 424.12 Criteria for designating crit- (5) Habitats that are protected from ical habitat. disturbance or are representative of (a) Critical habitat shall be specified the historic geographical and ecologi- to the maximum extent prudent and cal distributions of a species. determinable at the time a species is When considering the designation of proposed for listing. If designation of critical habitat, the Secretary shall critical habitat is not prudent or if focus on the principal biological or critical habitat is not determinable, physical constituent elements within the reasons for not designating critical the defined area that are essential to habitat will be stated in the publica- the conservation of the species. Known tion of proposed and final rules listing primary constituent elements shall be a species. A final designation of crit- listed with the critical habitat descrip- ical habitat shall be made on the basis tion. Primary constituent elements of the best scientific data available, may include, but are not limited to, after taking into consideration the the following: roost sites, nesting probable economic and other impacts grounds, spawning sites, feeding sites, of making such a designation in ac- seasonal wetland or dryland, water cordance with § 424.19. quality or quantity, host species or (1) A designation of critical habitat is plant pollinator, geological formation, not prudent when one or both of the vegetation type, tide, and specific soil following situations exist: types. (i) The species is threatened by tak- (c) Each critical habitat will be de- ing or other human activity, and iden- fined by specific limits using reference tification of critical habitat can be ex- points and lines as found on standard pected to increase the degree of such topographic maps of the area. Each threat to the species, or area will be referenced to the State(s),

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county(ies), or other local govern- terials, information received from ex- mental units within which all or part perts on the subject, and comments of the critical habitat is located. Un- from interested parties. less otherwise indicated within the critical habitat descriptions, the § 424.14 Petitions. names of the State(s) and county(ies) (a) General. Any interested person are provided for information only and may submit a written petition to the do not constitute the boundaries of the Secretary requesting that one of the area. Ephemeral reference points (e.g., actions described in § 424.10 be taken. trees, sand bars) shall not be used in Such a document must clearly identify defining critical habitat. itself as a petition and be dated. It (d) When several habitats, each satis- must contain the name, signature, ad- fying the requirements for designation dress, telephone number, if any, and as critical habitat, are located in prox- the association, institution, or busi- imity to one another, an inclusive area ness affiliation, if any, of the peti- may be designated as critical habitat. tioner. The Secretary shall acknowl- Example: Several dozen or more small edge in writing receipt of such a peti- ponds, lakes, and springs are found in a tion within 30 days. small local area. The entire area could be (b) Petitions to list, delist, or reclassify designated critical habitat if it were concluded that the upland areas were essential species. (1) To the maximum extent to the conservation of an aquatic species lo- practicable, within 90 days of receiving cated in the ponds and lakes. a petition to list, delist, or reclassify a species, the Secretary shall make a (e) The Secretary shall designate as finding as to whether the petition pre- critical habitat areas outside the geo- sents substantial scientific or commer- graphical area presently occupied by a cial information indicating that the species only when a designation lim- petitioned action may be warranted. ited to its present range would be inad- For the purposes of this section, ‘‘sub- equate to ensure the conservation of stantial information’’ is that amount of the species. information that would lead a reason- (f) Critical habitat may be designated able person to believe that the measure for those species listed as threatened or proposed in the petition may be war- endangered but for which no critical ranted. The Secretary shall promptly habitat has been previously designated. publish such finding in the FEDERAL (g) Existing critical habitat may be REGISTER and so notify the petitioner. revised according to procedures in this section as new data become available (2) In making a finding under para- to the Secretary. graph (b)(1) of this section, the Sec- (h) Critical habitat shall not be des- retary shall consider whether such pe- ignated within foreign countries or in tition— other areas outside of United States ju- (i) Clearly indicates the administra- risdiction. tive measure recommended and gives the scientific and any common name of § 424.13 Sources of information and the species involved; relevant data. (ii) Contains detailed narrative jus- When considering any revision of the tification for the recommended meas- lists, the Secretary shall consult as ap- ure, describing, based on available in- propriate with affected States, inter- formation, past and present numbers ested persons and organizations, other and distribution of the species involved affected Federal agencies, and, in co- and any threats faced by the species; operation with the Secretary of State, (iii) Provides information regarding with the country or countries in which the status of the species over all or a the species concerned are normally significant portion of its range; and found or whose citizens harvest such (iv) Is accompanied by appropriate species from the high seas. Data re- supporting documentation in the form viewed by the Secretary may include, of bibliographic references, reprints of but are not limited to scientific or pertinent publications, copies of re- commercial publications, administra- ports or letters from authorities, and tive reports, maps or other graphic ma- maps.

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The petitioner may provide informa- presents substantial scienific information that describes any recommended tion indicating that the revision may critical habitat as to boundaries and be warranted. The Secretary shall physical features, and indicates any promptly publish such finding in the benefits and/or adverse effects on the FEDERAL REGISTER and so notify the species that would result from such petitioner. designation. Such information, how- (2) In making the finding required by ever, will not be a basis for the deter- paragraph (c)(1) of this section, the mination of the substantiality of a pe- Secretary shall consider whether a petition. tition contains— (3) Upon making a positive finding (i) Information indicating that areas under paragraph (b)(1) of this section, petitioned to be added to critical habi- the Secretary shall commence a review of the status of the species concerned tat contain physical and biological fea- and shall make, within 12 months of re- tures essential to, and that may receipt of such petition, one of the fol- quire special management to provide lowing findings: for, the conservation of the species in- (i) The petitioned action is not war- volved; or ranted, in which case the Secretary (ii) Information indicating that areas shall promptly publish such finding in designated as critical habitat do not the FEDERAL REGISTER and so notify contain resources essential to, or do the petitioner. not require special management to pro- (ii) The petitioned action is war- vide for, the conservation of the species ranted, in which case the Secretary involved. shall promptly publish in the FEDERAL (3) Within 12 months after receiving a REGISTER a proposed regulation to im- petition found under paragraph (c)(1) of plement the action pursuant to § 424.16 this section to present substantial in- of this part, or formation indicating that revision of a (iii) The petitioned action is war- critical habitat may be warranted, the ranted, but that— Secretary shall determine how he in- (A) The immediate proposal and tends to proceed with the requested re- timely promulgation of a regulation to vision, and shall promptly publish no- implement the petitioned action is pre- tice of such intention in the FEDERAL cluded because of other pending pro- REGISTER. posals to list, delist, or reclassify spe- (d) Petitions to designate critical habi- cies, and tat or adopt special rules. Upon receiving (B) Expeditious progress is being a petition to designate critical habitat made to list, delist, or reclassify quali- or to adopt a special rule to provide for fied species, the conservation of a species, the Sec- in which case, such finding shall be retary shall promptly conduct a review promptly published in the FEDERAL in accordance with the Administrative REGISTER together with a description Procedure Act (5 U.S.C. 553) and appli- and evaluation of the reasons and data cable Departmental regulations, and on which the finding is based. take appropriate action. (4) If a finding is made under paragraph (b)(3)(iii) of this section with re- § 424.15 Notices of review. gard to any petition, the Secretary shall, within 12 months of such finding, (a) If the Secretary finds that one of again make one of the findings de- the actions described in § 424.10 may be scribed in paragraph (b)(3) with regard warranted, but that the available evi- to such petition, but no further finding dence is not sufficiently definitive to of substantial information will be re- justify proposing the action at that quired. time, a notice of review may be pub- (c) Petitions to revise critical habitat. lished in the FEDERAL REGISTER. The (1) To the maximum extent prac- notice will describe the measure under ticable, within 90 days of receiving a consideration, briefly explain the rea- petition to revise a critical habitat sons for considering the action, and so- designation, the Secretary shall make licit comments and additional informa- a finding as to whether the petition tion on the action under consideration.

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(b) The Secretary from time to time also include a summary of factors af- also may publish notices of review con- fecting the species and/or critical habi- taining the names of species that are tat. considered to be candidates for listing (c) Procedures—(1) Notifications. In the under the Act and indicating whether case of any proposed rule to list, delist, sufficient scientific or commercial in- or reclassify a species, or to designate formation is then available to warrant or revise critical habitat, the Secretary proposing to list such species, the shall— names of species no longer being con- (i) Publish notice of the proposal in sidered for listing, or the names of list- the FEDERAL REGISTER; ed species being considered for (ii) Give actual notice of the pro- delisting or reclassification. However, posed regulation (including the com- none of the substantive or procedural plete text of the regulation) to the provisions of the Act apply to a species State agency in each State in which that is designated as a candidate for the species is believed to occur, and to listing. each county or equivalent jurisdiction (c) Such notices of review will invite therein in which the species is believed comment from all interested parties to occur, and invite the comment of regarding the status of the species each such agency and jurisdiction; named. At the time of publication of (iii) Give notice of the proposed regu- such a notice, notification in writing lation to any Federal agencies, local will be sent to State agencies in any af- authorities, or private individuals or fected States, known affected Federal organizations known to be affected by agencies, and, to the greatest extent the rule; practicable, through the Secretary of (iv) Insofar as practical, and in co- State, to the governments of any for- operation with the Secretary of State, eign countries in which the subject spe- give notice of the proposed regulation cies normally occur. to list, delist, or reclassify a species to each foreign nation in which the spe- § 424.16 Proposed rules. cies is believed to occur or whose citi- (a) General. Based on the information zens harvest the species on the high received through §§ 424.13, 424.14, 424.15, seas, and invite the comment of such and 424.21, or through other available nation; avenues, the Secretary may propose re- (v) Give notice of the proposed regu- vising the lists as described in § 424.10. lation to such professional scientific (b) Contents. A notice of a proposed organizations as the Secretary deems rule to carry out one of the actions de- appropriate; and scribed in § 424.10 shall contain the (vi) Publish a summary of the pro- complete text of the proposed rule, a posed regulation in a newspaper of gen- summary of the data on which the pro- eral circulation in each area of the posal is based (including, as appro- United States in which the species is priate, citation of pertinent informa- believed to occur. tion sources), and shall show the rela- (2) Period of public comments. At least tionship of such data to the rule pro- 60 days shall be allowed for public composed. If such a rule designates or re- ment following publication in the FED- vises critical habitat, such summary ERAL REGISTER of a rule proposing the shall, to the maximum extent prac- listing, delisting, or reclassification of ticable, include a brief description and a species, or the designation or revision evaluation of those activities (whether of critical habitat. All other proposed public or private) that, in the opinion rules shall be subject to a comment pe- of the Secretary, if undertaken, may riod of at least 30 days following publi- adversely modify such habitat, or may cation in the FEDERAL REGISTER. The be affected by such designation. Any Secretary may extend or reopen the pe- proposed rule to designate or revise riod for public comment on a proposed critical habitat shall contain a map of rule upon a finding that there is good such habitat. Any such notice pro- cause to do so. A notice of any such ex- posing the listing, delisting, or reclas- tension or reopening shall be published sification of a species or the designa- in the FEDERAL REGISTER, and shall tion or revision of critical habitat shall specify the basis for so doing.

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(3) Public hearings. The Secretary with the final rule listing such species, shall promptly hold at least one public unless the Secretary deems that— hearing if any person so requests with- (1) It is essential to the conservation in 45 days of publication of a proposed of such species that it be listed prompt- regulation to list, delist, or reclassify a ly; or species, or to designate or revise crit- (2) Critical habitat of such species is ical habitat. Notice of the location and not then determinable, time of any such hearing shall be pub- in which case, the Secretary, with re- lished in the FEDERAL REGISTER not spect to the proposed regulation to des- less than 15 days before the hearing is ignate such habitat, may extend the 1- held. year period specified in paragraph (a) of this section by not more than one § 424.17 Time limits and required ac- additional year. Not later than the tions. close of such additional year the Sec- (a) General. (1) Within 1 year of the retary must publish a final regulation, publication of a rule proposing to de- based on such data as may be available termine whether a species is an endan- at that time, designating, to the max- gered or threatened species, or to des- imum extent prudent, such habitat. ignate or revise critical habitat, the Secretary shall publish one of the fol- § 424.18 Final rules—general. lowing in the FEDERAL REGISTER: (a) Contents. A final rule promulgated (i) A final rule to implement such de- to carry out the purposes of the Act termination or revision, will be published in the FEDERAL REG- (ii) A finding that such revision ISTER. This publication will contain the should not be made, complete text of the rule, a summary (iii) A notice withdrawing the proof the comments and recommendations posed rule upon a finding that avail- received in response to the proposal able evidence does not justify the ac- (including applicable public hearings), tion proposed by the rule, or summaries of the data on which the (iv) A notice extending such 1-year rule is based and the relationship of period by an additional period of not such data to the final rule, and a de- more than 6 months because there is scription of any conservation measures substantial disagreement among sci- available under the rule. Publication of entists knowledgeable about the spe- a final rule to list, delist, or reclassify cies concerned regarding the suffi- a species or designate or revise critical ciency or accuracy of the available habitat shall also provide a summary data relevant to the determination or of factors affecting the species. A rule revision concerned. designating or revising critical habitat (2) If an extension is made under will also contain a description of the paragraph (a)(1)(iv) of this section, the boundaries and a map of such habitat Secretary shall, within the extended and will, to the maximum extent prac- period, take one of the actions de- ticable, be accompanied by a brief described in paragraphs (a)(1) (i), (ii), or scription and evaluation of those ac- (iii) of this section. tivities (whether public or private) (3) If a proposed rule is withdrawn that might occur in the area and under paragraph (a)(1)(iii) of this sec- which, in the opinion of the Secretary, tion, the notice of withdrawal shall set may adversly modify such habitat or forth the basis upon which the pro- be affected by such designation. posed rule has been found not to be (b) Effective date. A final rule shall supported by available evidence. The take effect— Secretary shall not again propose a (1) Not less than 30 days after it is rule withdrawn under such provision published in the FEDERAL REGISTER, except on the basis of sufficient new in- except as otherwise provided for good formation that warrants a reproposal. cause found and published with the (b) Critical habitat designations. A rule; and final rule designating critical habitat (2) Not less than 90 days after (i) pub- of an endangered or a threatened spe- lication in the FEDERAL REGISTER of cies shall to the extent permissible the proposed rule, and (ii) actual noti- under § 424.12 be published concurrently fication of any affected State agencies

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and counties or equivalent jurisdic- may at any time issue a regulation im- tions in accordance with plementing any action described in § 424.16(c)(1)(ii). § 424.10 in regard to any emergency pos- (c) Disagreement with State agency. If a ing a significant risk to the well-being State agency, given notice of a proof a species of fish, wildlife, or plant. posed rule in accordance with Such rules shall, at the discretion of § 424.16(c)(1)(ii), submits comments dis- the Secretary, take effect immediately agreeing in whole or in part with a pro- on publication in the FEDERAL REG- posed rule, and the Secretary issues a ISTER. In the case of any such action final rule that is in conflict with such that applies to a resident species, the comments, or if the Secretary fails to Secretary shall give actual notice of adopt a regulation for which a State such regulation to the State agency in agency has made a petition in accord- each State in which such species is be- ance with § 424.14, the Secretary shall lieved to occur. Publication in the FED- provide such agency with a written jus- ERAL REGISTER of such an emergency tification for the failure to adopt a rule rule shall provide detailed reasons why consistent with the agency’s comments the rule is necessary. An emergency or petition. rule shall cease to have force and effect after 240 days unless the procedures de- § 424.19 Final rules—impact analysis scribed in §§ 424.16, 424.17, 424.18, and of critical habitat. 424.19 (as appropriate) have been com- The Secretary shall identify any sig- plied with during that period. nificant activities that would either af- (b) If at any time after issuing an fect an area considered for designation emergency rule, the Secretary deter- as critical habitat or be likely to be af- mines, on the basis of the best sci- fected by the designation, and shall, entific and commercial data available, after proposing designation of such an that substantial evidence does not then area, consider the probable economic exist to warrant such rule, it shall be and other impacts of the designation withdrawn. upon proposed or ongoing activities. The Secretary may exclude any portion § 424.21 Periodic review. of such an area from the critical habi- At least once every 5 years, the Sec- tat if the benefits of such exclusion retary shall conduct a review of each outweigh the benefits of specifying the listed species to determine whether it area as part of the critical habitat. The should be delisted or reclassified. Each Secretary shall not exclude any such such determination shall be made in area if, based on the best scientific and accordance with §§ 424.11, 424.16, and commercial data available, he deter- 424.17 of this part, as appropriate. A no- mines that the failure to designate tice announcing those species under ac- that area as critical habitat will result tive review will be published in the in the extinction of the species con- FEDERAL REGISTER. Notwithstanding cerned. this section’s provisions, the Secretary may review the status of any species at § 424.20 Emergency rules. any time based upon a petition (see (a) Sections 424.16, 424.17, 424.18, and § 424.14) or upon other data available to 424.19 notwithstanding, the Secretary the Service.

SUBCHAPTER B [RESERVED]

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

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

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

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

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

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

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

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

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

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Part Page 501 Implementation of the Privacy Act of 1974 ...... 499 510 Implementation of the Federal Advisory Com- mittee Act ...... 503 520 Public availability of agency materials ...... 505 530 Compliance with the National Environmental Pol- icy Act...... 507 540 Information security...... 508 550 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by Marine Mammal Commission ...... 510 560 Implementation of the Government in the Sun- shine Act ...... 516

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1 CFR part 51 the incorporation by reference of the following publications. This list contains only those incorporations by reference effective as of the revision date of this volume. Incorporations by reference found within a regulation are effective upon the effective date of that regulation. For more information on incorporation by reference, see the preliminary pages of this volume.

50 CFR (PARTS 200–599) NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE 50 CFR AOAC International (Association of Official Analytical Chemists) 481 N. Frederick Ave., Suite 500, Gaithersburg, MD 20877-2407 Telephone: (301) 924-7077 Official Methods of Analysis sections 18.004 (p. 331), 32.059 and 264.107 32.060 (p. 613), Fourteenth Edition (1984). Official Methods of Analysis sections 18.003 (p. 285), 32.050 and 264.107 32.051 (p. 543), Thirteenth Edition (1980). United States Geological Survey Map Sales, Box 25286, Denver, CO 80225 Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.22 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1974,1:500,000 Scale Hydrologic Unit Maps for the States of Oregon, Washington, and Idaho. Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.205 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1:500,000 Scale Hydrologic Unit Maps for the State of Or- egon, 1974, and the States of Washington and Idaho. Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.210 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1:500,000 Scale Hydrologic Unit Maps for the State of Or- egon, 1974, and the State of California, 1978.

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I [Reserved] II Office of Management and Budget Circulars and Guidance [Re- served] SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS [RESERVED]

Title 3—The President

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

Title 4—Accounts

I General Accounting Office (Parts 1—99)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499)

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XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LV National Endowment for the Arts (Part 6501) LVI National Endowment for the Humanities (Part 6601) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXVII Institute of Museum and Library Services (Part 7701) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401)

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LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)

Title 6—Homeland Security

I Department of Homeland Security, Office of the Secretary (Parts 0—99)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299)

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XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

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

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699)

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III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

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

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399)

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III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

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

Title 17—Commodity and Securities Exchanges

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

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

Title 19—Customs Duties

I Bureau of Customs and Border Protection, Department of Home- land Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Bureau of Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599)

Title 20—Employees’ Benefits

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

Title 21—Food and Drugs

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

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399)

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

Title 23—Highways

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

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved]

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VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— 899)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

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

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399)

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IV Geological Survey, Department of the Interior (Parts 400—499) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999)

Title 32—National Defense

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

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399)

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IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)

Title 35—Panama Canal

I Panama Canal Regulations (Parts 1—299)

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

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I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99)

Title 39—Postal Service

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

Title 40—Protection of Environment

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

Title 41—Public Contracts and Property Management

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

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128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–70) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10010)

Title 44—Emergency Management and Assistance

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

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE

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II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

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

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299)

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III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399)

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54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

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

Title 50—Wildlife and Fisheries

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

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V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

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

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VerDate Aug<04>2004 12:08 Oct 27, 2004 Jkt 203218 PO 00000 Frm 00031 Fmt 8092 Sfmt 8092 Y:\SGML\203218B.XXX 203218B VerDate Aug<04>2004 12:08 Oct 27, 2004 Jkt 203218 PO 00000 Frm 00032 Fmt 8092 Sfmt 8092 Y:\SGML\203218B.XXX 203218B List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations that were made by documents published in the FEDERAL REGISTER since Jan- uary 1, 2001, are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to FEDERAL REGISTER pages. The user should consult the entries for chapters and parts as well as sections for revisions. For the period before January 1, 2001, see the ‘‘List of CFR Sections Af- fected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 separate volumes.

2001 50 CFR—Continued 66 FR Page 50 CFR 66 FR Chapter II—Continued Page Regulation at 66 FR 27042 eff. Chapter II date corrected...... 29213 216 Harvest estimates...... 33209 Fisheries List ...... 42780 216.151—216.157 (Subpart N) Cor- 229.2 Regulation at 65 FR 80377 eff. rectly removed; CFR correc- date delayed...... 5489 tion ...... 22133 229.3 Regulation at 65 FR 80377 eff. Added ...... 22466 date delayed...... 5489 216.170—216.178 (Subpart P) 229.32 Regulation at 65 FR 80377 Added; eff. 9–17–01 through 9– eff. date delayed ...... 5489 17–06 ...... 43458 229.34 (a)(2) revised...... 2338 222 Temporary regulations ...... 15045, 230 Quotas ...... 14862, 52712, 64378 28842, 33489 Chapter III Fishing restrictions ...... 65658 300 Fishery management meas- 223 Temporary regulations ...... 15045, ures ...... 15801, 18409 28842, 33489 Policy statement ...... 46740 Exemption...... 37599 Quotas ...... 53735, 58073 Policy statement ...... 59749 Fishing restrictions...... 56038 Fishing restrictions ...... 65658 300.22 Heading revised; existing 223.206 (d)(2)(iv)(B) amended ...... 1603 text designated as (a); (b) (d)(6) added; interim...... 44551 added; eff. 10–29–01...... 49320 (d)(7) added; interim...... 50354 300.28 (h) through (l) added; eff. (d)(2)(ii)(A)(3) corrected ...... 52362 10–29–01...... 49320 300.29 (e) added; eff. 10–29–01 ...... 49320 (d)(1) revised ...... 67496 300.63 (e) corrected ...... 8373 223.207 (c) introductory text re- (d)(1)(i) amended ...... 36208 vised ...... 1603 (a)(3) and (4) redesignated as (a)(7)(ii)(B) revised; interim ...... 24288 (a)(4) and (5); new (a)(3) added 223 Figure 16 added; interim ...... 24289 ...... 42156 224 Policy statement ...... 59749 300.60—300.65 9 (Subpart E) Figure 224.101 (d) added ...... 29055 1 amended...... 36208 224.103 (b) and (c) redesignated as (c) and (d); (b) added ...... 29509 224.104 Heading and (c) revised; 2002 interim...... 44552 50 CFR 67 FR (d) added ...... 67496 Page 229 Temporary regulations ...... 15045, Chapter II 27042 216.125 (b)(1) revised ...... 2824

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50 CFR—Continued 67 FR 50 CFR—Continued 67 FR Page Page Chapter II—Continued Chapter II—Continued 216.132 Revised ...... 70180 (d)(7)(ii) corrected...... 15494 216.134 Removed ...... 70181 (f) heading and (f)(3) revised; 216.135 (i) removed ...... 70181 (f)(4) added; eff. 10–23–02 ...... 59477 216.136 (a) revised...... 70181 (g)(3)(iii) introductory text, (A) 216.141—216.147 (Subpart M) and (B) corrected; (g)(e)(iii)(C) Added ...... 49874 correctly designated as 216.180—216.191 (Subpart Q) (g)(3)(iii)(D); new (g)(3)(iii)(C) Added ...... 46785 added; (g)(4) introductory text, 222 Temporary regulations ...... 20054, (i)(B) and (ii) correctly revised 21585 ...... 65727 Fishing restrictions...... 34622, 37723 Technical correction ...... 65723 Fishery management measures 230 Quotas ...... 20055 ...... 67793, 67795 222.102 Amended; interim ...... 13101 Chapter III Amended; interim...... 41203, 71899 300 Temporary regulations ...... 12885 222.305 (a)(1) revised; (a)(3) added; Quotas ...... 14881 eff. 10–15–02 ...... 57973 Inseason adjustment...... 30604, 44778, 223 Regulation at 64 FR 55864 con- 46420, 58731 firmed ...... 18833 Fishery management measures Temporary regulations...... 20054, 21585 ...... 72110, 72394 Fishing restrictions...... 34622, 37723 300.17 (b)(1)(iv) revised ...... 64312 Authority citation revised ...... 41203 Fishery management measures 2003 ...... 67793, 67795 223.203 (a), (b)(1) and (c) revised; 50 CFR 68 FR Page introductory text, (b)(14) through (22) and Appendix A Chapter II added ...... 1129 216.15 (h) added ...... 31983 Corrected...... 68725, 70809 216.151—216.158 (Subpart N) 223.205 (b)(14) and (15) revised; Added; eff. 10–2–03 through 10– (b)(16) added; interim ...... 41203 2–08...... 52138 223.206 (d) introductory text sus- 222.102 Amended...... 8467, 17562 pended; (d)(8) and (e) added; in- 223 Authority citation revised ...... 69967 terim...... 13101 223.206 (d)(2)(ii)(B)(1), (iv) and (5) Regulation at 64 FR 55863 con- removed; (d)(2)(ii)(B)(2), (3) and firmed...... 18833 (v) redesignated as (d)(2)(v) added; interim; OMB (d)(2)(ii)(B)(1), (2) and (iv); number pending ...... 41203 (d)(2)(ii)(A)(2) and (4) revised; (d)(7) revised ...... 56934 new (d)(2)(ii)(A)(5) added ...... 8467 (d) introductory text revised; (d)(2)(v)(F) added; eff. 7–16–03 (d)(8) added ...... 71899 through 7–30–03 ...... 41945 (d)(6) revised; interim...... 78392 (d)(6) revised ...... 69967 Comment period extended...... 78392 223.207 (a) introductory text, 224.101 (a) revised...... 21598 (3)(ii), (4) through (8), (b)(1), (2), 229 Fishing restrictions ...... 20699, 44092 (d)(2), (3), (c)(1)(iv)(A) heading Fishery management measures and (B) heading revised; ...... 71900, 75817, 79536 (c)(1)(iv)(A) and (B) amend- 229.2 Amended ...... 1141, 1313 ed...... 8467 229.3 (k) revised...... 1313 (a) introductory text, (1), (7)(i) (k) revised; eff. 10–23–02...... 59477 and (8)(i) revised; (d)(6) and (7) 229.32 (g)(3) added ...... 1141 added ...... 51514 (g)(4) added; interim ...... 1159 (a)(7)(i)(B) corrected ...... 54934 (c)(5)(ii)(A) introductory text 223 Figures 1, 2, 11, 12a and 12b re- heading, (2), (8)(ii), (9)(i), (iii), moved; Figure 12 added; Figure (iv), (d)(7) and (8) revised; note 15 revised ...... 8469 added ...... 1313 224.101 (a) amended ...... 15680

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50 CFR—Continued 68 FR 50 CFR—Continued 68 FR Page Page Chapter II—Continued Chapter III—Continued 224.104 (c) removed; (d) redesig- 300.113 Revised ...... 23228 nated as (c) ...... 8471 300.115 (s) and (t) added...... 23229 226 Tables 7 through 24 re- Chapter IV moved ...... 55900 226.203 Heading and introductory 402.30—402.34 (Subpart C) text revised ...... 17562 Added ...... 68264 226.212 Removed ...... 55900 226.214 Added ...... 13454 2004 229 Temporary regulations ...... 18143, (Regulations published from January 1, 69967 2004, through October 1, 2004) Fisheries list...... 41725 Fishery management measures 50 CFR 69 FR ...... 65409 Page 229.32 (f)(4)(iv) revised...... 19465 Chapter II (g)(3)(iii)(B) revised; Title 50 Nomenclature change ...... 18803 (g)(4)(i)(B)(2)(ii) added...... 51200 Chapter II 230 Fishery management measures ...... 15680 216.3 Corrected...... 9760 216.15 (i) added ...... 31324 Chapter III 216.23 (f) added ...... 17980 300 Technical correction ...... 1392, 14167, 216.24 Revised; eff. 10-13-04 ...... 55297 22323 216.47 Added ...... 41979 Fishery management measures 216.90 Revised; eff. 10-13-04 ...... 55307 ...... 9902, 23901, 39024, 39315, 60862 216.91 Revised; eff. 10-13-04 ...... 55307 Temporary regulations...... 48572, 67607 216.92 Revised; eff. 10-13-04 ...... 55307 300.61 Amended...... 18156, 47264 300.63 (a)(3)(ii) revised...... 11003 216.93 Removed; eff. 10-13-04 ...... 55307 Heading and (a) introductory Redesignated from 216.94 and re- text revised; (b) through (e) revised; eff. 10-13-04...... 55307 moved; (a)(1) through (5) redes- 216.94 Redesignated as 216.93; eff. ignated as (b)(1) through (5) ...... 18156 10-13-04 ...... 55307 300.65 Redesignated as 300.66; new Redesignated from 216.95; eff. 10- 300.65 added...... 18156 13-04...... 55307 (i) added ...... 47264 216.95 Redesignated as 216.94; eff. 300.66 Redesignated from 300.65; 10-13-04 ...... 55307 revised ...... 18156 Redesignated from 216.96; eff. 10- 300.60—300.65 (Subpart E) Figure 1 13-04...... 55307 revised; Figures 2 through 5 216.96 Redesignated as 216.95; eff. added...... 18161 10-13-04 ...... 55307 Regulation at 68 FR 18162 cor- 216.120—216.128 (Subpart K) rected ...... 23361 Added; eff. through 2-6-09...... 5727 300.101 Amended ...... 23227 222 Temporary regulations ...... 32898 300.103 (h) revised...... 23227 222.102 Amended ...... 25011 300.107 (a), (c)(1) and (5) revised; 223 Temporary regulations ...... 32898 (c)(7) removed...... 23228 Authority citation revised ...... 11545 300.111 (e) added ...... 23228 223.205 (b)(15) revised ...... 25012

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50 CFR—Continued 69 FR 50 CFR—Continued 69 FR Page Page Chapter II—Continued Chapter II—Continued 223.206 (d)(9) added ...... 11545 Fisheries list...... 48407 (d)(6) removed ...... 18453 229.2 Amended...... 6584, 43345 (d)(2)(iv) removed; (d) introduc- Chapter III tory text and (2) heading re- 300 Fishery management meas- vised; (d)(10) added ...... 25012 ures ...... 4083, 9231, 25013 (d)(1)(ii) revised ...... 40753 Temporary regulations, 57653 223.207 (d)(3)(iii) revised...... 31037 300.63 (b)(3)(ii) revised...... 24532 223 Figure 16 revised ...... 31037 300.170—300.176 (Subpart L) 224.104 (c) revised...... 18453 Added ...... 31535 229 Temporary regulations ....8570, 9760, Chapter IV 11817, 13479, 21070, 23664, 43772, 51774, 402.40—402.48 (Subpart D) 53013 Added ...... 47759 Æ

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