[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1998 Edition]
[From the U.S. Government Printing Office]


          50



          Wildlife and Fisheries



[[Page i]]

          PARTS 200 TO 599

                         Revised as of October 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF OCTOBER 1, 1998
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 50:
          Chapter II--National Marine Fisheries Service, 
          National Oceanic and Atmospheric Administration, 
          Department of Commerce                                     3
          Chapter III--International Fishing and Related 
          Activities                                               319
          Chapter IV--Joint Regulations (United States Fish 
          and Wildlife Service, Department of the Interior and 
          National Marine Fisheries Service, National Oceanic 
          and Atmospheric Administration, Department of 
          Commerce); Endangered Species Committee Regulations      369
          Chapter V--Marine Mammal Commission                      411
  Finding Aids:
      Material Approved for Incorporation by Reference........     437
      Table of CFR Titles and Chapters........................     439
      Alphabetical List of Agencies Appearing in the CFR......     457
      List of CFR Sections Affected...........................     467



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                     ----------------------------

                     Cite this Code:  CFR
                     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.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 1998), 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 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

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, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, 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) 523-4534.

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), and Acts Requiring Publication 
in the Federal Register (Table II). 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 Register.

[[Page vii]]

    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Weekly Compilation 
of Presidential Documents and the Privacy Act Compilation are available 
in electronic format at www.access.gpo.gov/nara (``GPO Access''). For 
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U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 
(toll-free). E-mail, gpoaccess@gpo.gov.
    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.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 1998.



[[Page ix]]



                               THIS TITLE

    Title 50--Fish and Wildlife is composed of three volumes. The parts 
in these volumes are arranged in the following order: Parts 1-199, parts 
200-599 and part 600 to end. The first volume (parts 1-199) contains the 
current regulations issued under chapter I--United States Fish and 
Wildlife Service, Department of the Interior. The second volume (parts 
200-599) contains the current regulations issued under chapter II--
National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Department of Commerce; chapter III--International 
Fishing and Related Activities, chapter IV--Joint Regulations (United 
States Fish and Wildlife Service, Department of the Interior and 
National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Department of Commerce); Endangered Species Committee 
regulations; and chapter V--Marine Mammal Commission. The third volume 
(part 600 to end) contains the current regulations issued under chapter 
VI--Fishery Conservation and Management, 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, 1998.

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

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

    For this volume, Melanie L. Marcec was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                    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 Atmospheric 
  Administration, Department of Commerce); Endangered 
  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 Management, 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, 
Secs. 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.

[[Page 3]]



      CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 
              ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------

               SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
Part                                                                Page
216             Regulations governing the taking and 
                    importing of marine mammals.............           5
217             General provisions..........................          71
220             General permit procedures...................          76
221             Designated ports............................          80
222             Endangered fish or wildlife.................          81
225             Federal/State cooperation in the 
                    conservation of endangered and 
                    threatened species......................          97
226             Designated critical habitat.................         100
227             Threatened species..........................         131
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         194
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         215
     SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE  
                               [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         218

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259             Capital construction fund...................         227
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         239
261             United States Standards for Grades..........         270
                        SUBCHAPTER H--[RESERVED]
                      SUBCHAPTER I--TUNA FISHERIES
285             Atlantic tuna fisheries.....................         272
                        SUBCHAPTER J  [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         311

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               SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]





       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]





                      SUBCHAPTER C--MARINE MAMMALS





PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS--Table of Contents




                         Subpart A--Introduction

Sec.
216.1  Purpose of regulations.
216.2  Scope of regulations.
216.3  Definitions.
216.4  Other laws and regulations.
216.5  Payment of penalty.
216.6  Forfeiture and return of seized property.
216.7  Holding and bonding.
216.8  Enforcement officers.

                         Subpart B--Prohibitions

216.11  Prohibited taking.
216.12  Prohibited importation.
216.13  Prohibited uses, possession, transportation, sales, and permits.
216.14  Marine mammals taken before the MMPA.
216.15  Depleted species.
216.16  Prohibitions under the General Authorization for Level B 
          harassment for scientific research.

                      Subpart C--General Exceptions

216.21  Actions permitted by international treaty, convention, or 
          agreement.
216.22  Taking by State or local government officials.
216.23  Native exceptions.
216.24  Taking and related acts incidental to commercial fishing 
          operations.
216.25  Exempted marine mammals and marine mammal products.
216.26  Collection of certain marine mammals parts without prior 
          authorization.
216.27  Release, non-releasability, and disposition under special 
          exception permits for rehabilitated marine mammals.

                      Subpart D--Special Exceptions

216.30  [Reserved]
216.31  Definitions.
216.32  Scope.
216.33  Permit application submission, review, and decision procedures.
216.34  Issuance criteria.
216.35  Permit restrictions.
216.36  Permit conditions.
216.37  Marine mammal parts.
216.38  Reporting.
216.39  Permit amendments.
216.40  Penalties and permit sanctions.
216.41  Permits for scientific research and enhancement.
216.42  Photography. [Reserved]
216.43  Public display. [Reserved]
216.44  Applicability/transition.
216.45  General Authorization for Level B harassment for scientific 
          research.
216.46-216.49  [Reserved]

                       Subpart E--Designated Ports

216.50  Importation at designated ports.

      Subpart F--Pribilof Islands, Taking for Subsistence Purposes

216.71  Allowable take of fur seals.
216.72  Restrictions on taking.
216.73  Disposition of fur seal parts.
216.74  Cooperation with Federal officials.

               Subpart G--Pribilof Islands Administration

216.81  Visits to fur seal rookeries.
216.82  Dogs prohibited.
216.83  Importation of birds or mammals.
216.84  [Reserved]
216.85  Walrus and Otter Islands.
216.86  Local regulations.
216.87  Wildlife research.

                  Subpart H--Dolphin Safe Tuna Labeling

216.90  Purpose.
216.91  Labeling requirements.
216.92  Purse seine vessels greater than 400 short tons (362.8 metric 
          tons).
216.93  Submission of documentation.
216.94  Requests to review documents.
216.95  False statements or endorsements.

 Subpart I--General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

216.101  Purpose.
216.102  Scope.
216.103  Definitions.
216.104  Submission of requests.
216.105  Specific regulations.
216.106  Letter of Authorization.
216.107  Incidental harassment authorization for Arctic waters.

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216.108  Requirements for monitoring and reporting under incidental 
          harassment authorizations for Arctic waters.

     Subpart J--Taking of Ringed Seals Incidental to On-Ice Seismic 
                               Activities

216.111  Specified activity and specified geographical region.
216.112  Effective dates.
216.113  Permissible methods.
216.114  Mitigation.
216.115  Requirements for monitoring and reporting.
216.116  Applications for Letters of Authorization.
216.117  Renewal of Letters of Authorization.
216.118  Modifications to Letters of Authorization.
216.119  [Reserved]

                        Subparts K-L  [Reserved]

Subpart M--Taking of Bottlenose Dolphins and Spotted Dolphins Incidental 
               to Oil and Gas Structure Removal Activities

216.141  Specified activity and specified geographical region.
216.142  Effective dates.
216.143  Permissible methods of taking; mitigation.
216.144  Prohibitions.
216.145  Requirements for monitoring and reporting.
216.146  Letters of Authorization.
216.147  Renewal of Letters of Authorization.
216.148  Modifications to Letters of Authorization.

Subpart N--Taking of Marine Mammals Incidental to Underwater Detonation 
         of Conventional Explosives by the Department of Defense

216.151  Specified activity, geographical region, and incidental take 
          levels.
216.152  Effective dates.
216.153  Permissible methods of taking; mitigation.
216.154  Prohibitions.
216.155  Requirements for monitoring and reporting.
216.156  Renewal of Letter of Authorization.
216.157  Modifications to Letter of Authorization.

                         Subparts O-Q [Reserved]

    Note to part 216: See also 50 CFR parts 228 and 229 for regulations 
governing certain incidental takings of marine mammals.


    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.

    Editorial Note: At 56 FR 21096, May 7, 1991, 56 FR 41308, Aug. 20, 
1991, and 56 FR 48115, Sept. 24, 1991, findings of nonconformance, 
embargo and revocation were published in the Federal Register.



                         Subpart A--Introduction



Sec. 216.1  Purpose of regulations.

    The regulations in this part implement the Marine Mammal Protection 
Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which, 
among other things, restricts the taking, possession, transportation, 
selling, offering for sale, and importing of marine mammals.



Sec. 216.2  Scope of regulations.

    This part 216 applies solely to marine mammals and marine mammal 
products as defined in Sec. 216.3. For regulations under the MMPA, with 
respect to other marine mammals and marine mammal products, see 50 CFR 
part 18.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.3  Definitions.

    In addition to definitions contained in the MMPA, and unless the 
context otherwise requires, in this part 216:
    ABI means Automated Broker Interface, the electronic product-entry 
filing system under the control of the U.S. Customs Service, Department 
of the Treasury.
    Acts means, collectively, the Marine Mammal Protection Act of 1972, 
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973, 
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as 
amended, 16 U.S.C. 1151 et seq.
    Active sportfishing means paying passengers have their terminal 
fishing gear (lures, hooks, etc.) in the water in an attempt to catch 
fish or, in the case of fishing involving chumming, fishing is 
considered to be in progress from the instant fish have been sighted 
taking bait (boiling) during that chumming process.
    Alaskan Native means a person defined in the Alaska Native Claims 
Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the 
United States

[[Page 7]]

who is of one-fourth degree or more Alaska Indian (including Tsimishian 
Indians enrolled or not enrolled in the Metlaktla Indian Community), 
Eskimo, or Aleut blood or combination thereof. The term includes any 
Native, as so defined, either or both of whose adoptive parents are not 
Natives. It also includes, in the absence of proof of a minimum blood 
quantum, any citizen of the United States who is regarded as an Alaska 
Native by the Native village or group, of which he claims to be a member 
and whose father or mother is (or, if deceased, was) regarded as Native 
by any Native village or Native group. Any such citizen enrolled by the 
Secretary of the Interior pursuant to section 5 of the Alaska Native 
Claims Settlement Act shall be conclusively presumed to be an Alaskan 
Native for purposes of this part.
    Article of handicraft means items made by an Indian, Aleut or Eskimo 
from the nonedible byproducts of fur seals taken for personal or family 
consumption which--
    (1) Were commonly produced by Alaskan Natives on or before October 
14, 1983;
    (2) Are composed wholly or in some significant respect of natural 
materials, and;
    (3) Are significantly altered from their natural form and which are 
produced, decorated, or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or similar 
mass copying devices. Improved methods of production utilizing modern 
implements such as sewing machines or modern tanning techniques at a 
tannery registered pursuant to Sec. 216.23(c) may be used so long as no 
large scale mass production industry results. Traditional native 
handicrafts include, but are not limited to, weaving, carving, 
stitching, sewing, lacing, beading, drawing, and painting. The formation 
of traditional native groups, such as a cooperative, is permitted so 
long as no large scale mass production results.
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Silver Spring, MD 20910, or his/her 
designee.
    Authentic native articles of handicrafts and clothing means items 
made by an Indian, Aleut or Eskimo which (a) were commonly produced on 
or before December 21, 1972, and (b) are composed wholly or in some 
significant respect of natural materials, and (c) are significantly 
altered from their natural form and which are produced, decorated, or 
fashioned in the exercise of traditional native handicrafts without the 
use of pantographs, multiple carvers, or similar mass copying devices. 
Improved methods of production utilizing modern implements such as 
sewing machines or modern tanning techniques at a tannery registered 
pursuant to Sec. 216.23(c) may be used so long as no large scale mass 
production industry results. Traditional native handicrafts include, but 
are not limited to, weaving, carving, stitching, sewing, lacing, 
beading, drawing, and painting. The formation of traditional native 
groups, such as a cooperative, is permitted so long as no large scale 
mass production results.
    Bona fide scientific research: (1) Means scientific research on 
marine mammals conducted by qualified personnel, the results of which:
    (i) Likely would be accepted for publication in a refereed 
scientific journal;
    (ii) Are likely to contribute to the basic knowledge of marine 
mammal biology or ecology. (Note: This includes, for example, marine 
mammal parts in a properly curated, professionally accredited scientific 
collection); or
    (iii) Are likely to identify, evaluate, or resolve conservation 
problems.
    (2) Research that is not on marine mammals, but that may 
incidentally take marine mammals, is not included in this definition 
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, 
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
    Carrying capacity means the Regional Director's determination of the 
maximum amount of fish that a vessel can carry in short tons based on 
the greater of the amount indicated by the builder of the vessel, a 
marine surveyor's report, or the highest amount reported landed from any 
one trip.
    Certified charter vessel means a fishing vessel of a non-U.S. flag 
nation, which is operating under the jurisdiction of

[[Page 8]]

the marine mammal laws and regulations of another, harvesting, nation by 
a formal declaration entered into by mutual agreement of the nations.
    Co-investigator means the on-site representative of a principal 
investigator.
    Commercial fishing operation means the lawful harvesting of fish 
from the marine environment for profit as part of an ongoing business 
enterprise. Such terms may include licensed commercial passenger fishing 
vessel (as defined) activities, but no other sportfishing activities, 
whether or not the fish so caught are subsequently sold.
    Commercial passenger fishing vessel means any vessel licensed for 
commercial passenger fishing purposes within the State out of which it 
is operating and from which, while under charter or hire, persons are 
legally permitted to conduct sportfishing activities.
    Custody means holding a live marine mammal pursuant to the 
conditional authority granted under the MMPA, and the responsibility 
therein for captive maintenance of the marine mammal.
    Director, Office of Protected Resources means Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    Director, Southwest Region means the Director, Southwest Region, 
NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.
    Dolphin Mortality Limit (DML) means the maximum allowable number of 
incidental dolphin mortalities per calendar year assigned to a vessel, 
unless a shorter time period is specified.
    Endangered Species means a species or subspecies of marine mammal 
listed as ``endangered'' pursuant to the Endangered Species Act of 1973, 
87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).
    ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    ETP means the eastern tropical Pacific Ocean which includes the 
Pacific Ocean area bounded by 40 deg. N. latitude, 40 deg. S. latitude, 
160 deg. W. longitude and the coastlines of North, Central and South 
America.
    ETP Fishing Area 1 means the northern coastal portion of the ETP 
east of 117 deg. W. longitude, north of 5 deg. N. latitude, and west of 
86 deg. W. longitude.
    ETP Fishing Area 2 means the offshore area south of 14 deg. N. 
latitude, north of 6 deg. N. latitude, east of 150 deg. W. longitude, 
and west of 123 deg. W. longitude.
    ETP Fishing Area 3 means all other areas within the ETP not included 
in Fishing Areas 1 and 2.
    Facility means, in the context specific to captive marine mammals,: 
(1) One or more permanent primary enclosures used to hold marine mammals 
captive (i.e., pools, lagoons) and associated infrastructure (i.e., 
equipment and supplies necessary for the care and maintenance of marine 
mammals) where these enclosures are either located within the boundaries 
of a single contiguous parcel of land and water, or are grouped together 
within the same general area within which enclosure-to-enclosure 
transport is expected to be completed in less than one hour; or
    (2) A traveling display/exhibit, where the enclosure(s) and 
associated infrastructure is transported together with the marine 
mammals.
    Feeding is offering, giving, or attempting to give food or non-food 
items to marine mammals in the wild. It includes operating a vessel or 
providing other platforms from which feeding is conducted or supported. 
It does not include the routine discard of bycatch during fishing 
operations or the routine discharge of waste or fish byproducts from 
fish processing plants or other platforms if the discharge is otherwise 
legal and is incidental to operation of the activity.
    First exporter means the person or company that first exports the 
fish or fish product, or, in the case of shipments that are subject to 
the labeling requirements of 50 CFR part 247 and that only contain fish 
harvested by vessels of the United States, the first seller of the fish 
or fish product.
    Fisheries Certificate of Origin means NOAA Form 370, as described in 
50 CFR 216.24(e)(3)(iii).
    Fishing season means, for the purposes of Sec. 216.24(e), those sets 
made on trips that are completed between October 1 and September 30 of 
the following calendar year.

[[Page 9]]

    FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et 
seq.
    Fur seal means North Pacific fur seal, scientifically known as 
Callorhinus ursinus.
    Hard part means any bone, tooth, baleen, treated pelt, or other part 
of a marine mammal that is relatively solid or durable.
    Harvesting nation means the country under whose flag one or more 
fishing vessels are documented, or which has by formal declaration 
agreed to assert jurisdiction over one or more certified charter 
vessels, from which vessel(s) fish are caught that are a part of any 
cargo or shipment of fish to be imported into the United States, 
regardless of any intervening transshipments.
    Humane means the method of taking, import, export, or other activity 
which involves the least possible degree of pain and suffering 
practicable to the animal involved.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the Customs 
laws of the United States; except that, for the purpose of any ban 
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish 
products, the definition of ``import'' in Sec. 216.24(e)(1)(ii) shall 
apply.
    Incidental catch means the taking of a marine mammal (1) because it 
is directly interfering with commercial fishing operations, or (2) as a 
consequence of the steps used to secure the fish in connection with 
commercial fishing operations: Provided, That a marine mammal so taken 
must immediately be returned to the sea with a minimum of injury and 
further, that the taking of a marine mammal, which otherwise meets the 
requirements of this definition shall not be considered an incidental 
catch of that mammal if it is used subsequently to assist in commercial 
fishing operations.
    Intentional purse seine set means that a tuna purse seine vessel or 
associated vessels chase marine mammals and subsequently make a purse 
seine set.
    Intrusive research means a procedure conducted for bona fide 
scientific research involving: A break in or cutting of the skin or 
equivalent, insertion of an instrument or material into an orifice, 
introduction of a substance or object into the animal's immediate 
environment that is likely either to be ingested or to contact and 
directly affect animal tissues (i.e., chemical substances), or a 
stimulus directed at animals that may involve a risk to health or 
welfare or that may have an impact on normal function or behavior (i.e., 
audio broadcasts directed at animals that may affect behavior). For 
captive animals, this definition does not include:
    (1) A procedure conducted by the professional staff of the holding 
facility or an attending veterinarian for purposes of animal husbandry, 
care, maintenance, or treatment, or a routine medical procedure that, in 
the reasonable judgment of the attending veterinarian, would not 
constitute a risk to the health or welfare of the captive animal; or
    (2) A procedure involving either the introduction of a substance or 
object (i.e., as described in this definition) or a stimulus directed at 
animals that, in the reasonable judgment of the attending veterinarian, 
would not involve a risk to the health or welfare of the captive animal.
    Kill-per-set means the number of small, toothed cetaceans (marine 
mammals) killed per purse seine set made involving marine mammals.
    Kill-per-ton means the number of small toothed cetacean marine 
mammals killed per ton of yellowfin tuna caught in sets made on marine 
mammals.
    Label means a display of written, printed, or graphic matter on or 
affixed to the immediate container of any article.
    Land or landing means to begin offloading any fish, to arrive in 
port with the intention of offloading fish, or to cause any fish to be 
offloaded.
    Large-scale driftnet means a gillnet that is composed of a panel or 
panels of webbing, or a series of such gillnets, with a total length of 
2.5 kilometers or more that is used on the high seas and allowed to 
drift with the currents and winds for the purpose of harvesting fish

[[Page 10]]

by entangling the fish in the webbing of the net.
    Level A Harassment means any act of pursuit, torment, or annoyance 
which has the potential to injure a marine mammal or marine mammal stock 
in the wild.
    Level B Harassment means any act of pursuit, torment, or annoyance 
which has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering but which does not have the potential to injure a 
marine mammal or marine mammal stock in the wild.
    Marine environment means the oceans and the seas, including 
estuarine and brackish waters.
    Marine mammal means those specimens of the following orders, which 
are morphologically adapted to the marine environment, whether alive or 
dead, and any part thereof, including but not limited to, any raw, 
dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia, 
other than walrus (seals and sea lions).
    MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1361 et seq.
    Native village or town means any community, association, tribe, 
band, clan or group.
    Optimum sustainable population is a population size which falls 
within a range from the population level of a given species or stock 
which is the largest supportable within the ecosystem to the population 
level that results in maximum net productivity. Maximum net productivity 
is the greatest net annual increment in population numbers or biomass 
resulting from additions to the population due to reproduction and/or 
growth less losses due to natural mortality.
    Pregnant means pregnant near term.
    Pribilovians means Indians, Aleuts, and Eskimos who live on the 
Pribilof Islands.
    Principal investigator means the individual primarily responsible 
for the taking, importation, export, and any related activities 
conducted under a permit issued for scientific research or enhancement 
purposes.
    Public display means an activity that provides opportunities for the 
public to view living marine mammals at a facility holding marine 
mammals captive.
    Purse seine set on common dolphins means a purse seine set in which 
more than 50 percent of the marine mammals killed are common dolphins 
or, in sets with no dolphins killed, more than 50 percent of the 
dolphins captured are common dolphins.
    Regional Director means the Director, Southwest Region, NMFS, 501 W. 
Ocean Blvd., Long Beach, CA 90802, or his/her designee.
    Rehabilitation means treatment of beached and stranded marine 
mammals taken under section 109(h)(1) of the MMPA or imported under 
section 109(h)(2) of the MMPA, with the intent of restoring the marine 
mammal's health and, if necessary, behavioral patterns.
    Secretary shall mean the Secretary of Commerce or his authorized 
representative.
    Sexual harassment means any unwelcome sexual advance, request for 
sexual favors, or other verbal and physical conduct of a sexual nature 
which has the purpose or effect of substantially interfering with an 
individual's work performance or creating an intimidating, hostile, or 
offensive working environment.
    Soft part means any marine mammal part that is not a hard part. Soft 
parts do not include urine or fecal material.
    South Pacific Ocean means any waters of the Pacific Ocean that lie 
south of the equator.
    Stranded or stranded marine mammal means a marine mammal specimen 
under the jurisdiction of the Secretary:
    (1) If the specimen is dead, and is on a beach or shore, or is in 
the water within the Exclusive Economic Zone of the United States; or
    (2) If the specimen is alive, and is on a beach or shore and is 
unable to return to the water, or is in the water within the Exclusive 
Economic Zone of the United States where the water is so shallow that 
the specimen is unable to return to its natural habitat under its own 
power.
    Subsistence means the use of marine mammals taken by Alaskan Natives 
for food, clothing, shelter, heating,

[[Page 11]]

transportation, and other uses necessary to maintain the life of the 
taker or those who depend upon the taker to provide them with such 
subsistence.
    Subsistence uses means the customary and traditional uses of fur 
seals taken by Pribilovians for direct personal or family consumption as 
food, shelter, fuel, clothing, tools or transportation; for the making 
and selling of handicraft articles out of nonedible byproducts of fur 
seals taken for personal or family consumption; and for barter, or 
sharing for personal or family consumption. As used in this definition--
    (1) Family means all persons related by blood, marriage, or 
adoption, or any person living within a household on a permanent basis.
    (2) Barter means the exchange of fur seals or their parts, taken for 
subsistence uses--
    (i) For other wildlife or fish or their parts, or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature.
    Take means to harass, hunt, capture, collect, or kill, or attempt to 
harass, hunt, capture, collect, or kill any marine mammal. This 
includes, without limitation, any of the following: The collection of 
dead animals, or parts thereof; the restraint or detention of a marine 
mammal, no matter how temporary; tagging a marine mammal; the negligent 
or intentional operation of an aircraft or vessel, or the doing of any 
other negligent or intentional act which results in disturbing or 
molesting a marine mammal; and feeding or attempting to feed a marine 
mammal in the wild.
    Threatened species means a species of marine mammal listed as 
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 
884, Pub. L. 93-205.
    Trip means a voyage starting when a vessel leaves port with all fish 
wells empty of fish and ending when a vessel unloads all of its fish.
    Tuna product means any food product processed for retail sale and 
intended for human or animal consumption that contains an item listed in 
Sec. 216.24(e)(2)(i) or (ii), but does not include perishable items with 
a shelf life of less than 3 days.
    Wasteful manner means any taking or method of taking which is likely 
to result in the killing of marine mammals beyond those needed for 
subsistence, subsistence uses, or for the making of authentic native 
articles of handicrafts and clothing, or which results in the waste of a 
substantial portion of the marine mammal and includes, without 
limitation, the employment of a method of taking which is not likely to 
assure the capture or killing of a marine mammal, or which is not 
immediately followed by a reasonable effort to retrieve the marine 
mammal.

    Editorial Note: For Federal Register citations affecting Sec. 216.3, 
see the List of Sections Affected in the Finding Aids section of this 
volume.



Sec. 216.4  Other laws and regulations.

    (a) Federal. Nothing in this part, nor any permit issued under 
authority of this part, shall be construed to relieve a person from any 
other requirements imposed by a statute or regulation of the United 
States, including any applicable statutes or regulations relating to 
wildlife and fisheries, health, quarantine, agriculture, or customs.
    (b) State laws or regulations. See part 403 of this chapter.

[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 
FR 65134, Dec. 13, 1993]



Sec. 216.5  Payment of penalty.

    The respondent shall have 30 days from receipt of the final 
assessment decision within which to pay the penalty assessed. Upon a 
failure to pay the penalty, the Secretary may request the Attorney 
General to institute a civil action in the appropriate United States 
District Court to collect the penalty.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]



Sec. 216.6  Forfeiture and return of seized property.

    (a) Whenever any cargo or marine mammal or marine mammal product has 
been seized pursuant to section 107 of the MMPA, the Secretary shall 
expedite any proceedings commenced under these regulations.
    (b) Whenever a civil penalty has been assessed by the Secretary 
under these

[[Page 12]]

regulations, any cargo, marine mammal, or marine mammal product seized 
pursuant to section 107 of the MMPA shall be subject to forfeiture. If 
respondent voluntarily forfeits any such seized property or the monetary 
value thereof without court proceedings, the Secretary may apply the 
value thereof, if any, as determined by the Secretary, toward payment of 
the civil penalty.
    (c) Whenever a civil penalty has been assessed under these 
regulations, and whether or not such penalty has been paid, the 
Secretary may request the Attorney General to institute a civil action 
in an appropriate United States District Court to compel forfeiture of 
such seized property or the monetary value thereof to the Secretary for 
disposition by him in such manner as he deems appropriate. If no 
judicial action to compel forfeiture is commenced within 30 days after 
final decision-making assessment of a civil penalty, pursuant to 
Sec. 216.60, such seized property shall immediately be returned to the 
respondent.
    (d) If the final decision of the Secretary under these regulations 
is that respondent has committed no violation of the MMPA or of any 
permit or regulations issued thereunder, any marine mammal, marine 
mammal product, or other cargo seized from respondent in connection with 
the proceedings under these regulations, or the bond or other monetary 
value substituted therefor, shall immediately be returned to the 
respondent.
    (e) If the Attorney General commences criminal proceedings pursuant 
to section 105(b) of the MMPA, and such proceedings result in a finding 
that the person accused is not guilty of a criminal violation of the 
MMPA, the Secretary may institute proceedings for the assessment of a 
civil penalty under this part: Provided, That if no such civil penalty 
proceedings have been commenced by the Secretary within 30 days 
following the final disposition of the criminal case, any property 
seized pursuant to section 107 of the MMPA shall be returned to the 
respondent.
    (f) If any seized property is to be returned to the respondent, the 
Regional Director shall issue a letter authorizing such return. This 
letter shall be dispatched to the respondent by registered mail, return 
receipt requested, and shall identify the respondent, the seized 
property, and, if appropriate, the bailee of the seized property. It 
shall also provide that upon presentation of the letter and proper 
identification, the seized property is authorized to be released. All 
charges for storage, care, or handling of the seized property accruing 5 
days or more after the date of the return receipt shall be for the 
account of the respondent: Provided, That if it is the final decision of 
the Secretary under these regulations that the respondent has committed 
the alleged violation, all charges which have accrued for the storage, 
care, or handling of the seized property shall be for the account of the 
respondent.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.7  Holding and bonding.

    (a) Any marine mammal, marine mammal product, or other cargo seized 
pursuant to section 107 of the MMPA shall be delivered to the 
appropriate Regional Director of the National Marine Fisheries Service 
(see Sec. 201.2 of this title) or his designee, who shall either hold 
such seized property or arrange for the proper handling and care of such 
seized property.
    (b) Any arrangement for the handling and care of seized property 
shall be in writing and shall state the compensation to be paid. Subpart 
F of 15 CFR part 904 contains additional procedures that govern seized 
property that is subject to forfeiture or has been forfeited under the 
MMPA.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994]



Sec. 216.8  Enforcement officers.

    Enforcement Agents of the National Marine Fisheries Service shall 
enforce the provisions of the MMPA and may take any actions authorized 
by the MMPA with respect to enforcement. In addition, the Secretary may 
utilize, by agreement, the personnel, services, and facilities of any 
other Federal Agency for the purposes of enforcing this MMPA. Pursuant 
to the terms of section 107(b) of the MMPA, the Secretary

[[Page 13]]

may also designate officers and employees of any State or of any 
possession of the United States to enforce the provisions of this MMPA.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



                         Subpart B--Prohibitions



Sec. 216.11  Prohibited taking.

    Except as otherwise provided in subparts C, D, and I of this part 
216 or in part 228 or 229, it is unlawful for:
    (a) Any person, vessel, or conveyance subject to the jurisdiction of 
the United States to take any marine mammal on the high seas, or
    (b) Any person, vessel, or conveyance to take any marine mammal in 
waters or on lands under the jurisdiction of the United States, or
    (c) Any person subject to the jurisdiction of the United States to 
take any marine mammal during the moratorium.

[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 
FR 21921, May 19, 1989]



Sec. 216.12  Prohibited importation.

    (a) Except as otherwise provided in subparts C and D of this part 
216, it is unlawful for any person to import any marine mammal or marine 
mammal product into the United States.
    (b) Regardless of whether an importation is otherwise authorized 
pursuant to subparts C and D of this part 216, it is unlawful for any 
person to import into the United States any:
    (1) Marine mammal:
    (i) Taken in violation of the MMPA, or
    (ii) Taken in another country in violation to the laws of that 
country;
    (2) Any marine mammal product if
    (i) The importation into the United States of the marine mammal from 
which such product is made would be unlawful under paragraph (b)(1) of 
this section, or
    (ii) The sale in commerce of such product in the country of origin 
if the product is illegal.
    (c) Except in accordance with an exception referred to in subpart C 
and Secs. 216.31 (regarding scientific research permits only) and 216.32 
of this part 216, it is unlawful to import into the United States any:
    (1) Marine mammal which was pregnant at the time of taking.
    (2) Marine mammal which was nursing at the time of taking, or less 
than 8 months old, whichever occurs later.
    (3) Specimen of an endangered or threatened species of marine 
mammal.
    (4) Specimen taken from a depleted species or stock of marine 
mammals, or
    (5) Marine mammal taken in an inhumane manner.
    (d) It is unlawful to import into the United States any fish, 
whether fresh, frozen, or otherwise prepared, if such fish was caught in 
a manner proscribed by the Secretary of Commerce for persons subject to 
the jurisdiction of the United States, whether or not any marine mammals 
were in fact taken incident to the catching of the fish.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.13  Prohibited uses, possession, transportation, sales, and permits.

    It is unlawful for:
    (a) Any person to use any port, harbor or other place under the 
jurisdiction of the United States for any purpose in any way connected 
with a prohibited taking or an unlawful importation of any marine mammal 
or marine mammal product; or
    (b) Any person subject to the jurisdiction of the United States to 
possess any marine mammal taken in violation of the MMPA or these 
regulations, or to transport, sell, or offer for sale any such marine 
mammal or any marine mammal product made from any such mammal.
    (c) Any person subject to the jurisdiction of the United States to 
use in a commercial fishery, any means or method of fishing in 
contravention of regulations and limitations issued by the Secretary of 
Commerce for that fishery to achieve the purposes of this MMPA.
    (d) Any person to violate any term, condition, or restriction of any 
permit issued by the Secretary.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994; 61 FR 21933, May 10, 1996]

[[Page 14]]



Sec. 216.14  Marine mammals taken before the MMPA.

    (a) Section 102(e) of the MMPA provides, in effect, that the MMPA 
shall not apply to any marine mammal taken prior to December 21, 1972, 
or to any marine mammal product, consisting of or composed in whole or 
in part of, any marine mammal taken before that date. This prior status 
of any marine mammal or marine mammal product may be established by 
submitting to the Director, National Marine Fisheries Service prior to, 
or at the time of importation, an affidavit containing the following:
    (1) The Affiant's name and address;
    (2) Identification of the Affiant;
    (3) A description of the marine mammals or marine mammal products 
which the Affiant desires to import;
    (4) A statement by the Affiant that, to the best of his knowledge 
and belief, the marine mammals involved in the application were taken 
prior to December 21, 1972;
    (5) A statement by the Affiant in the following language:

    The foregoing is principally based on the attached exhibits which, 
to the best of my knowledge and belief, are complete, true and correct. 
I understand that this affidavit is being submitted for the purpose of 
inducing the Federal Government to permit the importation of--under the 
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and 
regulations promulgated thereunder, and that any false statements may 
subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties 
under the Marine Mammal Protection Act of 1972.

    (b) Either one of two exhibits shall be attached to such affidavit, 
and will contain either:
    (1) Records or other available evidence showing that the product 
consists of or is composed in whole or in part of marine mammals taken 
prior to the effective date of the MMPA. Such records or other 
evidentiary material must include information on how, when, where, and 
by whom the animals were taken, what processing has taken place since 
taking, and the date and location of such processing; or
    (2) A statement from a government agency of the country of origin 
exercising jurisdiction over marine mammals that any and all such 
mammals from which the products sought to be imported were derived were 
taken prior to December 21, 1972.
    (c) No pre-Act marine mammal or pre-Act marine mammal product may be 
imported unless the requirements of this section have been fulfilled.
    (d) This section has no application to any marine mammal or marine 
mammal product intended to be imported pursuant to Secs. 216.21, 216.31 
or Sec. 216.32.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994]



Sec. 216.15  Depleted species.

    The following species or population stocks have been designated by 
the Assistant Administrator as depleted under the provisions of the 
MMPA.
    (a) Hawaiian monk seal (Monachus schauinslandi).
    (b) Bowhead whale (Balaena mysticetus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock 
along the U.S. mid-Atlantic coast.
    (e) Eastern spinner dolphin (Stenella longirostris orientalis).
    (f) Northeastern offshore spotted dolphin (Stenella attenuata).

[53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58 
FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3, 
1994]



Sec. 216.16  Prohibitions under the General Authorization for Level B harassment for scientific research.

    It shall be unlawful for any person to:
    (a) Provide false information in a letter of intent submitted 
pursuant to Sec. 216.45(b);
    (b) Violate any term or condition imposed pursuant to 
Sec. 216.45(d).

[59 FR 50376, Oct. 3, 1994]



                      Subpart C--General Exceptions



Sec. 216.21  Actions permitted by international treaty, convention, or agreement.

    The MMPA and these regulations shall not apply to the extent that 
they are inconsistent with the provisions of any international treaty, 
convention

[[Page 15]]

or agreement, or any statute implementing the same relating to the 
taking or importation of marine mammals or marine mammal products, which 
was existing and in force prior to December 21, 1972, and to which the 
United States was a party. Specifically, the regulations in subpart B of 
this part and the provisions of the MMPA shall not apply to activities 
carried out pursuant to the Interim Convention on the Conservation of 
North Pacific Fur Seals signed at Washington on February 9, 1957, and 
the Fur Seal Act of 1966, 16 U.S.C. 1151 through 1187, as in each case, 
from time to time amended.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]



Sec. 216.22  Taking by State or local government officials.

    (a) A State or local government official or employee may take a 
marine mammal in the normal course of his duties as an official or 
employee, and no permit shall be required, if such taking:
    (1) Is accomplished in a humane manner;
    (2) Is for the protection or welfare of such mammal or for the 
protection of the public health or welfare; and
    (3) Includes steps designed to insure return of such mammal, if not 
killed in the course of such taking, to its natural habitat. In 
addition, any such official or employee may, incidental to such taking, 
possess and transport, but not sell or offer for sale, such mammal and 
use any port, harbor, or other place under the jurisdiction of the 
United States. All steps reasonably practicable under the circumstances 
shall be taken by any such employee or official to prevent injury or 
death to the marine mammal as the result of such taking. Where the 
marine mammal in question is injured or sick, it shall be permissible to 
place it in temporary captivity until such time as it is able to be 
returned to its natural habitat. It shall be permissible to dispose of a 
carcass of a marine mammal taken in accordance with this subsection 
whether the animal is dead at the time of taking or dies subsequent 
thereto.
    (b) Each taking permitted under this section shall be included in a 
written report to be submitted to the Secretary every six months 
beginning December 31, 1973. Unless otherwise permitted by the 
Secretary, the report shall contain a description of:
    (1) The animal involved;
    (2) The circumstances requiring the taking;
    (3) The method of taking;
    (4) The name and official position of the State official or employee 
involved;
    (5) The disposition of the animal, including in cases where the 
animal has been retained in captivity, a description of the place and 
means of confinement and the measures taken for its maintenance and 
care; and
    (6) Such other information as the Secretary may require.
    (c) Salvage of dead stranded marine mammals or parts therefrom and 
subsequent transfer.
    (1) Salvage. In the performance of official duties, a state or local 
government employee; an employee of the National Marine Fisheries 
Service, the U.S. Fish and Wildlife Service, or any other Federal agency 
with jurisdiction and conservation responsibilities in marine shoreline 
areas; or a person authorized under 16 U.S.C. 1382(c) may take and 
salvage a marine mammal specimen if it is stranded and dead or it was 
stranded or rescued and died during treatment, transport, captivity or 
other rehabilitation subsequent to that stranding or distress if salvage 
is for the purpose of utilization in scientific research or for the 
purpose of maintenance in a properly curated, professionally accredited 
scientific collection.
    (2) Registration. A person salvaging a dead marine mammal specimen 
under this section must register the salvage of the specimen with the 
appropriate Regional Office of the National Marine Fisheries Service 
within 30 days after the taking or death occurs. The registration must 
include:
    (i) The name, address, and any official position of the individual 
engaged in the taking and salvage;
    (ii) A description of the marine mammal specimen salvaged including 
the scientific and common names of the species;
    (iii) A description of the parts salvaged;

[[Page 16]]

    (iv) The date and the location of the taking;
    (v) Such other information as deemed necessary by the Assistant 
Administrator.
    (3) Identification and curation. The Regional Director will assign a 
single unique number to each carcass, and the parts thereof, that are 
salvaged under the provisions of this section. The person who salvaged 
the specimen may designate the number to be assigned. After this number 
is assigned, the person who salvaged the specimen must permanently mark 
that number on each separate hard part of that specimen and must affix 
that number with tags or labels to each soft part of that specimen or 
the containers in which that soft part is kept. Each specimen salvaged 
under this section must be curated in accordance with professional 
standards.
    (4) No sale or commercial trade. No person may sell or trade for 
commercial purposes any marine mammal specimen salvaged under this 
section.
    (5) Transfer without prior authorization. A person who salvages a 
marine mammal specimen under this section may transfer that specimen to 
another person if:
    (i) The person transferring the marine mammal specimen does not 
receive remuneration for the specimen;
    (ii) The person receiving the marine mammal specimen is an employee 
of the National Marine Fisheries Service, the U.S. Fish and Wildlife 
Service, or any other Federal agency with jurisdiction and conservation 
responsibilities in marine shoreline areas; is a person authorized under 
16 U.S.C. 1382(c); or is a person who has received prior authorization 
under paragraph (c)(6) of this section;
    (iii) The marine mammal specimen is transferred for the purpose of 
scientific research, for the purpose of maintenance in a properly 
curated, professionally accredited scientific collection, or for 
educational purposes;
    (iv) The unique number assigned by the National Marine Fisheries 
Service is on, marked on, or affixed to the marine mammal specimen or 
container; and
    (v) Except as provided under paragraph (c)(8) of this section, the 
person transferring the marine mammal specimen notifies the appropriate 
Regional Office of the National Marine Fisheries Service of the 
transfer, including notification of the number of the specimen 
transferred and the person to whom the specimen was transferred, within 
30 days after the transfer occurs.
    (6) Other transfers within the United States. Except as provided 
under paragraphs (c)(5) and (c)(8) of this section, a person who 
salvages a marine mammal specimen, or who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to another person within the United States unless the Regional 
Director of the appropriate Regional Office of the National Marine 
Fisheries Service grants prior written authorization for the transfer. 
The Regional Director may grant authorization for the transfer if there 
is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (7) Tranfers outside of the United States. A person who salvages a 
marine mammal specimen, or a person who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to a person outside of the United States unless the Assistant 
Administrator grants prior written authorization for the transfer. The 
Assistant Administrator may grant authorization for the transfer if 
there is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (8) Exceptions to requirements for notification or prior 
authorization. A person may transfer a marine mammal specimen salvaged 
under this section without the notification required in paragraph 
(c)(5)(v) of this section or the prior authorization required in 
paragraph (c)(6) of this section if:
    (i) The transfer is a temporary transfer to a laboratory or research 
facility within the United States so that analyses can be performed for 
the person salvaging the specimen; or
    (ii) The transfer is a loan of not more than 1 year to another 
professionally

[[Page 17]]

accredited scientific collection within the United States.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]



Sec. 216.23  Native exceptions.

    (a) Taking. Notwithstanding the prohibitions of subpart B of this 
part 216, but subject to the restrictions contained in this section, any 
Indian, Aleut, or Eskimo who resides on the coast of the North Pacific 
Ocean or the Arctic Ocean may take any marine mammal without a permit, 
if such taking is:
    (1) By Alaskan Natives who reside in Alaska for subsistence, or
    (2) For purposes of creating and selling authentic native articles 
of handicraft and clothing, and
    (3) In each case, not accomplished in a wasteful manner.
    (b) Restrictions. (1) No marine mammal taken for subsistence may be 
sold or otherwise transferred to any person other than an Alaskan Native 
or delivered, carried, transported, or shipped in interstate or foreign 
commerce, unless:
    (i) It is being sent by an Alaskan Native directly or through a 
registered agent to a tannery registered under paragraph (c) of this 
section for the purpose of processing, and will be returned directly or 
through a registered agent to the Alaskan Native; or
    (ii) It is sold or transferred to a registered agent in Alaska for 
resale or transfer to an Alaskan Native; or
    (iii) It is an edible portion and it is sold in an Alaskan Native 
village or town.
    (2) No marine mammal taken for purposes of creating and selling 
authentic native articles of handicraft and clothing may be sold or 
otherwise transferred to any person other than an Indian, Aleut or 
Eskimo, or delivered, carried, transported or shipped in interstate or 
foreign commerce, unless:
    (i) It is being sent by an Indian, Aleut or Eskimo directly or 
through a registered agent to a tannery registered under paragraph (c) 
of this section for the purpose of processing, and will be returned 
directly or through a registered agent to the Indian, Aleut or Eskimo; 
or
    (ii) It is sold or transferred to a registered agent for resale or 
transfer to an Indian, Aleut, or Eskimo; or
    (iii) It has first been transformed into an authentic native article 
of handicraft or clothing; or
    (iv) It is an edible portion and sold (A) in an Alaskan Native 
village or town, or (B) to an Alaskan Native for his consumption.
    (c) Any tannery, or person who wishes to act as an agent, within the 
jurisdiction of the United States may apply to the Director, National 
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 
20235, for registration as a tannery or an agent which may possess and 
process marine mammal products for Indians, Aleuts, or Eskimos. The 
application shall include the following information:
    (i) The name and address of the applicant;
    (ii) A description of the applicant's procedures for receiving, 
storing, processing, and shipping materials;
    (iii) A proposal for a system of bookkeeping and/or inventory 
segregation by which the applicant could maintain accurate records of 
marine mammals received from Indians, Aleuts, or Eskimos pursuant to 
this section;
    (iv) Such other information as the Secretary may request;
    (v) A certification in the following language:

    I hereby certify that the foregoing information is complete, true 
and correct to the best of my knowledge and belief. I understand that 
this information is submitted for the purpose of obtaining the benefit 
of an exception under the Marine Mammal Protection Act of 1972 (16 
U.S.C. 1361 through 1407) and regulations promulgated thereunder, and 
that any false statement may subject me to the criminal penalties of 18 
U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 
1972.

    (vi) The signature of the applicant.

The sufficiency of the application shall be determined by the Secretary, 
and in that connection, he may waive any requirement for information, or 
require any elaboration or further information deemed necessary. The 
registration of a tannery or other agent shall be subject to such 
conditions as the Secretary prescribes, which may include,

[[Page 18]]

but are not limited to, provisions regarding records, inventory 
segregation, reports, and inspection. The Secretary may charge a 
reasonable fee for processing such applications, including an 
appropriate apportionment of overhead and administrative expenses of the 
Department of Commerce.
    (d) Notwithstanding the preceding provisions of this section, 
whenever, under the MMPA, the Secretary determines any species of stock 
of marine mammals to be depleted, he may prescribe regulations pursuant 
to section 103 of the MMPA upon the taking of such marine animals by any 
Indian, Aleut, or Eskimo and, after promulgation of such regulations, 
all takings of such marine mammals shall conform to such regulations.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]



Sec. 216.24  Taking and related acts incidental to commercial fishing operations.

    Note to Sec. 216.24: The provisions of 50 CFR part 229, rather than 
Sec. 216.24, will govern the incidental taking of marine mammals in the 
course of commercial fishing operations by persons using vessels of the 
United States, other than vessels used in the eastern tropical Pacific 
yellowfin tuna purse seine fishery, and vessels which have valid fishing 
permits issued in accordance with section 204(b) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1824(b)). Other commercial 
fisheries remain subject to regulations under Sec. 216.24.

    (a)(1) No marine mammals may be taken in the course of a commercial 
fishing operation unless: The taking constitutes an incidental catch as 
defined in Sec. 216.3, a general permit and certificate(s) of inclusion 
have been obtained in accordance with these regulations and such taking 
is not in violation of such permit, certificate(s), and regulations.
    (2)(i) It is unlawful for any person using a Class I (400 short tons 
(362.8 metric tons) carrying capacity or less) or Class II (greater than 
400 short tons (362.8 metric tons) carrying capacity, built before 1961) 
U.S. purse seine fishing vessel on a fishing involving the utilization 
of purse seines to capture yellowfin tuna, that is not operating under a 
Category 2 general permit and certificate(s) of inclusion, to carry more 
than two speedboats if any part of its fishing trip is in the Pacific 
Ocean area described in the General Permit for gear Category 2 
operations.
    (ii) It is unlawful for any person using a Class III (greater than 
400 short tons (362.8 metric tons) carrying capacity, built after 1960) 
U.S. purse seine fishing vessel that does not have and operate under a 
valid operator and vessel certificate of inclusion, to catch, possess, 
or land tuna from a fishing trip that includes the Pacific Ocean area 
described in the General Permit for gear Category 2 operations.
    (iii) It is unlawful for any person subject to the jurisdiction of 
the United States to receive, purchase, or possess tuna caught, 
possessed, or landed in violation of paragraph (a)(2)(ii) of this 
section.
    (iv) It is unlawful for a person subject to the jurisdiction of the 
United States intentionally to deploy a purse seine net on, or to 
encircle, dolphins from a vessel operating in the ETP when the DML 
assigned to that vessel has been reached, or when there is not a DML 
assigned to that vessel.
    (3) Upon written request in advance of entering the General Permit 
area, the limitation in (a)(2) may be waived by the Director, Southwest 
Region for the purpose of allowing transit through the General Permit 
area. The waiver will provide in writing the terms and conditions under 
which the vessel must operate, including a requirement to report by 
radio to the Director, Southwest Region the vessel's date of exit from 
or subsequent entry to the permit area, in order to transit the area 
with more than two speedboats.
    (b) [Reserved]
    (c) Certificates of inclusion--(1) Vessel certificates of inclusion. 
The owner or managing owner of a vessel that participates in commercial 
fishing operations under the ATA permit must hold a valid vessel 
certificate of inclusion. Such certificates are not transferable and 
must be renewed annually. If a vessel certificate holder surrenders his/
her certificate to the Director, Southwest Region, the certificate shall 
not be returned nor shall a new certificate be issued before the end of 
the calendar year. This provision does not

[[Page 19]]

apply when a change of vessel ownership occurs.
    (2) Operator's certificate of inclusion. The person in charge of and 
actually controlling fishing operations (hereinafter referred to as the 
operator) on a vessel engaged in commercial fishing operations under the 
ATA permit, must hold a valid operator's certificate of inclusion. Such 
certificates are not transferable, and must be renewed annually. In 
order to receive a certification of inclusion, the operator must have 
satisfactorily completed all required training.
    (3) A vessel certificate issued pursuant to paragraph (c)(1) of this 
section must be on board the vessel while it is engaged in fishing 
operations and the operator's certificate issued pursuant to paragraph 
(c)(2) of this section must be in the possession of the operator to whom 
it was issued. Certificates must be shown upon request to an enforcement 
agent or other National Marine Fisheries Service (NMFS) designated 
agent. Vessels and operators at sea on a fishing trip on the expiration 
date of their certificate of inclusion, to whom or to which a 
certificate of inclusion for the next year has been issued, may take 
marine mammals under the terms of the new certificate. A vessel owner or 
operator is obligated to obtain or place the new certificate on board, 
as appropriate, when the vessel next returns to port.
    (4) Applications. Owners or managing owners of purse seine vessels 
should make application for vessel certificates of inclusion to the 
Director, Southwest Region. Applications for vessel certificates of 
inclusion must contain:
    (i) The name of the vessel that is to appear on the certificate(s) 
of inclusion;
    (ii) The category of the general permit under which the applicant 
wishes to be included;
    (iii) The species of fish sought and general area of operations;
    (iv) The identity of state and local commercial fishing licenses, if 
applicable, under which vessel operations are conducted, and dates of 
expiration;
    (v) The name of the operator and date of training, if applicable; 
and
    (vi) The name and signature of the applicant, whether owner or 
managing owner, address, and if applicable, the organization acting on 
behalf of the vessel.
    (5) Fees. (i) Applications for certificates of inclusion under 
paragraph (c)(1) of this section must include a fee of $200.00 for each 
vessel named in the application, unless the applicant's income is below 
Federal poverty guidelines and the applicant shows in the application 
that his/her income is below such guidelines, in which case a fee of 
$20.00 must be included.
    (ii) The Assistant Administrator may change the amount of the fee 
required at any time a different fee is determined to be reasonable, and 
notification of such change shall be published in the Federal Register.
    (6) The Director, Southwest Region shall determine the adequacy and 
completeness of applications, and upon said determination that such 
applications are adequate and complete, shall approve such applications 
and issue the certificate(s).
    (7) Failure to comply with provisions of the ATA permit, 
certificates of inclusion, or these regulations may lead to suspension, 
revocation, modification, or denial of a certificate of inclusion. It 
may also subject the certificate holder, vessel, vessel owner, operator, 
or master to the penalties provided under the MMPA. Procedures governing 
permit sanctions and denials are found at subpart D of 15 CFR part 904.
    (8) By using an operator or vessel certificate of inclusion under 
the ATA permit, the certificate holder authorizes the release to NMFS of 
all data collected by observers aboard purse seine vessels during 
fishing trips under the Inter-American Tropical Tuna Commission observer 
program or any other international observer program in which the United 
States may participate. The certificate holder must furnish the 
international observer program all release forms required to provide the 
observer data to NMFS. Data obtained under such releases will be used 
for the same purposes as data collected directly by observers placed by 
the NMFS and will be subject to the same standards of confidentiality.

[[Page 20]]

    (d) Terms and conditions of certificates under general permits shall 
include, but are not limited to the following:
    (1) [Reserved]
    (2) Encircling gear, purse seining involving the intentional taking 
of marine mammals--(i) Quotas:
    (A) A certificated vessel may take marine mammals only if the taking 
is an incidental occurrence in the course of normal commercial tuna 
purse seine fishing operations, and the fishing operations are under the 
immediate direction of a person who is the holder of a valid operator's 
certificate of inclusion, subject to the following conditions:
    (1)-(2) [Reserved]
    (3) No purse seine net may be deployed on or used to encircle any 
school of dolphins in which any eastern spinner dolphin (Stenella 
longirostris), coastal spotted dolphin (Stenella attenuata), or, in the 
area from 40 deg. N. lat. to 5 deg. N. lat. and from 120 deg. W. long. 
to the coastline of Central and South America, any offshore spotted 
dolphin (Stenella attenuata), are observed in the school prior to the 
release of the net skiff.
    (B) The incidental mortality of marine mammals permitted under the 
general permit for each category will be monitored according to the 
methodology published in the Federal Register. The Assistant 
Administrator shall determine on the basis of the evidence available to 
him the date upon which the allowable quotas will be reached or 
exceeded. Notice of the Assistant Administrator's determination shall be 
published in the Federal Register not less than seven days prior to the 
effective date.
    (C) Except for the coastal spotted dolphin stock and the eastern 
spinner dolphin stock, if at the time the net skiff attached to the net 
is released from the vessel at the start of a set, and species or stocks 
that are prohibited from being taken are not reasonably observable, the 
fact that individuals of that species or stock are subsequently taken 
will not be cause for issuance of a notice of violation provided that 
all procedures required by the applicable regulations have been 
followed.
    (D) The general permit is valid until surrendered by the permit 
holder or suspended or terminated by the Assistant Administrator 
provided the permittee and certificate holders under this part continue 
to use the best marine mammal safety techniques and equipment that are 
economically and technologically practicable. The Assistant 
Administrator may, upon receipt of new information which in his opinion 
is sufficient to require modification of the general permit or 
regulations, propose to modify such after consultation with the Marine 
Mammal Commission. These modifications must be consistent with and 
necessary to carry out the purposes of the MMPA. Any modifications 
proposed by the Assistant Administrator involving changes in the quotas 
will include the statements required by section 103(d) of the MMPA. 
Modifications will be proposed in the Federal Register and a public 
comment period will be allowed. At the request of any interested person 
within 15 days after publication of the proposed modification in the 
Federal Register, the Assistant Administrator may hold a public hearing 
to receive and evaluate evidence in those circumstances where he has 
determined it to be consistent with and necessary to carry out the 
purposes of the MMPA. Such request may be for a formal hearing on the 
record before an Administrative Law Judge. Within 10 days after receipt 
of the request for a public hearing, the Assistant Administrator will 
provide the requesting party or parties with his decision. If a request 
is denied, the Assistant Administrator will state the reasons for the 
denial. Within 10 days after receipt of a decision denying a request for 
a formal hearing, the requesting person may file a written notice of 
appeal with the Administrator. Based upon the evidence presented in the 
notice, the Administrator will render a decision within 20 days from 
receipt of the notice.
    (ii) General conditions: (A) Marine mammals incidentally taken must 
be immediately returned to the environment where captured without 
further injury. The operators of purse seine vessels must take every 
precaution to refrain from causing or permitting incidental mortality or 
serious injury of

[[Page 21]]

marine mammals. Live marine mammals must not be brailed or hoisted onto 
the deck during ortza retrieval.
    (B) Operators may take such steps as are necessary to protect their 
gear or person from damage or threat of personal injury. However, all 
marine mammals taken in the course of commercial fishing operations 
shall be subject to the definition of ``incidental catch'' in Sec. 216.3 
of this part and may not be retained except where a specific permit has 
been obtained authorizing the retention.
    (C) The vessel certificate holder shall notify the Director, 
Southwest Region of any change of vessel operator within at least 48 
hours prior to departing on the next scheduled trip.
    (iii) Reporting requirements: In accordance with Sec. 216.24(f) of 
these regulations, the following specific reporting procedures shall be 
required:
    (A) The vessel certificate holder of each certificated vessel, who 
has been notified via certified letter from NMFS that his/her vessel is 
required to carry an observer, shall notify the Director, Southwest 
Region at least 5 days in advance of the vessel's departure on a fishing 
voyage to allow for observer placement. After a fishing voyage is 
initiated, the vessel is obligated to carry an observer until the vessel 
returns to port and one of the following conditions is met:
    (1) Unloads more than 400 tons of any species of tuna; or
    (2) Unloads any amount of any species of tuna equivalent to one half 
of the vessel's carrying capacity; or
    (3) Unloads its tuna catch after 40 days or more at sea from the 
date of departure.

Further, the Director, Southwest Region, may consider special 
circumstances for exemptions to this definition, provided written 
requests clearly describing the circumstances are received prior to the 
termination or the initiation of a fishing voyage. A response to the 
written request will be made by the Director, Southwest Region within 
five (5) days after receipt of the request. A vessel whose vessel 
certificate holder has failed to comply with the provisions of this 
section may not engage in fishing operations for which a general permit 
is required.
    (B) [Reserved]
    (C) The Director, Southwest Region, will provide to the public, 
periodic quota status reports summarizing the estimated incidental 
porpoise mortality by U.S. vessels of individual species and stock.
    (iv) A vessel having a vessel certificate issued under paragraph 
(c)(1) may not engage in fishing operations for which a general permit 
is required unless it is equipped with a porpoise safety panel in its 
purse seine, and has and uses the other required gear, equipment, and 
procedures.
    (A) Class I and II Vessels: For Class I purse seiners (400 short 
tons carrying capacity or less) and for Class II purse seiners (greater 
than 400 short tons carrying capacity, built before 1961), the porpoise 
safety panel must be a minimum of 100 fathoms in length (as measured 
before installation), except that the minimum length of the panel in 
nets deeper than 10 strips must be determined at a ratio of 10 fathoms 
in length for each strip that the net is deep. It must be installed so 
as to protect the perimeter of the backdown area. The perimeter of the 
backdown area is the length of the corkline which begins at the outboard 
end of the last bow bunch pulled and continues to at least two-thirds 
the distance from the backdown channel apex to the stern tiedown point. 
The porpoise safety panel must consist of small mesh webbing not to 
exceed 1\1/4\" stretch mesh, extending from the corkline downward to a 
minimum depth equivalent to one strip of 100 meshes of 4\1/4\" stretch 
mesh webbing. In addition, at least a 20-fathom length of corkline must 
be free from bunchlines at the apex of the backdown channel.
    (B) Class III Vessels: For Class III purse seiners (greater than 400 
short tons carrying capacity, built after 1960), the porpoise safety 
panel must be a minimum of 180 fathoms in length (as measured before 
installation), except that the minimum length of the panel in nets 
deeper than 18 strips must be determined in a ratio of 10 fathoms in 
length for each strip of net depth. It must be installed so as to 
protect the perimeter of the backdown area. The perimeter of the 
backdown area is the length of corkline which begins at the

[[Page 22]]

outboard end of the last bowbunch pulled and continues to at least two-
thirds the distance from the backdown channel apex to the stern tiedown 
point. The porpoise safety panel must consist of small mesh webbing not 
to exceed 1\1/4\" stretch mesh extending downward from the corkline and, 
if present, the base of the porpoise apron to a minimum depth equivalent 
to two strips of 100 meshes of 4\1/4\" stretch mesh webbing. In 
addition, at least a 20-fathom length of corkline must be free from 
bunchlines at the apex of the backdown channel.
    (C) Porpoise safety panel markers: Each end of the porpoise safety 
panel and porpoise apron shall be identified with an easily 
distinguishable marker.
    (D) Porpoise safety panel hand holds: Throughout the length of the 
corkline under which the porpoise safety panel and porpoise apron are 
located, hand hold openings are to be secured so that the insertion of a 
1\3/8\" diameter cylindrical-shaped object meets resistance.
    (E) Porpoise safety panel corkline hangings: Throughout the length 
of the corkline under which the porpoise safety panel and porpoise apron 
are located, corkline hangings shall be inspected by the vessel operator 
following each trip. Hangings found to have loosened to the extent that 
a cylindrical object with a 1\3/8\" diameter will not meet resistance 
when inserted between the cork and corkline hangings, must be tightened 
so that a cylindrical object with a 1\3/8\" diameter cannot be inserted.
    (F) Speedboats: Certificated vessels engaged in fishing operations 
involving setting on marine mammals shall carry a minimum of two 
speedboats in operating condition. All speedboats carried aboard purse 
seine vessels and in operating condition shall be rigged with towing 
bridles and towlines. Speedboat hoisting bridles shall not be 
substituted for towing bridles.
    (G) Raft: A raft suitable to be used as a porpoise observation-and-
rescue platform shall be carried on all certificated vessels.
    (H) Facemask and snorkel, or viewbox: At least two facemasks and 
snorkels, or viewboxes, must be carried on all certificated vessels.
    (I) Lights: All certificated vessels shall be equipped by July 1, 
1986, with lights capable of producing a minimum of 140,000 lumens of 
output for use in darkness to ensure sufficient light to observe that 
procedures for porpoise release are carried out and to monitor 
incidental porpoise mortality.
    (v) Vessel inspection: (A) Annual: At least once during each 
calendar year, purse seine nets and other gear and equipment required by 
these regulations shall be made available for inspection by an 
authorized National Marine Fisheries Service Inspector as specified by 
the Director, Southwest Region.
    (B) Reinspection: Purse seine nets and other gear and equipment 
required by these regulations shall be made available for reinspection 
by an authorized National Marine Fisheries Service Inspector as 
specified by the Director, Southwest Region. The vessel certificate 
holder shall notify the Director, Southwest Region of any net 
modification at least 5 days prior to departure of the vessel in order 
to determine whether a reinspection or trial set is required.
    (C) Upon failure to pass an inspection or reinspection, a vessel 
having a vessel certificate of inclusion issued under paragraph (c)(1) 
may not engage in fishing operations for which a general permit is 
required until the deficiencies in gear or equipment are corrected as 
required by an authorized National Marine Fisheries Service inspector.
    (vi) Operator training requirements. All operators shall maintain 
proficiency sufficient to perform the procedures required herein, and 
must attend and satisfactorily complete a formal training session 
conducted under the auspices of the National Marine Fisheries Service in 
order to obtain their certificate of inclusion. At the training session 
an attendee shall be instructed concerning the provisions of the Marine 
Mammal Protection Act of 1972, the regulations promulgated pursuant to 
the MMPA, and the fishing gear and techniques which are required or will 
contribute to reducing serious injury and mortality of porpoise 
incidental to purse seining for tuna. Operators who have

[[Page 23]]

received a written certificate of satisfactory completion of training 
and who possess a current or previous calendar year certificate of 
inclusion will not be required to attend additional formal training 
sessions unless there are substantial changes in the MMPA, the 
regulations, or the required fishing gear and techniques. Additional 
training may be required for any operator who is found by the Director, 
Southwest Region, to lack proficiency in the procedures required.
    (vii) Marine mammal release requirements: All operators shall use 
the following procedures during all sets involving the incidental taking 
of marine mammals in association with the capture and landing of tuna.
    (A) Backdown procedure: Backdown shall be performed following a 
purse seine set in which marine mammals are captured in the course of 
catching and landing tuna, and shall be continued until it is no longer 
possible to remove live marine mammals from the net by this procedure. 
Thereafter, other release procedures required shall be continued until 
all live animals have been released from the net.
    (B) Prohibited use of sharp or pointed instrument: The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (C) Sundown sets prohibited. On every set encircling porpoise, the 
backdown procedure must be completed and rolling of the net to sack-up 
must be begun before one-half hour after sundown, except as provided 
below. For the purpose of this section, sundown is defined as the time 
at which the upper edge of the sun disappears below the horizon or, if 
view of the sun is obscured, the local time of sunset calculated from 
tables developed by the U.S. Naval Observatory. A sundown set is a set 
in which the backdown procedure has not been completed and rolling the 
net to sack-up has not begun within one-half hour after sundown. Should 
a set extend beyond one-half hour after sundown, the operator must use 
the required marine mammal release procedures including the use of the 
high intensity lighting system.
    (1) A certificated operator may obtain an initial waiver from this 
prohibition, for trips with an observer, by establishing to the 
satisfaction of the Director, Southwest Region, NMFS, based upon NMFS 
and Inter-American Tropical Tuna Commission (IATTC) observer records, 
that the operator's average kill of marine mammals per set in sundown 
sets involving marine mammals was 3.01 marine mammals or fewer.
    (i) The application must include the following:
    (A) Name of the operator as it appears on the certificate of 
inclusion;
    (B) The dates of all observed trips any part of which occurred since 
July 1, 1986 and observed trips before that date, if necessary to 
include a minimum of three observed sundown sets;
    (C) Names of the vessels operated during those trips;
    (D) The number of marine mammals killed in sundown sets and the 
number of sundown sets involving marine mammals;
    (E) Detailed description of the circumstances that support any 
request that the mortality associated with a particular sundown set be 
excluded from consideration; and
    (F) The operator's signature or the signature of an individual 
authorized by the operator to make the application in the operator's 
absence.
    (ii) All sundown sets since July 1, 1986 will be considered for this 
determination, except that the Director, Southwest Region will exclude 
one sundown set from each twelve month period from the calculations of 
average kill if the operator establishes to the satisfaction of the 
Director, Southwest Region that the kill in that sundown set was due to 
an unforeseeable equipment malfunction that could not have been avoided 
by reasonable diligence in operating or maintaining the vessel.
    (iii) An operator must have a minimum of five observed sundown sets 
for the Director, Southwest Region to consider in determining whether or 
not the operator qualifies for an exemption. If an operator does not 
have five observed sundown sets since July 1, 1986, the Director, 
Southwest Region will consider records from observed trips before that 
date, starting with the most recent observed trip during which a sundown 
set was made and reviewing as many trips as necessary to

[[Page 24]]

obtain at least five sundown sets for consideration.
    (2) An operator fishing under an exemption from the sundown set 
prohibition must follow the marine mammal release requirements, 
including the use of high intensity lights for sets that continue one-
half hour past sundown.
    (3) An operator exemption is valid for one calendar year only on 
trips carrying a NMFS or IATTC observer and expires on December 31, 
unless renewed by the Director, Southwest Region.
    (4) An exemption will be reviewed annually between November 1 and 
December 15 and the exemption will not be renewed if the operator's 
average mortality in sundown sets during trips completed in the previous 
twelve month period ending November 1 exceeds the United States fleet's 
average mortality rate in daylight sets for all of the observed trips 
completed in the same period.
    (5) An operator who is notified that his or her exemption will not 
be renewed, or who anticipates not getting renewed, may petition the 
Director, Southwest Region in writing to reinstate the exemption based 
on excluding from the calculations one set where an unforeseeable 
equipment malfunction caused mortality in a sundown set that could not 
have been avoided by reasonable diligence in operating or maintaining 
the vessel. The Director, Southwest Region will reinstate the exemption 
if the evidence supports excluding the set and if the resulting 
recalculation of the operator's performance meets the standard required 
by these regulations.
    (D) Porpoise Safety Panel: During backdown, the porpoise safety 
panel must be positioned so that it protects the perimeter of the 
backdown area. The perimeter of the backdown area is the length of 
corkline which begins at the outboard end of the last bow bunch pulled 
and continues to at least two-thirds the distance from the backdown 
channel apex to the stern tiedown point. Any super apron must be 
positioned at the apex of the backdown channel.
    (E) Use of explosive devices: The use of explosive devices is 
prohibited in all tuna purse seine operations that involve marine 
mammals.
    (viii) Experimental fishing operations: The Assistant Administrator 
may authorize experimental fishing operations and may waive, as 
appropriate, any requirements within Sec. 216.24(d)(2), except quotas on 
the incidental kill of marine mammals and the prohibition on setting 
nets on pure schools of certain porpoise species.
    (A) A vessel certificate holder may apply for an experimental 
fishing operation waiver by submitting the following information to the 
Assistant Administrator no less than 90 days before the intended date 
the proposed operation is intended to begin:
    (1) Name(s) of the vessel(s) and the vessel certificate holder(s) to 
participate;
    (2) A statement of the specific vessel gear and equipment or 
procedural requirement to be exempted and why such an exemption is 
necessary to conduct the experiment;
    (3) A description of how the proposed modification to the gear or 
procedures is expected to reduce incidental mortalities or serious 
injury of marine mammals;
    (4) A description of the applicability of this modification to other 
purse seine vessels;
    (5) Planned design, time, duration, and general area of the 
experimental operation;
    (6) Name(s) of the certificated operator(s) of the vessel(s) during 
the experiment;
    (7) A statement of the qualifications of the individual or company 
doing the analysis of the research.
    (B) The Assistant Administrator will acknowledge receipt of the 
application and, upon determining that it is complete, publish notice in 
the Federal Register summarizing the application, making the full 
application available for inspection and inviting comments for a minimum 
period of thirty days from the date of publication.
    (C) The Assistant Administrator, after considering the information 
identified in paragraph (d)(2)(viii)(A) of this section and the comments 
received, will deny the application giving the reasons for denial or 
issue a permit to conduct the experiment including restrictions and 
conditions as deemed appropriate.

[[Page 25]]

    (D) The permit for an experimental fishing operation will be valid 
only for the vessels and operators named in the permit, for the time 
period and areas specified, for trips carrying an observer assigned by 
the NMFS, and when all the terms and conditions of the permit are met.
    (E) The Assistant Administrator may suspend or revoke an 
experimental fishing permit by written notice to the permit holder if 
the terms and conditions of the permit or the provisions of the 
regulations are not followed, after providing an opportunity for the 
permit holder to discuss the proposed suspension or revocation.
    (ix) Operator Certificate of Inclusion Holder Performance 
Requirements. (A) The certificate of inclusion of any operator who makes 
one or more purse seine sets on marine mammals resulting in an average 
kill-per-set for a fishing trip which exceeds 26.30 marine mammals is 
suspended. Such suspension shall be effective upon notification from the 
Director, Southwest Region and shall be for a period of one year. If the 
operator exceeds the 26.30 marine mammals killed per set average for a 
subsequent trip within three years of reinstatement, the certificate is 
suspended. Such suspension shall be effective upon notification by the 
Director, Southwest Region and shall be for a period of one year. If the 
operator's average mortality rate exceeds 26.30 marine mammals kill-per-
set on a subsequent trip within five years of the second reinstatement, 
the certificate is revoked. The revocation shall be effective upon 
notification by the Director, Southwest Region and shall be permanent. 
An operator who is subject to a suspension or revocation under this 
paragraph may petition the Director, Southwest Region to review the 
operator's marine mammal mortality history. The Director, Southwest 
Region may reinstate the operator's certificate if the operator 
demonstrates that the operator has not exceeded a kill-per-set of 3.89 
marine mammals during any of the eight consecutive observed trips 
immediately preceding the trip which caused the suspension. However, 
that trip will be considered as a single trip exceeding a kill-per-set 
of 3.89 marine mammals and subject to the conditions described in 
paragraph (d)(2)(ix)(F) of this section. The Director, Southwest Region 
may exclude from the mortality calculation for a trip, those purse seine 
sets in which marine mammal mortality resulted from an unavoidable and 
unforeseeable equipment breakdown. The mortality rate calculated after 
exclusion of a set or sets under this paragraph will determine the 
action taken under this performance evaluation system.
    (B) Fishing trips with five or fewer sets on marine mammals and an 
average kill-per-set less than or equal to 26.30 marine mammals are not 
subject to further action under the operator performance system. Such 
trips neither count as trips meeting the performance standard nor count 
as trips failing to meet the performance standard for the purpose of 
determining actions based on performance in consecutive fishing trips.
    (C) Fishing trips with more than five sets on marine mammals 
resulting in an average kill-per-set of not greater than 26.30 marine 
mammals are subject to review under the operator performance system as 
follows:
    (1) The operator's kill of marine mammals in purse seine sets on 
marine mammals will be determined from observer records.
    (2) The kill-per-set will be determined by dividing the total kill 
of marine mammals by the number of sets involving marine mammals during 
the fishing trip.
    (3) If the calculated kill-per-set for the trip is equal to or less 
than 3.89 marine mammals, the operator has met the performance standard 
and is not subject to further action under the performance system based 
on the current trip.
    (4) If the calculated kill-per-set for the trip exceeds 3.89 marine 
mammals, the operator failed to meet the mortality performance standard 
and is subject to further action under the performance system.
    (D) The Director, Southwest Region may exclude from the mortality 
calculation for a trip, those purse seine sets in which marine mammal 
mortality resulted from an unavoidable and unforeseeable equipment 
breakdown. Should exclusion of a set or sets cause

[[Page 26]]

the operator's performance to fall within the standard performance, that 
trip will not be counted as a trip for the purposes of the performance 
evaluation system.
    (E) An operator shall not serve as a certificated operator until the 
Director, Southwest Region has determined under this subpart and 
notified the operator that the operator's marine mammal mortality rate 
performance met or failed to meet the applicable performance standard on 
the previous observed trip. The Director, Southwest Region will make the 
determination within five days (excluding Saturdays, Sundays and Federal 
holidays) after receiving the observer data from the trip.
    (F) An operator whose average marine mammal mortality rate exceeds 
3.89 kill-per-set for a trip must have observer data and other pertinent 
records reviewed by the Director, Southwest Region and the Porpoise 
Rescue Foundation for the purpose of determining the causes of higher 
than acceptable mortality, must participate in supplemental marine 
mammal safety training as ordered by the Director, Southwest Region and 
must comply with actions for reducing marine mammal mortality which may 
be ordered by the Director, Southwest Region. The operator must carry an 
observer on the next trip for which he serves as the certificated 
operator. If the Director, Southwest Region determines that the required 
training or other ordered action has not been completed satisfactorily 
or is refused, the Director, Southwest Region will suspend the 
operator's certificate of inclusion for one year.
    (G) An operator whose average marine mammal mortality rate exceeds 
3.89 marine mammals killed per set on two consecutive trips or on three 
trips ending within a period of twenty-four months or on three trips 
within eight consecutive trips must have observer data and other 
pertinent records reviewed by the Director, Southwest Region and the 
Porpoise Rescue Foundation for the purpose of determining the causes of 
higher than acceptable mortality, must participate in supplemental 
marine mammal safety training as ordered by the Director, Southwest 
Region and must comply with actions for reducing marine mammal mortality 
which may be ordered by the Director, Southwest Region. The operator 
must carry an expert fisherman (i.e., an experienced vessel operator 
with a history of low dolphin mortality), if required to do so by the 
Director, Southwest Region, to assist in perfecting marine mammal safety 
techniques, and must also carry an observer on the next trip for which 
he serves as the certificated operator. The selection of the expert 
fisherman will be provided by the General Permit holder or the Porpoise 
Rescue Foundation and subject to the approval of the Director, Southwest 
Region. If the Director, Southwest Region determines that the required 
training or other ordered action has not been completed satisfactorily 
or is refused, the Director, Southwest Region will suspend the 
operator's certificate of inclusion for one year.
    (H) The operator certificate of inclusion or an operator whose 
average marine mammal mortality rate exceeds 3.89 kill-per-set on three 
consecutive trips, or on any four trips (of which no more than two are 
consecutives) completed within a period of twenty-four months or on four 
trips (of which no more than two are consecutive) within eight 
consecutively observed trips, is suspended upon notification to the 
operator from the Director, Southwest Region.
    (I) Following a suspension and a reinstatement of a certification of 
inclusion, the operator certificate of inclusion is suspended for any 
operator whose average marine mammal mortality rate exceeds 3.89 marine 
mammals killed per set on any subsequent trip as required under the 
criteria for a suspension established in paragraph (d)(2)(ix)(H) of this 
section. Under this paragraph, trips completed by the operator prior to 
suspension will be carried over and counted along with trips completed 
subsequent to the suspension. Such suspension shall be effective upon 
notification from the Director, Southwest Region and shall be for a 
period of one year. For purposes of this paragraph only, each suspension 
under paragraph (d)(2)(ix)(A) of this section will be considered 
equivalent to and

[[Page 27]]

counted as three consecutive trips exceeding the trip kill rate of 3.89 
marine mammals killed per set.
    (J) An operator may appeal suspension of revocation of a certificate 
of inclusion under paragraphs (d)(2)(ix)(A), (d)(2)(ix)(H), or 
(d)(2)(ix)(I) of this section to the Assistant Administrator. Appeals 
must be filed in writing within 30 days of suspension or revocation and 
must contain a statement setting forth the basis for the appeal. Appeals 
must be filed with the Director, Southwest Region. The appeal may be 
presented at the option of the operator at a hearing before a person 
appointed by the Assistant Administrator to hear the appeal. The 
Assistant Administrator will determine, based upon the record, including 
any record developed at a hearing, if the suspension or revocation is 
supported under the criteria set forth in these regulations. The 
decision of the Assistant Administrator will be the final decision of 
the Department of Commerce.
    (K) An operator must carry an observer on the operator's first trip 
after a suspension under this performance system has expired. An 
operator must also participate in supplemental marine mammal safety 
training and comply with actions for reducing marine mammal mortality as 
ordered by the Director, Southwest Region before making another trip as 
a certified operator.
    (L) A person obtaining an operator certificate of inclusion for the 
first time must carry an observer on the operator's first trip.
    (x) Vessel Certificate of Inclusion Holder Performance 
Requirements--(A) vessel certificate of inclusion holder desiring a DML 
for the following year must provide to the Director, Southwest Region, 
NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, by 
September 1, the name of the purse seine vessel(s) of carrying capacity 
greater than 400 short tons (362.8 mt) that the owner thinks will 
intentionally deploy purse seine fishing nets in the ETP to encircle 
dolphins in an effort to capture tuna during that year. NMFS will 
forward the list of purse seine vessels to the Director of the IATTC on 
or before October 1, or as required by the IATTC, for assignment of a 
DML for the following year.
    (B) Each vessel certificate of inclusion holder that desires a DML 
for the period July 1 to December 31, for a vessel that has not 
previously had a DML assigned for the year, must provide to the 
Director, Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213, by March 15, the name of the purse seine vessel(s) 
of carrying capacity greater than 400 short tons (362.8 mt) that the 
owner thinks will intentionally deploy purse seine fishing nets in the 
ETP to encircle dolphins in an effort to capture tuna during the period. 
NMFS will forward the list of purse seine vessels to the Director of the 
IATTC on or before April 1, or as required by the IATTC, for assignment 
of a DML for the 6-month period July 1 to December 31. Under the 
Agreement adopted at the Annual Meeting of the IATTC June 16-18, 1992, 
the DML shall be assigned from the unutilized pool of DMLs described 
under paragraph (d)(2)(x)(D) of this section, divided among the 
applicants for the 6-month period, and shall not exceed 50 percent of 
the DML assigned to a vessel in the fishery with a DML for the entire 
year.
    (C)(1) NMFS will notify vessel owners of the DML assigned for each 
vessel for the following year as determined by the IATTC.
    (2) NMFS may adjust the DMLs, either upward or downward with 15 
percent of the original DML, except that the adjusted DMLs for the U.S. 
fleet will not exceed the original total of the DMLs for the U.S. fleet 
as assigned by the IATTC. All adjustments shall be made prior to 
December 1, and NMFS shall notify the IATTC prior to December 15. DMLs 
as assigned on December 1 will be applicable to the following year.
    (3) NMFS may make an adjustment of a vessel's DMLs if it will 
further scientific or technological advancement in the protection of 
marine mammals in the fishery, or if the past performance of the vessel 
indicates that the protection or use of the yellowfin tuna stocks or 
marine mammals is best served by the adjustment, within the mandates of 
the MMPA. Experimental fishing operation waivers or scientific

[[Page 28]]

research permits shall be considered a basis for adjustments.
    (D)(1) Any vessel assigned a DML, that does not participate, by June 
1, in this fishery by operating under valid certificates of inclusion, 
or that leaves the fishery, shall lose its right to utilize its DML for 
the remainder of the year.
    (2) NMFS will determine, based on the available information, whether 
a vessel has left the fishery. A vessel lost at sea, undergoing 
extensive repairs, operating in an ocean area other than the ETP, or for 
which other information indicates will no longer be conducting purse 
seine operations in the ETP for the remainder of the period, shall be 
determined to have left the fishery. NMFS will make all reasonable 
efforts to determine the intentions of the vessel owner, and the owner 
of any vessel that has been preliminarily determined to have left the 
fishery will be provided notice of such preliminary determination and 
the opportunity to provide information on whether the vessel has left 
the fishery before NMFS makes a final determination and notifies the 
IATTC of this determination. The vessel owner will receive written 
notification of NMFS' final determination.
    (3) Any unused DML for a vessel that has been determined to have 
left the fishery will be returned to the IATTC, to be added to the pool 
of unutilized DMLs.
    (E) Any vessel that exceeds its assigned DML, after any applicable 
adjustment under paragraph (d)(2)(x)(C)(2) of this section, shall have 
its DML for the subsequent year reduced by the amount of overage.
    (F)(1) The vessel operator and owner are responsible for ensuring 
that the DML for that vessel is not exceeded.
    (2) Observers, either from the IATTC observer program or the NMFS 
observer program, will make their records available to the vessel 
operators at any time, including after each set, so that the operator 
can monitor the balance of the DML remaining for use during the trip.
    (3) Vessel captains must cease deploying purse seine sets to 
encircle dolphins intentionally when the vessel's DML, as adjusted under 
paragraph (d)(2)(x)(C)(2) of this section, is reached.
    (G)(1) Sanctions recommended by the Review Panel for any violation 
of these rules shall be considered by NMFS in its enforcement of these 
regulations.
    (2) Intentionally deploying a purse seine net on or to encircle 
dolphins after the vessel's DML is reached will disqualify the vessel 
from consideration for a DML for the following year. If already 
assigned, the DMLs for the following year will be withdrawn, and the 
IATTC notified by NMFS that the DML assigned to that vessel will be 
unutilized. The vessel owner will be provided an opportunity to provide 
information and comments on this issue before a final determination is 
made by NMFS.
    (3) Encircling gear, purse seining not involving the intentional 
taking of marine mammals. (i) A certificate holder may take marine 
mammals so long as such taking is an incidental occurrence in the course 
of normal commercial fishing operations. Marine mammals taken incidental 
to commercial fishing operations shall be immediately returned to the 
environment where captured without further injury.
    (ii) A certificate holder may take such steps as are necessary to 
protect his catch, gear, or person from depredation, damage or personal 
injury without inflicting death or injury to any marine mammal.
    (iii) Only after all means permitted by paragraph (d)(3)(ii) of this 
section have been taken to deter a marine mammal from depredating the 
catch, damaging the gear, or causing personal injury, may the 
certificate holder injure or kill the animal causing the depredation or 
immediate damage, or about to cause immediate personal injury; however, 
in no event shall a certificate holder kill or injure an Atlantic 
bottlenosed dolphin, Tursiops truncatus, under the provisions of this 
paragraph. A certificate holder shall not injure or kill any animal 
permitted to be killed or injured under this paragraph unless the 
infliction of such damage is substantial and immediate and is actually 
being caused at the time such steps are taken. In all cases, the burden 
is on the certificate holder to report fully and demonstrate that

[[Page 29]]

the animal was causing substantial and immediate damage or about to 
cause personal injury and that all possible steps to protect against 
such damage or injury as permitted by paragraph (d)(3)(ii) of this 
section were taken and that such attempts failed.
    (iv) Marine mammals taken in the course of commercial fishing 
operations shall be subject to the provisions of Sec. 216.3 with respect 
to ``Incidental catch,'' and may be retained except where a specific 
permit has been obtained authorizing the retention.
    (v) All certificate holders shall maintain logs of incidental take 
of marine mammals in such form as prescribed by the Assistant 
Administrator. All deaths or injuries to marine mammals occurring in the 
course of commercial fishing operations under the conditions of a 
general permit shall be immediately recorded in the log and reported in 
writing to the Director, Southwest Region, where a certificate 
application was made, or to an enforcement agent or other designated 
agent of the National Marine Fisheries Service, at the earliest 
opportunity but no later than five days after such occurrence, except 
that if a vessel at sea returns to port later than five days after such 
occurrence, then it shall be reported within forty-eight hours after 
arrival in port. Reports must include:
    (A) The location, time, and date of the death or injury;
    (B) The identity and number of marine mammals killed or injured; and
    (C) A description of the circumstances which led up to and caused 
the death or injury.
    (4) Stationary gear. (i) A certificate holder may take marine 
mammals so long as such taking is an incidental occurrence in the course 
of normal commercial fishing operations. Marine mammals taken incidental 
to commercial fishing operations shall be immediately returned to the 
environment where captured without further injury.
    (ii) A certificate holder may take such steps as are necessary to 
protect his catch, gear, or person from depredation, damage or personal 
injury without inflicting death or injury to any marine mammal.
    (iii) Only after all means permitted by paragraph (d)(4)(ii) of this 
section have been taken to deter a marine mammal from depredating the 
catch, damaging the gear, or causing personal injury, may the 
certificate holder injure or kill the animal causing the depredation or 
immediate damage, or about to cause immediate personal injury; however, 
in no event shall a certificate holder kill or injure an Atlantic 
bottlenosed dolphin, Tursiops truncatus, under the provisions of this 
paragraph. A certificate holder shall not injure or kill any animal 
permitted to be killed or injured under this paragraph unless the 
infliction of such damage is substantial and immediate and is actually 
being caused at the time such steps are taken. In all cases, the burden 
is on the certificate holder to report fully and demonstrate that the 
animal was causing substantial and immediate damage or about to cause 
personal injury and that all possible steps to protect against such 
damage or injury as permitted by paragraph (ii) were taken and that such 
attempts failed.
    (iv) Marine mammals taken in the course of commercial fishing 
operations shall be subject to the provisions of Sec. 216.3 with respect 
to ``Incidental catch,'' and may not be retained except where a specific 
permit has been obtained authorizing the retention.
    (v) All certificate holders shall maintain logs of incidental take 
of marine mammals in such form as prescribed by the Assistant 
Administrator. All deaths or injuries to marine mammals occurring in the 
course of commercial fishing operations under the conditions of a 
general permit shall be immediately recorded in the log and reported in 
writing to the Director, Southwest Region, where a certificate 
application was made, or to an enforcement agent or other designated 
agent of the National Marine Fisheries Service, at the earliest 
opportunity but no later than five days after such occurrence, except 
that if a vessel at sea returns to port later than five days after such 
occurrence, then it shall be reported within forty-eight hours after 
arrival in port. Reports must include:
    (A) The location time, and date of the death or injury;
    (B) The identity and number of marine mammals killed or injured; and

[[Page 30]]

    (C) A description of the circumstances which led up to and caused 
the death or injury.
    (5) Other gear. (i) A certificate holder may take marine mammals so 
long as such taking is an incidental occurrence in the course of normal 
commercial fishing operations. Marine mammals taken incidental to 
commercial fishing operations shall be immediately returned to the 
environment where captured without further injury.
    (ii) A certificate holder may take such steps as are necessary to 
protect his catch, gear, or person from depredation, damage or personal 
injury without inflicting death or injury to any marine mammal.
    (iii) Only after all means permitted by paragraph (d)(5)(ii) of this 
section have been taken to deter a marine mammal from depredating the 
catch, damaging the gear, or causing personal injury, may the 
certificate holder injure or kill the animal causing the depredation or 
immediate damage, or about to cause immediate personal injury; however, 
in no event shall a certificate holder kill or injure an Atlantic 
bottlenosed dolphin, Tursiops truncatus, under the provisions of this 
paragraph. A certificate holder shall not injure or kill any animal 
permitted to be killed or injured under this paragraph unless the 
infliction of such damage is substantial and immediate and is actually 
being caused at the time such steps are taken. In all cases, the burden 
is on the certificate holder to report fully and demonstrate that the 
animal was causing substantial and immediate damage or about to cause 
personal injury and that all possible steps to protect against such 
damage or injury as permitted by paragraph (d)(5)(ii) of this section 
were taken and that such attempts failed.
    (iv) Marine mammals taken in the course of commercial fishing 
operations shall be subject to the provisions of Sec. 216.3 with respect 
to ``Incidental catch,'' and may not be retained except where a specific 
permit has been obtained authorizing the retention.
    (v) All certificate holders shall maintain logs of incidental take 
of marine mammals in such form as prescribed by the Assistant 
Administrator. All deaths or injuries to marine mammals occurring in the 
course of commercial fishing operations under the conditions of a 
general permit shall be immediately recorded in the log and reported in 
writing to the Director, Southwest Region, where a certificate 
application was made, or to an enforcement agent, or other designated 
agent of the National Marine Fisheries Service, at the earliest 
opportunity but no later than five days after such occurrence, except 
that if a vessel at sea returns to port later than five days after such 
occurrence, then it shall be reported within forty-eight hours after 
arrival in port. Reports must include:
    (A) The location, time, and date of the death or injury;
    (B) The identity and number of marine mammals killed or injured; and
    (C) A description of the circumstances which led up to and caused 
the death or injury.
    (vi) [Reserved]
    (vii) The number of Dall's porpoise (Phocoenoides dalli) killed or 
injured by Japanese vessels operating in the U.S. EEZ is limited to an 
aggregate of 789 in the Bering Sea and 5250 in the North Pacific Ocean 
over the period 1987 to 1989, of which no more than 448 may be taken 
from the Bering Sea and no more than 2494 may be taken from the North 
Pacific Ocean in any single calendar year. The incidental take levels 
authorized by this subpart are reduced proportionately in the event that 
the Soviet Union reduces salmon quotas for 1988 or 1989 by more than 10 
percent from the 1987 quota. Any permit issued under this part must 
indicate the measures by which the permit holder must comply with the 
conditions attached to the permit, and the reporting requirements of 
paragraph (d)(5)(v) of this section. Any permit issued under this part 
may allow retention of marine mammals for scientific purposes and will 
not require a separate permit under paragraph (d)(5)(iv) of this 
section.
    (6) Commercial passenger fishing vessels (CPFV). (i) A certificate 
holder aboard the vessel may take marine mammals so long as the taking 
is limited to harassment and is an incidental occurrence in the course 
of the active sportfishing subject to the following

[[Page 31]]

restrictions (paragraphs (d)(6) (ii) through (vi) of this section).
    (ii) Takings are prohibited within 500 yards of a pinniped rookery 
or haul-out site.
    (iii) A certificate holder aboard the CPFV must use only those non-
lethal, non-injurious methods not including capture as approved in 
advance by the Assistant Administrator for Fisheries through publication 
in the Federal Register and stipulated in the General Permit for taking 
marine mammals.
    (iv) Takings are allowed only while engaged in active sportfishing 
to prevent imminent marine mammal approaches to the vessel or to protect 
a passenger's catch or gear from depredation or damage, without 
inflicting death or injury to any marine mammal.
    (v) All operators must ensure the safe use of the approved methods 
for preventing marine mammal sportfishing interaction and must 
satisfactorily complete such training as may be required by the 
Assistant Administrator for Fisheries.
    (vi) All certificate holders must maintain records of incidental 
take of marine mammals in such form as prescribed by the Assistant 
Administrator for Fisheries. All incidents involving harassment of 
marine mammals must be immediately recorded and reported in writing to 
the Director, Southwest Region to whom the certificate application was 
made, or to an enforcement agent or other designated agent of the 
National Marine Fisheries Service, at the earliest opportunity, but no 
later than five days after such occurrence. At a minimum, reports must 
include:
    (A) The time, date, and location of the taking;
    (B) The type of harassment device used, and the number used at each 
occurrence;
    (C) The number and species of affected marine mammals; and
    (D) A description of any behavioral changes noted that may be due to 
using the harassment device.
    (e) Importation, purchase, shipment, sale and transport. (1)(i) It 
is illegal to import into the United States any fish, whether fresh, 
frozen, or otherwise prepared, if the fish have been caught with 
commercial fishing technology that results in the incidental kill or 
incidental serious injury of marine mammals in excess of that allowed 
under this part for U.S. fishermen or in excess of what is specified in 
subsection (e)(5) in the case of fishing for yellowfin tuna.
    (ii) For purposes of this paragraph (e), and in applying the 
definition of an ``intermediary nation'', an import occurs when the fish 
or fish product is released from a nation's Customs' custody and enters 
into the territory of the nation. For other purposes, ``import'' is 
defined in Sec. 216.3.
    (2) The following fish and categories of fish, which the Assistant 
Administrator has determined may be involved with commercial fishing 
operations which cause the death or injury of marine mammals, are 
subject to the requirements of this section:
    (i) Tuna: yellowfin. The following U.S. Harmonized Tariff Schedule 
Item Numbers identify the categories of yellowfin tuna and yellowfin 
tuna products that are harvested in the ETP purse seine fisher (some of 
which are also harvested with large-scale driftnet), are imported into 
the United States, and are subject to the restrictions of paragraphs 
(e)(3) and (e)(5) of this section:
    (A) Tuna, frozen whole or in the round:

0303.42.00.20.0 Tuna, yellowfin, whole frozen.
0303.42.00.40.6 Tuna, yellowfin, eviscerated head-on, frozen.
0303.42.00.60.1 Tuna, yellowfin, eviscerated head-off, frozen.
0303.49.00.40.9 Tuna, non-specific, frozen.

    (B) Tuna, canned:

1604.14.10.00.0  Tuna, non-specific, canned in oil.
1604.14.20.40.0  Tuna, non-specific, canned, not in oil, not over 7kg in 
          quota.
1604.14.30.40.8  Tuna, non-specific, canned, not in oil, not over 7kg 
          over quota.

    (C) Tuna, loins:

1604.14.40.00.4  Tuna, non-specific, not in airtight container, not in 
          oil, over 6.8kg.
1604.14.50.00.1  Tuna, non-specific, not in airtight container, not in 
          oil, not over 6.8kg.

    (ii) Tuna: non-yellowfin. The following U.S. Harmonized Tariff 
Schedule Item Numbers identify the categories of tuna and tuna products 
that are harvested with large-scale driftnet and imported into the 
United States and are

[[Page 32]]

subject to the restrictions of paragraph (e)(3) of this section:
    (A) Tuna, frozen whole or in the round:

0303.41.00.00.5  Tuna, albacore, frozen.
0303.43.00.00.3  Tuna, skipjack, frozen.
0303.49.00.20.3  Tuna, bluefin, frozen.

    (B) Tuna, canned:

1604.14.20.20.4  Tuna, albacore, canned, not in oil, not over 7kg in 
          quota.
1604.14.30.20.2  Tuna, albacore, canned, not in oil, not over 7kg over 
          quota.

    (iii) Fish, other than tuna. The following U.S. Harmonized Tariff 
Schedule Item Numbers identify the categories of fish and fish products 
that are imported into the United States and are subject to the 
restrictions of paragraph (e)(3) of this section:
    (A) Salmon:
    (1) Salmon, frozen whole or in the round:

0303.10.00.12.8  Salmon, chinook, frozen.
0303.10.00.22.6  Salmon, chum, frozen.
0303.10.00.32.4  Salmon, pink, frozen.
0303.10.00.42.2  Salmon, sockeye, frozen.
0303.10.00.52.9  Salmon, coho, frozen.
0303.10.00.62.7  Salmon, Pacific, non-specific, frozen.
0303.21.00.00.9  Trout, frozen.
0303.22.00.00.8  Salmon, Atlantic, Danube, frozen.
0303.29.00.00.1  Salmonidae, non-specific, frozen.
0304.20.60.07.9  Salmonidae, salmon fillet, frozen.
0305.69.40.00.2  Salmon, non-specific, salted.

    (2) Salmon, canned:

1604.11.20.20.7  Salmon, pink, canned in oil.
1604.11.20.30.5  Salmon, sockeye, canned in oil.
1604.11.20.90.2  Salmon, non-specific, canned in oil.
1604.11.40.10.5  Salmon, chum, canned, not in oil.
1604.11.40.20.3  Salmon, pink, canned, not in oil.
1604.11.40.30.1  Salmon, sockeye, canned, not in oil.
1604.11.40.40.9  Salmon, non-specific, canned, not in oil.
1604.11.40.50.6  Salmon, non-specific, other.

    (B) Squid:

0307.49.00.10.1  Squid, non-specific, fillet, frozen.
0307.49.00.50.2  Squid, non-specific, frozen/dried/salted/brine.
0307.49.00.60.0  Squid, non-specific, & cuttlefish frozen/dried/salted/
          brine.
1605.90.60.55.9  Squid, non-specific, prepared/preserved.

    (C) Shark:

0303.75.00.00.4  Shark, dogfish and other sharks, frozen.
0305.59.20.00.8  Shark fins.

    (D) Swordfish:

0303.79.20.40.8  Swordfish, frozen.

    (E) Species not specifically identified:

0303.79.40.90.3  Marine fish, non-specific, frozen.
0304.20.20.66.6  Marine fish, non-specific, fillet blocks frozen over 
          4.5kg.
0304.20.60.85.4  Marine fish, non-specific, fillet, frozen.
0305.30.60.80.6  Fish, non-specific, fillet dried/salted/brine over 
          6.8kg.
0305.49.40.40.9  Fish, non-specific, smoked.
0305.59.40.00.4  Fish, non-specific, dried.
0305.69.50.00.9  Fish, non-specific, salted, not over 6.8kg.
0305.69.60.00.7  Fish, non-specific, salted, over 6.8kg.
1604.19.20.00.3  Fish, non-specific, in airtight containers, not in oil.
1604.19.30.00.1  Fish, non-specific, in airtight containers, in oil.

    (3)(i) Tuna--(A) All nations. No shipment containing an item listed 
in paragraph (e)(2)(i) or (e)(2)(ii) of this section, from any nation, 
may be imported into the United States unless:
    (1) Accompanied by a completed Fisheries Certificate of Origin 
described in paragraph (e)(3)(iii) of this section, or, for points of 
entry where the ABI system is available, the information required for 
the Certificate may be filed electronically by the ABI system in lieu of 
the paper form, provided that the electronic filing is made no later 
than at the time of entry and all documentation in support of the ABI 
entry is maintained by the importer or broker for not less than 5 years 
and is kept available for inspection by NMFS personnel upon request;
    (2) The tuna or tuna product was not harvested with a large-scale 
driftnet after July 1, 1991; and
    (3) An original invoice accompanies the shipment at the time of 
importation, or is made available within 30 days of a request by the 
Secretary to produce the invoice.
    (B) Harvesting nations. No shipment containing an item listed in 
paragraph (e)(2)(i) of this section may be imported into the United 
States from a harvesting nation subject to paragraph (e)(5)(i) of this 
section unless a finding required for importation has been made.

[[Page 33]]

    (C) Intermediary nations. No shipment containing an item listed in 
paragraph (e)(2)(i) of this section may be imported into the United 
States from an intermediary nation subject to paragraph (e)(5)(xiv) of 
this section if a ban is currently in force prohibiting the importation.
    (D) Harvesting and intermediary nations. No shipment containing an 
item in paragraph (e)(2)(i) of this section may be imported into the 
United States from a nation that is both a harvesting nation subject to 
paragraph (e)(5)(i) of this section and an intermediary nation subject 
to paragraph (e)(5)(xiv) of this section unless the necessary findings 
have been made under both provisions and a ban is not currently in 
force.
    (E) Tuna or tuna products sold in or exported from the United States 
that suggest the tuna was harvested in a manner not injurious to 
dolphins are subject to the requirements of subpart H.
    (ii) Other fish. After July 1, 1991, no shipment containing an item 
listed in paragraphs (e)(2)(iii)(B) through (E) of this section, and, 
after July 1, 1992, no shipment containing an item in the whole of 
paragraph (e)(2)(iii) of this section, that was harvested by any nation 
determined by the Assistant Administrator to be engaged in large-scale 
driftnet fishing, or exported from any such nation, either directly or 
through an intermediary nation, may be imported into the United States 
unless:
    (A) Accompanied by a complete Fisheries Certificate of Origin, as 
described in paragraph (e)(3)(iii) of this section;
    (B) The fish or fish product was not harvested with a large-scale 
driftnet, if the area of harvest, as described on the Fisheries 
Certificate of Origin was:
    (1) The South Pacific Ocean, for harvests after July 1, 1991; or
    (2) Anywhere on the high seas, for harvests after July 1, 1992; and
    (C) An original invoice accompanies the shipment at the time of 
importation, or is made available within 30 days of a request by the 
Secretary to produce the invoice.
    (iii) Certificates of Origin. A Fisheries Certificate of Origin 
(NOAA Form 370), \1\ certified to be accurate by the first exporter of 
the accompanying shipment, must include the following information:
---------------------------------------------------------------------------

    \1\ Copies of the form are available from the Director, Southwest 
Region (see Sec. 216.3).
---------------------------------------------------------------------------

    (A) Country under whose laws the harvesting vessel operated;
    (B) Exporter (name and address);
    (C) Consignee (name and address);
    (D) Type and quantity of the fish or fish products to be imported, 
listed by U.S. Harmonized Tariff Schedule Number;
    (E) Ocean area where the fish was harvested (ETP, Western Pacific 
Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean, 
or other);
    (F) Type of fishing gear used to harvest the fish (purse seine, 
longline, bait boat, large-scale driftnet, other type of gillnet, trawl, 
pole and line, other);
    (G) Dates on which the fishing trip began and ended;
    (H) If shipment is tuna or products from tuna that were harvested in 
the ETP with a purse seine net, the name of the harvesting vessel; and
    (I) For shipments harvested by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (e)(4) of this section, a statement must be included on the 
Fisheries Certificate of Origin, or by separate attachment, that is 
dated and signed by a responsible government official of the harvesting 
nation, certifying that the fish or fish product was harvested by a 
method other than large-scale driftnet, if the shipment includes:
    (1) Tuna or tuna products described in paragraph (e)(2) (i) or (ii) 
of this section that were harvested on the high seas after July 1, 1991; 
or
    (2) Fish or fish products other than tuna described in paragraph 
(e)(2)(iii) of this section that were harvested in the South Pacific 
Ocean after July 1, 1991, or that were harvested anywhere on the high 
seas after July 1, 1992.
    (4) Large-scale driftnet nations. Based upon the best information 
available, the Assistant Administrator will determine which nations have 
registered vessels that engage in fishing with

[[Page 34]]

large-scale driftnets. Such determinations shall be published in the 
Federal Register. A responsible government official of any such nation 
may certify to the Assistant Administrator that none of the nation's 
vessels use large-scale driftnets. Upon receipt of the certification, 
the Assistant Administrator may find, and publish such finding in the 
Federal Register, that none of the nation's vessels engage in fishing 
with large-scale driftnets.
    (5) Yellowfin tuna. (i) Any tuna or tuna products in the 
classifications listed in paragraph (e)(2)(i) of this section, from 
harvesting nations whose vessels of greater than 400 short tons (362.8 
mt) carrying capacity operate in the ETP tuna purse seine fishery as 
determined by the Assistant Administrator, may not be imported into the 
United States unless the Assistant Administrator makes an affirmative 
finding under either paragraph (e)(5)(v), (e)(5)(viii) or (e)(5)(x) of 
this section and publishes the finding in the Federal Register that:
    (A) The government of the harvesting nation has adopted a regulatory 
program governing the incidental taking of marine mammals in the course 
of such harvesting that is comparable to the regulatory program of the 
United States; and
    (B) The average rate of incidental mortality by the vessels of the 
harvesting nation is comparable to the average rate of incidental 
mortality of marine mammals by U.S. vessels in the course of such 
harvesting as specified in paragraphs (e)(5)(v)(E) and (e)(5)(v)(F) of 
this section.
    (ii) A harvesting nation which desires an initial finding under 
these regulations that will allow it to import into the United States 
those products listed in paragraph (e)(2)(i) of this section must 
provide the Assistant Administrator with the following information:
    (A) A detailed description of the nation's regulatory and 
enforcement program governing incidental taking of marine mammals in the 
purse seine fishery for yellowfin tuna, including:
    (1) A description, with copies of relevant laws, implementing 
regulations and guidelines, of the gear and procedures required in the 
fishery to protect marine mammals, including but not limited to the 
following:
    (i) A description of the methods used to identify problems and to 
take corrective actions to improve the performance of individual 
fishermen in reducing incidental mortality and serious injury. By 1990 
the methods must identify individual operators with marine mammal 
mortality rates which are consistently and substantially higher than the 
majority of the nation's fleet, and provide for corrective training and, 
ultimately, suspension and removal from the fishery if the operator's 
performance does not improve to at least the performance of the majority 
of the fleet in a reasonable time period;
    (ii) By 1990, a description of a regulatory system in operation 
which ensures that all marine mammal sets are completed through backdown 
to rolling the net to sack-up no later than one-half hour after sundown, 
except that individual operators may be exempted, if they have 
maintained consistently a rate of kill during their observed sundown 
sets which is not higher than that of the nation's fleet average during 
daylight sets made during the time period used for their comparability 
finding; and
    (iii) By 1990, a description of its restrictions on the use of 
explosive devices in the purse seine fishery which are comparable to 
those of the United States.
    (2) A detailed description of the method (e.g., Inter-American 
Tropical Tuna Commission (IATTC) or other international program observer 
records) and level of observer coverage by which the incidental 
mortality and serious injury of marine mammals will be monitored.
    (B) A list of its vessels and any certified charter vessels of 
greater than 400 short tons carrying capacity which purse seined for 
yellowfin tuna at any time during the preceding year in the ETP, 
indicating the status of each such vessel during that period (i.e., 
actively fishing in ETP, fishing in other waters; in port for repairs; 
inactive) and the status of each vessel expected to operate in the ETP 
in the year in which the submission is made.
    (C) A compilation of the best available data for each calendar year 
on the

[[Page 35]]

performance of any of its purse seine vessels (including certified 
charter vessels) fishing at any time for tuna associated with marine 
mammals within the ETP including the following:
    (1) Total number of tons of yellowfin tuna observed caught in each 
fishing area by purse seine sets on:
    (i) Common dolphin and
    (ii) All other marine mammal species;
    (2) Total number of marine mammals observed killed and the total 
number of marine mammals observed seriously injured in each fishing area 
by species/stock by purse seine sets on:
    (i) Common dolphin and
    (ii) All other marine mammal species;
    (3) Total number of observed trips and total number of observed 
purse seine sets on marine mammals in each fishing area by the nation's 
purse seine fleet during the year;
    (4) Total number of vessel trips and total number of purse seine 
sets on marine mammals in each fishing area by the nation's purse seine 
fleet during the year; and
    (5) The total number of observed purse seine sets in each fishing 
area in which more than 15 marine mammals were killed.
    (D) Data required by paragraph (e)(5)(ii)(C)(2) presented 
individually for the following marine mammal species/stocks: offshore 
spotted dolphin, coastal spotted dolphin, eastern spinner dolphin, 
whitebelly spinner dolphin, common dolphin, striped dolphin, and ``other 
marine mammals''.
    (E) A description of the source of the data provided in accordance 
with paragraph (e)(5)(ii)(C) of this section. The observer program from 
which these data are provided must be operated by the IATTC or another 
international program in which the United States participates and must 
sample at least the same percentage of the fishing trips as the United 
States achieves over the same time period, unless the Assistant 
Administrator determines that an alternative observer program, including 
a lesser level of observer coverage, will provide a sufficiently 
reliable average rate of incidental taking of marine mammals for the 
nation.
    (iii) A nation applying for its initial finding of comparability 
should apply at least 120 days before the desired effective date. The 
Assistant Administrator's determination on a nation's application for 
its initial finding will be announced and published in the Federal 
Register within 120 days of receipt of the information required in 
paragraph (e)(5)(ii) of this section.
    (iv) A harvesting nation that has in effect a positive finding under 
this section may request renewal of its finding for the following 
calendar year by providing the Assistant Administrator, by December 1 of 
the current calendar year, an update of the information listed in 
Sec. 216.24(e)(5)(ii) summarizing all fishing trips completed during the 
12-month period from October 1 of the previous calendar year through 
September 30 of the current year.
    (v) The Assistant Administrator's determination of a nation's timely 
submitted request for renewal of an affirmative finding will be 
announced by December 31. A finding will be valid for the calendar year 
following the fishing season for which observer data was submitted for 
obtaining a finding. The Assistant Administrator will make an 
affirmative finding or renew an affirmative finding if:
    (A) The harvesting nation has provided all information required by 
paragraphs (e)(5)(ii) and (e)(5)(iv) of this section;
    (B) The nation's regulatory program is comparable to the regulatory 
program of the United States as described in paragraphs (a), (c), 
(d)(2), and (f) of this section and the nation has incorporated into its 
regulatory program such additional prohibitions as the United States may 
apply to its own vessels within 180 days after the prohibition applies 
to U.S. vessels;
    (C) The data on marine mammal mortality and serious injury submitted 
by the harvesting nation are determined to be accurate;
    (D) The observer coverage of fishing trips was equal to that 
achieved by the United States during the same time period or, if less, 
was determined by the Assistant Administrator to provide a sufficiently 
accurate sample of the nation's fleet mortality rate;

[[Page 36]]

    (E) For findings using data collected after 1988, the average kill-
per-set rate for the longest period of time for which data are 
available, up to 5 consecutive years, or for the most recent year, 
whichever is lower, is no more than 25 percent greater than the U.S. 
average for the same time period, after the U.S. mortality rate is 
weighted to account for dissimilar amounts of fishing effort between the 
two nations in the three ETP fishing areas and for common dolphin and 
other marine mammal species, except as provided in paragraph 
(e)(5)(v)(F) of this section for findings made in 1990;
    (F) For determining comparability where there are fewer than five 
sets (including no effort) on dolphin by the U.S. fleet in a fishing 
area on a species grouping that has fishing effort by the foreign nation 
requesting a comparability test, the mortality rates used for 
comparability will be the overall (i.e., unweighted) kill-per-set rate 
of the U.S. fleet and of the foreign nation's fleet.
    (G) For the 1989 fishing year and subsequent years, the nation's 
observed kill of eastern spinner dolphin (Stenella longirostris) and 
coastal spotted dolphin (Stenella attenuata) is no greater than 15 
percent and 2 percent, respectively, of the nation's total annual 
observed dolphin mortality; and
    (H) The nation has complied with all reasonable requests by the 
Assistant Administrator for cooperation in carrying out dolphin 
population assessments in the ETP.
    (vi) Period of validity. A finding is valid only for the period for 
which it was issued and may be terminated before the end of the year if 
the Assistant Administrator finds that the nation no longer has a 
comparable regulatory program or kill rate.
    (vii) Reconsideration of finding. The Assistant Administrator may 
reconsider a finding upon a request from and the submission of 
additional information by the harvesting nation, if the information 
indicates that the nation has met the requirements under paragraph 
(e)(5)(v) of this section. For a harvesting nation whose marine mammal 
mortality rate was found to exceed the acceptable levels prescribed in 
paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or (e)(5)(v)(G) of this section, 
the additional information must include data collected by an acceptable 
observer program, which must demonstrate that the nation's fleet marine 
mammal mortality rate improved to the acceptable level during the period 
submitted for comparison, which must include, at a minimum, the most 
recent:
    (A) Twelve months of observer data if the species composition rate 
prescribed by paragraph (e)(5)(v)(G) of this section was not acceptable; 
or
    (B) Six months of observer data if the average kill-per-set rate 
prescribed by paragraph (e)(5)(v)(E) of this section was not acceptable.
    (viii) Application for finding for non-marine-mammal intentional 
sets. The Assistant Administrator's determination on a nation's 
application for a finding will be announced and published in the Federal 
Register. A harvesting nation which has implemented a regulatory program 
that prohibits the intentional setting of any purse seine net to 
encircle marine mammals and desires an initial finding under these 
regulations that will allow it to import into the United States those 
products listed in paragraph (e)(2)(i) of this section must provide the 
Assistant Administrator with the following:
    (A) Documentary evidence establishing that its regulatory program 
includes:
    (1) A law prohibiting the intentional setting of purse seine nets on 
marine mammals (a copy of the law must be submitted);
    (2) A requirement that a certificate from an observer be obtained 
within 30 days of the completion of each and every trip of the nation's 
purse seine vessels greater than 400 short tons (362.8 mt) carrying 
capacity, stating that the observer was aboard the vessel during the 
entire trip and that there were no intentional purse seine sets on 
marine mammals; and
    (B) A complete list of the nation's vessels and any certified 
charter vessels of greater than 400 short tons (362.8 mt) carrying 
capacity which purse seine for yellowfin tuna in the ETP, indicating the 
status of each vessel (i.e., actively fishing in the ETP, in port for 
repairs, etc.), and a list of changes to

[[Page 37]]

this fleet within 30 days when changes occur.
    (ix) Application for renewal of finding for non-marine-mammal 
intentional sets. A harvesting nation, which has in effect an 
affirmative finding under this section, may request a renewal of its 
finding for the subsequent calendar year by providing the Assistant 
Administrator an annual report by November 1, covering the previous 
October 1 to September 30 period, which includes the following:
    (A) Vessel summary data, to include:
    (1) The total number of observed trips;
    (2) The percentage of all purse seine fishing trips that carried 
observers under a program approved by the Assistant Administrator;
    (3) The total number, if any, of observed purse seine sets on marine 
mammals;
    (4) A summary of the number and species, if any, of all marine 
mammals killed or seriously injured in intentional purse seine sets on 
marine mammals;
    (5) A complete list of the nation's vessels and any certified 
charter vessels of greater than 400 short tons (362.8 mt) carrying 
capacity which purse seine for yellowfin tuna in the ETP, indicating the 
status of each vessels as of October 1;
    (B) A summary, which copies of relevant laws, of any changes in the 
nation's laws or regulatory program regarding marine mammals for the 
purse seine fishery in the ETP; and
    (C) A summary of any enforcement actions taken to ensure compliance 
with the nation's marine mammal protection laws.
    (x) Review of finding for non-marine-mammal intentional sets. The 
Assistant Administrator will renew an affirmative finding obtained under 
paragraph (e)(5)(ix) of this section if:
    (A) The harvesting nation has provided all of the information 
required by paragraph (e)(5)(ix) of this section and the conditions 
under which the original finding was made under paragraph (e)(5)(viii) 
of this section continue to exist; and
    (B) Either 100-percent observer coverage is provided for all purse 
seine vessels as required by paragraph (e)(5)(viii)(A)(2) of this 
section; or the harvesting nation is in a probationary status in 
accordance with paragraph (e)(5)(xi)(B)(1) of this section; and
    (C) The harvesting nation meets the criteria of paragraphs 
(e)(5)(v)(E), and (e)(5)(v)(G) of this section; and
    (D) Certificates have been provided to the Assistant Administrator 
within 30 days of the completion of each and every trip of the nation's 
purse seine vessels greater than 400 short tons (362.8 mt) carrying 
capacity from an observer approved by the Assistant Administrator or 
under the direction of the Inter-American Tropical Tuna Commission, and 
verified by the Inter-American Tropical Tuna Commission, stating that 
the observer was aboard the vessel during the entire trip and that there 
were no intentional purse seine sets on marine mammals or the nation 
received a positive reconsideration for an affirmative finding under 
paragraph (e)(5)(xii)(A) of this section.
    (xi) Probation and revocation. (A)(1) If it is determined that, 
during any trip, a purse seine was intentionally set on marine mammals, 
the nation will enter into a probationary status for 180 days, effective 
upon the date the vessel returns to port to unload.
    (2) If, during the probationary period of 180 days, there are any 
additional intentional purse seine sets made on marine mammals, the 
Assistant Administrator will immediately revoke the affirmative finding.
    (B)(1) If it is determined that, during any trip, an observer is not 
aboard a nation's purse seine vessel greater than 400 short tons (362.8 
mt) carrying capacity fishing in the ETP, that nation will enter into a 
probationary status for 1 year, effective upon the date the vessel 
returns to port to unload.
    (2) If, during the 1-year probationary period, a nation's purse 
seine vessel returns to port to unload, and it is determined that an 
observer was not aboard the vessel during a trip in the ETP, the 
Assistant Administrator will immediately revoke an affirmative finding 
made under paragraphs (e)(5)(viii) or (e)(5)(x) of this section.
    (xii) Reconsideration. (A) The Assistant Administrator will 
reconsider a revocation of an affirmative finding upon request from a 
harvesting nation

[[Page 38]]

which had its affirmative finding revoked under paragraph (e)(5)(xi)(A) 
of this section if:
    (1) The number of marine mammals taken in purse seine nets that were 
intentionally set on marine mammals does not exceed the comparability 
standards established in paragraphs (e)(5)(v)(E) and (e)(5)(v)(G) of 
this section; and
    (2) That nation provides documentary evidence that no additional 
purse seines were intentionally set on marine mammals during the 90-day 
period immediately preceding the request for reconsideration.
    (B) A harvesting nation which has its affirmative finding revoked 
under paragraph (e)(5)(xi)(B) of this section or its reconsideration 
under paragraph (e)(5)(xii)(A) of this section denied, may request 
reconsideration for an affirmative finding under paragraph (e)(5)(vii) 
of this section.
    (xiii) Verification. The Assistant Administrator may require 
verification of statements made in connection with requests to allow 
importations.
    (xiv) Intermediary nation. Any yellowfin tuna or yellowfin tuna 
products in the classifications listed in paragraph (e)(2)(i) of this 
section, from any intermediary nation, as that term is defined in 
section 3 of the MMPA, may not be imported into the United States unless 
the Assistant Administrator determines and publishes in the Federal 
Register that the intermediary nation has provided reasonable proof and 
has certified to the United States that it has not imported, in the 
preceding 6 months, yellowfin tuna or yellowfin tuna products that are 
subject to a ban on direct importation into the United States under 
section 101(a)(2)(B) of the MMPA. A prohibition on imports under this 
paragraph may be lifted by the Assistant Administrator upon a 
determination announced in the Federal Register, based upon new 
information supplied by the government of the intermediary nation, that 
the nation has not imported, in the preceding 6 months, yellowfin tuna 
or yellowfin tuna products subject to a ban on direct imports under 
section 101(a)(2)(B) of the MMPA. Shipments of yellowfin tuna or 
yellowfin tuna products through a nation on a through bill of lading or 
in another manner that does not enter the shipments into that nation as 
an importation do not make that nation an intermediary nation. The 
Assistant Administrator shall act on any request to review decisions 
under this paragraph (e)(5)(xiv) that are accompanied by specific and 
detailed supporting information or documentation, within 30 days of 
receipt of such request. For purposes of this paragraph (e)(5)(xiv), 
certification and reasonable proof means the submission by a responsible 
government official from the nation of a document reflecting the 
nation's customs records for the preceding 6 months, together with a 
certificate attesting that the document is accurate.
    (xv) Pelly certification. After 6 months on an embargo being in 
place against a nation under this section, that fact shall be certified 
to the President for purposes of certification under section 8(a) of the 
Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as 
the embargo is in effect.
    (xvi) Coordination. The Assistant Administrator will promptly advise 
the Department of State of embargo decisions, actions and finding 
determinations.
    (6) Fish refused entry. If fish is denied entry under the provisions 
of Sec. 216.24(e)(3), the District Director of Customs shall refuse to 
release the fish for entry into the United States and shall issue a 
notice of such refusal to the importer or consignee.
    (7) [Reserved]
    (8) Disposition of fish refused entry into the United States; 
redelivered fish.  Fish which is denied entry under Sec. 216.24(e)(3) or 
which is delivered in accordance with Sec. 216.24(e)(7) and which is not 
exported under Customs supervision within 90 days from the date of 
notice of refusal of admission or date of redelivery shall be disposed 
of under Customs laws and regulations. Provided however, That any 
disposition shall not result in an introduction into the United States 
of fish caught in violation of the Marine Mammal Protection Act of 1972.
    (9) Dolphin safe requirements. (i) It is unlawful for any person to 
sell, purchase, offer for sale, transport, or ship

[[Page 39]]

in the United States, any tuna or tuna product that is not dolphin safe.
    (ii) For purposes of this section, tuna or a tuna product is dolphin 
safe if:
    (A) It does not contain tuna that was harvested on the high seas by 
a vessel engaged in large-scale driftnet fishing;
    (B) In the case of tuna or tuna product that contains tuna harvested 
in the ETP by a purse seine vessel, either the purse seine vessel is of 
less than 400 short tons (362.8 metric tons (mt)) carrying capacity or, 
if the purse seine vessel is of 400 short tons (362.8 mt) carrying 
capacity or greater, the tuna or tuna product is accompanied by:
    (1) A completed Fisheries Certificate of Origin;
    (2) A written statement by the captain of each vessel that harvested 
the tuna, certifying that the vessel did not intentionally deploy a 
purse seine net on, or to encircle, dolphins at any time during the 
trip; a written statement, signed by either the Secretary or a 
representative of the Inter-American Tropical Tuna Commission, 
certifying that an observer employed by or working under contract with 
the Inter-American Tropical Tuna Commission or the Secretary, was on 
board the vessel during the entire trip and that the vessel did not 
intentionally deploy a purse seine net on, or to encircle, dolphin at 
any time during the trip; and
    (3) An endorsement on the Fisheries Certificate of Origin by each 
exporter, importer, and processor certifying that, to the best of his or 
her knowledge and belief, the Fisheries Certificate of Origin and 
attached documents, and the statements required by this paragraph 
(e)(9)(ii) accurately describe the tuna products;
    (C) In the case of tuna or a tuna product containing tuna harvested 
outside the eastern tropical Pacific Ocean by a purse seine vessel, it 
is accompanied by a written statement, executed by the captain of the 
vessel, certifying that no purse seine net was intentionally deployed 
on, or to encircle, dolphins during the particular voyage on which the 
tuna was harvested; and
    (D) In the case of tuna or a tuna product containing tuna harvested 
outside the ETP by a purse seine vessel in a fishery in which the 
Secretary has determined that a regular and significant association 
occurs between marine mammals and tuna, and in which tuna is harvested 
through the use of purse seine nets deployed on, or to encircle, marine 
mammals, it is accompanied by a written statement, executed by the 
captain of the vessel and by an observer, certifying that no purse seine 
net was intentionally deployed on, or to encircle, marine mammals during 
the particular voyage on which the tuna was harvested.
    (iii) Submission of documentation--(A) Imported tuna or tuna 
product. The documents required by paragraph (e)(9)(ii) of this section 
must accompany the imported tuna or tuna product until no further 
endorsements are required on the documentation and the documents have 
been submitted to officials of the U.S. Customs Service at the time of 
importation.
    (B) U.S. domestic shipments. The documents required by paragraph 
(e)(9)(ii) of this section must accompany tuna or tuna product, other 
than imported, until no further endorsements are required on the 
documentation and the documents have been submitted to the Director, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802.
    (f) Observers. (1) The vessel certificate holder of any certificated 
vessel shall, upon the proper notification by the National Marine 
Fisheries Service, allow an observer duly authorized by the Secretary to 
accompany the vessel on any or all regular fishing trips for the purpose 
of conducting research and observing operations, including collecting 
information which may be used in civil or criminal penalty proceedings, 
forfeiture actions, or permit or certificate sanctions.
    (2) Research and observation duties shall be carried out in such a 
manner as to minimize interference with commercial fishing operations. 
The navigator shall provide true vessel locations by latitude and 
longitude, accurate to the nearest minute, upon request by the observer. 
No owner, master, operator, or crew member of a certificated vessel 
shall impair or in any way interfere with the research or observations 
being carried out.

[[Page 40]]

    (3) Marine mammals killed during fishing operations which are 
accessible to crewmen and requested from the certificate holder or 
master by the observer shall be brought aboard the vessel and retained 
for biological processing, until released by the observer for return to 
the ocean. Whole marine mammals designated as biological specimens by 
the observer shall be retained in cold storage aboard the vessel until 
retrieved by authorized personnel of the National Marine Fisheries 
Service when the vessel returns to port for unloading.
    (4) The Secretary shall provide for the payment of all reasonable 
costs directly related to the quartering and maintaining of such 
observers on board such vessels. A vessel certificate holder who has 
been notified that the vessel is required to carry an observer, via 
certified letter from the National Marine Fisheries Service, shall 
notify the office from which the letter was received at least five days 
in advance of the fishing voyage to facilitate observer placement. A 
vessel certificate holder who has failed to comply with the provisions 
of this section may not engage in fishing operations for which a general 
permit is required.
    (5) It is unlawful for any person to forcibly assault, impede, 
intimidate, interfere with, or to influence or attempt to influence an 
observer, or to harass (including sexual harassment) an observer by 
conduct which has the purpose or effect of unreasonably interfering with 
the observer's work performance, or which creates an intimidating, 
hostile, or offensive environment. In determining whether conduct 
constitutes harassment, the totality of the circumstances, including the 
nature of the conduct and the context in which it occurred, will be 
considered. The determination of the legality of a particular action 
will be made from the facts on a case-by-case basis.
    (6)(i) All observers must be provided sleeping, toilet and eating 
accommodations at least equal to that provided to a full crew member. A 
mattress or futon on the floor or a cot is not acceptable in place of a 
regular bunk. Meal and other galley privileges must be the same for the 
observer as for other crew members.
    (ii) Female observers on a vessel with an all-male crew must be 
accommodated either in a single-person cabin or, if reasonable privacy 
can be ensured by installing a curtain or other temporary divider, in a 
two-person cabin shared with a licensed officer of the vessel. If the 
cabin assigned to a female observer does not have its own toilet and 
shower facilities that can be provided for the exclusive use of the 
observer, then a schedule for time-sharing common facilities must be 
established before the placement meeting and approved by NMFS and must 
be followed during the entire trip.
    (iii) In the event there are one or more female crew members, the 
female observer may be provided a bunk in a cabin shared solely with 
female crew members, and provided toilet and shower facilities shared 
solely with these female crew members.
    (7)(i) A vessel certificate of inclusion holder (or vessel owner in 
the case of a new application) may seek an exemption from carrying a 
female observer on a vessel by applying to the Director, Southwest 
Region when applying for the vessel certificate of inclusion until July 
10, 1989 and establishing the following:
    (A) The vessel will have an all-male crew;
    (B) The vessel has fewer than two private (one-person) and semi-
private (two-person) cabins in total (excluding the captain's cabin);
    (C) A temporary divider like a curtain cannot be installed in the 
private or semi-private cabin (excluding the captain's cabin) to provide 
reasonable privacy; and
    (D) There are no other areas (excluding the captain's cabin) that 
can be converted to a sleeping room without either significant expense 
or significant sacrifice to the crew's quarters.
    (ii) The exclusion criteria in paragraph (f)(7)(i) of this section 
can be met without having to provide the captain's cabin for the 
observer. The application for an exemption must also include an accurate 
diagram of the vessel's living areas, and other areas possibly suitable 
for sleeping. Additional documentation to support the application may 
also be required, as may an inspection of the vessel. The exemption, 
once granted, is

[[Page 41]]

valid for the same calendar year as the vessel certificate of inclusion, 
and the exemption must be renewed annually to remain valid. The vessel 
certificate of inclusion holder is responsible for reporting to the 
Director, Southwest Region any changes aboard the vessel within 15 days 
of the change which might affect the continued eligibility for an 
exemption. The Director, Southwest Region will revoke an exemption if 
the criteria for an exemption are no longer met.
    (g) Penalties and rewards: Any person or vessel subject to the 
jurisdiction of the United States shall be subject to the penalties 
provided for under the MMPA for the conduct of fishing operations in 
violation of these regulations. The Secretary shall recommend to the 
Secretary of the Treasury that an amount equal to one-half of the fine 
incurred but not to exceed $2,500 be paid to any person who furnishes 
information which leads to a conviction for a violation of these 
regulations. Any officer, employee, or designated agent of the United 
States or of any State or local government who furnishes information or 
renders service in the performance of his official duties shall not be 
eligible for payment under this section.

[45 FR 72187, Oct. 31, 1980]

    Editorial Note: For Federal Register citations affecting 
Sec. 216.24, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



Sec. 216.25  Exempted marine mammals and marine mammal products.

    (a) The provisions of the MMPA and these regulations shall not 
apply:
    (1) To any marine mammal taken before December 21, 1972 \1\, or
---------------------------------------------------------------------------

    \1\ In the context of captive maintenance of marine mammals, the 
only marine mammals exempted under this section are those that were 
actually captured or otherwise in captivity before December 21, 1972.
---------------------------------------------------------------------------

    (2) To any marine mammal product if the marine mammal portion of 
such product consists solely of a marine mammal taken before such date.
    (b) The prohibitions contained in Sec. 216.12(c) (3) and (4) shall 
not apply to marine mammals or marine mammal products imported into the 
United States before the date on which a notice is published in the 
Federal Register with respect to the designation of the species or stock 
concerned as depleted or endangered.
    (c) Section 216.12(b) shall not apply to articles imported into the 
United States before the effective date of the foreign law making the 
taking or sale, as the case may be, of such marine mammals or marine 
mammal products unlawful.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 
FR 50376, Oct. 3, 1994]



Sec. 216.26  Collection of certain marine mammal parts without prior authorization.

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within \1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (b) Notwithstanding the provisions of subpart D, soft parts that are 
sloughed, excreted, or discharged naturally by a living marine mammal in 
the wild may be collected or imported for bona fide scientific research 
and enhancement, provided that collection does not involve the taking of 
a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under paragraph 
(b) of this section must be registered and identified, and may be 
transferred or otherwise possessed, in accordance with Sec. 216.22(c). 
In registering a marine mammal part collected or imported under 
paragraph (b) of this section, the person who collected or imported the 
part must also state the scientific research or enhancement purpose for 
which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur

[[Page 42]]

if consistent with the provisions at Sec. 216.37(d) under subpart D.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 
FR 21933, May 10, 1996]



Sec. 216.27  Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.

    (a) Release requirements. (1) Any marine mammal held for 
rehabilitation must be released within six months of capture or import 
unless the attending veterinarian determines that:
    (i) The marine mammal might adversely affect marine mammals in the 
wild;
    (ii) Release of the marine mammal to the wild will not likely be 
successful given the physical condition and behavior of the marine 
mammal; or
    (iii) More time is needed to determine whether the release of the 
marine mammal to the wild will likely be successful. Releasability must 
be reevaluated at intervals of no less than six months until 24 months 
from capture or import, at which time there will be a rebuttable 
presumption that release into the wild is not feasible.
    (2) The custodian of the rehabilitated marine mammal shall provide 
written notification prior to any release into the wild.
    (i) Notification shall be provided to:
    (A) The NMFS Regional Director at least 15 days in advance of 
releasing any beached or stranded marine mammal, unless advance notice 
is waived in writing by the Regional Director; or
    (B) The Office Director at least 30 days in advance of releasing any 
imported marine mammal.
    (ii) Notification shall include the following:
    (A) A description of the marine mammal, including its physical 
condition and estimated age;
    (B) The date and location of release; and
    (C) The method and duration of transport prior to release.
    (3) The Regional Director, or the Office Director as appropriate, 
may:
    (i) Require additional information prior to any release;
    (ii) Change the date or location of release, or the method or 
duration of transport prior to release;
    (iii) Impose additional conditions to improve the likelihood of 
success or to monitor the success of the release; or
    (iv) Require other disposition of the marine mammal.
    (4) All marine mammals must be released near wild populations of the 
same species, and stock if known, unless a waiver is granted by the 
Regional Director or the Office Director.
    (5) All marine mammals released must be tagged or marked in a manner 
acceptable to the Regional Director or the Office Director. The tag 
number or description of the marking must be reported to the Regional 
Director or Office Director following release.
    (b) Non-releasability and postponed determinations. (1) The 
attending veterinarian shall provide the Regional Director or Office 
Director with a written report setting forth the basis of any 
determination under paragraphs (a)(1)(i) through (iii) of this section.
    (2) Upon receipt of a report under paragraph (b)(1) of this section, 
the Regional Director or Office Director, in their sole discretion, may:
    (i) Order the release of the marine mammal;
    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (3) No later than 30 days after a marine mammal is determined 
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of 
this section, the person with authorized custody must:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (4) Notwithstanding any of the provisions of this section, the 
Office Director may require use of a rehabilitated marine mammal for any 
activity authorized under subpart D in lieu of animals taken from the 
wild.

[[Page 43]]

    (5) Any rehabilitated beached or stranded marine mammal placed on 
public display following a non-releasability determination under 
paragraph (a)(1) of this section and pending disposition under paragraph 
(c) of this section, or any marine mammal imported for medical treatment 
otherwise unavailable and placed on public display pending disposition 
after such medical treatment is concluded, must be held in captive 
maintenance consistent with all requirements for public display.
    (c) Disposition for a special exception purpose. (1) Upon receipt of 
an authorization request made under paragraph (b)(3)(i) of this section, 
or release notification under (a)(2), the Office Director may authorize 
the retention or transfer of custody of the marine mammal for a special 
exception purpose authorized under subpart D.
    (2) The Office Director will first consider requests from a person 
authorized to hold the marine mammal for rehabilitation. The Office 
Director may authorize such person to retain or transfer custody of the 
marine mammal for scientific research, enhancement, or public display 
purposes.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (i) Documentation has been submitted to the Office Director that the 
person retaining the subject animal or the person receiving custody of 
the subject animal by transfer, hereinafter referred to as the 
recipient, complies with public display requirements of 16 U.S.C. 
1374(c)(2)(A) or, for purposes of scientific research and enhancement, 
holds an applicable permit, or an application for such a special 
exception permit under Sec. 216.33 or a request for a major amendment 
under Sec. 216.39 has been submitted to the Office Director and has been 
found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure is necessary in the 
interest of the health or welfare of the marine mammal;
    (B) If the major amendment or permit is denied; or
    (C) If the recipient is issued a notice of violation and assessment, 
or is subject to permit sanctions, in accordance with 15 CFR part 904.
    (4) There shall be no remuneration associated with any transfer, 
provided that, the transferee may reimburse the transferor for any and 
all costs associated with the rehabilitation and transport of the marine 
mammal.
    (5) Marine mammals undergoing rehabilitation or pending disposition 
under this section shall not be subject to public display, unless such 
activities are specifically authorized by the Regional Director or the 
Office Director, and conducted consistent with the requirements 
applicable to public display. Such marine mammals shall not be trained 
for performance or be included in any aspect of a program involving 
interaction with the public; and
    (6) Marine mammals undergoing rehabilitation shall not be subject to 
intrusive research, unless such activities are specifically authorized 
by the Office Director in consultation with the Marine Mammal Commission 
and its Committee of Scientific Advisors on Marine Mammals, and are 
conducted pursuant to a scientific research permit.
    (d) Reporting. In addition to the report required under 
Sec. 216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director or 
Office Director.

[61 FR 21933, May 10, 1996]



                      Subpart D--Special Exceptions



Sec. 216.30  [Reserved]



Sec. 216.31  Definitions.

    For the purpose of this subpart, the definitions set forth in 50 CFR 
part 217 shall apply to all threatened and endangered marine mammals, 
unless a

[[Page 44]]

more restrictive definition exists under the MMPA or part 216.

[61 FR 21935, May 10, 1996]



Sec. 216.32  Scope.

    The regulations of this subpart apply to:
    (a) All marine mammals and marine mammal parts taken or born in 
captivity after December 20, 1972; and
    (b) All marine mammals and marine mammal parts that are listed as 
threatened or endangered under the ESA.

[61 FR 21935, May 10, 1996]



Sec. 216.33  Permit application submission, review, and decision procedures.

    (a) Application submission. Persons seeking a special exemption 
permit under this subpart must submit an application to the Office 
Director. The application must be signed by the applicant, and provide 
in a properly formatted manner all information necessary to process the 
application. Written instructions addressing information requirements 
and formatting may be obtained from the Office Director upon request.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (1) Be submitted through the Convention on International Trade in 
Endangered Fauna and Flora management authority of the foreign 
government or, if different, the appropriate agency or agencies of the 
foreign government that exercises oversight over marine mammals.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (ii) The laws and regulations of the foreign governmentinvolved 
allow enforcement of the terms and conditions of the permit, and that 
the foreign government will enforce all terms and conditions; and
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.
    (c) Initial review. (1) NMFS will notify the applicant of receipt of 
the application.
    (2) During the initial review, the Office Director will determine:
    (i) Whether the application is complete.
    (ii) Whether the proposed activity is for purposes authorized under 
this subpart.
    (iii) If the proposed activity is for enhancement purposes, whether 
the species or stock identified in the application is in need of 
enhancement for its survival or recovery and whether the proposed 
activity will likely succeed in its objectives.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as described 
in Sec. 216.35 and Sec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (A) To make an initial determination under the National 
Environmental Policy Act (NEPA) as to whether the proposed activity is 
categorically excluded from preparation of further environmental 
documentation, or whether the preparation of an environmental assessment 
(EA) or environmental impact statement (EIS) is appropriate or 
necessary; and
    (B) To prepare an EA or EIS if an initial determination is made by 
the Office Director that the activity proposed is not categorically 
excluded from such requirements.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (4) Incomplete applications will be returned with explanation. If 
the applicant fails to resubmit a complete application or correct the 
identified deficiencies within 60 days, the application will be deemed 
withdrawn. Applications that propose activities inconsistent with this 
subpart will be returned with explanation, and will not be considered 
further.

[[Page 45]]

    (d) Notice of receipt and application review. (1) Upon receipt of a 
valid, complete application, and the preparation of any NEPA 
documentation that has been determined initially to be required, the 
Office Director will publish a notice of receipt in the Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (D) The location(s) in which the marine mammals will be taken, from 
which they will be imported, or to which they will be exported; and
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (iv) Include a NEPA statement that an initial determination has been 
made that the activity proposed is categorically excluded from the 
requirement to prepare an EA or EIS, that an EA was prepared resulting 
in a finding of no significant impact, or that a final EIS has been 
prepared and is available for review.
    (2) The Office Director will forward a copy of the complete 
application to the Commission for comment. If no comments are received 
within 45 days (or such longer time as the Office Director may 
establish) the Office Director will consider the Commission to have no 
objection to issuing a permit.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (5) If the Office Director deems it advisable, the Office Director 
may hold a public hearing within 60 days of publication of the notice of 
receipt in the Federal Register. Notice of the date, time, and place of 
the public hearing will be published in the Federal Register not less 
than 15 days in advance of the public hearing. Any interested person may 
appear in person or through representatives and may submit any relevant 
material, data, views, or comments. A summary record of the hearing will 
be kept.
    (6) The Office Director may extend the period during which any 
interested party may submit written comments. Notice of the extension 
must be published in the Federal Register within 60 days of publication 
of the notice of receipt in the Federal Register.
    (7) If, after publishing a notice of receipt, the Office Director 
determines on the basis of new information that an EA or EIS must be 
prepared, the Office Director must deny the permit unless an EA is 
prepared with a finding of no significant impact. If a permit is denied 
under these circumstances the application may be resubmitted with 
information sufficient to prepare an EA or EIS, and will be processed as 
a new application.
    (e) Issuance or denial procedures. (1) Within 30 days of the close 
of the public hearing or, if no public hearing is held, within 30 days 
of the close of the public comment period, the Office Director will 
issue or deny a special exception permit.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (3) If the permit is issued, upon receipt, the holder must date and 
sign the permit, and return a copy of the original to the Office 
Director. The permit shall be effective upon the permit holder's signing 
of the permit. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and

[[Page 46]]

    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be published 
in the Federal Register within 10 days after the date of permit issuance 
or denial and shall indicate where copies of the permit, if issued, may 
be reviewed or obtained. If the permit issued involves marine mammals 
listed as endangered or threatened under the ESA, the notice shall 
include a finding by the Office Director that the permit:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (6) Under the MMPA, the Office Director may issue a permit for 
scientific research before the end of the public comment period if 
delaying issuance could result in injury to a species, stock, or 
individual, or in loss of unique research opportunities. The Office 
Director also may waive the 30-day comment period required under the ESA 
in an emergency situation where the health or life of an endangered or 
threatened marine mammal is threatened and no reasonable alternative is 
available. If a permit is issued under these circumstances, notice of 
such issuance before the end of the comment period shall be published in 
the Federal Register within 10 days of issuance.
    (7) The applicant or any party opposed to a permit may seek judicial 
review of the terms and conditions of such permit or of a decision to 
deny such permit. Review may be obtained by filing a petition for review 
with the appropriate U.S. District Court as provided for by law.

[61 FR 21935, May 10, 1996]



Sec. 216.34  Issuance criteria.

    (a) For the Office Director to issue any permit under this subpart, 
the applicant must demonstrate that:
    (1) The proposed activity is humane and does not present any 
unnecessary risks to the health and welfare of marine mammals;
    (2) The proposed activity is consistent with all restrictions set 
forth at Sec. 216.35 and any purpose-specific restrictions as 
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (3) The proposed activity, if it involves endangered or threatened 
marine mammals, will be conducted consistent with the purposes and 
policies set forth in section 2 of the ESA;
    (4) The proposed activity by itself or in combination with other 
activities, will not likely have a significant adverse impact on the 
species or stock;
    (5) Whether the applicant's expertise, facilities, and resources are 
adequate to accomplish successfully the objectives and activities stated 
in the application;
    (6) If a live animal will be held captive or transported, the 
applicant's qualifications, facilities, and resources are adequate for 
the proper care and maintenance of the marine mammal; and
    (7) Any requested import or export will not likely result in the 
taking of marine mammals or marine mammal parts beyond those authorized 
by the permit.
    (b) The opinions or views of scientists or other persons or 
organizations knowledgeable of the marine mammals that are the subject 
of the application or of other matters germane to the application will 
be considered.

[61 FR 21936, May 10, 1996]



Sec. 216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (b) The maximum period of any special exception permit issued, or 
any major amendment granted, is five years from the effective date of 
the permit or major amendment. In accordance with the provisions of 
Sec. 216.39, the period of a permit may be extended by a minor amendment 
up to 12 months

[[Page 47]]

beyond that established in the original permit.
    (c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals 
or marine mammal parts imported under the authority of a permit must be 
taken or imported in a humane manner, and in compliance with the Acts 
and any applicable foreign law. Importation of marine mammals and marine 
mammal parts is subject to the provisions of 50 CFR part 14.
    (d) The permit holder shall not take from the wild any marine mammal 
which at the time of taking is either unweaned or less than eight months 
old, or is a part of a mother-calf/pup pair, unless such take is 
specifically authorized in the conditions of the special exception 
permit. Additionally, the permit holder shall not import any marine 
mammal that is pregnant or lactating at the time of taking or import, or 
is unweaned or less than eight months old unless such import is 
specifically authorized in the conditions of the special exception 
permit.
    (e) Captive marine mammals shall not be released into the wild 
unless specifically authorized by the Office Director under a scientific 
research or enhancement permit.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (g) Individuals conducting activities authorized under the permit 
must possess qualifications commensurate with their duties and 
responsibilities, or must be under the direct supervision of a person 
with such qualifications;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (i) Special exception permits are not transferable or assignable to 
any other person, and a permit holder may not require any direct or 
indirect compensation from another person in return for requesting 
authorization for such person to conduct the taking, import, or export 
activities authorized under the subject permit;
    (j) The permit holder or designated agent shall possess a copy of 
the permit when engaged in a permitted activity, when the marine mammal 
is in transit incidental to such activity, and whenever marine mammals 
or marine mammal parts are in the possession of the permit holder or 
agent. A copy of the permit shall be affixed to any container, package, 
enclosure, or other means of containment, in which the marine mammals or 
marine mammal parts are placed for purposes of transit, supervision, or 
care. For marine mammals held captive and marine mammal parts in 
storage, a copy of the permit shall be kept on file in the holding or 
storage facility.

[61 FR 21936, May 10, 1996]



Sec. 216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart shall 
contain specific terms and conditions deemed appropriate by the Office 
Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, or to which they may be exported, as 
applicable, and, for endangered or threatened marine mammal species to 
be imported or exported, the port of entry or export;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. In addition to the specific conditions imposed 
pursuant to paragraph (a) of this section, the Office Director shall 
specify any other permit conditions deemed appropriate.

[61 FR 21937, May 10, 1996]



Sec. 216.37  Marine mammal parts.

    With respect to marine mammal parts acquired by take or import 
authorized under a permit issued under this subpart:
    (a) Marine mammal parts are transferrable if:
    (1) The person transferring the part receives no remuneration of any 
kind for the marine mammal part;

[[Page 48]]

    (2) The person receiving the marine mammal part is:
    (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any 
other governmental agency with conservation and management 
responsibilities, who receives the part in the course of their official 
duties;
    (ii) A holder of a special exception permit which authorizes the 
take, import, or other activity involving the possession of a marine 
mammal part of the same species as the subject part; or
    (iii) In the case of marine mammal parts from a species that is not 
depleted, endangered or threatened, a person who is authorized under 
section 112(c) of the MMPA and subpart C of this part to take or import 
marine mammals or marine mammal parts;
    (iv) Any other person specifically authorized by the Regional 
Director, consistent with the requirements of paragraphs (a)(1) and 
(a)(3) through (6) of this section.
    (3) The marine mammal part is transferred for the purpose of 
scientific research, maintenance in a properly curated, professionally 
accredited scientific collection, or education, provided that, for 
transfers for educational purposes, the recipient is a museum, 
educational institution or equivalent that will ensure that the part is 
available to the public as part of an educational program;
    (4) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal part or container;
    (5) The person receiving the marine mammal part agrees that, as a 
condition of receipt, subsequent transfers may only occur subject to the 
provisions of paragraph (a) of this section; and
    (6) Within 30 days after the transfer, the person transferring the 
marine mammal part notifies the Regional Director of the transfer, 
including a description of the part, the person to whom the part was 
transferred, the purpose of the transfer, certification that the 
recipient has agreed to comply with the requirements of paragraph (a) of 
this section for subsequent transfers, and, if applicable, the 
recipient's permit number.
    (b) Marine mammal parts may be loaned to another person for a 
purpose described in paragraph (a)(3) of this section and without the 
agreement and notification required under paragraphs (a)(5) and (6) of 
this section, if:
    (1) A record of the loan is maintained; and
    (2) The loan is for not more than one year. Loans for a period 
greater than 12 months, including loan extensions or renewals, require 
notification of the Regional Director under paragraph (a)(6).
    (c) Unless other disposition is specified in the permit, a holder of 
a special exception permit may retain marine mammal parts not destroyed 
or otherwise disposed of during or after a scientific research or 
enhancement activity, if such marine mammal parts are:
    (1) Maintained as part of a properly curated, professionally 
accredited collection; or
    (2) Made available for purposes of scientific research or 
enhancement at the request of the Office Director.
    (d) Marine mammal parts may be exported and subsequently reimported 
by a permit holder or subsequent authorized recipient, for the purpose 
of scientific research, maintenance in a properly curated, 
professionally accredited scientific collection, or education, provided 
that:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (4) If exported or reimported for educational purposes, the 
recipient is a museum, educational institution, or equivalent that will 
ensure that the part is available to the public as part of an 
educational program; and
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director under Sec. 216.38.

[61 FR 21937, May 10, 1996]

[[Page 49]]



Sec. 216.38  Reporting.

    All permit holders must submit annual, final, and special reports in 
accordance with the requirements established in the permit, and any 
reporting format established by the Office Director.

[61 FR 21937, May 10, 1996]



Sec. 216.39  Permit amendments.

    (a) General. Special exception permits may be amended by the Office 
Director. Major and minor amendments may be made to permits in response 
to, or independent of, a request from the permit holder. Amendments must 
be consistent with the Acts and comply with the applicable provisions of 
this subpart.
    (1) A major amendment means any change to the permit specific 
conditions under Sec. 216.36(a) regarding:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which these marine mammals may be taken, 
imported, exported, or otherwise affected, if the proposed change may 
result in an increased level of take or risk of adverse impact;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, and to which they may be exported, as 
applicable; and
    (iv) The duration of the permit, if the proposed extension would 
extend the duration of the permit more than 12 months beyond that 
established in the original permit.
    (2) A minor amendment means any amendment that does not constitute a 
major amendment.
    (b) Amendment requests and proposals. (1) Requests by a permit 
holder for an amendment must be submitted in writing and include the 
following:
    (i) The purpose and nature of the amendment;
    (ii) Information, not previously submitted as part of the permit 
application or subsequent reports, necessary to determine whether the 
amendment satisfies all issuance criteria set forth at Sec. 216.34, and, 
as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
    (iii) Any additional information required by the Office Director for 
purposes of reviewing the proposed amendment.
    (2) If an amendment is proposed by the Office Director, the permit 
holder will be notified of the proposed amendment, together with an 
explanation.
    (c) Review of proposed amendments. (1) Major amendments. The 
provisions of Sec. 216.33(d) and (e) governing notice of receipt, review 
and decision shall apply to all proposed major amendments.
    (2) Minor amendments. (i) After reviewing all appropriate 
information, the Office Director will provide the permit holder with 
written notice of the decision on a proposed or requested amendment, 
together with an explanation for the decision.
    (ii) If the minor amendment extends the duration of the permit 12 
months or less from that established in the original permit, notice of 
the minor amendment will be published in the Federal Register within 10 
days from the date of the Office Director's decision.
    (iii) A minor amendment will be effective upon a final decision by 
the Office Director.

[61 FR 21937, May 10, 1996]



Sec. 216.40  Penalties and permit sanctions.

    (a) Any person who violates any provision of this subpart or permit 
issued thereunder is subject to civil and criminal penalties, permit 
sanctions and forfeiture as authorized under the Acts, and 15 CFR part 
904.
    (b) All special exception permits are subject to suspension, 
revocation, modification and denial in accordance with the provisions of 
subpart D of 15 CFR part 904.

[61 FR 21938, May 10, 1996]



Sec. 216.41  Permits for scientific research and enhancement.

    In addition to the requirements under Secs. 216.33 through 216.38, 
permits for scientific research and enhancement are governed by the 
following requirements:
    (a) Applicant. (1) For each application submitted under this 
section, the applicant shall be the principal investigator

[[Page 50]]

responsible for the overall research or enhancement activity. If the 
research or enhancement activity will involve a periodic change in the 
principal investigator or is otherwise controlled by and dependent upon 
another entity, the applicant may be the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) For any scientific research involving captive maintenance, the 
application must include supporting documentation from the person 
responsible for the facility or other temporary enclosure.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not feasible; 
and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office Director.
    (4) The proposed research will not likely have significant adverse 
effects on any other component of the marine ecosystem of which the 
affected species or stock is a part.
    (5) For species or stocks designated or proposed to be designated as 
depleted, or listed or proposed to be listed as endangered or 
threatened:
    (i) The proposed research cannot be accomplished using a species or 
stock that is not designated or proposed to be designated as depleted, 
or listed or proposed to be listed as threatened or endangered;
    (ii) The proposed research, by itself or in combination with other 
activities will not likely have a long-term direct or indirect adverse 
impact on the species or stock;
    (iii) The proposed research will either:
    (A) Contribute to fulfilling a research need or objective identified 
in a species recovery or conservation plan, or if there is no 
conservation or recovery plan in place, a research need or objective 
identified by the Office Director in stock assessments established under 
section 117 of the MMPA;
    (B) Contribute significantly to understanding the basic biology or 
ecology of the species or stock, or to identifying, evaluating, or 
resolving conservation problems for the species or stock; or
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (i) Only living marine mammals and marine mammal parts necessary for 
enhancement of the survival, recovery, or propagation of the affected 
species or stock may be taken, imported, exported, or otherwise affected 
under the authority of an enhancement permit. Marine mammal parts would 
include in this regard clinical specimens or other biological samples 
required for the conduct of breeding programs or the diagnosis or 
treatment of disease.
    (ii) The activity will likely contribute significantly to 
maintaining or increasing distribution or abundance, enhancing the 
health or welfare of the species or stock, or ensuring the survival or 
recovery of the affected species or stock in the wild.
    (iii) The activity is consistent with:
    (A) An approved conservation plan developed under section 115(b) of 
the MMPA or recovery plan developed under section 4(f) of the ESA for 
the species or stock; or
    (B) If there is no conservation or recovery plan, with the Office 
Director's evaluation of the actions required to enhance the survival or 
recovery of the species or stock in light of the factors that would be 
addressed in a conservation or recovery plan.
    (iv) An enhancement permit may authorize the captive maintenance of 
a marine mammal from a threatened, endangered, or depleted species or 
stock only if the Office Director determines that:
    (A) The proposed captive maintenance will likely contribute directly 
to

[[Page 51]]

the survival or recovery of the species or stock by maintaining a viable 
gene pool, increasing productivity, providing necessary biological 
information, or establishing animal reserves required to support 
directly these objectives; and
    (B) The expected benefit to the species or stock outweighs the 
expected benefits of alternatives that do not require removal of marine 
mammals from the wild.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of the 
survival or recovery objectives;
    (C) The marine mammals will be held consistent with all requirements 
and standards that are applicable to marine mammals held under the 
authority of the Acts and the Animal Welfare Act, unless the Office 
Director determines that an exception is necessary to implement an 
essential enhancement activity; and
    (D) The marine mammals will be excluded from any interactive program 
and will not be trained for performance.
    (vi) The Office Director may authorize non-intrusive scientific 
research to be conducted while a marine mammal is held under the 
authority of an enhancement permit, only if such scientific research:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made available 
to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of the principal investigator or a co-investigator 
identified in the permit.
    (iv) Personnel involved in research activities shall be reasonable 
in number and limited to:
    (A) Individuals who perform a function directly supportive of and 
necessary to the permitted research activity; and
    (B) Support personnel included for the purpose of training or as 
backup personnel for persons described in paragraph (c)(1)(iv)(A).
    (v) Any marine mammal part imported under the authority of a 
scientific research permit must not have been obtained as the result of 
a lethal taking that would be inconsistent with the Acts, unless 
authorized by the Office Director.
    (vi) Marine mammals held under a permit for scientific research 
shall not be placed on public display, included in an interactive 
program or activity, or trained for performance unless such activities:
    (A) Are necessary to address scientific research objectives and have 
been specifically authorized by the Office Director under the scientific 
research permit; and
    (B) Are conducted incidental to and do not in any way interfere with 
the permitted scientific research; and
    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized scientific 
research activity must not involve any taking of marine mammals beyond 
what is necessary to conduct the research (i.e., educational and 
commercial photography).
    (2) Any marine mammal or progeny held in captive maintenance under 
an enhancement permit shall be returned to its natural habitat as soon 
as feasible, consistent with the terms of the enhancement permit and the 
objectives of an approved conservation or recovery plan. In accordance 
with section 10(j) of the ESA, the Office Director may authorize the 
release of any population of an endangered or threatened species outside 
the current range of

[[Page 52]]

such species if the Office Director determines that such release will 
further the conservation of such species.

[61 FR 21938, May 10, 1996]



Sec. 216.42  Photography. [Reserved]



Sec. 216.43  Public display. [Reserved]



Sec. 216.44  Applicability/transition.

    (a) General. The regulations of this subpart are applicable to all 
persons, including persons holding permits or other authorizing 
documents issued before June 10, 1996, by NMFS for the take, import, 
export, or conduct of any otherwise prohibited activity involving a 
marine mammal or marine mammal part for special exception purposes.
    (b) Scientific research. Any intrusive research as defined in 
Sec. 216.3, initiated after June 10, 1996, must be authorized under a 
scientific research permit. Intrusive research authorized by the Office 
Director to be conducted on captive marine mammals held for public 
display purposes prior to June 10, 1996, must be authorized under a 
scientific research permit one year after June 10, 1996.

[61 FR 21939, May 10, 1996]



Sec. 216.45  General Authorization for Level B harassment for scientific research.

    (a) General Authorization. (1) Persons are authorized under section 
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B 
harassment, as defined in Sec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (i) They submit a letter of intent in accordance with the 
requirements of paragraph (b) of this section, receive confirmation that 
the General Authorization applies in accordance with paragraph (c) of 
this section, and comply with the terms and conditions of paragraph (d) 
of this section; or
    (ii) If such marine mammals are listed as endangered or threatened 
under the ESA, they have been issued a permit under Section 10(a)(1)(A) 
of the ESA and implementing regulations at 50 CFR parts 217-227, 
particularly at Sec. 222.23 through Sec. 222.28, to take marine mammals 
in the wild for the purpose of scientific research, the taking 
authorized under the permit involves such Level B harassment of marine 
mammals or marine mammal stocks, and they comply with the terms and 
conditions of that permit.
    (2) Except as provided under paragraph (a)(1)(ii) of this section, 
no taking, including harassment, of marine mammals listed as threatened 
or endangered under the ESA is authorized under the General 
Authorization. Marine mammals listed as endangered or threatened under 
the ESA may be taken for purposes of scientific research only after 
issuance of a permit for such activities pursuant to the ESA.
    (3) The following types of research activities will likely qualify 
for inclusion under the General Authorization: Photo-identification 
studies, behavioral observations, and vessel and aerial population 
surveys (except aerial surveys over pinniped rookeries at altitudes of 
less than 1,000 ft).
    (b) Letter of intent. Except as provided under paragraph (a)(1)(ii) 
of this section, any person intending to take marine mammals in the wild 
by Level B harassment for purposes of bona fide scientific research 
under the General Authorization must submit, at least 60 days before 
commencement of such research, a letter of intent by certified return/
receipt mail to the Chief, Permits Division, F/PR1, Office of Protected 
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
    (1) The letter of intent must be submitted by the principal 
investigator (who shall be deemed the applicant). For purposes of this 
section, the principal investigator is the individual who is responsible 
for the overall research project, or the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) The letter of intent must include the following information:
    (i) The name, address, telephone number, qualifications and 
experience of the applicant and any co-investigator(s) to be conducting 
the proposed research, and a curriculum vitae for each, including a list 
of publications by each such investigator relevant to the

[[Page 53]]

objectives, methodology, or other aspects of the proposed research;
    (ii) The species or stocks of marine mammals (common and scientific 
names) that are the subject of the scientific research and any other 
species or stock of marine mammals that may be harassed during the 
conduct of the research;
    (iii) The geographic location(s) in which the research is to be 
conducted, e.g., geographic name or lat./long.;
    (iv) The period(s) of time over which the research will be conducted 
(up to five years), including the field season(s) for the research, if 
applicable;
    (v) The purpose of the research, including a description of how the 
proposed research qualifies as bona fide research as defined in 
Sec. 216.3; and
    (vi) The methods to be used to conduct the research.
    (3) The letter of intent must be signed, dated, and certified by the 
applicant as follows:

    In accordance with section 104(c)(3)(C) of the Marine Mammal 
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and 
implementing regulations (50 CFR part 216), I hereby notify the National 
Marine Fisheries Service of my intent to conduct research involving only 
Level B harassment on marine mammals in the wild, and request 
confirmation that the General Authorization for Level B Harassment for 
Scientific Research applies to the proposed research as described 
herein. I certify that the information in this letter of intent is 
complete, true, and correct to the best of my knowledge and belief, and 
I understand that any false statement may subject me to the criminal 
penalties of 18 U.S.C. 1001, or penalties under the MMPA and 
implementing regulations. I acknowledge and accept that authority to 
conduct scientific research on marine mammals in the wild under the 
General Authorization is a limited conditional authority restricted to 
Level B harassment only, and that any other take of marine mammals, 
including the conduct of any activity that has the potential to injure 
marine mammals (i.e., Level A harassment), may subject me to penalties 
under the MMPA and implementing regulations.

    (c) Confirmation that the General Authorization applies or 
notification of permit requirement.
    (1) Not later than 30 days after receipt of a letter of intent as 
described in paragraph (b) of this section, the Chief, Permits Division, 
NMFS will issue a letter to the applicant either:
    (i) Confirming that the General Authorization applies to the 
proposed scientific research as described in the letter of intent;
    (ii) Notifying the applicant that all or part of the research 
described in the letter of intent is likely to result in a taking of a 
marine mammal in the wild involving other than Level B harassment and, 
as a result, cannot be conducted under the General Authorization, and 
that a scientific research permit is required to conduct all or part of 
the subject research; or
    (iii) Notifying the applicant that the letter of intent fails to 
provide sufficient information and providing a description of the 
deficiencies, or notifying the applicant that the proposed research as 
described in the letter of intent is not bona fide research as defined 
in Sec. 216.3.
    (2) A copy of each letter of intent and letter confirming that the 
General Authorization applies or notifying the applicant that it does 
not apply will be forwarded to the Marine Mammal Commission.
    (3) Periodically, NMFS will publish a summary document in the 
Federal Register notifying the public of letters of confirmation issued.
    (d) Terms and conditions. Persons issued letters of confirmation in 
accordance with paragraph (c) of this section are responsible for 
complying with the following terms and conditions:
    (1) Activities are limited to those conducted for the purposes, by 
the means, in the locations, and during the periods of time described in 
the letter of intent and acknowledged as authorized under the General 
Authorization in the confirmation letter sent pursuant to paragraph (c) 
of this section;
    (2) Annual reports of activities conducted under the General 
Authorization must be submitted to the Chief, Permits Division (address 
listed in paragraph (b) of this section) within 90 days of completion of 
the last field season(s) during the calendar year or, if the research is 
not conducted during a defined field season, no later than 90 days after 
the anniversary date of the letter of confirmation issued under 
paragraph (c) of this section. Annual reports must include:

[[Page 54]]

    (i) A summary of research activities conducted;
    (ii) Identification of the species and number of each species taken 
by Level B harassment;
    (iii) An evaluation of the progress made in meeting the objectives 
of the research as described in the letter of intent; and
    (iv) Any incidental scientific, educational, or commercial uses of 
photographs, videotape, and film obtained as a result of or incidental 
to the research and if so, names of all photographers.
    (3) Authorization to conduct research under the General 
Authorization is for the period(s) of time identified in the letter of 
intent or for a period of 5 years from the date of the letter of 
confirmation issued under paragraph (c) of this section, whichever is 
less, unless extended by the Director or modified, suspended, or revoked 
in accordance with paragraph (e) of this section;
    (4) Activities conducted under the General Authorization may only be 
conducted under the on-site supervision of the principal investigator or 
co-investigator(s) named in the letter of intent. All personnel involved 
in the conduct of activities under the General Authorization must 
perform a function directly supportive of and necessary for the research 
being conducted, or be one of a reasonable number of support personnel 
included for the purpose of training or as back-up personnel;
    (5) The principal investigator must notify the appropriate Regional 
Director, NMFS, (Regional Director) in writing at least 2 weeks before 
initiation of on-site activities. The Regional Director shall consider 
this information in efforts to coordinate field research activities to 
minimize adverse impacts on marine mammals in the wild. The principal 
investigator must cooperate with coordination efforts by the Regional 
Director in this regard;
    (6) If research activities result in a taking which exceeds Level B 
harassment, the applicant shall:
    (i) Report the taking within 12 hours to the Director, Office of 
Protected Resources, or his designee as set forth in the letter 
authorizing research; and
    (ii) Temporarily discontinue for 72 hours all field research 
activities that resulted in the taking. During this time period, the 
applicant shall consult with NMFS as to the circumstances surrounding 
the taking and any precautions necessary to prevent future taking, and 
may agree to amend the research protocol, as deemed necessary by NMFS.
    (7) NMFS may review scientific research conducted pursuant to the 
General Authorization. If requested by NMFS, the applicant must 
cooperate with any such review and shall:
    (i) Allow any employee of NOAA or any other person designated by the 
Director, Office of Protected Resources to observe research activities; 
and
    (ii) Provide any documents or other information relating to the 
scientific research;
    (8) Any photographs, videotape, or film obtained during the conduct 
of research under the General Authorization must be identified by a 
statement that refers to the General Authorization or ESA permit number, 
and includes the file number provided by NMFS in the confirmation 
letter, the name of the photographer, and the date the image was taken. 
This statement must accompany the image(s) in all subsequent uses or 
sales. The annual report must note incidental scientific, educational, 
or commercial uses of the images, and if there are any such uses, the 
names of all photographers; and
    (9) Persons conducting scientific research under authority of the 
General Authorization may not transfer or assign any authority granted 
thereunder to any other person.
    (e) Suspension, revocation, or modification. (1) NMFS may suspend, 
revoke, or modify the authority to conduct scientific research under the 
General Authorization if:
    (i) The letter of intent included false information or statements of 
a material nature;
    (ii) The research does not constitute bona fide scientific research;
    (iii) Research activities result in takings of marine mammals other 
than by Level B harassment;
    (iv) Research activities differ from those described in the letter 
of intent submitted by the applicant and letter of confirmation issued 
by NMFS; or

[[Page 55]]

    (v) The applicant violates any term or condition set forth in this 
section.
    (2) Any suspension, revocation, or modification is subject to the 
requirements of 15 CFR part 904.

[59 FR 50376, Oct. 3, 1994]



Secs. 216.46-216.49  [Reserved]



                       Subpart E--Designated Ports



Sec. 216.50  Importation at designated ports.

    (a) Any marine mammal or marine mammal product which is subject to 
the jurisdiction of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Department of Commerce and is 
intended for importation into the United States shall be subject to the 
provisions of 50 CFR part 14.
    (b) For the information of importers, designated ports of entry for 
the United States are:

New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.

    (c) Additionally, marine mammals or marine mammal products which are 
entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the 
Virgin Islands and which are not to be forwarded or transhipped within 
the United States may be imported through the following ports:

Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.

    (d) Importers are advised to see 50 CFR part 14 for importation 
requirements and information.

[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]



      Subpart F--Pribilof Islands, Taking for Subsistence Purposes



Sec. 216.71  Allowable take of fur seals.

    Pribilovians may take fur seals on the Pribilof Islands if such 
taking is
    (a) For subsistence uses, and
    (b) Not accomplished in a wasteful manner.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.72  Restrictions on taking.

    (a) The harvests of seals on St. Paul and St. George Islands shall 
be treated independently for the purposes of this section. Any 
suspension, termination, or extension of the harvest is applicable only 
to the island for which it is issued.
    (b) By April 1 of every third year, beginning April 1994, the 
Assistant Administrator will publish in the Federal Register a summary 
of the preceding 3 years of harvesting and a discussion of the number of 
seals expected to be taken annually over the next 3 years to satisfy the 
subsistence requirements of each island. This discussion will include an 
assessment of factors and conditions on St. Paul and St. George Islands 
that influence the need by Pribilof Aleuts to take seals for subsistence 
uses and an assessment of any changes to those conditions indicating 
that the number of seals that may be taken for subsistence each year 
should be made higher or lower. Following a 30-day public comment 
period, a final notification of the expected annual harvest levels for 
the next 3 years will be published.
    (c)(1) No fur seal may be taken on the Pribilof Islands before June 
23 of each year.
    (2) No fur seal may be taken except by experienced sealers using the 
traditional harvesting methods, including stunning followed immediately 
by exsanguination. The harvesting method shall include organized drives 
of subadult males to killing fields unless it is determined by the NMFS 
representatives, in consultation with the Pribilovians conducting the 
harvest,

[[Page 56]]

that alternative methods will not result in increased disturbance to the 
rookery or the increased accidental take of female seals.
    (3) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (4) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (5) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (d) The scheduling of the harvest is at the discretion of the 
Pribilovians, but must be such as to minimize stress to the harvested 
seals. The Pribilovians must give adequate advance notice of their 
harvest schedules to the NMFS representatives to allow for necessary 
monitoring activities. Scheduling must be consistent with the following 
restrictions:
    (1) St. Paul Island--Seals may only be harvested from the following 
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, 
Kitovi, and Reef. No haulout area may be harvested more than once per 
week.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for in Sec. 215.31 when:
    (i) He determines, after reasonable notice by NMFS representatives 
to the Pribilovians on the island, that the subsistence needs of the 
Pribilovians on the island have been satisfied;

or
    (ii) He determines that the harvest is otherwise being conducted in 
a wasteful manner; or
    (iii) The lower end of the range of the estimated subsistence level 
provided in the notice issued under paragraph (b) of this section is 
reached.
    (2) A suspension based on a determination under paragraph (e)(1)(ii) 
of this section may be lifted by the Assistant Administrator if he finds 
that the conditions which led to the determination that the harvest was 
being conducted in a wasteful manner have been remedied.
    (3) A suspension issued in accordance with paragraph (e)(1)(iii) of 
this section may not exceed 48 hours in duration and shall be followed 
immediately by a review of the harvest data to determine if a finding 
under paragraph (e)(1)(i) of this section is warranted. If a the harvest 
is not suspended under paragraph (e)(1)(i) of this section, the 
Assistant Administrator must provide a revised estimate of the number of 
seals required to satisfy the Pribilovians' subsistence needs.
    (f) The Assistant Administrator shall terminate the take provided 
for in Sec. 215.31 on August 8 of each year or when it is determined 
under paragraph (e)(1)(i) of this section that the subsistence needs of 
the Pribilovians on the island have been satisfied, whichever occurs 
first.

[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 
FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.73  Disposition of fur seal parts.

    Except for transfers to other Alaskan Natives for barter or sharing 
for personal or family consumption, no part of a fur seal taken for 
subsistence uses may be sold or otherwise transferred to any person 
unless it is a nonedible byproduct which:
    (a) Has been transformed into an article of handicraft, or
    (b) Is being sent by an Alaskan Native directly, or through a 
registered agent, to a tannery registered under 50 CFR 216.23(c) for the 
purpose of processing, and will be returned directly to the Alaskan 
Native for conversion into an article of handicraft, or
    (c) Is being sold or transferred to an Alaskan Native, or to an 
agent registered under 50 CFR 216.23(c) for resale or transfer to an 
Alaskan Native, who will convert the seal part into a handicraft.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.74  Cooperation with Federal officials.

    Pribilovians who engage in the harvest of seals are required to 
cooperate with scientists engaged in fur seal research on the Pribilof 
Islands who may need assistance in recording tag or

[[Page 57]]

other data and collecting tissue or other fur seal samples for research 
purposes. In addition, Pribilovians who take fur seals for subsistence 
uses must, consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS 
representatives on the Pribilof Islands who are responsible for 
compiling the following information on a daily basis:
    (a) The number of seals taken each day in the subsistence harvest,
    (b) The extent of the utilization of fur seals taken, and
    (c) Other information determined by the Assistant Administrator to 
be necessary for determining the subsistence needs of the Pribilovians 
or for making determinations under Sec. 215.32(e).

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



               Subpart G--Pribilof Islands Administration



Sec. 216.81  Visits to fur seal rookeries.

    From June 1 to October 15 of each year, no person, except those 
authorized by a representative of the National Marine Fisheries Service, 
or accompanied by an authorized employee of the National Marine 
Fisheries Service, shall approach any fur seal rookery or hauling 
grounds nor pass beyond any posted sign forbidding passage.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.82  Dogs prohibited.

    In order to prevent molestation of fur seal herds, the landing of 
any dogs at Pribilof Islands is prohibited.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.83  Importation of birds or mammals.

    No mammals or birds, except household cats, canaries and parakeets, 
shall be imported to the Pribilof Islands without the permission of an 
authorized representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.84  [Reserved]



Sec. 216.85  Walrus and Otter Islands.

    By Executive Order 1044, dated February 27, 1909, Walrus and Otter 
Islands were set aside as bird reservations. All persons are prohibited 
to land on these islands except those authorized by the appropriate 
representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.86  Local regulations.

    Local regulations will be published from time to time and will be 
brought to the attention of local residents and persons assigned to duty 
on the Islands by posting in public places and brought to the attention 
of tourists by personal notice.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.87  Wildlife research.

    (a) Wildlife research, other than research on North Pacific fur 
seals, including specimen collection, may be permitted on the Pribilof 
Islands subject to the following conditions:
    (1) Any person or agency, seeking to conduct such research shall 
first obtain any Federal or State of Alaska permit required for the type 
of research involved.
    (2) Any person seeking to conduct such research shall obtain prior 
approval of the Director, Pribilof Islands Program, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 1700 
Westlake Avenue North, Seattle, WA 98109, by filing with the Director an 
application which shall include:
    (i) Copies of the required Federal and State of Alaska permits; and
    (ii) A resume of the intended research program.
    (3) All approved research shall be subject to all regulations and 
administrative procedures in effect on the Pribilof Islands, and such 
research shall not commence until approval from the Director is 
received.
    (4) Any approved research program shall be subject to such terms and 
conditions as the Director, Pribilof Islands Program deems appropriate.

[[Page 58]]

    (5) Permission to utilize the Pribilof Islands to conduct an 
approved research program may be revoked by the Director, Pribilof 
Islands Program at any time for noncompliance with any terms and 
conditions, or for violations of any regulation or administrative 
procedure in effect on the Pribilof Islands.

[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]



                  Subpart H--Dolphin Safe Tuna Labeling

    Authority: 16 U.S.C. 1385.

    Source: 61 FR 27794, June 3, 1996, unless otherwise noted.



Sec. 216.90  Purpose.

    This subpart governs the requirements for labeling of tuna or tuna 
products sold in or exported from the United States that suggest the 
tuna was harvested in a manner not injurious to dolphins.



Sec. 216.91  Labeling requirements.

    It is a violation of section 5 of the Federal Trade Commission Act 
(15 U.S.C. 45) for any person subject to U.S. jurisdiction, including 
any producer, exporter, importer, distributor, or seller of any tuna 
product exported from the United States or offered for sale in the 
United States to include on the label of that product the term ``dolphin 
safe'' or any other term, phrase, or symbol that claims or suggests that 
the tuna contained in the product was harvested using a fishing method 
that is not harmful to dolphins, if the product:
    (a) Contains tuna harvested with a large-scale driftnet; or
    (b) Contains tuna harvested in the ETP by a purse seine vessel 400 
short tons (362.8 metric tons) carrying capacity or greater and is 
labeled in a manner that violates the standards set forth in Sec. 216.92 
or Sec. 216.93.



Sec. 216.92  Purse seine vessels greater than 400 short tons (362.8 metric tons).

    For purposes of Sec. 216.91(b), any tuna product containing tuna 
that were harvested in the ETP by a purse seine vessel 400 short tons 
(362.8 metric tons) carrying capacity or greater, must be accompanied 
by:
    (a) A completed Fisheries Certificate of Origin;
    (b) A written statement by the captain of each vessel that harvested 
the tuna, certifying that the vessel did not intentionally deploy a 
purse seine net on or to encircle dolphins at any time during the trip;
    (c) A written statement certifying that an observer, employed by or 
working under contract with the Inter-American Tropical Tuna Commission 
or the Secretary, was on board the vessel during the entire trip and 
that the vessel did not intentionally deploy a purse seine net on or to 
encircle dolphin at any time during the trip. The statement must be 
signed by either:
    (1) The Secretary; or
    (2) A representative of the Inter-American Tropical Tuna Commission; 
and
    (d) An endorsement on the Fisheries Certificate of Origin by each 
exporter, importer, and processor certifying that, to the best of his or 
her knowledge and belief, the Fisheries Certificate of Origin and 
attached documentation, accurately describe the tuna products.



Sec. 216.93  Submission of documentation.

    The documents required by Sec. 216.92 must accompany the tuna 
product whenever it is offered for sale or export, except that these 
documents need not accompany the product when offered for sale if:
    (a) The documents do not require further endorsement by any importer 
or processor, and are submitted to officials of the U.S. Customs Service 
at the time of import; or
    (b) The documents are endorsed as required by Sec. 216.92(d) and 
delivered to the Director, Southwest Region, or to the U.S. Customs 
Service at the time of exportation.



Sec. 216.94  Requests to review documents.

    At any time, the Assistant Administrator may request, in writing, 
any exporter, importer, processor, distributor, or seller of any tuna or 
tuna product labeled in a manner subject to the

[[Page 59]]

requirements of Sec. 216.91, to produce, within a specified time period, 
all documentary evidence concerning the origin of any product that is 
offered for sale as ``dolphin safe,'' including the original invoice.



Sec. 216.95  False statements or endorsements.

    Any person who knowingly and willfully makes a false statement or 
false endorsement required by Sec. 216.92 is liable for a civil penalty 
not to exceed $100,000, that may be assessed in an action brought in any 
appropriate District Court of the United States on behalf of the 
Secretary.



 Subpart I--General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

    Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.



Sec. 216.101  Purpose.

    The regulations in this subpart implement section 101(a)(5) (A) 
through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon 
request, the incidental, but not intentional, taking of small numbers of 
marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographic region.



Sec. 216.102  Scope.

    The taking of small numbers of marine mammals under section 
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be 
allowed only if the National Marine Fisheries Service:
    (a) Finds, based on the best scientific evidence available, that the 
total taking by the specified activity during the specified time period 
will have a negligible impact on species or stock of marine mammal(s) 
and will not have an unmitigable adverse impact on the availability of 
those species or stocks of marine mammals intended for subsistence uses;
    (b) Prescribes either regulations under Sec. 216.106, or 
requirements and conditions contained within an incidental harassment 
authorization issued under Sec. 216.107, setting forth permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on the species or stock of marine mammal and its habitat 
and on the availability of the species or stock of marine mammal for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance; and
    (c) Prescribes either regulations or requirements and conditions 
contained within an incidental harassment authorization, as appropriate, 
pertaining to the monitoring and reporting of such taking. The specific 
regulations governing certain specified activities are contained in 
subsequent subparts of this part.



Sec. 216.103  Definitions.

    In addition to definitions contained in the MMPA, and in Sec. 216.3, 
and unless the context otherwise requires, in subsequent subparts to 
this part:
    Arctic waters means the marine and estuarine waters north of 60 deg. 
N. lat.
    Citizens of the United States and U.S. citizens mean individual U.S. 
citizens or any corporation or similar entity if it is organized under 
the laws of the United States or any governmental unit defined in 16 
U.S.C. 1362(13). U.S. Federal, state and local government agencies shall 
also constitute citizens of the United States for purposes of this part.
    Incidental harassment, incidental taking and incidental, but not 
intentional, taking all mean an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings that 
are infrequent, unavoidable or accidental. (A complete definition of 
``take'' is contained in Sec. 216.3).
    Negligible impact is an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates of 
recruitment or survival.
    Small numbers means a portion of a marine mammal species or stock 
whose taking would have a negligible impact on that species or stock.

[[Page 60]]

    Specified activity means any activity, other than commercial 
fishing, that takes place in a specified geographical region and 
potentially involves the taking of small numbers of marine mammals.
    Specified geographical region means an area within which a specified 
activity is conducted and that has certain biogeographic 
characteristics.
    Unmitigable adverse impact means an impact resulting from the 
specified activity:
    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by:
    (i) Causing the marine mammals to abandon or avoid hunting areas;
    (ii) Directly displacing subsistence users; or
    (iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.



Sec. 216.104  Submission of requests.

    (a) In order for the National Marine Fisheries Service to consider 
authorizing the taking by U.S. citizens of small numbers of marine 
mammals incidental to a specified activity (other than commercial 
fishing), or to make a finding that an incidental take is unlikely to 
occur, a written request must be submitted to the Assistant 
Administrator. All requests must include the following information for 
their activity:
    (1) A detailed description of the specific activity or class of 
activities that can be expected to result in incidental taking of marine 
mammals;
    (2) The date(s) and duration of such activity and the specific 
geographical region where it will occur;
    (3) The species and numbers of marine mammals likely to be found 
within the activity area;
    (4) A description of the status, distribution, and seasonal 
distribution (when applicable) of the affected species or stocks of 
marine mammals likely to be affected by such activities;
    (5) The type of incidental taking authorization that is being 
requested (i.e., takes by harassment only; takes by harassment, injury 
and/or death) and the method of incidental taking;
    (6) By age, sex, and reproductive condition (if possible), the 
number of marine mammals (by species) that may be taken by each type of 
taking identified in paragraph (a)(5) of this section, and the number of 
times such takings by each type of taking are likely to occur;
    (7) The anticipated impact of the activity upon the species or stock 
of marine mammal;
    (8) The anticipated impact of the activity on the availability of 
the species or stocks of marine mammals for subsistence uses;
    (9) The anticipated impact of the activity upon the habitat of the 
marine mammal populations, and the likelihood of restoration of the 
affected habitat;
    (10) The anticipated impact of the loss or modification of the 
habitat on the marine mammal populations involved;
    (11) The availability and feasibility (economic and technological) 
of equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, their habitat, and on their availability for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance;
    (12) Where the proposed activity would take place in or near a 
traditional Arctic subsistence hunting area and/or may affect the 
availability of a species or stock of marine mammal for Arctic 
subsistence uses, the applicant must submit either a plan of cooperation 
or information that identifies what measures have been taken and/or will 
be taken to minimize any adverse effects on the availability of marine 
mammals for subsistence uses. A plan must include the following:
    (i) A statement that the applicant has notified and provided the 
affected subsistence community with a draft plan of cooperation;
    (ii) A schedule for meeting with the affected subsistence 
communities to discuss proposed activities and to resolve potential 
conflicts regarding any

[[Page 61]]

aspects of either the operation or the plan of cooperation;
    (iii) A description of what measures the applicant has taken and/or 
will take to ensure that proposed activities will not interfere with 
subsistence whaling or sealing; and
    (iv) What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in the 
operation;
    (13) The suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species, 
the level of taking or impacts on populations of marine mammals that are 
expected to be present while conducting activities and suggested means 
of minimizing burdens by coordinating such reporting requirements with 
other schemes already applicable to persons conducting such activity. 
Monitoring plans should include a description of the survey techniques 
that would be used to determine the movement and activity of marine 
mammals near the activity site(s) including migration and other habitat 
uses, such as feeding. Guidelines for developing a site-specific 
monitoring plan may be obtained by writing to the Director, Office of 
Protected Resources; and
    (14) Suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.
    (b)(1) The Assistant Administrator shall determine the adequacy and 
completeness of a request and, if determined to be adequate and 
complete, will begin the public review process by publishing in the 
Federal Register either:
    (i) A proposed incidental harassment authorization; or
    (ii) A notice of receipt of a request for the implementation or 
reimplementation of regulations governing the incidental taking.
    (2) Through notice in the Federal Register, newspapers of general 
circulation, and appropriate electronic media in the coastal areas that 
may be affected by such activity, NMFS will invite information, 
suggestions, and comments for a period not to exceed 30 days from the 
date of publication in the Federal Register. All information and 
suggestions will be considered by the National Marine Fisheries Service 
in developing, if appropriate, the most effective regulations governing 
the issuance of letters of authorization or conditions governing the 
issuance of an incidental harassment authorization.
    (3) Applications that are determined to be incomplete or 
inappropriate for the type of taking requested, will be returned to the 
applicant with an explanation of why the application is being returned.
    (c) The Assistant Administrator shall evaluate each request to 
determine, based upon the best available scientific evidence, whether 
the taking by the specified activity within the specified geographic 
region will have a negligible impact on the species or stock and, where 
appropriate, will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses. If the 
Assistant Administrator finds that the mitigating measures would render 
the impact of the specified activity negligible when it would not 
otherwise satisfy that requirement, the Assistant Administrator may make 
a finding of negligible impact subject to such mitigating measures being 
successfully implemented. Any preliminary findings of ``negligible 
impact'' and ``no unmitigable adverse impact'' shall be proposed for 
public comment along with either the proposed incidental harassment 
authorization or the proposed regulations for the specific activity.
    (d) If, subsequent to the public review period, the Assistant 
Administrator finds that the taking by the specified activity would have 
more than a negligible impact on the species or stock of marine mammal 
or would have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses, the Assistant Administrator shall 
publish in the Federal Register the negative finding along with the 
basis for denying the request.

[[Page 62]]



Sec. 216.105  Specific regulations.

    (a) For all petitions for regulations under this paragraph, 
applicants must provide the information requested in Sec. 216.104(a) on 
their activity as a whole, which includes, but is not necessarily 
limited to, an assessment of total impacts by all persons conducting the 
activity.
    (b) For allowed activities that may result in incidental takings of 
small numbers of marine mammals by harassment, serious injury, death or 
a combination thereof, specific regulations shall be established for 
each allowed activity that set forth:
    (1) Permissible methods of taking;
    (2) Means of effecting the least practicable adverse impact on the 
species and its habitat and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for the independent peer-review of proposed monitoring 
plans where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses.
    (c) Regulations will be established based on the best available 
information. As new information is developed, through monitoring, 
reporting, or research, the regulations may be modified, in whole or in 
part, after notice and opportunity for public review.



Sec. 216.106  Letter of Authorization.

    (a) A Letter of Authorization, which may be issued only to U.S. 
citizens, is required to conduct activities pursuant to any regulations 
established under Sec. 216.105. Requests for Letters of Authorization 
shall be submitted to the Director, Office of Protected Resources. The 
information to be submitted in a request for an authorization will be 
specified in the appropriate subpart to this part or may be obtained by 
writing to the above named person.
    (b) Issuance of a Letter of Authorization will be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under the specific 
regulations.
    (c) Letters of Authorization will specify the period of validity and 
any additional terms and conditions appropriate for the specific 
request.
    (d) Notice of issuance of all Letters of Authorization will be 
published in the Federal Register within 30 days of issuance.
    (e) Letters of Authorization shall be withdrawn or suspended, either 
on an individual or class basis, as appropriate, if, after notice and 
opportunity for public comment, the Assistant Administrator determines 
that:
    (1) The regulations prescribed are not being substantially complied 
with; or
    (2) The taking allowed is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (f) The requirement for notice and opportunity for public review in 
Sec. 216.106(e) shall not apply if the Assistant Administrator 
determines that an emergency exists that poses a significant risk to the 
wellbeing of the species or stocks of marine mammals concerned.
    (g) A violation of any of the terms and conditions of a Letter of 
Authorization or of the specific regulations shall subject the Holder 
and/or any individual who is operating under the authority of the 
Holder's Letter of Authorization to penalties provided in the MMPA.



Sec. 216.107  Incidental harassment authorization for Arctic waters.

    (a) Except for activities that have the potential to result in 
serious injury or mortality, which must be authorized under 
Sec. 216.105, incidental harassment authorizations may be issued, 
following a 30-day public review period, to allowed activities that may 
result in only the incidental harassment of a small number of marine 
mammals. Each such incidental harassment authorization shall set forth:
    (1) Permissible methods of taking by harassment;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for

[[Page 63]]

the independent peer-review of proposed monitoring plans where the 
proposed activity may affect the availability of a species or stock for 
taking for subsistence uses.
    (b) Issuance of an incidental harassment authorization will be based 
on a determination that the number of marine mammals taken by harassment 
will be small, will have a negligible impact on the species or stock of 
marine mammal(s), and will not have an unmitigable adverse impact on the 
availability of species or stocks for taking for subsistence uses.
    (c) An incidental harassment authorization will be either issued or 
denied within 45 days after the close of the public review period.
    (d) Notice of issuance or denial of an incidental harassment 
authorization will be published in the Federal Register within 30 days 
of issuance of a determination.
    (e) Incidental harassment authorizations will be valid for a period 
of time not to exceed 1 year but may be renewed for additional periods 
of time not to exceed 1 year for each reauthorization.
    (f) An incidental harassment authorization shall be modified, 
withdrawn, or suspended if, after notice and opportunity for public 
comment, the Assistant Administrator determines that:
    (1) The conditions and requirements prescribed in the authorization 
are not being substantially complied with; or
    (2) The authorized taking, either individually or in combination 
with other authorizations, is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (g) The requirement for notice and opportunity for public review in 
paragraph (f) of this section shall not apply if the Assistant 
Administrator determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals concerned.
    (h) A violation of any of the terms and conditions of an incidental 
harassment authorization shall subject the holder and/or any individual 
who is operating under the authority of the holder's incidental 
harassment authorization to penalties provided in the MMPA.



Sec. 216.108  Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.

    (a) Holders of an incidental harassment authorization in Arctic 
waters and their employees, agents, and designees must cooperate with 
the National Marine Fisheries Service and other designated Federal, 
state, or local agencies to monitor the impacts of their activity on 
marine mammals. Unless stated otherwise within an incidental harassment 
authorization, the holder of an incidental harassment authorization 
effective in Arctic waters must notify the Alaska Regional Director, 
National Marine Fisheries Service, of any activities that may involve a 
take by incidental harassment in Arctic waters at least 14 calendar days 
prior to commencement of the activity.
    (b) Holders of incidental harassment authorizations effective in 
Arctic waters may be required by their authorization to designate at 
least one qualified biological observer or another appropriately 
experienced individual to observe and record the effects of activities 
on marine mammals. The number of observers required for monitoring the 
impact of the activity on marine mammals will be specified in the 
incidental harassment authorization. If observers are required as a 
condition of the authorization, the observer(s) must be approved in 
advance by the National Marine Fisheries Service.
    (c) The monitoring program must, if appropriate, document the 
effects (including acoustical) on marine mammals and document or 
estimate the actual level of take. The requirements for monitoring 
plans, as specified in the incidental harassment authorization, may vary 
depending on the activity, the location, and the time.
    (d) Where the proposed activity may affect the availability of a 
species or stock of marine mammal for taking for

[[Page 64]]

subsistence purposes, proposed monitoring plans or other research 
proposals must be independently peer-reviewed prior to issuance of an 
incidental harassment authorization under this subpart. In order to 
complete the peer-review process within the time frames mandated by the 
MMPA for an incidental harassment authorization, a proposed monitoring 
plan submitted under this paragraph must be submitted to the Assistant 
Administrator no later than the date of submission of the application 
for an incidental harassment authorization. Upon receipt of a complete 
monitoring plan, and at its discretion, the National Marine Fisheries 
Service will either submit the plan to members of a peer review panel 
for review or within 60 days of receipt of the proposed monitoring plan, 
schedule a workshop to review the plan. The applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an incidental harassment authorization.
    (e) At its discretion, the National Marine Fisheries Service may 
place an observer aboard vessels, platforms, aircraft, etc., to monitor 
the impact of activities on marine mammals.
    (f)(1) As specified in the incidental harassment authorization, the 
holder of an incidental harassment authorization for Arctic waters must 
submit reports to the Assistant Administrator within 90 days of 
completion of any individual components of the activity (if any), within 
90 days of completion of the activity, but no later than 120 days prior 
to expiration of the incidental harassment authorization, whichever is 
earlier. This report must include the following information:
    (i) Dates and type(s) of activity;
    (ii) Dates and location(s) of any activities related to monitoring 
the effects on marine mammals; and
    (iii) Results of the monitoring activities, including an estimate of 
the actual level and type of take, species name and numbers of each 
species observed, direction of movement of species, and any observed 
changes or modifications in behavior.
    (2) Monitoring reports will be reviewed by the Assistant 
Administrator and, if determined to be incomplete or inaccurate, will be 
returned to the holder of the authorization with an explanation of why 
the report is being returned. If the authorization holder disagrees with 
the findings of the Assistant Administrator, the holder may request an 
independent peer review of the report. Failure to submit a complete and 
accurate report may result in a delay in processing future authorization 
requests.
    (g) Results of any behavioral, feeding, or population studies, that 
are conducted supplemental to the monitoring program, should be made 
available to the National Marine Fisheries Service before applying for 
an incidental harassment authorization for the following year.



     Subpart J--Taking of Ringed Seals Incidental to On-Ice Seismic 
                               Activities

    Source: 63 FR 5283, Feb. 2, 1998, unless otherwise noted.

    Effective Date Note: At 63 FR 5283, Feb. 2, 1998, subpart J was 
revised, effective Feb. 2, 1998, to Dec. 31, 2002.



Sec. 216.111  Specified activity and specified geographical region.

    Regulations in this subpart apply only to the incidental taking of 
ringed seals (Phoca hispida) and bearded seals (Erignathus barbatus) by 
U.S. citizens engaged in on-ice seismic exploratory and associated 
activities over the Outer Continental Shelf of the Beaufort Sea of 
Alaska, from the shore outward to 45 mi (72 km) and from Point Barrow 
east to Demarcation Point, from January 1 through May 31 of any calendar 
year.



Sec. 216.112  Effective dates.

    Regulations in this subpart are effective from February 2, 1998 
through December 31, 2002.



Sec. 216.113  Permissible methods.

    The incidental, but not intentional, taking of ringed and bearded 
seals from January 1 through May 31 by U.S. citizens holding a Letter of 
Authorization, issued under Sec. 216.106, is permitted during the course 
of the following activities:

[[Page 65]]

    (a) On-ice geophysical seismic activities involving vibrator-type, 
airgun, or other energy source equipment shown to have similar or lesser 
effects.
    (b) Operation of transportation and camp facilities associated with 
seismic activities.



Sec. 216.114  Mitigation.

    (a) All activities identified in Sec. 216.113 must be conducted in a 
manner that minimizes to the greatest extent practicable adverse effects 
on ringed and bearded seals and their habitat.
    (b) All activities identified in Sec. 216.113 must be conducted as 
far as practicable from any observed ringed or bearded seal or ringed 
seal lair. No energy source must be placed over an observed ringed seal 
lair, whether or not any seal is present.



Sec. 216.115  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization are required to cooperate 
with the National Marine Fisheries Service and any other Federal, state, 
or local agency monitoring the impacts on ringed or bearded seals.
    (b) Holders of Letters of Authorization must designate qualified on-
site individuals, as specified in the Letter of Authorization, to 
observe and record the presence of ringed or bearded seals and ringed 
seal lairs along shot lines and around camps, and the information 
required in paragraph (d) of this section.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) An annual report must be submitted to the Assistant 
Administrator for Fisheries within 90 days after completing each year's 
activities and must include the following information:
    (1) Location(s) of survey activities.
    (2) Level of effort (e.g., duration, area surveyed, number of 
surveys), methods used, and a description of habitat (e.g., ice 
thickness, surface topography) for each location.
    (3) Numbers of ringed seals, bearded seals, or other marine mammals 
observed, proximity to seismic or associated activities, and any seal 
reactions observed for each location.
    (4) Numbers of ringed seal lairs observed and proximity to seismic 
or associated activities for each location.
    (5) Other information as required in a Letter of Authorization.



Sec. 216.116  Applications for Letters of Authorization.

    (a) To incidentally take ringed and bearded seals pursuant to these 
regulations, each company conducting seismic operations between January 
1 and May 31 in the geographical area described in Sec. 216.111, must 
apply for and obtain a Letter of Authorization in accordance with 
Sec. 216.106.
    (b) The application must be submitted to the National Marine 
Fisheries Service at least 90 days before the activity is scheduled to 
begin.
    (c) Applications for Letters of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of company requesting the authorization;
    (2) A description of the activity including method to be used 
(vibroseis, airgun, watergun), the dates and duration of the activity, 
the specific location of the activity and the estimated area that will 
actually be affected by the exploratory activity;
    (3) Any plans to monitor the behavior and effects of the activity on 
marine mammals;
    (4) A description of what measures the applicant has taken and/or 
will take to ensure that proposed activities will not interfere with 
subsistence sealing; and
    (5) What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in the 
operation.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of ringed and bearded seals.



Sec. 216.117  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.111 will be renewed annually upon:

[[Page 66]]

    (1) Timely receipt of the reports required under Sec. 216.115(d), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable; and
    (2) A determination that the mitigation measures required under 
Sec. 216.114(b) and the Letter of Authorization have been undertaken.
    (b) A notice of issuance of a Letter of Authorization or of a 
renewal of a Letter of Authorization will be published in the Federal 
Register within 30 days of issuance.



Sec. 216.118  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to a Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.117, without modification, 
is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.111, the Letter of 
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to 
this section may be substantively modified without prior notice and an 
opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.



Sec. 216.119  [Reserved]



                        Subparts K-L  [Reserved]



Subpart M--Taking of Bottlenose Dolphins and Spotted Dolphins Incidental 
               to Oil and Gas Structure Removal Activities

    Source: 60 FR 53145, Oct. 12, 1995, unless otherwise noted. 
Redesignated at 61 FR 15887, Apr. 10, 1996.

    Effective Date Note: At 60 FR 53145, Oct. 12, 1995, subpart E to 
part 228 was added, effective Nov. 13, 1995 through Nov. 13, 2000. At 61 
FR 15887, Apr. 10, 1996, subpart E to part 228 was redesignated as 
subpart M to part 216.



Sec. 216.141  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals by U.S. citizens engaged in removing oil and gas 
drilling and production structures in state waters and on the Outer 
Continental Shelf in the Gulf of Mexico adjacent to the coasts of Texas, 
Louisiana, Alabama, Mississippi, and Florida. The incidental, but not 
intentional, taking of marine mammals by U.S. citizens holding a Letter 
of Authorization is permitted during the course of severing pilings, 
well conductors, and related supporting structures, and other activities 
related to the removal of the oil well structure.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited annually to a 
combined total of no more than 200 takings by harassment of bottlenose 
dolphins (Tursiops truncatus) and spotted dolphins (Stenella frontalis 
and S. attenuata).



Sec. 216.142  Effective dates.

    Regulations in this subpart are effective from November 13, 1995 
through November 13, 2000.



Sec. 216.143  Permissible methods of taking; mitigation.

    (a) The use of the following means in conducting the activities 
identified in Sec. 216.141 is permissible: Bulk explosives, shaped 
explosive charges, mechanical or abrasive cutters, and underwater arc 
cutters.
    (b) All activities identified in Sec. 216.141 must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
effects on bottlenose dolphins, spotted dolphins, and their habitat. 
When using explosives, the following mitigation measures must be 
utilized:
    (1)(i) If bottlenose or spotted dolphins are observed within 3,000 
ft (910 m) of the platform prior to detonating charges, detonation must 
be delayed

[[Page 67]]

until either the marine mammal(s) are more than 3,000 ft (910 m) from 
the platform or actions (e.g., operating a vessel in the vicinity of the 
dolphins to stimulate bow riding, then steering the vessel away from the 
structure to be removed) are successful in removing them at least 3,000 
ft (910 m) from the detonation site;
    (ii) Whenever the conditions described in paragraph (b)(1)(i) of 
this section occur, the aerial survey required under Sec. 216.145(b)(1) 
must be repeated prior to detonation of charges if the timing 
requirements of Sec. 216.145(b)(1) cannot be met.
    (2) Detonation of explosives must occur no earlier than 1 hour after 
sunrise and no later than 1 hour before sunset;
    (3) If weather and/or sea conditions preclude adequate aerial, 
shipboard or subsurface surveillance, detonations must be delayed until 
conditions improve sufficiently for surveillance to be undertaken; and
    (4) Detonations must be staggered by a minimum of 0.9 seconds for 
each group of charges.

[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Sec. 216.144  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.143 or by a Letter of 
Authorization issued under Sec. 216.106, the following activities are 
prohibited:
    (a) The taking of a marine mammal that is other than unintentional, 
except that the intentional passive herding of dolphins from the 
vicinity of the platform may be authorized under section 109(h) of the 
Act as described in a Letter of Authorization;
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued or renewed under Sec. 216.106 or Sec. 216.146;
    (c) The incidental taking of any marine mammal of a species either 
not specified in this subpart or whenever the incidental taking 
authorization for authorized species has been reached; and
    (d) The use of single explosive charges having an impulse and 
pressure greater than that generated by a 50-lb (22.7 kg) explosive 
charge detonated outside the rig piling.

[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Sec. 216.145  Requirements for monitoring and reporting.

    (a) Observer(s) approved by the National Marine Fisheries Service in 
advance of the detonation must be used to monitor the area around the 
site prior to, during, and after detonation of charges.
    (b)(1) Both before and after each detonation episode, an aerial 
survey by NMFS-approved observers must be conducted for a period not 
less than 30 minutes within 1 hour of the detonation episode. To ensure 
that no marine mammals are within the designated 3,000 ft (1,000 yd, 941 
m) safety zone nor are likely to enter the designated safety zone prior 
to or at the time of detonation, the pre-detonation survey must 
encompass all waters within one nautical mile of the structure.
    (2) A second post-detonation aerial or vessel survey of the 
detonation site must be conducted no earlier than 48 hours and no later 
than 1 week after the oil and gas structure is removed, unless a 
systematic underwater survey, either by divers or remotely-operated 
vehicles, dedicated to marine mammals and sea turtles, of the site has 
been successfully conducted within 24 hours of the detonation event. The 
aerial or vessel survey must be systematic and concentrate down-current 
from the structure.
    (3) The NMFS observer may waive post-detonation monitoring described 
in paragraph (b)(2) of this section provided no marine mammals were 
sighted by the observer during either the required 48 hour pre-
detonation monitoring period or during the pre-detonation aerial survey.
    (c) During all diving operations (working dives as required in the 
course of the removals), divers must be instructed to scan the 
subsurface areas surrounding the platform (detonation) sites for 
bottlenose or spotted dolphins and if marine mammals are sighted to 
inform either the U.S. government observer or the agent of the holder of 
the Letter of Authorization immediately upon surfacing.

[[Page 68]]

    (d)(1) A report summarizing the results of structure removal 
activities, mitigation measures, monitoring efforts, and other 
information as required by a Letter of Authorization, must be submitted 
to the Director, NMFS, Southeast Region, 9721 Executive Center Drive N, 
St. Petersburg, FL 33702 within 30 calendar days of completion of the 
removal of the rig.
    (2) NMFS will accept the U.S. Government observer report as the 
activity report if all requirements for reporting contained in the 
Letter of Authorization are provided to that observer before the 
observer's report is complete.



Sec. 216.146  Letters of Authorization.

    (a) To incidentally take bottlenose and spotted dolphins pursuant to 
these regulations, each company operating or which operated an oil or 
gas structure in the geographical area described in Sec. 216.141, and 
which is responsible for abandonment or removal of the platform, must 
apply for and obtain a Letter of Authorization in accordance with 
Sec. 216.106.
    (b) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of bottlenose and spotted dolphins.

[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Sec. 216.147  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.141 will be renewed annually upon:
    (1) Timely receipt of the reports required under Sec. 216.145(d), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable;
    (2) A determination that the maximum incidental take authorizations 
in Sec. 216.141(b) will not be exceeded; and
    (3) A determination that the mitigation measures required under 
Sec. 216.143(b) and the Letter of Authorization have been undertaken.
    (b) If a species' annual authorization is exceeded, the Assistant 
Administrator will review the documentation submitted with the annual 
reports required under Sec. 216.145(d), to determine that the taking is 
not having more than a negligible impact on the species or stock 
involved.
    (c) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register.

[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Sec. 216.148  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.147, without modification, 
is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.141(b), the Letter of 
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to 
this section may be substantively modified without prior notice and an 
opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.

[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Subpart N--Taking of Marine Mammals Incidental to Underwater Detonation 
         of Conventional Explosives by the Department of Defense

    Source: 59 FR 5126, Feb. 3, 1994, unless otherwise noted. 
Redesignated at 61 FR 15887, Apr. 10, 1996.

    Effective Date Note: At 59 FR 5126, Feb. 3, 1994, subpart F to part 
228 was added, effective March 3, 1994 through March 3, 1999. At 61 FR 
15887, Apr. 10, 1996, subpart F of part 228 was redesignated as subpart 
N of part 216.

[[Page 69]]



Sec. 216.151  Specified activity, geographical region, and incidental take levels.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in the detonation of conventional military explosives 
within the waters of the Outer Sea Test Range of the Naval Air Warfare 
Center, Pt. Mugu, Ventura County, CA.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited annually to the 
following species and species groups:

------------------------------------------------------------------------
                                              Lethal  Injury  Harassment
------------------------------------------------------------------------
California Sea Lion.........................       2      38       173
Harbor Seal.................................       2      16        68
Northern Elephant Seal......................       9     158       724
Northern Fur Seal...........................       2      13        57
Common Dolphin..............................       1      16        67
Striped Dolphin.............................       0       2         5
Risso's Dolphin.............................       0       1         2
Pacific White-Sided Dolphin.................       3      52       236
Northern Rt. Whale Dolphin..................       2      24       108
Dall's Porpoise.............................       0       6        18
Bottlenose Dolphin..........................       0       4        15
Killer Whale................................       0       0         1
Sperm Whale.................................       0       6        20
Beaked Whales...............................       0       0         3
Minke Whale.................................       0       0         4
Blue Whale..................................       0       1        11
Fin Whale...................................       0       0         6
Sei Whale...................................       0       0         1
Humpback Whale..............................       0       0         4
Gray Whale..................................       0       3        40
Right Whale.................................       0       0         1
------------------------------------------------------------------------



Sec. 216.152  Effective dates.

    Regulations in this subpart are effective from March 3, 1994, 
through March 3, 1999.



Sec. 216.153  Permissible methods of taking; mitigation.

    (a) U.S. citizens holding a Letter of Authorization issued pursuant 
to Sec. 216.106 may incidentally, but not intentionally, take marine 
mammals by harassment, injury or killing in the course of the detonation 
of conventional explosives up to the following maximum annual level 
within the area described in Sec. 216.151(a):
    (1) 12 detonations of 10,000 lbs (4,536 kg);
    (2) 2 detonations of 1,200 lbs (544 kg);
    (3) 10 detonations of 100 lbs (45 kg);
    (4) 10 detonations of 10 lbs (4.5 kg); and
    (5) 20 detonations of 1 lb (0.45 kg), provided all terms, 
conditions, and requirements of these regulations and such Letter of 
Authorization are complied with.
    (b) The activity identified in paragraph (a) of this section must be 
conducted in a manner that minimizes, to the greatest extent possible, 
adverse impacts on marine mammals and their habitat. When detonating 
explosives, the following mitigation measures must be utilized:
    (1) If marine mammals are observed within the designated safety zone 
prescribed in the Letter of Authorization, or on a course that will put 
them within the safety zone prior to detonation, detonation must be 
delayed until the marine mammals are no longer within the safety zone.
    (2) If weather and/or sea conditions preclude adequate aerial 
surveillance, detonation must be delayed until conditions improve 
sufficiently for aerial surveillance to be undertaken.
    (3) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, the test procedure and the monitoring 
methods must be reviewed and appropriate changes must be made prior to 
conducting the next project.

[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]



Sec. 216.154  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.153 or by a Letter of 
Authorization issued under Sec. 216.106, the following activities are 
prohibited:
    (a) The taking of a marine mammal that is other than unintentional;
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued or renewed under Sec. 216.106 or Sec. 216.156; and
    (c) The incidental taking of any marine mammal of a species either 
not specified in this subpart or whose taking authorization for the year 
has been reached.

[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 
15890, Apr. 10, 1996]

[[Page 70]]



Sec. 216.155  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. The holder must notify the Director, Southwest Region, 
National Marine Fisheries Service, 501 West Ocean Boulevard, suite 4200, 
Long Beach, CA (Telephone: (310) 980-4001), at least 2 weeks prior to 
activities involving the detonation of explosives in order to satisfy 
paragraph (f) of this section.
    (b) The holder of the Letter of Authorization must designate a 
qualified on-site individual(s) to record the effects of explosives 
detonation on marine mammals that inhabit the Outer Sea Test Range.
    (c) The primary test area, and if necessary, secondary and tertiary 
test areas, in the Outer Sea Test Range, must be surveyed by marine 
mammal biologists and other trained individuals, and the marine mammal 
populations monitored, approximately 48 hours prior to a scheduled 
detonation, on the day of detonation, and for a period of time specified 
in the Letter of Authorization after each test or project. Monitoring 
shall include, but not necessarily be limited to, aerial surveillance 
sufficient to ensure that no marine mammals are within the designated 
safety zone nor are likely to enter the designated safety zone prior to 
or at the time of detonation.
    (d)(1) Under the direction of a certified marine mammal 
veterinarian, examination and recovery of any dead or injured marine 
mammals will be conducted. Necropsies will be performed and tissue 
samples taken from any dead animals. After completion of the necropsy, 
animals not retained for shoreside examination, will be tagged and 
returned to the sea. The occurrence of live marine mammals will also be 
documented.
    (2) Activities related to the monitoring described in paragraph 
(d)(1) of this section or the Letter of Authorization issued under this 
part may include the retention of marine mammals without the need for a 
separate scientific research permit. The use of such marine mammals in 
other scientific research may be authorized pursuant to 50 CFR parts 216 
and 220.
    (e) At its discretion, the National Marine Fisheries Service may 
place an observer on either the towing vessel, target vessel, or both, 
and on any ship or aircraft involved in marine mammal reconnaissance, or 
monitoring either prior to, during, or after explosives detonation in 
order to monitor the impact on marine mammals.
    (f) A summary report must be submitted to the Assistant 
Administrator for Fisheries, NOAA, within 90 days after the conclusion 
of any explosives detonation project. This report must include the 
following information:
    (1) Date and time of the test(s);
    (2) A summary of the pre-test and post-test activities related to 
mitigating and monitoring the effects of explosives detonation on marine 
mammal populations; and
    (3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the 
detonation and numbers that may have been harassed due to presence 
within the safety zone.
    (g) An annual report must be submitted to the Assistant 
Administrator for Fisheries, NOAA, no later than 120 days prior to the 
date of expiration of the annual Letter of Authorization in order for 
issuance of a Letter of Authorization for the following year. This 
annual report must contain the following information:
    (1) Date and time of all tests conducted under the expiring Letter 
of Authorization;
    (2) A description of all pre-test and post-test activities related 
to mitigating and monitoring the effects of explosives detonation on 
marine mammal populations;
    (3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the 
detonation and numbers that may have been harassed due to presence 
within the designated safety zone;
    (4) If one or more species' take levels have been reached or 
exceeded during the previous year, additional documentation must be 
provided on the

[[Page 71]]

taking and a description of any measures that will be taken in the 
following year to prevent exceeding the authorized incidental take 
level.
    (5) Results of any population assessment studies made on marine 
mammals in the Outer Sea Test Range during the previous year.



Sec. 216.156  Renewal of Letter of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.151(a) will be renewed annually upon:
    (1) Timely receipt of the reports required under Sec. 216.155(f) and 
(g), which have been reviewed by the Assistant Administrator for 
Fisheries, NOAA, and determined to be acceptable;
    (2) A determination that the maximum incidental take authorizations 
in Sec. 216.151(b) will not be exceeded; and
    (3) A determination that the mitigation measures required under 
Sec. 216.153(b) and the Letter of Authorization have been undertaken.
    (b) If a species' annual authorization is exceeded, the National 
Marine Fisheries Service will review the documentation submitted with 
the annual report required under Sec. 216.155(g), to determine that the 
taking is not having more than a negligible impact on the species or 
stock involved.
    (c) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register.

[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 
15890-15891, Apr. 10, 1996]



Sec. 216.157  Modifications to Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.146, without modification, 
is not considered a substantive modification.
    (b) If the National Marine Fisheries Service determines that an 
emergency exists that poses a significant risk to the well-being of the 
species or stocks of marine mammals specified in Sec. 216.151, or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec. 216.151, the Letter of 
Authorization issued pursuant to Sec. 216.106, or renewed pursuant to 
this section may be substantively modified without prior notice and an 
opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.

[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 
15891, Apr. 10, 1996]



                         Subparts O-Q [Reserved]



PART 217--GENERAL PROVISIONS--Table of Contents




                         Subpart A--Introduction

Sec.
217.1  Purpose of regulations.
217.2  Scope of regulations.
217.3  Other applicable laws.
217.4  When regulations apply.

                         Subpart B--Definitions

217.12  Definitions.

                          Subpart C--Addresses

217.21  Assistant Administrator.
217.22  Office of Marine Mammals and Endangered Species.
217.23  Enforcement Division.

    Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544, 
unless otherwise noted.



                         Subpart A--Introduction



Sec. 217.1  Purpose of regulations.

    The regulations of parts 216 through 227 are promulgated to 
implement the following statutes enforced by the National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Department of Commerce, which regulate the taking, possession, 
transportation, sale, purchase,

[[Page 72]]

barter, exportation, and importation of wildlife.

(Endangered Species Act of 1973, section 11(f), 87 Stat. 884, Pub. L. 
93-205; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-1)

[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]



Sec. 217.2  Scope of regulations.

    The various provisions of parts 216 through 227 of this chapter are 
interrelated, and particular note should be taken that the parts must be 
construed with reference to each other. The regulations in parts 216 
through 227 apply only for fish or wildlife under the jurisdictional 
responsibilities of the Secretary of Commerce for the purpose of 
carrying out the Endangered Species Act of 1973 (see part 222, 
Sec. 222.23(a)). Endangered species of fish or wildlife other than those 
covered by these regulations are under the jurisdiction of the Secretary 
of the Interior. For rules and procedures relating to such species, see 
50 CFR parts 10 through 17.

[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]



Sec. 217.3  Other applicable laws.

    No statute or regulation of any State shall be construed to relieve 
a person from the restrictions, conditions, and requirements contained 
in parts 216 through 227 of this chapter. In addition, nothing in parts 
216 through 227 of this chapter, nor any permit issued under parts 217 
through 228 of this chapter, shall be construed to relieve a person from 
any other requirements imposed by a statute or regulation of any State 
or of the United States, including any applicable health, quarantine, 
agricultural, or customs laws or regulations, or other National Marine 
Fisheries Service enforced statutes or regulations.

[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]



Sec. 217.4  When regulations apply.

    The regulations of parts 216 through 227 of this chapter shall apply 
to all matters, including the processing of permits, arising after the 
effective date of such regulations, with the following exception:
    (a) Civil penalty proceedings. Except as otherwise provided in 
Sec. 218.25, the civil penalty assessment procedures contained in parts 
216 through 227 of this chapter shall apply only to any proceeding 
instituted by notice of violation dated subsequent to the effective date 
of these regulations, regardless of when the act or omission which is 
the basis of a civil penalty proceeding occurred.
    (b) [Reserved]

[39 FR 41370, Nov. 27, 1974, as amended at 52 FR 24250, June 29, 1987]



                         Subpart B--Definitions



Sec. 217.12  Definitions.

    Accelerator funnel means a device used to accelerate the flow of 
water through a shrimp trawl net.
    Act means the Endangered Species Act of 1973, as amended (Pub. L.

93-205).
    Approved TED means:
    (1) A hard TED that complies with the generic design criteria set 
forth in 50 CFR 227.72(e)(4)(i). (A hard TED may be modified as 
specifically authorized by 50 CFR 227.72(e)(4)(iv)); or
    (2) A soft TED that complies with the provisions of 50 CFR 
227.72(e)(4)(iii); or
    (3) A special hard TED which complies with the provisions of 50 CFR 
227.72(e)(4)(ii).
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Department of Commerce, or his authorized 
representative.
    Atlantic Area means all waters of the Atlantic Ocean south of 
36 deg.33'00.8" N. latitude (the line of the North Carolina/Virginia 
border) and adjacent seas, other than waters of the Gulf Area, and all 
waters shoreward thereof (including ports).
    Atlantic Shrimp Fishery-Sea Turtle Conservation Area (Atlantic 
SFSTCA) means the inshore and offshore waters extending to 10 nautical 
miles (18.5 km) offshore along the coast of the States of Georgia and 
South Carolina from the Georgia-Florida border (defined as the line 
along 301/242'45.6'' N. lat.) to the North Carolina-South Carolina 
border

[[Page 73]]

(defined as the line extending in a direction of 1351/234'55'' from true 
north from the North Carolina-South Carolina land boundary, as marked by 
the border station on Bird Island at 331/2 51'07.9'' N. lat., 
0781/232'32.6'' W. long.).
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard;
    (2) Any special agent or enforcement officer of the National Marine 
Fisheries Service;
    (3) Any officer designated by the head of a Federal or state agency 
that has entered into an agreement with the Secretary or the Commandant 
of the Coast Guard to enforce the provisions of the Act; or
    (4) Any Coast Guard personnel accompanying and acting under the 
direction of any person described in paragraph (1) of this definition.
    Bait shrimper means a shrimp trawler that fishes for and retains its 
shrimp catch alive for the purpose of selling it for use as bait.
    Commercial activity means all activities of industry and trade, 
including, but not limited to, the buying or selling of commodities and 
activities conducted for the purpose of facilitating such buying and 
selling: Provided, however, That it does not include the exhibition of 
commodities by museums or similar cultural or historical organizations.
    Country of exportation means the last country from which the animal 
was exported before importation into the United States.
    Country of origin means the country where the animal was taken from 
the wild, or the country of natal origin of the animal.
    Fish or wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or parts 
thereof.
    Fishing, or to fish, means:
    (1) The catching taking or harvesting of fish or wildlife;
    (2) The attempted catching, taking, or harvesting of fish or 
wildlife;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish or wildlife; or
    (4) Any operations on any waters in support of, or in preparation 
for, any activity described in paragraphs (1) through (3) of this 
definition.
    Footrope means a weighted rope or cable attached to the lower lip 
(bottom edge) of the mouth of a trawl net along the forwardmost webbing.
    Footrope length means the distance between the points at which the 
ends of the footrope are attached to the trawl net, measured along the 
forwardmost webbing.
    Foreign commerce includes, among other things, any transaction (1) 
between persons within one foreign country, or (2) between persons in 
two or more foreign countries, or (3) between a person within the United 
States and a person in one or more foreign countries, or (4) between 
persons within the United States, where the fish or wildlife in question 
are moving in any country or countries outside the United States.
    Four-seam, straight-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing are parallel over the entire length.
    Four-seam, tapered-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing converge toward the rear of the trawl.
    Gulf Area means all waters of the Gulf of Mexico west of 81 deg. W. 
longitude (the line at which the Gulf Area meets the Atlantic Area) and 
all waters shoreward thereof (including ports).
    Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means 
the offshore waters extending to 10 nautical miles (18.5 km) offshore 
along the coast of the States of Texas and Louisiana from the South Pass 
of the Mississippi River (west of 891/208.5' W. long.) to the U.S.-
Mexican border.

[[Page 74]]

    Hard TED means a rigid deflector grid and associated hardware 
designed to be installed in a trawl net forward of the codend for the 
purpose of excluding sea turtles from the net.
    Headrope means a rope that is attached to the upper lip (top edge) 
of the mouth of a trawl net along the forewardmost webbing.
    Headrope length means the distance between the points at which the 
ends of the headrope are attached to the trawl net, measured along the 
forewardmost webbing.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the meaning 
of the tariff laws of the United States.
    Inshore means marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Leatherback conservation zone means all inshore and offshore waters 
bounded on the south by a line along 28 deg.24.6' N. lat. (Cape 
Canaveral, FL), and bounded on the north by a line along 36 deg.30.5' N. 
lat. (North Carolina-Virginia border).
    Length in reference to a shrimp trawler, means the distance from the 
tip of the vessel's bow to the tip of its stern.
    North Carolina restricted area means that portion of the offshore 
waters bounded on the north by a line along 34 deg.17.6' N. latitude 
(Rich Inlet, North Carolina) and 34 deg.35.7' N. latitude (Browns Inlet, 
North Carolina) to a distance of 1 nautical mile seaward of the 72 
COLREGS demarcation line (International Regulations for Preventing 
Collisions at Sea, 1972).
    Offshore means marine and tidal waters seaward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Permit or ``Certificate of exemption'' means any document so 
designated by the National Marine Fisheries Service and signed by an 
authorized official of the National Marine Fisheries Service, including 
any document which modifies, amends, extends or renews any permit or 
certificate of exemption.
    Person means an individual, corporation, partnership, trust, 
association, or any other private entity, or any officer, employee, 
agent, department, or instrumentality of the Federal Government, of any 
State or political subdivision thereof, or of any foreign government.
    Possession means the detention and control, or the manual or ideal 
custody of anything which may be the subject of property, for one's use 
and enjoyment, either as owner or as the proprietor of a qualified right 
in it, and either held personally or by another who exercises it in 
one's place and name. Possession includes the act or state of possessing 
and that condition of facts under which one can exercise his power over 
a corporeal thing at his pleasure to the exclusion of all other persons. 
Possession includes constructive possession which means not actual but 
assumed to exist, where one claims to hold by virtue of some title, 
without having actual custody.
    Pre-Act endangered species part means any sperm whale oil, including 
derivatives and products thereof, which was lawfully held within the 
United States on December 28, 1973 in the course of a commercial 
activity; or any finished scrimshaw product, if such product or the raw 
material for such product was lawfully held within the United States on 
December 28, 1973, in the course of a commercial activity.
    Pusher-head trawl (chopsticks) means a trawl that is spread by poles 
suspended in a ``V'' configuration from the bow of the trawler.
    Right whale, as used in subpart D of this part, means any whale that 
is a member of the western North Atlantic population of the northern 
right whale species (Eubalaena glacialis).
    Scrimshaw product means any art form which involves the substantial 
etching or engraving of designs upon,

[[Page 75]]

or the substantial carving of figures, patterns, or designs from any 
bone or tooth of any marine mammal of the order Cetacea. For purposes of 
this part, polishing or the adding of minor superficial markings does 
not constitute substantial etching, engraving or carving.
    Secretary means the Secretary of Commerce or his authorized 
representative.
    Shrimp means any species of marine shrimp (Order Crustacea) found in 
the Atlantic Area or the Gulf Area, including, but not limited to:
    (1) Brown shrimp (Penaeus aztecus);
    (2) White shrimp (P. setiferus);
    (3) Pink shrimp (P. duorarum);
    (4) Rock shrimp (Sicyonia brevirostris);
    (5) Royal red shrimp (Hymenopenaeus robustus); and
    (6) Seabob shrimp (Xiphopenaeus kroyeri).
    Shrimp trawler means any vessel that is equipped with one or more 
trawl nets and that is capable of, or used for, fishing for shrimp, or 
whose on-board or landed catch of shrimp is more than 1 percent, by 
weight, of all fish comprising its on-board or landed catch.
    Skimmer trawl means a trawl that extends from the outrigger of a 
vessel with a cable and a lead weight holding the trawl mouth open.
    Soft TED means a panel of polypropylene or polyethylene netting 
designed to be installed in a trawl net forward of the codend for the 
purpose of excluding sea turtles from the net.
    State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam, and the Trust Territory of the Pacific Islands.
    Stretched mesh size means the distance between the centers of the 
two opposite knots in the same mesh when pulled taut.
    Summer flounder means the species Paralichthys dentatus.
    Summer flounder fishery-sea turtle protection area means:
    (1) All offshore waters, bounded on the north by a line along 
37 deg.05' N. latitude (Cape Charles, VA) and bounded on the south by a 
line along 33 deg.35' N. latitude (North Carolina-South Carolina 
border), except as provided in paragraph (2) of this definition.
    (2) [Reserved]
    Summer flounder trawler means any vessel that is equipped with one 
or more bottom trawl nets, and that is capable of, or used for, fishing 
for flounder, or whose on-board or landed catch of flounder is more than 
100 pounds (45.4 kg).
    Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect.
    Taper, in reference to the webbing used in trawls, means the angle 
of a cut used to shape the webbing, expressed as the ratio between the 
cuts that reduce the width of the webbing by cutting into the panel of 
webbing through one row of twine (bar cuts) and the cuts that extend the 
length of the panel of webbing by cutting straight aft through two 
adjoining rows of twine (point cuts). For example, sequentially cutting 
through the lengths of twine on opposite sides of a mesh, leaving an 
uncut edge of twines all lying in the same line, produces a relatively 
strong taper called ``all-bars''; making a sequence of 4-bar cuts 
followed by 1-point cut produces a more gradual taper called ``4 bars to 
1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts 
followed by 1-point cut produces a still more gradual taper called 
``2b1p''; and making a sequence of cuts straight aft does not reduce the 
width of the panel and is called a ``straight'' or ``all-points'' cut.
    Taut means a condition in which there is no slack in the net 
webbing.
    TED (turtle excluder device) means a device designed to be installed 
in a trawl net forward of the codend for the purpose of excluding sea 
turtles from the net.
    Test net, or try net, means a net pulled for brief periods of time 
just before, or during, deployment of the primary net(s) in order to 
test for shrimp concentrations or determine fishing conditions (e.g., 
presence or absence of bottom debris, jellyfish, bycatch, seagrasses, 
etc.).
    Tongue means any piece of webbing along the top, center, leading 
edge of a trawl, whether lying behind or ahead of

[[Page 76]]

the headrope, to which a towing bridle can be attached for purposes of 
pulling the trawl net and/or adjusting the shape of the trawl.
    Transportation means to ship, convey, carry or transport by any 
means whatever, and deliver or receive for such shipment, conveyance, 
carriage, or transportation.
    Triple-wing trawl means a trawl with a tongue on the top, center, 
leading edge of the trawl and an additional tongue along the bottom, 
center, leading edge of the trawl.
    Two-seam trawl means a design of shrimp trawl in which the main body 
of the trawl is formed from a top panel and a bottom panel of webbing 
that are directly attached to each other down the sides of the trawl.
    Underway, with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
    United States means the several States of the United States of 
America, the District of Columbia, the Commonwealth of Puerto Rico, 
American Samoa, the Virgin Islands, Guam, and the Trust Territory of the 
Pacific Islands.
    Vessel includes every description of watercraft, including 
nondisplacement craft and seaplanes, used or capable of being used as a 
means of transportation on water.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
    Whoever means the same as person.
    Wildlife means the same as fish or wildlife.
    Wing net (butterfly trawl) means a trawl with a rigid frame, rather 
than trawl door, holding the trawl mouth open.

(Sec. 3(d), Fish and Wildlife Act of 1956, as amended, 88 Stat. 92 (16 
U.S.C. 742b); sec. 11(f), Endangered Species Act of 1973, Pub. L. 93-
205, 87 Stat. 884 (16 U.S.C. 1540))

[45 FR 57132, Aug. 27, 1980]

    Editorial Note: For Federal Register citations affecting 
Sec. 217.12, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



                          Subpart C--Addresses

    Authority: Sec. 3(d), Fish and Wildlife Act of 1956, as amended, 88 
Stat. 92 (16 U.S.C. 742b); sec. 11(f), Endangered Species Act of 1973, 
Pub. L. 93-205, 87 Stat. 884 (16 U.S.C. 1540).

    Source: 45 FR 57133, Aug. 27, 1980, unless otherwise noted.



Sec. 217.21  Assistant Administrator.

    Mail forwarded to the Assistant Administrator for Fisheries should 
be addressed:

Assistant Administrator for Fisheries, F
National Marine Fisheries Service
Washington, DC 20235.



Sec. 217.22  Office of Marine Mammals and Endangered Species.

    Mail in regard to permits should be addressed to:

Office of Marine Mammals and Endangered Species, F/MM
National Marine Fisheries Service
Washington, DC 20235.



Sec. 217.23  Enforcement Division.

    Mail in regard to enforcement and certificates of exemption should 
be addressed to:

Enforcement Division, F/CM5
National Marine Fisheries Service
Washington, DC 20235.



PART 220--GENERAL PERMIT PROCEDURES--Table of Contents




                         Subpart A--Introduction

Sec.
220.1  General.
220.2  Purpose of regulations.
220.3  Scope of regulations.
220.4  Emergency variation from requirements.

                   Subpart B--Application for Permits

220.11  Procedure for obtaining a permit.
220.12  [Reserved]
220.13  Abandoned application.

                    Subpart C--Permit Administration

220.21  Issuance of permits.
220.22  Duration of permit.
220.23  [Reserved]
220.24  Renewal of permit.
220.25  Permits not transferable; agents.
220.26  Right of succession by certain persons.
220.27  Change of mailing address.
220.28  Change in name.
220.29-220.30  [Reserved]
220.31  Discontinuance of activity.

[[Page 77]]

                          Subpart D--Conditions

220.42  Permits are specific.
220.43  Alteration of permits.
220.44  Display of permit.
220.45  Filing of reports.
220.46  Maintenance of records.
220.47  Inspection requirement.

    Subpart E--Permits Involving Endangered or Threatened Sea Turtles

220.50  Purpose.
220.51  Permit applications.
220.52  Issuance of permits.
220.53  Other requirements.

    Authority: Endangered Species Act of 1973, sec. 11(f), 87 Stat. 884, 
Pub. L. 93-205; act of August 31, 1951, Ch. 376. Title 5, sec. 501, 65 
Stat. 290 (31 U.S.C. 483a).

    Source: 39 FR 41373, Nov. 27, 1974, unless otherwise noted.



                         Subpart A--Introduction



Sec. 220.1  General.

    Each person intending to engage in an activity for which a permit is 
required by parts 217 through 222 of this chapter or the Endangered 
Species Act of 1973 shall, before commencing such activity, obtain a 
valid permit authorizing such activity. Each person who desires to 
obtain the permit privileges authorized by parts 217 through 222 of this 
chapter must make application for such permit in accordance with the 
requirements of this part 220 of this chapter and the other regulations 
in parts 217 through 222 of this chapter which set forth the additional 
requirements for the specific permits desired. If the activity for which 
permission is sought is covered by the requirements of more than one 
part of parts 217 through 222 of this chapter, the requirements of each 
part must be met. If the information required for each specific 
permitted activity is included, one application may be accepted for all 
permits required, and a single permit may be issued.



Sec. 220.2  Purpose of regulations.

    The regulations contained in this part will provide uniform rules 
and procedures for application, issuance, renewal, conditions, and 
general administration of permits issuable pursuant to parts 217 through 
222 of this chapter.



Sec. 220.3  Scope of regulations.

    The provisions in this part are in addition to, and are not in lieu 
of, other permit regulations of parts 217 through 222 of this chapter 
and apply to all permits issued thereunder, including ``Endangered Fish 
or Wildlife'' (part 222).



Sec. 220.4  Emergency variation from requirements.

    The Director may approve variations from the requirements of this 
part when he finds that an emergency exists and that the proposed 
variations will not hinder effective administration of parts 217 through 
222 of this chapter, and will not be unlawful.



                   Subpart B--Application for Permits



Sec. 220.11  Procedure for obtaining a permit.

    The following general procedures apply to applications for permits:
    (a) Forms. Applications must be submitted by letter containing all 
necessary information, attachments, certification, and signature. In no 
case will oral or telephone applications be accepted.
    (b) Forwarding instructions. Applications must be submitted to the 
Director, National Marine Fisheries Service. The address is listed in 
Sec. 217.21.
    (c) Time requirement. Applications must be received by the 
appropriate official of the National Marine Fisheries Service at least 
90 calendar days prior to the date on which the applicant desires to 
have the permit made effective. The National Marine Fisheries Service 
will, in all cases, attempt to process applications deemed sufficient in 
the shortest possible time. The National Marine Fisheries Service does 
not, however, guarantee 90 days issuance after publication in the 
Federal Register of receipt of a permit application and some permits 
cannot be issued within that time period.



Sec. 220.12  [Reserved]



Sec. 220.13  Abandoned application.

    Upon receipt of an insufficiently or improperly executed 
application, the

[[Page 78]]

applicant shall be notified of the deficiency in the application. If the 
applicant fails to supply the deficient information or otherwise fails 
to correct the deficiency within 60 days following the date of 
notification, the application shall be considered abandoned.



                    Subpart C--Permit Administration



Sec. 220.21  Issuance of permits.

    (a) No permit may be issued prior to the receipt of a written 
application therefor, unless a written variation from the requirements, 
as authorized by Sec. 220.4 is inserted into the official file of the 
National Marine Fisheries Service. Any representation of an employee or 
agent of the United States Government shall not be construed as a permit 
unless it meets the requirements of a permit as defined in 50 CFR 
217.12.
    (b) The Director shall issue the appropriate permit unless--
    (1) Denial of a permit has been made pursuant to subpart D of 15 CFR 
part 904;
    (2) The applicant has failed to disclose material information 
required, or has made false statements as to any material fact, in 
connection with his application;
    (3) The applicant has failed to demonstrate a valid justification 
for the permit or a showing of responsibility;
    (4) The authorization requested potentially threatens a wildlife 
population, or
    (5) The Director finds through further inquiry or investigation, or 
otherwise, that the applicant is not qualified.
    (c) Each permit shall bear a serial number. Such number may be 
reassigned to the permittee to whom issued so long as he maintains 
continuity of renewal.
    (d) The applicant shall be notified in writing of the denial of any 
permit request, and the reasons therefor. If authorized in the notice of 
denial, the applicant may submit further information, or reasons why the 
permit should not be denied. Such further submissions shall not be 
considered a new application. The final action by the Director shall be 
considered the final administrative decision of the Department.

[39 FR 41373, Nov. 27, 1974, as amended at 49 FR 1042, Jan. 6, 1984]



Sec. 220.22  Duration of permit.

    Permits shall entitle the person to whom issued to engage in the 
activity specified in the permit, within the limitations of the 
applicable statute and regulations contained in parts 217 through 222 of 
this chapter for the period stated on the permit, unless sooner 
modified, suspended, or revoked pursuant to subpart D of 15 CFR part 
904.

[49 FR 1042, Jan. 6, 1984]



Sec. 220.23  [Reserved]



Sec. 220.24  Renewal of permit.

    Where the permit is renewable and a permittee intends to continue 
the activity described in the permit during any portion of the year 
ensuing its expiration, he shall, unless otherwise notified in writing 
by the Director, file a request for permit renewal, together with a 
certified statement that the information in his original application is 
still currently correct, or a statement of all changes in the original 
application, accompanied by any required fee at least 30 days prior to 
the expiration of his permit. Any person holding a valid renewable 
permit, who has complied with the foregoing provision of this section, 
may continue such activities as were authorized by his expired permit 
until his renewal application is acted upon.



Sec. 220.25  Permits not transferable; agents.

    (a) Permits issued under parts 220 through 222 are not transferable 
or assignable. Some permits authorize certain activities in connection 
with a business or commercial enterprise and in the event of any lease, 
sale, or transfer of such business entity, the successor must obtain a 
permit prior to continuing the permitted activity. However, certain 
limited rights of succession are provided in Sec. 220.26.
    (b) Except as otherwise stated on the face of a permit, any person 
who is under the direct control of the permittee, or who is employed by 
or under

[[Page 79]]

contract to the permittee for the purposes authorized by the permit, may 
carry out the activity authorized by the permit.



Sec. 220.26  Right of succession by certain persons.

    (a) Certain persons, other than the permittee, are granted the right 
to carry on a permitted activity for the remainder of the term of a 
current permit provided they comply with the provisions of paragraph (b) 
of this section. Such persons are the following:
    (1) The surviving spouse, child, executor, administrator, or other 
legal representative of a deceased permittee; and
    (2) A receiver or trustee in bankruptcy or a court designated 
assignee for the benefit of creditors.
    (b) In order to secure the right provided in this section, the 
person or persons desiring to continue the activity shall furnish the 
permit to the issuing officer for endorsement within 90 days from the 
date the successor begins to carry on the activity.



Sec. 220.27  Change of mailing address.

    During the term of his permit, a permittee may change his mailing 
address without procuring a new permit. However, in every case 
notification of the new mailing address must be forwarded to the issuing 
official within 30 days after such change. This section does not 
authorize the change of location of the permitted activity for which an 
amendment must be obtained.



Sec. 220.28  Change in name.

    A permittee continuing to conduct a permitted activity is not 
required to obtain a new permit by reason of a mere change in trade name 
under which a business is conducted or a change of name by reason of 
marriage or legal decree: Provided, That such permittee must furnish his 
permit to the issuing official for endorsement within 30 days from the 
date the permittee begins conducting the permitted activity under the 
new name.



Secs. 220.29-220.30  [Reserved]



Sec. 220.31  Discontinuance of activity.

    When any permittee discontinues his activity, he shall, within 30 
days thereof, mail his permit and a request for cancellation to the 
issuing officer, and said permit shall be deemed void upon receipt. No 
refund of any part of an amount paid as a permit fee shall be made where 
the operations of the permittee are, for any reason, discontinued during 
the tenure of an issued permit.



                          Subpart D--Conditions



Sec. 220.42  Permits are specific.

    The authorizations on the face of a permit which set forth specific 
times, dates, places, methods of taking, numbers and kinds of fish or 
wildlife, location of activity, authorize certain circumscribed 
transactions, or otherwise permit a specifically limited matter, are to 
be strictly construed and shall not be interpreted to permit similar or 
related matters outside the scope of strict construction.



Sec. 220.43  Alteration of permits.

    Permits shall not be altered, erased, or mutilated, and any permit 
which has been altered, erased, or mutilated shall immediately become 
invalid.



Sec. 220.44  Display of permit.

    Any permit issued under parts 220 through 222 shall be displayed for 
inspection upon request to the Director or his agent, or to any other 
person relying upon its existence.



Sec. 220.45  Filing of reports.

    Permittees may be required to file reports of the activities 
conducted under the permit. Any such reports shall be filed not later 
than March 31 for the preceding calendar year ending December 31, or any 
portion thereof, during which a permit was in force, unless the 
regulations of parts 217 through 222 of this chapter or the provisions 
of the permit set forth other reporting requirements.

[[Page 80]]



Sec. 220.46  Maintenance of records.

    From the date of issuance of the permit, the permittee shall 
maintain complete and accurate records of any taking, possession, 
transportation, sale, purchase, barter, exportation, or importation of 
fish or wildlife pursuant to such permit. Such records shall be kept 
current and shall include names and addresses of persons with whom any 
fish or wildlife has been purchased, sold, bartered, or otherwise 
transferred, and the date of such transaction, and such other 
information as may be required or appropriate. Such records, unless 
otherwise specified, shall be entered in books, legibly written in the 
English language. Such records shall be retained for 5 years from the 
date of issuance of the permit.



Sec. 220.47  Inspection requirement.

    Any person holding a permit under parts 217 through 222 of this 
chapter shall allow the Director's agent to enter his premises at any 
reasonable hour to inspect any fish or wildlife held or to inspect, 
audit, or copy any permits, books, or records required to be kept by 
regulations of parts 217 through 222 of this chapter or by the 
Endangered Species Act of 1973.



    Subpart E--Permits Involving Endangered or Threatened Sea Turtles

    Source: 43 FR 32809, July 28, 1978, unless otherwise noted.



Sec. 220.50  Purpose.

    This subpart establishes procedures for issuance of permits for 
scientific purposes or to enhance the propagation or survival of 
``endangered'' or ``threatened'' sea turtles and zoological exhibition 
or educational purposes for ``threatened'' sea turtles.



Sec. 220.51  Permit applications.

    Applications for permits to take, import, export or engage in any 
other prohibited activity involving any species of sea turtle listed in 
50 CFR 17.11 shall be submitted to the Wildlife Permit Office (WPO) of 
the U.S. Fish and Wildlife Service in accordance with either, 50 CFR 
17.22(a) (Endangered Species) or 50 CFR 17.32(a) (Threatened Species) as 
appropriate. Applications involving activities under the jurisdiction of 
the National Marine Fisheries Service (NMFS) as defined in 50 CFR 
222.23(a) and 50 CFR 227.4 shall be forwarded by the WPO to NMFS.



Sec. 220.52  Issuance of permits.

    (a) Applications under the jurisdiction of the WPO shall be reviewed 
and acted upon in accordance with 50 CFR 17.22 or 50 CFR 17.32 as 
appropriate.
    (b) NMFS shall make a complete review of applications forwarded to 
it by the WPO in accordance with Sec. 220.51 and determine the 
appropriate action to be taken in accordance with 50 CFR 220.21(b) and 
222.23(c). In instances where the application involves activities solely 
within NMFS jurisdiction, NMFS shall issue permits or letters of denial 
and provide WPO with copies of its actions.
    (c) Where a permit application involves activities under both NMFS 
and FWS jurisdiction, each agency will process the application for 
activities under its jurisdiction. WPO will issue either a permit or a 
letter of denial.
    (d) Where a permit application for activities under NMFS 
jurisdiction also requires a permit under the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora (TIAS 
8249, July 1, 1975) (CITES) (50 CFR part 23), NMFS will process the 
application for activities under its jurisdiction. WPO will issue the 
final document by means of a combination ESA/CITES permit or a letter of 
denial.



Sec. 220.53  Other requirements.

    Permits issued by NMFS under this subpart shall be administered and 
comply with the provisions of 50 CFR parts 217 through 227 as 
appropriate.



PART 221--DESIGNATED PORTS--Table of Contents




    Authority: Endangered Species Act of 1973, sec. 11(f), 87 Stat. 884, 
Pub. L. 93-205.



Sec. 221.1  Importation and exportation at designated ports.

    Any fish or wildlife (other than shellfish and fishery products 
which (a) are

[[Page 81]]

not endangered or not threatened species, and (b) are imported for 
purposes of human or animal consumption or taken in waters under the 
jurisdiction of the United States or on the high seas for recreational 
purposes) which is subject to the jurisdiction of the National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Department of Commerce and is intended for importation into or 
exportation from the United States, shall not be imported or exported 
except at a port or ports designated by the Secretary of the Interior. 
The Secretary of the Interior may permit the importation or exportation 
at nondesignated ports in the interest of the health or safety of the 
fish or wildlife or for other reasons if he deems it appropriate and 
consistent with the purpose of facilitating enforcement of the 
Endangered Species Act and reducing the costs thereof. Importers and 
exporters are advised to see 50 CFR part 14 for importation and 
exportation requirements and information.

[39 FR 41375, Nov. 27, 1974]



PART 222--ENDANGERED FISH OR WILDLIFE--Table of Contents




                         Subpart A--Introduction

Sec.
222.1  Purpose of regulations.
222.2  Scope of regulations.
222.3  Definitions.

  Subpart B--Certificates of Exemption for Pre-Act Endangered Species 
                                  Parts

222.11-1  General certificate of exemption requirements.
222.11-2  Application renewal procedure.
222.11-3  Application renewal requirements.
222.11-4  Procedures for issuance of renewals of certificates of 
          exemption.
222.11-5  Application for modification of certificate of exemption by 
          holder.
222.11-6  Amendment of certificates of exemption.
222.11-7  Procedures for suspension, revocation, or modification of 
          certificates of exemption.
222.11-8  Purchaser provisions.
222.11-9  Duration of certificate of exemption.
222.12  Locations covered by certificate of exemption.
222.12-1  Certificate of exemption not transferable; exception.
222.12-2  Change of address.
222.12-3  Certain continuance of business.
222.12-4  Change in trade name.
222.12-5  State or other law.
222.12-6  Right of entry and examination.
222.12-7  Records.
222.12-8  Record of receipt and disposition.
222.12-9  Importation.
222.13  Exportation.
222.13-1  Procedure by exporter.
222.13-2  Action by Customs.
222.13-3  Transportation to effect exportation.
222.13-4  Burden of proof; presumption.

             Subpart C--Endangered Fish or Wildlife Permits

222.21  General permit requirement.
222.22  Permits for the incidental taking of endangered species.
222.23  Permits for scientific purposes or to enhance the propagation or 
          survival of the affected endangered species.
222.24  Procedures for issuance of permits.
222.25  Applications for modification of permit by permittee.
222.26  Amendment of permits by NMFS.
222.27  Procedures for suspension, revocation, or modification of 
          permits.
222.28  Possession of permits.

                     Subpart D--Special Prohibitions

222.31  Approaching humpback whales in Hawaii.
222.32  Approaching North Atlantic right whales.
222.33  Special prohibitions relating to endangered Steller sea lion 
          protection.

         Subpart E--Incidental Capture of Endangered Sea Turtles

222.41  Policy regarding incidental capture of sea turtles.
222.42  Special prohibitions relating to leatherback sea turtles.

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.



                         Subpart A--Introduction



Sec. 222.1  Purpose of regulations.

    The regulations contained in this part identify the species or 
subspecies of fish or wildlife determined to be endangered under either 
the Endangered Species Conservation Act of 1969 or the Endangered 
Species Act of 1973, and presently deemed endangered species under the 
Endangered Species Act of 1973, which are under the jurisdiction of the 
Secretary of Commerce, and establish procedures and criteria for

[[Page 82]]

issuance of permits for the taking, importation, exportation, or 
otherwise prohibited acts, involving endangered fish or wildlife. The 
regulations of this part implement, in part, the Endangered Species Act 
of 1973, 87 Stat. 884, Pub. L. 93-205, as amended.

[45 FR 57133, Aug. 27, 1980]



Sec. 222.2  Scope of regulations.

    (a) The regulations of this part apply only to endangered fish or 
wildlife.
    (b) The provisions in this part are in addition to, and are not in 
lieu of, other regulations of parts 217 through 222 of this chapter 
which may require a permit or prescribe additional restrictions or 
conditions for the taking, importation, exportation, and interstate 
transportation of fish or wildlife. (See also parts 220 and 221 of this 
chapter.)

[45 FR 57133, Aug. 27, 1980]



Sec. 222.3  Definitions.

    These definitions apply only to Sec. 222.22:
    Adequately covered means, with respect to species listed pursuant to 
section 4 of the ESA, that a proposed conservation plan has satisfied 
the permit issuance criteria under section 10(a)(2)(B) of the ESA for 
the species covered by the plan and, with respect to unlisted species, 
that a proposed conservation plan has satisfied the permit issuance 
criteria under section 10(a)(2)(B) of the ESA that would otherwise apply 
if the unlisted species covered by the plan were actually listed. For 
the Services to cover a species under a conservation plan, it must be 
listed on the section 10(a)(1)(B) permit.
    Changed circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that can 
reasonably be anticipated by plan developers and NMFS and that can be 
planned for (e.g., the listing of new species, or a fire or other 
natural catastrophic event in areas prone to such events).
    Conserved habitat areas means areas explicitly designated for 
habitat restoration, acquisition, protection, or other conservation 
purposes under a conservation plan.
    Conservation plan means the plan required by section 10(a)(2)(A) of 
the ESA that an applicant must submit when applying for an incidental 
take permit. Conservation plans also are known as ``habitat conservation 
plans'' or ``HCPs.''
    Operating conservation program means those conservation management 
activities which are expressly agreed upon and described in a 
conservation plan or its Implementing Agreement, if any, and which are 
to be undertaken for the affected species when implementing an approved 
conservation plan, including measures to respond to changed 
circumstances.
    Properly implemented conservation plan means any conservation plan, 
Implementing Agreement and permit whose commitments and provisions have 
been or are being fully implemented by the permittee.
    Unforeseen circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that could not 
reasonably have been anticipated by plan developers and NMFS at the time 
of the conservation plan's negotiation and development, and that result 
in a substantial and adverse change in the status of the covered 
species.

[63 FR 8872, Feb. 23, 1998]



  Subpart B--Certificates of Exemption for Pre-Act Endangered Species 
                                  Parts

    Source: 45 FR 57134, Aug. 27, 1980, unless otherwise noted.



Sec. 222.11-1  General certificate of exemption requirements.

    (a) The Assistant Administrator, pursuant to the provisions of the 
Endangered Species Act, and pursuant to the provisions of this 
paragraph, may exempt any pre-Act endangered species part from one or 
more of the following:
    (1) The prohibition, as set forth in section 9(a)(1)(A) of the Act, 
to export any such species part from the United States;
    (2) The prohibitions, as set forth in section 9(a)(1)(E) of the Act, 
to deliver, receive, carry, transport, or ship in interstate or foreign 
commerce, by any means whatsoever and in the course of

[[Page 83]]

a commercial activity any such species part;
    (3) The prohibitions, as set forth in section 9(a)(1)(F) of the Act, 
to sell or offer for sale in interstate or foreign commerce any such 
species part.
    (b) No person shall engage in any of the above activities involving 
any pre-Act endangered species part without a valid certificate of 
exemption, or evidence of a right thereunder, issued pursuant to this 
subpart B.
    (c) After January 31, 1984, no person may export; deliver, receive, 
carry, transport or ship in interstate or foreign commerce in the course 
of a commercial activity; or sell or offer for sale in interstate or 
foreign commerce any pre-Act finished scrimshaw product unless that 
person has been issued a valid certificate of exemption and the product 
or the raw material for such product was held by such certificate holder 
on October 13, 1982.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12808, Apr. 1, 1985]



Sec. 222.11-2  Application renewal procedure.

    (a) Any person to whom a certificate of exemption has been issued by 
the National Marine Fisheries Service and who desires to obtain a 
renewal of such certificate of exemption may make application therefor 
to the Assistant Administrator. The sufficiency of the application shall 
be determined by the Assistant Administrator in accordance with the 
requirements of this part and, in that connection, he may waive any 
requirement for information, or require any elaboration for further 
information deemed necessary.
    (b) One copy of a completed application for renewal shall be 
submitted to the Assistant Administrator for Fisheries, National Marine 
Fisheries Service, Washington, DC 20235.
    (c) The outside of the envelope should be marked, ATTENTION: 
Enforcement Division, ``Certificate of Exemption Request.'' Assistance 
may be obtained by writing or calling the Enforcement Division, NMFS, in 
Washington, DC (AC 202, 634-7265). At least 15 days should be allowed 
for processing. An application for a certificate of exemption shall 
provide the information contained in Sec. 222.11-3 (when the information 
requested is not applicable, put ``N.A.'') and such other information 
that the Assistant Administrator may require.

[45 FR 57134, Aug. 27, 1980]



Sec. 222.11-3  Application renewal requirements.

    (a) The following information will be used as the basis for 
determining whether an application for renewal of a certificate of 
exemption is complete:
    (1) Title: Application for Renewal of Certificate of Exemption Under 
Pub. L. 97-304.
    (2) The date of application.
    (3) The identity of the applicant including complete name, original 
certificate of exemption number, current address, and telephone number, 
including zip and area codes. If the applicant is a corporation, 
partnership, or association set forth the details.
    (4) The period of time for which a renewal of the certificate of 
exemption is requested; however, no renewal of certificate of exemption, 
or right claimed thereunder, shall be effective after the close of the 
three-year period beginning on the date of the expiration of the 
previous renewal of the certificate of exemption.
    (5)(i) A complete and detailed up-dated inventory of all pre-Act 
endangered species parts for which the applicant seeks exemption. Each 
item on the inventory must be identified by the following information: a 
unique serial number; the weight of the item in grams, to the nearest 
whole gram; and a description in detail sufficient to permit ready 
identification of the item. Small lots, not exceeding five pounds (2,270 
grams), of scraps or raw material, which may include or consist of one 
or more whole raw whale teeth, may be identified by a single serial 
number and total weight. All finished scrimshaw items subsequently made 
from a given lot of scrap may be identified by the lot serial number 
plus additional digits to signify the piece number of the individual 
finished item. Identification numbers will be in the following format: 
00-000000-0000. The first two digits will be the last two digits of the 
appropriate certificate of exemption number; the next six digits, the 
serial number of the individual piece or lot of scrap or

[[Page 84]]

raw material; and the last four digits, where applicable, the piece 
number of an item made from a lot of scrap or raw material. The serial 
numbers for each certificate holder's inventory must begin with 000001, 
and piece numbers, where applicable, must begin with 0001 for each 
separate lot.
    (ii) Identification numbers may be affixed to inventory items by any 
means, including, but not limited to, etching the number into the item, 
attaching a label or tag bearing the number to the item, or sealing the 
item in a plastic bag, wrapper or other container bearing the number. 
Provided that, the number must remain affixed to the item until it is 
sold to an ultimate user, as defined in Sec. 222.11-8(b) of this part.
    (iii) No renewals will be issued for scrimshaw products in excess of 
any quantities declared in the original application for a certificate of 
exemption.
    (6) A certification in the following language:

    I hereby certify that the foregoing information is complete, true, 
and correct to the best of my knowledge and belief. I understand that 
this information is submitted for the purpose of obtaining a renewal of 
my certificate of exemption under the Endangered Species Act of 1973, as 
amended by Pub. L. 94-359, 90 Stat. 911, Pub. L. 96-159, 93 Stat. 1225, 
Pub. L. 97-304, 95 Stat. 715, and the Department of Commerce regulations 
issued thereunder, and that any false statement may subject me to the 
criminal penalties of 18 U.S.C. 1001, or to the penalties under the 
Endangered Species Act of 1973.

    (7) Signature of the applicant.
    (b) Upon receipt of an incomplete or improperly executed application 
for renewal, the applicant shall be notified by Certified Mail of the 
deficiency in the application for renewal. If the application for 
renewal is not corrected and received by the Assistant Administrator 
within 30 days following the date of receipt of notification, the 
application for renewal shall be considered as having been abandoned.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12808, Apr. 1, 1985]



Sec. 222.11-4  Procedures for issuance of renewals of certificates of exemption.

    Whenever application for a renewal of a certificate of exemption is 
received by the Assistant Administrator which the Assistant 
Administrator deems sufficient, he shall, as soon as practicable, issue 
a certificate of renewal to the applicant.



Sec. 222.11-5  Application for modification of certificate of exemption by holder.

    Where circumstances have changed so that an applicant or certificate 
of exemption holder desires to have any material term or condition of 
his application or certificate modified, he must submit in writing full 
justification and supporting information in conformance with the 
provisions of this part.



Sec. 222.11-6  Amendment of certificates of exemption.

    All certificates are issued subject to the condition that the 
Assistant Administrator reserves the right to amend the provisions of a 
certificate of exemption for just cause at any time. Such amendments 
take effect on the date of notification, unless otherwise specified.



Sec. 222.11-7  Procedures for suspension, revocation, or modification of certificates of exemption.

    Any violation of the applicable provisions of parts 217 through 222 
of this chapter, or of the Act, or of a condition of the certificate of 
exemption may subject the certificate holder to the following:
    (a) The penalties provided in the Act; and
    (b) Suspension, revocation, or modification of the certificate of 
exemption, as provided in subpart D of 15 CFR part 904.

[49 FR 1042, Jan. 6, 1984]



Sec. 222.11-8  Purchaser provisions.

    (a) Any person granted a certificate of exemption, including a 
renewal, under this subpart, upon a sale of any exempted pre-Act 
endangered species part, must provide the purchaser in writing with a 
description (including full identification number) of the part sold, and 
must inform the purchaser in writing of the purchaser's obligation

[[Page 85]]

under paragraph (b) of this section, including the address given in the 
certificate to which the purchaser's report is to be sent.
    (b) Any purchaser of pre-Act endangered species parts included in a 
valid certificate of exemption, unless an ultimate user, must within 30 
days after the receipt of such parts submit a written report to the 
address given in the certificate specifying the quantity of such parts 
or products received, the name and address of the seller, a copy of the 
invoice or other document showing the serial numbers, weight, and 
descriptions of the parts or products received, the date on which such 
parts or products were received, and the intended use of such parts by 
the purchaser. An ultimate user, for purposes of this paragraph, means 
any person who acquired such endangered species part or product for his 
own consumption or personal use (including as gifts), and not for 
resale.
    (c) After January 31, 1984, no purchaser may export; deliver, 
receive, carry or transport in interstate or foreign commerce in the 
course of a commercial activity; or sell or offer for sale in interstate 
or foreign commerce any endangered species part or product even though 
such part or product was acquired under a certificate of exemption 
either prior to or subsequent to that date.

[50 FR 12808, Apr. 1, 1985]



Sec. 222.11-9  Duration of certificate of exemption.

    A certificate of exemption is valid only if renewed in accordance 
with the procedures set forth in Sec. 222.11-3 of this part. All 
certificates so renewed will be valid for a period beginning April 1, 
1985, and ending no later than March 31, 1988. A renewed certificate of 
exemption entitles the holder to engage in the business or activity 
specified in the certificate of exemption, within the limitations of the 
Act and the regulations contained in this subpart, for the period stated 
in the certificate of exemption, unless sooner terminated.

[50 FR 12808, Apr. 1, 1985, as amended at 50 FR 25713, June 21, 1985]



Sec. 222.12  Locations covered by certificate of exemption.

    The certificate of exemption covers the business or activity 
specified in the certificate of exemption at the address described 
therein. No certificate of exemption is required to cover a separate 
warehouse facility used by the certificate of exemption holder solely 
for storage of pre-Act endangered species parts, if the records required 
by this subpart are maintained at the address specified in the 
certificate of exemption which is served by the warehouse or storage 
facility.

[50 FR 12809, Apr. 1, 1985]



Sec. 222.12-1  Certificate of exemption not transferable; exception.

    Certificates of exemption issued under this subpart are not 
transferable: Provided, That in the event of the lease, sale or other 
transfer of the operations or activity authorized by the certificate of 
exemption the successor is not required by this subpart to obtain a new 
certificate of exemption prior to commencing such operations or 
activity. In such case, the successor will be treated as a purchaser and 
must comply with the record and reporting requirements set forth in 
Sec. 222.11-8.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]



Sec. 222.12-2  Change of address.

    A certificate of exemption holder may during the term of the 
certificate of exemption move his business or activity to a new location 
at which he intends regularly to carry on such business or activity, 
without obtaining a new certificate of exemption. However, in every 
case, notification of the new location of the business or activity must 
be given in writing within 10 days of such move to the Assistant 
Administrator. In each instance, the certificate of exemption must be 
endorsed by the Assistant Administrator. After endorsement of the 
certificate of exemption the Assistant Administrator will provide an 
amended certificate of exemption to the person to whom issued.

[[Page 86]]



Sec. 222.12-3  Certain continuance of business.

    A certificate of exemption holder who requests that his certificate 
of exemption be amended by the Assistant Administrator for corrections 
or endorsement in compliance with the provisions contained in this 
subpart, may continue his operations while awaiting action by the 
Assistant Administrator.



Sec. 222.12-4  Change in trade name.

    A certificate holder continuing to conduct business at the location 
shown on his certificate of exemption is not required to obtain a new 
certificate of exemption by reason of a change in trade name under which 
he conducts his business: Provided, That such certificate of exemption 
holder requests in writing that his certificate of exemption be endorsed 
to reflect such change of name to the Assistant Administrator within 30 
days from the date the certificate of exemption holder begins his 
business under the new name.



Sec. 222.12-5  State or other law.

    A certificate of exemption issued under this subpart confers no 
right or privilege to conduct a business or an activity contrary to 
State or other law. Similarly, compliance with the provisions of any 
State or other law affords no immunity under any Federal laws or 
regulations of any other Federal Agency.



Sec. 222.12-6  Right of entry and examination.

    Any person authorized to enforce the Act may enter during business 
hours the premises, including places of storage, of any holder of a 
certificate of exemption or of any purchaser for the purpose of 
inspecting or examining any records or documents required to be kept by 
such certificate of exemption holder or successor under this subpart, 
and any endangered species parts at such premises of location.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]



Sec. 222.12-7  Records.

    The records pertaining to pre-Act endangered species parts 
prescribed by this subpart shall be in permanent form, and shall be 
retained at the address shown on the certificate of exemption, or at the 
principal address of a purchaser in the manner prescribed by this 
subpart.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]



Sec. 222.12-8  Record of receipt and disposition.

    (a) Holders of certificates of exemption must maintain records of 
all pre-Act endangered species parts they receive, sell, transfer, 
distribute or dispose of otherwise. Purchasers of pre-Act endangered 
species parts, unless ultimate users, must similarly maintain records of 
all such parts or products they receive.
    (b) Such records as referred to in paragraph (a) of this section may 
consist of invoices or other commercial records which must be filed in 
an orderly manner separate from other commercial records maintained, and 
be readily available for inspection. Such records must (1) show the name 
and address of the purchaser, seller, or other transferor; (2) show the 
type, quantity, and identity of the part or product; (3) show the date 
of such sale or transfer; and (4) be retained, in accordance with the 
requirements of this subpart, for a period of not less than three years 
following the date of sale or transfer. Each pre-Act endangered species 
part will be identified by its number on the updated inventory required 
to renew a certificate of exemption.
    (c)(1) Each certificate of exemption holder must submit a quarterly 
report (to the address given in the certificate) containing all record 
information required by paragraph (b) on all transfers of pre-Act 
endangered species parts made in the previous calendar quarter, or such 
other record information the Assistant Administrator may specify from 
time to time.
    (2) Quarterly reports are due on January 15, April 15, July 15, and 
October 15. The first report is due on October 15, 1985.
    (d) The Assistant Administrator may authorize the record information 
to be submitted in a manner other than that prescribed in paragraph (b) 
of this section when it is shown by the record

[[Page 87]]

holder that an alternate method of reporting is reasonably necessary and 
will not hinder the effective administration or enforcement of this 
subpart.

[45 FR 57134, Aug. 27, 1980, as amended at 50 FR 12809, Apr. 1, 1985]



Sec. 222.12-9  Importation.

    No pre-Act endangered species part shall be imported into the United 
States, and a certificate of exemption issued in accordance with the 
provisions of this subpart confers no right or privilege to import into 
the United States any such part.



Sec. 222.13  Exportation.

    (a) Any person desiring to export from the United States any pre-Act 
endangered species part or scrimshaw product, must possess a valid 
certificate of exemption issued in accordance with the provisions of 
this subpart.
    (b) In addition to other information, which may be required by this 
subpart, the exporter will notify the Assistant Administrator by letter 
which shall show the name and address of the foreign consignee, the 
intended port of exportation, and a complete description of the parts to 
be exported. Such information should reach the Assistant Administrator 
not less than 10 days prior to shipment.
    (c) No pre-Act endangered species part or scrimshaw product which is 
to be exported from the United States under a certificate of exemption 
issued therefor, shall be exported except at a port or ports designated 
by the Secretary of the Interior. The Secretary of the Interior may 
permit the exportation at non-designated ports for any reason if he 
deems it appropriate and consistent with the purposes of the Endangered 
Species Act, as amended, or it will facilitate the administration or 
enforcement of the Act and reducing the costs thereof. Exporters are 
advised to see 50 CFR part 14 for a listing of the designated ports.



Sec. 222.13-1  Procedure by exporter.

    Shipment may not be made until the requirements of Sec. 222.13 are 
met by the exporter. A copy of the certificate of exemption, and any 
endorsements thereto, must be sent by the exporter to the District 
Director of Customs at the port of exportation, and must precede or 
accompany the shipment in order to permit appropriate inspection prior 
to lading.



Sec. 222.13-2  Action by Customs.

    Upon receipt of a certificate of exemption authorizing the 
exportation of pre-Act endangered species parts or scrimshaw products, 
the District Director of Customs may order such inspection as deemed 
necessary prior to lading of the merchandise. If satisfied that the 
shipment is proper and agrees with the information contained in the 
certificate, and any endorsement thereto, the District Director of 
Customs will clear the merchandise for export. The certificate, and any 
endorsements, will be forwarded to the Chief, Enforcement Division, F/
CM5 National Marine Fisheries Service, Washington, DC 20235.



Sec. 222.13-3  Transportation to effect exportation.

    Notwithstanding any provision of this subpart, it shall not be 
required that authorization be obtained from the Assistant Administrator 
for the transportation in interstate or foreign commerce of pre-Act 
endangered species parts to effect an exportation of such parts 
authorized under the provisions of this subpart.



Sec. 222.13-4  Burden of proof; presumption.

    Any person claiming the benefit of any exemption or certificate of 
exemption under the Act or regulations, shall have the burden of proving 
that the exemption or certificate is applicable, has been granted, and 
was valid and in force at the time of the alleged violation.



             Subpart C--Endangered Fish or Wildlife Permits

    Source: 39 FR 41375, Nov. 27, 1974, unless otherwise noted.



Sec. 222.21  General permit requirement.

    No person shall take, import, export, or engage in any other 
prohibited activity involving, any species or subspecies of fish or 
wildlife which the Secretary has determined to be endangered under the 
Endangered Species

[[Page 88]]

Act of 1973, as evidenced by its inclusion on the list of endangered 
fish or wildlife (see 50 CFR chapter I, part 17) or which the Secretary 
of the Interior determined to be endangered under the Endangered Species 
Conservation Act of 1969 and which are now under the jurisdictional 
responsibilities of the Secretary of Commerce, without a valid permit 
issued pursuant to this part.

(Pub. L. 94-359)

[41 FR 36028, Aug. 26, 1976]



Sec. 222.22  Permits for the incidental taking of endangered species.

    (a) Scope. (1) The Assistant Administrator may issue permits to take 
endangered marine species incidentally to an otherwise lawful activity 
under section 10(a)(1)(B) of the Endangered Species Act of 1973. The 
regulations in this section apply only to those endangered species under 
the jurisdiction of the Secretary of Commerce identified in 
Sec. 222.23(a).
    (2) If the applicant represents an individual or a single entity, 
such as a corporation, the Assistant Administrator will issue an 
individual incidental take permit. If the applicant represents a group 
or organization whose members conduct the same or a similar activity in 
the same geographical area with similar impacts on endangered marine 
species, the Assistant Administrator will issue a general incidental 
take permit. To be covered by a general incidental take permit, each 
individual conducting the activity must have a certificate of inclusion 
issued under paragraph (f) of this section.
    (b) Permit application procedures. Applications should be sent to 
the Assistant Administrator for Fisheries, National Marine Fisheries 
Service, 1335 East West Highway, Silver Spring, MD 20910. The 
sufficiency of the application will be determined by the Assistant 
Administrator in accordance with the requirements of this section. At 
least 120 days should be allowed for processing. Each application must 
be signed and dated and include the following:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Endangered Species Act of 1973, or
    (ii) Application for a General Incidental Take Permit under the 
Endangered Species Act of 1973.
    (2) The name, address and telephone number of the applicant. If the 
applicant is a partnership, corporate entity or is representing a group 
or organization, the applicable details.
    (3) The species or stocks, by common and scientific name, and a 
description of the status, distribution, seasonal distribution, habitat 
needs, feeding habits and other biological requirements of the affected 
species or stocks.
    (4) A detailed description of the proposed activity, including the 
anticipated dates, duration and specific location. If the request is for 
a general incidental take permit, an estimate of the total level of 
activity expected to be conducted.
    (5) A conservation plan, based on the best scientific and commercial 
data available, which specifies
    (i) The anticipated impact (i.e., amount, extent and type of 
anticipated taking) of the proposed activity on the species or stocks;
    (ii) The anticipated impact of the proposed activity on the habitat 
of the species or stocks and the likelihood of restoration of the 
affected habitat;
    (iii) The steps (specialized equipment, methods of conducting 
activities, or other means) that will be taken to monitor, minimize and 
mitigate such impacts, and the funding available to implement such 
measures; and
    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used.
    (v) A list of all sources of data used in preparation of the plan, 
including reference reports, environmental assessments and impact 
statements, and personal communications with recognized experts on the 
species or activity who may have access to data not published in current 
literature.
    (c) Issuance criteria. (1) In determining whether to issue a permit, 
the Assistant Administrator will consider the following:
    (i) The status of the affected species or stocks;
    (ii) The potential severity of direct, indirect and cumulative 
impacts on the

[[Page 89]]

species or stocks and habitat as a result of the proposed activity;
    (iii) The availability of effective monitoring techniques;
    (iv) The use of the best available technology for minimizing or 
mitigating impacts; and
    (v) The views of the public, scientists and other interested parties 
knowledgeable of the species or stocks or other matters related to the 
application.
    (2) To issue the permit, the Assistant Administrator must find that:
    (i) The taking will be incidental;
    (ii) The applicant will, to the maximum extent practicable, monitor, 
minimize and mitigate the impacts of such taking;
    (iii) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (iv) The applicant has amended the conservation plan to include any 
measures (not originally proposed by the applicant) that the Assistant 
Administrator determines are necessary or appropriate; and
    (v) There are adequate assurances that the conservation plan will be 
funded and implemented, including any measures required by the Assistant 
Administrator.
    (d) Permit conditions. In addition to the general conditions set 
forth in part 220 of this chapter, every permit issued under this 
section will contain such terms and conditions as the Assistant 
Administrator deems necessary and appropriate, including, but not 
limited to the following:
    (1) Reporting requirements or rights of inspection for determining 
whether the terms and conditions are being complied with;
    (2) The species and number of animals covered;
    (3) The authorized method of taking;
    (4) The procedures to be used to handle or dispose of any animals 
taken; and
    (5) The payment of a fee to reimburse the National Marine Fisheries 
Service the cost of processing the application.
    (e) Duration of permits. The duration of permits issued under this 
section will be such as to provide adequate assurances to the permit 
holder to commit funding necessary for the activities authorized by the 
permit, including conservation activities. In determining the duration 
of a permit, the Assistant Administrator will consider the duration of 
the proposed activities, as well as the possible positive and negative 
effects associated with issuing a permit of the proposed duration on 
listed species, including the extent to which the conservation plan is 
likely to enhance the habitat of the endangered species or increase the 
long-term survivability of the species.
    (f) Certificates of inclusion. (1) Any individual who wishes to 
conduct an activity covered by a general incidental take permit must 
apply to the Assistant Administrator for a certificate of inclusion. 
Each application must be signed and dated and include the following:
    (i) The general incidental take permit under which the applicant 
wants coverage.
    (ii) The name, address and telephone number of the applicant. If the 
applicant is a partnership or a corporate entity, the applicable 
details.
    (iii) A description of the activity the applicant seeks to have 
covered under the general incidental take permit including the 
anticipated dates, duration, and specific location; and
    (iv) A signed certification that the applicant has read and 
understands the general incidental take permit and the conservation 
plan, will comply with their terms and conditions, and will fund and 
implement applicable measures of the conservation plan.
    (2) To issue a certificate of inclusion, the Assistant Administrator 
must find that:
    (i) The applicant will be engaged in the activity covered by the 
general permit and
    (ii) The applicant has made adequate assurances that the applicable 
measures of the conservation plan will be funded and implemented.
    (g) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (g) apply 
only to incidental take permits issued in accordance with paragraph (c) 
of this section where the conservation plan is being properly 
implemented, and apply only with respect to species adequately covered 
by the

[[Page 90]]

conservation plan. These assurances cannot be provided to Federal 
agencies. This rule does not apply to incidental take permits issued 
prior to March 25, 1998. The assurances provided in incidental take 
permits issued prior to March 25, 1998 remain in effect, and those 
permits will not be revised as a result of this rulemaking.
    (1) Changed circumstances provided for in the plan. If additional 
conservation and mitigation measures are deemed necessary to respond to 
changed circumstances and were provided for in the plan's operating 
conservation program, the permittee will implement the measures 
specified in the plan.
    (2) Changed circumstances not provided for in the plan. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and such measures were not provided for 
in the plan's operating conservation program, NMFS will not require any 
conservation and mitigation measures in addition to those provided for 
in the plan without the consent of the permittee, provided the plan is 
being properly implemented.
    (3) Unforeseen circumstances. (i) In negotiating unforeseen 
circumstances, NMFS will not require the commitment of additional land, 
water, or financial compensation or additional restrictions on the use 
of land, water, or other natural resources beyond the level otherwise 
agreed upon for the species covered by the conservation plan without the 
consent of the permittee.
    (ii) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, NMFS may require 
additional measures of the permittee where the conservation plan is 
being properly implemented, but only if such measures are limited to 
modifications within conserved habitat areas, if any, or to the 
conservation plan's operating conservation program for the affected 
species, and maintain the original terms of the conservation plan to the 
maximum extent possible. Additional conservation and mitigation measures 
will not involve the commitment of additional land, water or financial 
compensation or additional restrictions on the use of land, water, or 
other natural resources otherwise available for development or use under 
the original terms of the conservation plan without the consent of the 
permittee.
    (iii) NMFS will have the burden of demonstrating that unforeseen 
circumstances exist, using the best scientific and commercial data 
available. These findings must be clearly documented and based upon 
reliable technical information regarding the status and habitat 
requirements of the affected species. NMFS will consider, but not be 
limited to, the following factors:
    (A) Size of the current range of the affected species;
    (B) Percentage of range adversely affected by the conservation plan;
    (C) Percentage of range conserved by the conservation plan;
    (D) Ecological significance of that portion of the range affected by 
the conservation plan;
    (E) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (F) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (h) Nothing in this rule will be construed to limit or constrain the 
Assistant Administrator, any Federal, State, local, or tribal government 
agency, or a private entity, from taking additional actions at its own 
expense to protect or conserve a species included in a conservation 
plan.

[55 FR 20606, May 18, 1990, as amended at 63 FR 8872, Feb. 23, 1998]



Sec. 222.23  Permits for scientific purposes or to enhance the propagation or survival of the affected endangered species.

    (a) The Director, National Marine Fisheries Service, may issue 
permits for scientific purposes or to enhance the propagation or 
survival of the affected endangered species which authorize, under such 
terms and conditions as he may prescribe, taking, importation, or 
certain other acts with respect to endangered species otherwise 
prohibited by section 9 of the Endangered Species Act of 1973. The

[[Page 91]]

species listed as endangered under either the Endangered Species 
Conservation Act of 1969 or the Endangered Species Act of 1973 and 
currently under the jurisdiction of the Secretary of Commerce are: 
Shortnose sturgeon (Acipenser brevirostrum); Totoaba (Cynoscian 
macdonaldi), Snake River sockeye salmon (Oncorhynchusnerka), Umpqua 
River cutthroat trout (Oncorhynchus clarki clarki); Southern California 
steelhead (Oncorhynchus mykiss), which includes all naturally spawned 
populations of steelhead (and their progeny) in streams from the Santa 
Maria River, San Luis Obispo County, California (inclusive) to Malibu 
Creek, Los Angeles County, California (inclusive); Upper Columbia River 
steelhead (Oncorhynchus mykiss), which includes the Wells Hatchery stock 
and all naturally spawned populations of steelhead (and their progeny) 
in streams in the Columbia River Basin upstream from the Yakima River, 
Washington, to the United States-Canada Border; Sacramento River winter-
run chinook salmon (Oncorhynchus tshawytscha); Western North Pacific 
(Korean) gray whale (Eschrichtius robustus), Blue whale (Balaenoptera 
musculus), Humpback whale (Megaptera novaeangliae), Bowhead whale 
(Balaenamysticetus), Right whales (Eubalaena spp.), Fin or finback whale 
(Balaenoptera physalus), Sei whale (Balaenoptera borealis), Sperm whale 
(Physeter catodon); Cochito (Phocoena Sinus), Chinese river dolphin 
(Lipotes vexillifer); Indus River dolphin (Platanista minor); Caribean 
monk seal (Monachus tropicalis) Hawaiian monk seal (Monachus 
schauinslandi); Mediterranean monk seal (Monachus monachus); Saimaa seal 
(Phoca hispida saimensis); Steller sea lion (Eumetopias jubatus), 
western population, which consists of Steller sea lions from breeding 
colonies located west of 144 deg. W. long.; Leatherback sea turtle 
(Dermochelys coriacea), Pacific hawksbill sea turtle (Eretmochelys 
imbricata bissa), Atlantic hawksbill sea turtle (Eretmochelys imbricata 
imbricata), Atlantic ridley sea turtle (Lepidochelys kempii). Green sea 
turtle (Chelonia mydas) breeding colony populations in Florida and on 
the Pacific coast of Mexico, and the olive ridley sea turtle 
(Lepidochelys olivacea) breeding colony population on the Pacific coast 
of Mexico. Of these, the National Marine Fisheries Service has sole 
agency jurisdiction for sea turtles while the turtles are in the water 
and the U.S. Fish and Wildlife Service has jurisdiction for sea turtles 
while the turtles are on land. Within the jurisdiction of a State, more 
restrictive State laws or regulations in regard to endangered species 
shall prevail in regard to taking. Proof of compliance with applicable 
State laws will be required before a permit will be issued.
    (b) Application procedures. To obtain such a permit, an application 
must be made to the Director in accordance with this subpart, except for 
marine mammal permits which shall be issued in accordance with the 
provisions of part 216, subpart D of this chapter, and sea turtle 
permits which shall be issued in accordance with part 220, subpart E of 
this chapter. The sufficiency of the application shall be determined by 
the Director in accordance with the requirements of this part and, in 
that connection, he may waive any requirement for information, or 
require any elaboration or further information deemed necessary. The 
following information will be used as the basis for determining whether 
an application is complete and whether a permit for scientific purposes 
or to enhance the propagation or survival of the affected endangered 
species should be issued by the Director. An original and four copies of 
the completed application shall be submitted to the Director, National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration (NOAA), U.S. Department of Commerce, Washington, DC 
20235. Assistance may be obtained by writing the Director or calling the 
Marine Mammal and Endangered Species Division in Washington, DC (202-
343-9445 and effective December 2, 1974, it will become 202-634-7529). 
At least 45 days should be allowed for processing. An application for a 
permit shall provide the following information (when the information 
requested is not applicable put ``N.A.'') and such other information 
that the Director may require:
    (1) Title: As applicable, either:

[[Page 92]]

    (i) Application for Permit for Scientific Purposes under the 
Endangered Species Act of 1973; or
    (ii) Application for Permit to Enhance the Propagation or Survival 
of the Endangered Species Under the Endangered Species Act of 1973.
    (2) The date of the application.
    (3) The identity of the applicant including complete name, address, 
and telephone number. If the applicant is a partnership or a corporate 
entity set forth the details. If the endangered species is to be 
utilized by a person other than the Applicant, set forth the name of 
that person and such other information as would be required if such 
person were an Applicant.
    (4) A description of the purpose of the proposed acts, including:
    (i) A detailed justification of the need for the endangered species, 
including a discussion of possible alternatives, whether or not under 
the control of the applicant; and
    (ii) A detailed description of how the species will be used.
    (5) A detailed description of the project, or program, in which the 
endangered species is to be used, including:
    (i) The period of time over which the project or program will be 
conducted;
    (ii) A list of the names and addresses of the sponsors or 
cooperating institutions and the scientists involved;
    (iii) A copy of the formal research proposal or contract if one has 
been prepared;
    (iv) A statement of whether the proposed project or program has 
broader significance than the individual researcher's goals (i.e., does 
the proposed project or program respond directly or indirectly to 
recommendation of any national or international scientific body charged 
with research or management of the endangered species, and, if so, 
how?); and
    (v) A description of the arrangements, if any, for the disposition 
of any dead specimen or its skeleton or other remains, for the continued 
benefit to science, in a museum or other institutional collection.
    (6) A description of the endangered species which is the subject of 
the application, including the following:
    (i) A list of each species and the number of each, including the 
common and scientific name; the subspecies (if applicable); population 
group, and range;
    (ii) A physical description of each animal, including the age, size, 
and sex;
    (iii) A list of the probable dates of capture or other taking, 
importation, exportation, and other acts which require a permit, for 
each animal, and the location of capture or other taking, importation, 
exportation, and other acts which require a permit, as specifically as 
possible;
    (iv) A description of the status of the stock of each species 
related insofar as possible to the location or area of taking;
    (v) A description of the manner of taking for each animal, including 
the gear to be used;
    (vi) The name and qualifications of the persons or entity which will 
capture or otherwise take the animals;
    (vii) If the capture or other taking is to be done by a contractor, 
a statement as to whether a qualified member of your staff (include 
name(s) and qualifications) will supervise or observe the capture or 
other taking. Accompany such statement with a copy of the proposed 
contract or a letter from the contractor indicating agreement to capture 
or otherwise taken the animals, should a permit be granted;
    (7) A description of the manner of transportation of any live animal 
taken, imported, exported, or shipped in interstate commerce, including:
    (i) Mode of transportation;
    (ii) Name of transportation company;
    (iii) Length of time in transit for the transfer of the animal(s) 
from the capture site to the holding facility;
    (iv) Length of time in transit for any future move or transfer of 
the animal(s) that is planned;
    (v) The qualifications of the common carrier or agent used for 
transportation of the animals;
    (vi) A description of the pen, tank, container, cage, cradle, or 
other devices used, both to hold the animal at the capture site and 
during transportation;
    (vii) Special care before and during transportation, such as salves, 
antibiotics, moisture; and

[[Page 93]]

    (viii) A statement as to whether the animals will be accompanied by 
a veterinarian or other similarly qualified person, and the 
qualifications of such person.
    (8) Describe the contemplated care and maintenance of any live 
animals sought, including a complete description of the facilities where 
any such animals will be maintained including:
    (i) The dimensions of the pools or other holding facilities and the 
number, sex, and age of animals by species to be held in each;
    (ii) The water supply, amount, and quality;
    (iii) The diet, amount and type, for all animals;
    (iv) Sanitation practices used;
    (v) Qualifications and experience of the staff; and
    (vi) A written certification from a licensed veterinarian 
knowledgeable about the species (or related species) or group which is 
the subject of the application, or from a recognized expert on the 
species (or related species) or group covered in the application that he 
has personally reviewed the amendments for transporting and maintaining 
the animal(s) and that in his opinion they are adequate to provide for 
the well-being of the animal; and
    (vii) The availability in the future of a consulting expert or 
veterinarian meeting paragraph (b)(8)(vi) requirements of this section;
    (9) A statement of willingness to participate in a cooperative 
breeding program and maintain or contribute data to a stud book.
    (10) A statement of how the applicant's proposed project or program 
will enhance or benefit the wild population.
    (11) For the 5 years preceding the date of this application, provide 
a detailed description of all mortalities involving species which were 
under the control of or utilized by the applicant and are either 
presently listed as endangered species or are taxonomically related 
within the Order to the species which is the subject of this 
application, including:
    (i) A list of all endangered species and species related to the 
species which is the subject of this application; captured, transported, 
maintained, or utilized by the applicant for scientific purposes or to 
enhance the propagation or survival of the affected species, and/or for 
all such species caused to be captured, transported, maintained, or 
utilized for scientific purposes or to enhance the propagation or 
survival of the affected species, by the Applicant;
    (ii) The numbers of mortalities among such animals by species, by 
date, location of capture, i.e., from which population, and location of 
such mortalities;
    (iii) The cause(s) of any such mortalities; and
    (iv) The steps which have been taken by Applicant to avoid or 
decrease any such mortalities.
    (12) A certification in the following language:

    I hereby certify that the foregoing information is complete, true 
and correct to the best of my knowledge and belief. I understand that 
this information is submitted for the purpose of obtaining a permit 
under the Endangered Species Act of 1973 (87 Stat. 864, Pub. L. 93-205, 
16 U.S.C. 1531 et seq.) and regulations promulgated thereunder, and that 
any false statement may subject me to the criminal penalties of 18 
U.S.C. 1001, or to penalties under the Endangered Species Act of 1973.

    (13) The applicant and/or an officer thereof must sign the 
application.
    (c) Issuance criteria. The Director shall specifically consider, 
among other criteria, the following in determining whether to issue a 
permit for scientific purposes or to enhance the propagation or survival 
of the affected endangered species:
    (1) Whether the permit was applied for in good faith;
    (2) Whether the permit if granted and exercised will not operate to 
the disadvantage of the endangered species;
    (3) Whether the permit would be consistent with the purposes and 
policy set forth in section 2 of the Act;
    (4) Whether the permit would further a bona fide and necessary or 
desirable scientific purpose or enhance the propagation or survival of 
the endangered species, taking into account the benefits anticipated to 
be derived on behalf of the endangered species;
    (5) The status of the population of the requested species, and the 
effect of the proposed action on the population, both direct and 
indirect;

[[Page 94]]

    (6) If a live animal is to be taken, transported, or held in 
captivity--the applicant's qualifications for the proper care and 
maintenance of the species and the adequacy of his facilities;
    (7) Whether alternative non-endangered species or population stocks 
can and should be used;
    (8) Whether the animal was born in captivity or was (or will be) 
taken from the wild;
    (9) Provision for disposition of the species if and when the 
applicant's project or program terminates;
    (10) How the applicant's needs, program, and facilities compare and 
relate to proposed and ongoing projects and programs;
    (11) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to successfully accomplish the 
objectives stated in the application;
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable of the species which is the subject of the 
application or of other matters germane to the application; and
    (d) Permits applied for under this section shall contain terms and 
conditions as the Director may deem appropriate, including:
    (1) The number and kind of species which are covered;
    (2) The location and manner of taking;
    (3) Port of entry or export;
    (4) The methods of transportation, care and maintenance to be used 
with live species;
    (5) Any requirements for reports or rights of inspections with 
respect to any activities carried out pursuant to the permit;
    (6) The transferability or assignability of the permit;
    (7) The sale or other disposition of the species, its progeny or the 
species product;
    (8) A reasonable fee covering the costs of issuance of such permit, 
including reasonable inspections and an appropriate apportionment of 
overhead and administrative expenses of the Department of Commerce. All 
such fees will be deposited in the Treasury to the credit of the 
appropriation which is current and chargeable for the cost of furnishing 
the service.

[39 FR 41375, Nov. 27, 1974]

    Editorial Note: For Federal Register citations affecting 
Sec. 222.23, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



Sec. 222.24  Procedures for issuance of permits.

    (a) Whenever application for a permit is received by the Director 
which the Director deems sufficient, he shall, as soon as practicable, 
publish a notice thereof in the Federal Register. Information received 
by the Director as a part of the application shall be available to the 
public as a matter of public record at every stage of the proceeding. An 
interested party may within 30 days after the date of publication of 
such notice, submit to the Director his written data, views, or 
arguments with respect to the taking, importation, or other action 
proposed in the application and may request a hearing in connection with 
the action to be taken thereon.
    (b) If a request for a hearing is made within the 30-day period 
referred to in paragraph (a) of this section, or if the Director 
determines that a hearing would otherwise be advisable, the Director 
may, within 60 days after the date of publication of the notice referred 
to in paragraph (a) of this section, afford to such requesting party or 
parties an opportunity for a hearing. Such hearing shall also be open to 
participation by any interested members of the public. Notice of the 
date, time, and place of such hearing shall be published in the Federal 
Register not less than 15 days in advance of such hearing. Any 
interested person may appear in person or through representatives at the 
hearing and may submit any relevant material, data, views, comments, 
arguments, or exhibits. A summary record of the hearing shall be kept.
    (c) Except as provided in subpart D of 15 CFR part 904, as soon as 
practicable but not later than 30 days after the close of the hearing 
(or if no hearing is held, as soon as practicable after the end of the 
30 days succeeding publication of the notice referred to in paragraph 
(a) of this section) the Director

[[Page 95]]

shall issue or deny issuance of the permit. Notice of the decision of 
the Director shall be published in the Federal Register within 10 days 
after the date of the issuance or denial and indicate where copies of 
the permit, if issued, may be obtained.
    (d) If a permit is issued, the Director shall publish notice thereof 
in the Federal Register, including his finding that (1) such permit was 
applied for in good faith, (2) if granted and exercised will not operate 
to the disadvantage of such endangered species, and (3) will be 
consistent with the purposes and policy set forth in section 2 of the 
Endangered Species Act of 1973. The requirements of this paragraph 
pertain solely to the permits issued under Sec. 222.23.
    (e) The Director may waive the thirty-day period in an emergency 
situation where the health or life of an endangered animal is threatened 
and no reasonable alternative is available to the applicant, but notice 
of any such waiver shall be published by the Director in the Federal 
Register within ten days following the issuance of the certificate of 
exemption or permit.

[39 FR 41375, Nov. 27, 1974, as amended at 42 FR 28139, June 2, 1977; 49 
FR 1042, Jan. 6, 1984; 55 FR 20607, May 18, 1990]



Sec. 222.25  Applications for modification of permit by permittee.

    Where circumstances have changed so that an applicant or permittee 
desires to have any term or condition of his application or permit 
modified, he must submit in writing full justification and supporting 
information in conformance with the provisions of this part and the part 
under which the permit has been issued or requested. Such applications 
for modification are subject to the same issuance criteria as are 
original applications, as provided in Secs. 222.22(c) and 222.23(c).

[39 FR 41375, Nov. 27, 1974, as amended at 55 FR 20607, May 18, 1990]



Sec. 222.26  Amendment of permits by NMFS.

    All permits are issued subject to the condition that the National 
Marine Fisheries Service reserves the right to amend the provisions of a 
permit for just cause at any time during its term. Such amendments take 
effect on the date of notification, unless otherwise specified.

[39 FR 41375, Nov. 27, 1974]



Sec. 222.27  Procedures for suspension, revocation, or modification of permits.

    Any violation of the applicable provisions of parts 217 through 222 
of this chapter, or of the Act, or of a condition of the permit may 
subject the certificate holder to the following:
    (a) The penalties provided in the Act; and
    (b) Suspension, revocation, or modification of the permit, as 
provided in subpart D of 15 CFR part 904.

[49 FR 1043, Jan. 6, 1984, as amended at 55 FR 20607, May 18, 1990]



Sec. 222.28  Possession of permits.

    (a) Any permit issued under these regulations must be in the 
possession of the person to whom it is issued (or an agent of such 
person) during:
    (1) The time of the authorized taking, importation, exportation, or 
other act;
    (2) The period of any transit of such person or agent which is 
incident to such taking, importation, exportation, or other act; and
    (3) Any other time while any animal under such permit is in the 
possession of such person or agent.
    (b) A duplicate copy of the issued permit must be physically 
attached to the tank, container, package, enclosure, or other means of 
containment, in which the animal is placed for purposes of storage, 
transit, supervision, or care.

[39 FR 41375, Nov. 27, 1974]



                     Subpart D--Special Prohibitions



Sec. 222.31  Approaching humpback whales in Hawaii.

    Except as provided in subpart C (Endangered Fish or Wildlife 
Permits) of this part it is unlawful for any person subject to the 
jurisdiction of the United States to commit, to attempt to commit, to 
solicit another to commit, or to cause to be committed, within 200 
nautical miles (370.4 km) of the Islands of Hawaii, any of the following 
acts with respect to humpback whales (Megaptera novaeangliae):

[[Page 96]]

    (a) Operate any aircraft within 1,000 ft (300 m) of any humpback 
whale; or
    (b) Approach by any means, within 100 yd (90 m) of any humpback 
whale; or
    (c) Cause a vessel or other object to approach within 100 yd (90 m) 
of a humpback whale; or
    (d) Disrupt the normal behavior or prior activity of a whale by any 
other act or omission. A disruption of normal behavior may be manifested 
by, among other actions on the part of the whale, a rapid change in 
direction or speed; escape tactics such as prolonged diving, underwater 
course changes, underwater exhalation, or evasive swimming patterns; 
interruptions of breeding, nursing, or resting activities, attempts by a 
whale to shield a calf from a vessel or human observer by tail swishing 
or by other protective movement; or the abandonment of a previously 
frequented area.

[60 FR 3775, Jan. 19, 1995]



Sec. 222.32   Approaching North Atlantic right whales.

    (a) Prohibitions. Except as provided under paragraph (c) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, attempt to commit, to solicit another to 
commit, or cause to be committed any of the following acts:
    (1) Approach (including by interception) within 500 yards (460 m) of 
a right whale by vessel, aircraft, or any other means;
    (2) Fail to undertake required right whale avoidance measures 
specified under paragraph (b) of this section.
    (b) Right whale avoidance measures. Except as provided under 
paragraph (c) of this section, the following avoidance measures must be 
taken if within 500 yards (460 m) of a right whale:
    (1) If underway, a vessel must steer a course away from the right 
whale and immediately leave the area at a slow safe speed;
    (2) An aircraft must take a course away from the right whale and 
immediately leave the area at a constant airspeed.
    (c) Exceptions. The following exceptions apply to this section, but 
any person who claims the applicability of an exception has the burden 
of proving that the exception is applicable:
    (1) Paragraphs (a) and (b) of this section do not apply if a right 
whale approach is authorized by NMFS through a permit issued under 
subpart C (Endangered Fish or Wildlife Permits) of this part or through 
a similar authorization.
    (2) Paragraphs (a) and (b) of this section do not apply where 
compliance would create an imminent and serious threat to a person, 
vessel, or aircraft.
    (3) Paragraphs (a) and (b) of this section do not apply when 
approaching to investigate a right whale entanglement or injury, or to 
assist in the disentanglement or rescue of a right whale, provided that 
permission is received from NMFS or a NMFS designee prior to the 
approach.
    (4) Paragraphs (a) and (b) of this section do not apply to an 
aircraft unless the aircraft is conducting whale watch activities or is 
being operated for that purpose.
    (5) Paragraph (b) of this section does not apply to the extent that 
a vessel is restricted in her ability to maneuver, and because of the 
restriction, cannot comply with paragraph (b) of this section.

[62 FR 6738, Feb. 13, 1997]



Sec. 222.33  Special prohibitions relating to endangered Steller sea lion protection.

    General. The regulatory provisions set forth in part 227, which 
govern threatened Steller sea lions, shall also apply to the western 
population of Steller sea lions, which consists of all Steller sea lions 
from breeding colonies located west of 144  deg.W. long.

[62 FR 24355, May 5, 1997]



         Subpart E--Incidental Capture of Endangered Sea Turtles



Sec. 222.41  Policy regarding incidental capture of sea turtles.

    Shrimp fishermen in the southeastern United States and the Gulf of 
Mexico who comply with rules for threatened sea turtles specified in 
Sec. 227.72(e) of this subchapter will not be subject

[[Page 97]]

to civil penalties under the Act for incidental captures of endangered 
sea turtles by shrimp trawl gear.

[52 FR 24251, June 29, 1987]



Sec. 222.42  Special prohibitions relating to leatherback sea turtles.

    Special prohibitions relating to leatherback sea turtles are 
provided at Sec. 227.72(e)(2)(iv) of this chapter.

[60 FR 25623, May 12, 1995]



PART 225--FEDERAL/STATE COOPERATION IN THE CONSERVATION OF ENDANGERED AND THREATENED SPECIES--Table of Contents




Sec.
225.1  Purpose of regulations.
225.2  Scope of regulations.
225.3  Definitions.
225.4  Cooperation with the States.
225.5  Cooperative agreement.
225.6  Allocation of funds.
225.7  Financial assistance.
225.8  Availability of funds.
225.9  Payments.
225.10  Assurances.
225.11  Submission of documents.
225.12  Project evaluation.
225.13  Contracts.
225.14  Inspection.

    Authority: Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C. 
1531-1543, Pub. L. 93-205.

    Source: 41 FR 24354, June 16, 1976, unless otherwise noted.



Sec. 225.1  Purpose of regulations.

    The regulations in this part implement section 6 of the Endangered 
Species Act of 1973, 87 Stat. 884, 16 U.S.C. 1531 through 1543, Pub. L. 
93-205 which provides, under certain circumstances, for cooperative 
agreements with and financial assistance to the States.



Sec. 225.2  Scope of regulations.

    This part applies to endangered and threatened species under the 
jurisdiction of the Department of Commerce (see 50 CFR 222.23(a)).



Sec. 225.3  Definitions.

    In addition to the definitions contained in the Act, and unless the 
context otherwise requires, in this part 225:
    (a) Act means the Endangered Species Act of 1973, 87 Stat. 884, 16 
U.S.C. 1531 through 1543, Pub. L. 93-205.
    (b) Agreements mean signed documented statements of the actions to 
be taken by the State(s) and the Director in furthering certain purposes 
of the Act. They include:
    (1) A Cooperative Agreement entered into pursuant to section 6(c) of 
the Act and, where appropriate, containing provisions found in section 
6(d)(2) of the Act.
    (2) A Grant-In-Aid Award which includes a statement of the actions 
to be taken in connection with the conservation of endangered or 
threatened species receiving Federal financial assistance, objectives 
and costs of such actions, and costs to be borne by the Federal 
Government and by the State(s).
    (c) Application for Federal Assistance means a description of work 
to be accomplished, including objectives and needs, expected results and 
benefits, approach, cost, location and time required for completion.
    (d) Director means the Director of the National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration, Department of 
Commerce, or his authorized designee.
    (e) Program means a State-developed plan for the conservation and 
management of all resident species which are deemed by the Secretary to 
be endangered or threatened and those which are deemed by the State to 
be endangered or threatened, which includes goals, priorities, 
strategies, actions, and funding necessary to accomplish the objectives 
on an individual species basis.
    (f) Project means a substantial undertaking to conserve the various 
endangered or threatened species.
    (g) Project segment means an essential part or a division of a 
project, usually separated as a period of time, occasionally as a unit 
of work.
    (h) Resident species means, for purposes of these regulations, with 
respect to a State, a species which exists in the wild in that State 
during any part of its life.
    (i) Secretary means the Secretary of Commerce or his authorized 
designee.

[[Page 98]]



Sec. 225.4  Cooperation with the States.

    The Director shall cooperate with any State which establishes and 
maintains an adequate and active program for the conservation of 
endangered and threatened species. In order for a State program to be 
deemed an adequate and active program, the Director must find and 
reconfirm, on an annual basis, that:
    (a) Authority resides in a State agency to conserve resident species 
determined by the State agency or the Director to be endangered or 
threatened;
    (b) The State agency has established an acceptable conservation 
program, consistent with the purposes and policies of the Act, for all 
resident species in the State which are deemed by the Director to be 
endangered or threatened; and has furnished a copy of such program 
together with all pertinent details, information and data requested to 
the Director;
    (c) The State agency is authorized to conduct investigations to 
determine the status and requirements for survival of resident species;
    (d) The State agency is authorized to establish programs, including 
the acquisition of land or aquatic habitat or interests therein, for the 
conservation of resident endangered or threatened species; and
    (e) Provisions are made for public participation in designating 
resident species as endangered or threatened.



Sec. 225.5  Cooperative agreement.

    Following receipt of an application by a State for a Cooperative 
Agreement and a determination by the Director that the State program for 
endangered and threatened species is adequate and active, the Director 
shall enter into an Agreement with the State. A Cooperative Agreement is 
necessary before a Grant-In-Aid Award can be approved for endangered or 
threatened species projects. The Cooperative Agreement must be 
reconfirmed annually to insure that it reflects new laws, species lists, 
rules or regulations, and programs, and to demonstrate that the program 
is still active and adequate. In order for a State to receive financial 
assistance, such Cooperative Agreement must also contain:
    (a) The actions that are to be taken by the Director and the State;
    (b) The benefits that are expected to be derived in connection with 
the conservation of endangered or threatened species; and
    (c) The estimated cost of these actions.



Sec. 225.6  Allocation of funds.

    The Director shall allocate funds, appropriated for the purpose of 
carrying out section 6 of the Act, to various States using the following 
as the basis for his determination:
    (a) The international commitments of the United States to protect 
endangered or threatened species;
    (b) The readiness of a State to proceed with a conservation program 
consistent with the objectives and purposes of the Act;
    (c) The number of federally listed endangered and threatened species 
within a State;
    (d) The potential for restoring endangered and threatened species 
within a State; and
    (e) The relative urgency to initiate a program to restore and 
protect an endangered or threatened species in terms of survival of the 
species.



Sec. 225.7  Financial assistance.

    (a) Before any Federal funds may be obligated for any project to be 
undertaken in a State, the State must have entered into a Cooperative 
Agreement. Subsequent to such agreement, the Director may further agree 
with a State(s) to provide financial assistance in the development and 
implementation of acceptable projects for the conservation of endangered 
and threatened species. Documents to provide financial assistance will 
consist of an Application for Federal Assistance and a Grant-In-Aid 
Award. The availability of Federal funds under a Grant-In-Aid Award 
shall be contingent upon the continued existence of the Cooperative 
Agreement.
    (b) To meet the requirements of the Act, the Application for Federal 
Assistance shall certify that the State agency submitting the project is 
committed to its execution and that it has been reviewed by the 
appropriate State officials and is in compliance with other

[[Page 99]]

requirements of the Office of Management and Budget Circular No. A-95 
(as revised and published in the Federal Register on January 13, 1976 
(41 FR 2052)).
    (c) The mutual obligations by the cooperating agencies will be set 
forth in a Grant-In-Aid Award executed between the State and the 
Director. The Grant-In-Aid Award shall cover the proposed financing and 
the work items described in the documents supporting it. The form and 
content for both the Application for Federal Assistance and the Grant-
In-Aid Award are provided in the Federal Aid Handbook No. 22.



Sec. 225.8  Availability of funds.

    Funds allocated to a State are available for obligation during the 
fiscal year for which they are allocated and until the close of the 
succeeding fiscal year. For the purpose of this section, obligation of 
allocated funds occurs when a Grant-In-Aid Award is signed by the 
Director.



Sec. 225.9  Payments.

    The payment of the Federal share of costs incurred in the conduct of 
activities included under a Grant-In-Aid Award shall be in accordance 
with the Treasury Circular 1075.
    (a) Federal payments under the Act shall not exceed 75 percent of 
the program costs as stated in the agreement; except, the Federal share 
may be increased to 90 percent when two or more States having a common 
interest in one or more endangered or threatened resident species, the 
conservation of which may be enhanced by cooperation of such States, 
jointly enter into an agreement with the Director.
    (b) The State share of program costs may be in the form of cash or 
in-kind contributions, including real property, subject to standards 
established by the Director as provided in Federal Management Circular 
74-7.
    (c) Payments of funds, including payment of such preliminary costs 
and expenses as may be incurred in connection with projects, shall not 
be made unless all documents that may be necessary or required in the 
administration of the Act shall have first been submitted to and 
approved by the Director. Payments shall be made for expenditures 
reported and certified by the State agency. Payments shall be made only 
to the State office or official designated by the State agency and 
authorized under the laws of the State to receive public funds for the 
State.
    (d) Vouchers and forms provided by the Director and certified as 
therein prescribed, showing amounts expended and the amount of Federal 
Aid funds claimed to be due on account thereof, shall be submitted to 
the Director by the State agency.

[41 FR 24354, June 16, 1976, as amended at 49 FR 30074, July 26, 1984]



Sec. 225.10  Assurances.

    A State shall certify that it will comply with all applicable 
Federal laws, regulations, and requirements as they relate to the 
application, acceptance, and use of Federal funds for projects under the 
Act in accordance with Federal Management Circular 74-7.



Sec. 225.11  Submission of documents.

    Documents required by section 6 of the Act or by these regulations 
shall be addressed to the Director, National Marine Fisheries Service, 
Washington, DC 20235.



Sec. 225.12  Project evaluation.

    Any difference of opinion about a proposed project or appraised 
value of land to be acquired or any other related matter will be 
considered by qualified representatives of the Director and the State. 
Final determination in the event of continued disagreement rests with 
the Director.



Sec. 225.13  Contracts.

    The State may use its own regulations in obtaining services provided 
they adhere to Federal laws and the requirements set forth in Federal 
Management Circular 74-7. The State is the responsible authority without 
recourse to the Director regarding settlement of contractual issues.



Sec. 225.14  Inspection.

    Supervision of each project by the State shall include adequate and 
continuous inspection. The project will be subject to periodic Federal 
inspection.

[[Page 100]]



PART 226--DESIGNATED CRITICAL HABITAT--Table of Contents




                         Subpart A--Introduction

Sec.
226.1  Purpose of regulations.
226.2  Scope of regulations.

             Subpart B--Critical Habitat for Marine Mammals

226.11  Northwestern Hawaiian Islands.
226.12  North Pacific Ocean.
226.13  North Atlantic Ocean.

                  Subpart C--Critical Habitat for Fish

226.21  Sacramento River winter-run chinook salmon (Oncorhynchus 
          tshawytscha).
226.22  Snake River sockeye salmon (oncorhynchus nerka), Snake River 
          spring/summer chinook salmon (oncorhynchus tshawytscha), Snake 
          River fall chinook salmon (oncorhynchus tshawytscha).
226.23  Umpqua River cutthroat trout (Oncorhynchus clarki clarki).

             Subpart D--Critical Habitat for Marine Reptiles

226.71  Sandy Point, St. Croix, U.S. Virgin Islands.
226.72  Green Sea Turtle (Chelonia mydas).
226.73  Hawksbill Sea Turtle (Eretmochelys imbricata).

Table 1 to Part 226
Table 2 to Part 226
Table 3 to Part 226
Table 4 to Part 226
Figure 1 to Part 226
Figure 2 to Part 226
Figure 3 to Part 226
Figure 4 to Part 226
Figure 5 to Part 226
Figure 6 to Part 226
Figure 7 to Part 226
Figure 8 to Part 226
Figure 9 to Part 226

    Authority: 16 U.S.C. 1533.

    Source: 44 FR 17711, Mar. 23, 1979, unless otherwise noted.



                         Subpart A--Introduction



Sec. 226.1  Purpose of regulations.

    The regulations contained in this part identify those habitats 
designated as critical under section 7 of the Endangered Species Act, as 
amended, by the Assistant Administrator for Fisheries, National Oceanic 
and Atmospheric Administration, for those endangered and threatened 
species under the jurisdiction of the Secretary of Commerce. The list of 
these species is found in 50 CFR 222.23(a) for endangered species and 50 
CFR 227.4 for threatened species.



Sec. 226.2  Scope of regulations.

    (a) The critical habitat designations contained in this part apply 
only to the endangered and threatened species listed in this part.
    (b) Regulations implementing section 7 of the Endangered Species 
Act, as amended, are found in 50 CFR part 402.
    (c) The provisions in this part are in addition to, and not in lieu 
of other regulations of parts 217 through 227 and 402 of this chapter.



             Subpart B--Critical Habitat for Marine Mammals



Sec. 226.11  Northwestern Hawaiian Islands.

                           Hawaiian Monk Seal

                        (Monachus schauinslandi)

    All beach areas, sand spits and islets, including all beach crest 
vegetation to its deepest extent inland, lagoon waters, inner reef 
waters, and ocean waters out to a depth of 20 fathoms around the 
following:

Kure Atoll (28 deg.24' N, 178 deg.20' W)
Midway Islands, except Sand Island and its harbor (28 deg.14' N, 
177 deg.22' W)
Pearl and Hermes Reef (27 deg.55' N, 175 deg. W)
Lisianski Island (26 deg.46' N, 173 deg.58' W)
Laysan Island (25 deg.46' N, 171 deg.44' W)
Maro Reef (25 deg.25' N, 170 deg.35' W)
Gardner Pinnacles (25 deg.00' N, 168 deg.00' W)
French Frigate Shoals (23 deg.45' N, 166 deg.00' W)
Necker Island (23 deg.34' N, 164 deg.42' W)
Nihoa Island (23 deg.03.5' N, 161 deg.55.5' W).

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[53 FR 18990, May 26, 1988]

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Sec. 226.12  North Pacific Ocean.

                  Steller Sea Lion (Eumetopias jubatus)

    (a) Alaska rookeries, haulouts, and associated areas. In Alaska, all 
major Steller sea lion rookeries identified in Table 1 and major 
haulouts identified in Table 2 and associated terrestrial, air, and 
aquatic zones. Critical habitat includes a terrestrial zone that extends 
3,000 feet (0.9 km) landward from the baseline or base point of each 
major rookery and major haulout in Alaska. Critical habitat includes an 
air zone that extends 3,000 feet (0.9 km) above the terrestrial zone of 
each major rookery and major haulout in Alaska, measured vertically from 
sea level. Critical habitat includes an aquatic zone that extends 3,000 
feet (0.9 km) seaward in State and Federally managed waters from the 
baseline or basepoint of each major rookery and major haulout in Alaska 
that is east of 144 deg. W. longitude. Critical habitat includes an 
aquatic zone that extends 20 nm (37 km) seaward in State and Federally 
managed waters from the baseline or basepoint of each major rookery and 
major haulout in Alaska that is west of 144 deg. W. longitude.
    (b) California and Oregon rookeries and associated areas. In 
California and Oregon, all major Steller sea lion rookeries identified 
in Table 1 and associated air and aquatic zones. Critical habitat 
includes an air zone that extends 3,000 feet (0.9 km) above areas 
historically occupied by sea lions at each major rookery in California 
and Oregon, measured vertically from sea level. Critical habitat 
includes an aquatic zone that extends 3,000 feet (0.9 km) seaward in 
State and Federally managed waters from the baseline or basepoint of 
each major rookery in California and Oregon.
    (c) Three special aquatic foraging areas in Alaska. Three special 
aquatic foraging areas in Alaska, including the Shelikof Strait area, 
the Bogoslof area, and the Seguam Pass area.
    (1) Critical habitat includes the Shelikof Strait area in the Gulf 
of Alaska which is identified in Figure 2 and consists of the area 
between the Alaska Peninsula and Tugidak, Sitkinak, Aiaktilik, Kodiak, 
Raspberry, Afognak and Shuyak Islands (connected by the shortest lines); 
bounded on the west by a line connecting Cape Kumlik (56 deg.38"/
157 deg.27'W) and the southwestern tip of Tugidak Island (56 deg.24'N/
154 deg.41'W) and bounded in the east by a line connecting Cape Douglas 
(58 deg.51'N/153 deg.15'W) and the northernmost tip of Shuyak Island 
(58 deg.37'N/152 deg.22'W).
    (2) Critical habitat includes the Bogoslof area in the Bering Sea 
shelf which is identified in Figure 3 and consists of the area between 
170 deg.00'W and 164 deg.00'W, south of straight lines connecting 
55 deg.00'N/170 deg.00'W and 55 deg.00'N/168 deg.00'W; 55 deg.30'N/
168 deg.00'W and 55 deg.30'N/166 deg.00'W; 56 deg.00'N/166 deg.00'W and 
56 deg.00'N/164 deg.00'W and north of the Aleutian Islands and straight 
lines between the islands connecting the following coordinates in the 
order listed:

52 deg.49.2'N/169 deg.40.4'W
52 deg.49.8'N/169 deg.06.3'W
53 deg.23.8'N/167 deg.50.1'W
53 deg.18.7'N/167 deg.51.4'W
53 deg.59.0'N/166 deg.17.2'W
54 deg.02.9'N/166 deg.03.0'W
54 deg.07.7'N/165 deg.40.6'W
54 deg.08.9'N/165 deg.38.8'W
54 deg.11.9'N/165 deg.23.3'W
54 deg.23.9'N/164 deg.44.0'W

    (3) Critical habitat includes the Seguam Pass area which is 
identified in Figure 4 and consists of the area between 52 deg.00'N and 
53 deg.00'N and between 173 deg.30'W and 172 deg.30'W.

[58 FR 45278, Aug. 27, 1993]



Sec. 226.13  North Atlantic Ocean.

               Northern Right Whale (Eubalaena glacialis)

    (a) Great South Channel. The area bounded by 41 deg.40' N/69 deg.45' 
W; 41 deg.00' N/69 deg.05' W; 41 deg.38' N/68 deg.13' W; and 42 deg.10' 
N/68 deg.31' W (Figure 6 to part 226).
    (b) Cape Cod Bay, Massachusetts. The area bounded by 42 deg.04.8' N/
70 deg.10' W; 42 deg.12' N/70 deg.15' W; 42 deg.12' N/70 deg.30' W; 
41 deg.46.8' N/70 deg.30' W and on the south and east by the interior 
shore line of Cape Cod, Massachusetts (Figure 7 to part 226).
    (c) Southeastern United States. The coastal waters between 
31 deg.15' N and 30 deg.15' N from the coast out 15 nautical miles; and 
the coastal waters between 30 deg.15' N and 28 deg.00' N from the coast 
out 5 nautical miles (Figure 8 to part 226).

[59 FR 28805, June 3, 1994]

[[Page 110]]



                  Subpart C--Critical Habitat for Fish

    Source: 58 FR 33218, June 16, 1993, unless otherwise noted.



Sec. 226.21  Sacramento River winter-run chinook salmon (Oncorhynchus tshawytscha).

    The following waterways, bottom and water of the waterways and 
adjacent riparian zones: The Sacramento River from Keswick Dam, Shasta 
County (River Mile 302) to Chipps Island (River Mile 0) at the westward 
margin of the Sacramento-San Joaquin Delta, all waters from Chipps 
Island westward to Carquinez Bridge, including Honker Bay, Grizzly Bay, 
Suisun Bay, and Carquinez Strait, all waters of San Pablo Bay westward 
of the Carquinez Bridge, and all waters of San Francisco Bay (north of 
the San Francisco/Oakland Bay Bridge) from San Pablo Bay to the Golden 
Gate Bridge.



Sec. 226.22  Snake River sockeye salmon (oncorhynchus nerka), Snake River spring/summer chinook salmon (oncorhynchus tshawytscha), Snake River fall chinook 
          salmon (oncorhynchus tshawytscha).

    The following areas consisting of the water, waterway bottom, and 
adjacent riparian zone of specified lakes and river reaches in 
hydrologic units presently or historically accessible to listed Snake 
River salmon (except reaches above impassable natural falls, and 
Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined as 
those areas within a horizontal distance of 300 feet (91.4 m) from the 
normal line of high water of a stream channel (600 feet or 182.8 m, when 
both sides of the stream channel are included) or from the shoreline of 
a standing body of water. Figure 5 identifies the general geographic 
extent of larger rivers, lakes, and streams within hydrologic units 
designated as critical habitat for Snake River sockeye, spring/summer 
chinook, and fall chinook salmon. Note that Figure 5 does not constitute 
the definition of critical habitat, but instead is provided as a general 
reference to guide Federal agencies and interested parties in locating 
the general boundaries of critical habitat for listed Snake River 
salmon. The complete text delineating critical habitat for each species 
follows. Hydrologic units (table 3) are those defined by the Department 
of the Interior (DOI), U.S. Geological Survey (USGS) publication, 
``Hydrologic Unit Maps, United States Geological Survey Water Supply 
Paper 2294, 1987'', and the following DOI, USGS, 1:500,000 scale 
hydrologic unit map: State of Oregon, 1974; State of Washington, 1974; 
State of Idaho, 1974, which are incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of 
the USGS publication and maps may be obtained from the USGS, Map Sales, 
Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Endangered 
Species Branch, Environmental and Technical Services Division, 911 NE. 
11th Avenue, room 620, Portland, OR 97232, NMFS, Office of Protected 
Resources, 1335 East-West Highway, Silver Spring, MD 20910, or at the 
Office of the Federal Register, 800 North Capitol Street, NW., suite 
700, Washington, DC.
    (a) Snake River Sockeye Salmon (Oncorhynchus nerka). The Columbia 
River from a straight line connecting the west end of the Clatsop jetty 
(south jetty, Oregon side) and the west end of the Peacock jetty (north 
jetty, Washington side) and including all Columbia River estuarine areas 
and river reaches upstream to the confluence of the Columbia and Snake 
Rivers; all Snake River reaches from the confluence of the Columbia 
River upstream to the confluence of the Salmon River; all Salmon River 
reaches from the confluence of the Snake River upstream to Alturas Lake 
Creek; Stanley, Redfish, Yellow Belly, Pettit, and Alturas Lakes 
(including their inlet and outlet creeks); Alturas Lake Creek, and that 
portion of Valley Creek between Stanley Lake Creek and the Salmon River. 
Critical habitat is comprised of all river lakes and reaches presently 
or historically accessible (except reaches above impassable natural 
falls, and Dworshak and Hells Canyon Dams) to Snake River sockeye salmon 
in the following hydrologic units: Lower Salmon, Lower Snake, Lower 
Snake-Asotin,

[[Page 111]]

Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle Salmon-Panther, 
and Upper Salmon. Critical habitat borders on or passes through the 
following counties in Oregon: Clatsop, Columbia, Gillium, Hood River, 
Morrow, Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following 
counties in Washington: Asotin, Benton, Clark, Columbia, Cowlitz, 
Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, 
Whitman; and the following counties in Idaho: Blaine, Custer, Idaho, 
Lemhi, Lewis, Nez Perce.
    (b) Snake River Spring/Summer Chinook Salmon (Oncorhynchus 
tshawytscha). The Columbia River from a straight line connecting the 
west end of the Clatsop jetty (south jetty, Oregon side) and the west 
end of the Peacock jetty (north jetty, Washington side) and including 
all Columbia River estuarine areas and river reaches proceeding upstream 
to the confluence of the Columbia and Snake Rivers; all Snake River 
reaches from the confluence of the Columbia River upstream to Hells 
Canyon Dam. Critical habitat also includes river reaches presently or 
historically accessible (except reaches above impassable natural falls, 
and Dworshak and Hells Canyon Dams) to Snake River spring/summer chinook 
salmon in the following hydrologic units: Hells Canyon, Imnaha, Lemhi, 
Little Salmon, Lower Grande Ronde, Lower Middle Fork Salmon, Lower 
Salmon, Lower Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-
Chamberlain, Middle Salmon-Panther, Pahsimeroi, South Fork Salmon, Upper 
Middle Fork Salmon, Upper Grande Ronde, Upper Salmon, Wallowa. Critical 
habitat borders on or passes through the following counties in Oregon: 
Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, Multnomah, 
Sherman, Umatilla, Union, Wallowa, Wasco; the following counties in 
Washington: Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, 
Garfield, Klickitat, Pacific, Skamania, Wahkiakum, Walla, Whitman; and 
the following counties in Idaho: Adams, Blaine, Custer, Idaho, Lemhi, 
Lewis, Nez Perce, Valley.
    (c) Snake River Fall Chinook Salmon (Oncorhynchus tshawytscha). The 
Columbia River from a straight line connecting the west end of the 
Clatsop jetty (south jetty, Oregon side) and the west end of the Peacock 
jetty (north jetty, Washington side) and including all Columbia River 
estuarine areas and river reaches proceeding upstream to the confluence 
of the Columbia and Snake Rivers; the Snake River, all river reaches 
from the confluence of the Columbia River, upstream to Hells Canyon Dam; 
the Palouse River from its confluence with the Snake River upstream to 
Palouse Falls; the Clearwater River from its confluence with the Snake 
River upstream to its confluence with Lolo Creek; the North Fork 
Clearwater River from its confluence with the Clearwater River upstream 
to Dworshak Dam. Critical habitat also includes river reaches presently 
or historically accessible (except reaches above impassable natural 
falls, and Dworshak and Hells Canyon Dams) to Snake River fall chinook 
salmon in the following hydrologic units; Clearwater, Hells Canyon, 
Imnaha, Lower Grande Ronde, Lower North Fork Clearwater, Lower Salmon, 
Lower Snake, Lower Snake-Asotin, Lower Snake-Tucannon, and Palouse. 
Critical habitat borders on or passes through the following counties in 
Oregon: Baker, Clatsop, Columbia, Gillium, Hood River, Morrow, 
Multnomah, Sherman, Umatilla, Wallowa, Wasco; the following counties in 
Washington: Adams, Asotin, Benton, Clark, Columbia, Cowlitz, Franklin, 
Garfield, Klickitat, Lincoln, Pacific, Skamania, Spokane, Wahkiakum, 
Walla, Whitman; and the following counties in Idaho: Adams, Benewah, 
Clearwater, Idaho, Latah, Lewis, Nez Perce, Shoshone, Valley.

[58 FR 68551, Dec. 28, 1993, as amended at 63 FR 1393, Jan. 9, 1998]



Sec. 226.23  Umpqua River cutthroat trout (Oncorhynchus clarki clarki).

    (a) The following areas consisting of the water, waterway bottom, 
and adjacent riparian zone of specified lakes and river reaches in 
hydrologic units presently accessible to listed Umpqua River cutthroat 
trout. Adjacent riparian zones are defined as those areas within a slope 
distance of 300 ft. (91.4 m) from the normal line of high water of a 
stream channel (600 ft. or 182.8 m,

[[Page 112]]

when both sides of the stream channel are included) or from the 
shoreline of a standing body of water. Figure 9 to this part identifies 
the general geographic extent of larger rivers, lakes, and streams 
within hydrologic units designated as critical habitat for Umpqua River 
cutthroat trout. Note that Figure 9 does not constitute the definition 
of critical habitat but, instead, is provided as a general reference to 
guide Federal agencies and interested parties in locating the general 
boundaries of critical habitat for listed Umpqua River cutthroat trout. 
The complete text delineating the critical habitat for the species 
follows. Hydrologic units are those defined by the Department of the 
Interior (DOI), U.S. Geological Survey (USGS) publication, ``Hydrologic 
Unit Maps, Water Supply Paper 2294, 1986, and the following DOI, USGS, 
1:500,000 scale hydrologic unit map: State of Oregon (1974) which is 
incorporated by reference. This incorporation by reference was approved 
by the Director of the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. Copies of the USGS publication and maps may be 
obtained from the USGS, Map Sales, Box 25286, Denver, CO 80225. Copies 
may be inspected during normal business hours at NMFS, Protected 
Resources Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-
2737, or NMFS, Office of Protected Resources, 1315 East-West Highway, 
Silver Spring, MD 20910, or at the Office of the Federal Register, 800 
North Capitol Street, NW., Suite 700, Washington, DC.
    (b) Geographic boundaries. All river reaches accessible to listed 
Umpqua River cutthroat trout in the Umpqua River from a straight line 
connecting the west end of the South jetty and the west end of the North 
jetty and including all Umpqua River estuarine areas (including the 
Smith River) and tributaries proceeding upstream from the Pacific Ocean 
to the confluence of the North and South Umpqua Rivers; the North Umpqua 
River, including all tributaries, from its confluence with the mainstem 
Umpqua River to Soda Springs dam; the South Umpqua River, including all 
tributaries, from its confluence with the mainstem Umpqua River to its 
headwaters (including Cow Creek, tributary to the South Umpqua River). 
Critical habitat includes all river reaches below longstanding, 
naturally impassable barriers (i.e., waterfalls in existence for several 
hundred years) in the following hydrologic units: North Umpqua, South 
Umpqua, and Umpqua. Critical habitat borders on or passes through the 
following counties in Oregon: Douglas, Lane, Coos, Jackson, and Klamath 
counties. Perennial rivers and creeks within the defined areas are also 
included in the critical habitat designation (but are not specifically 
named), unless otherwise noted. Critical habitat maps are available upon 
request from NMFS, Protected Resources Division, 525 NE Oregon St., 
Suite 500, Portland, OR 97232-2737, telephone (503/230-5422).

[63 FR 1393, Jan. 9, 1998]



             Subpart D--Critical Habitat for Marine Reptiles



Sec. 226.71  Sandy Point, St. Croix, U.S. Virgin Islands.

              Leatherback Sea Turtle (dermochelys coriacea)

    The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands, 
up to and inclusive of the waters from the hundred fathom curve 
shoreward to the level of mean high tide with boundaries at 
17 deg.42'12" North and 64 deg.50'00" West.



Sec. 226.72  Green Sea Turtle (Chelonia mydas).

    (a) Culebra Island, Puerto Rico--Waters surrounding the island of 
Culebra from the mean high water line seaward to 3 nautical miles (5.6 
km). These waters include Culebra's outlying Keys including Cayo Norte, 
Cayo Ballena, Cayos Geniqui, Isla Culebrita, Arrecife Culebrita, Cayo de 
Luis Pena, Las Hermanas, El Mono, Cayo Lobo, Cayo Lobito, Cayo 
Botijuela, Alcarraza, Los Gemelos, and Piedra Steven.
    (b) [Reserved]

[63 FR 46701, Sept. 2, 1998]

    Effective Date Note: At 63 FR 46701, Sept. 2, 1998, Sec. 226.72 was 
added, effective Oct. 2, 1998.

[[Page 113]]



Sec. 226.73  Hawksbill Sea Turtle (Eretmochelys imbricata).

    (a) Mona and Monito Islands, Puerto Rico--Waters surrounding the 
islands of Mona and Monito, from the mean high water line seaward to 3 
nautical miles (5.6 km).
    (b) [Reserved].

[63 FR 46701, Sept. 2, 1998]

    Effective Date Note: At 63 FR 46701, Sept. 2, 1998, Sec. 226.73 was 
added, effective Oct. 2, 1998.

[[Page 114]]

                           Table 1 to Part 226

    Major Steller sea lion rookery sites are identified in the following 
table. Where two sets of coordinates are given, the baseline 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. 
Where only one set of coordinates is listed, that location is the base 
point.

[[Page 115]]



----------------------------------------------------------------------------------------------------------------
                                                                      Boundaries to--
            State/region/site             ----------------------------------------------------------------------
                                               Latitude          Longitude         Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
    Western Aleutians:
        Agattu I.:
            Cape Sabak \1\...............  52 23.5N........  173 43.5E.......  52 22.0N........  173 41.0E
            Gillon Point \1\.............  52 24.0N........  173 21.5E.......
        Attu I.\1\.......................  52 54.5N........  172 28.5E.......  52 57.5N........  172 31.5E
        Buldir I.\1\.....................  52 20.5N........  175 57.0E.......  52 23.5N........  172 51.0E
    Central Aleutians:
        Adak I.\1\.......................  51 36.5N........  176 59.0W.......  51 38.0N........  176 59.5W
        Agligadak I.\1\..................  52 06.5N........  172 54.0W.......
        Amchitka I.:\1\
            Column Rock \1\..............  51 32.5N........  178 49.5E.......
            East Cape \1\................  51 22.5N........  179 28.0E.......  51 21.5N........  179 25.0E
        Ayugadak I.\1\...................  51 45.5N........  178 24.5E.......
        Gramp Rock \1\...................  51 29.0N........  178 20.5W.......
        Kasatochi I.\1\..................  52 10.0N........  175 31.5W.......  52 10.5N........  175 29.0W
        Kiska I.:
            Lief Cove \1\................  51 57.5N........  177 21.0E.......  51 56.5N........  177 20.0E
            Cape St. Stephen \1\.........  51 52.5N........  177 13.0E.......  51 53.5N........  177 12.0E
        Seguam I./Saddleridge \1\........  52 21.0N........  172 35.0W.......  52 21.0N........  172 33.0W
        Semisopochnoi I.:
            Pochnoi Pt \1\...............  51 58.5N........  179 45.5E.......  51 57.0N........  179 46.0E
            Petrel Pt \1\................  52 01.5N........  179 37.5E.......  52 01.5E........  179 39.0E
        Tag I.\1\........................  51 33.5N........  178 34.5W.......
        Ulak I.\1\.......................  51 20.0N........  178 57.0W.......  51 18.5N........  178 59.5W
        Yunaska I.\1\....................  52 42.0N........  170 38.5W.......  52 41.0N........  170 34.5W
    Eastern Aleutian:
        Adugak I.\1\.....................  52 55.0N........  169 10.5W.......
        Akun I./Billings Head \1\........  54 18.0N........  165 32.5W.......  54 18.0N........  165 31.5W
        Akutan I./Cape Morgan \1\........  54 03.5N........  166 00.0W.......  54 05.5N........  166 05.0W
        Bogoslof I.\1\ \2\...............  53 56.0N........  168 02.0W.......
        Ogchul I.\1\.....................  53 00.0N........  168 24.0W.......
        Sea Lion Rocks. (Amak) \1\.......  55 28.0N........  163 12.0W.......
        Ugamak I.\1\.....................  54 14.0N........  164 48.0W.......  54 13.0N........  164 48.0W
    Bering Sea:
        Walrus I.\1\.....................  57 11.0N........  169 56.0W.......
    Western Gulf of Alaska:
        Atkins I.\1\.....................  55 03.5N........  159 18.5W.......
        Chernabura I.\1\.................  54 47.5N........  159 31.0W.......  54 45.5N........  159 33.5W
        Clubbing Rocks (N) \1\...........  54 43.0N........  162 26.5W.......
        Clubbing Rocks (S) \1\...........  54 42.0N........  162 26.5W.......
        Pinnacle Rock \1\................  54 46.0N........  161 46.0W.......
    Central Gulf of Alaska:
        Chirikof I.\1\...................  55 46.5N........  155 39.5W.......  55 46.5N........  155 43.0W
        Chowiet I.\1\....................  56 00.5N........  156 41.5W.......  56 00.5N........  156 42.0W
        Marmot I.\1\.....................  58 14.5N........  151 47.5W.......  58 10.0N........  151 51.0W

[[Page 116]]

 
        Outer I.\1\......................  59 20.5N........  150 23.0W.......  59 21.0N........  150 24.5W
        Sugarloaf I.\1\..................  58 53.0N........  152 02.0W.......
    Eastern Gulf of Alaska:
        Seal Rocks \1\...................  60 10.0N........  146 50.0W.......
        Fish I.\1\.......................  59 53.0N........  147 20.5W.......
    Southeast Alaska:
        Forrester I......................  54 51.0N........  133 32.0W.......  54 52.5N........  133 35.5W
        Hazy I...........................  55 52.0N........  134 34.0W.......  55 51.5N........  134 35.0W
        White Sisters....................  57 38.0N........  136 15.5W.......
Oregon:
    Rogue Reef: Pyramid Rock.............  42 26.4N........  124 28.1W.......
    Orford Reef:
        Long Brown Rock..................  42 47.3N........  124 36.2W.......
        Seal Rock........................  42 47.1N........  124 35.4W.......
California:
    Ano Nuevo I..........................  37 06.3N........  122 20.3W.......
    Southeast Farallon I.................  37 41.3N........  123 00.1W.......
    Sugarloaf I. & Cape Mendocino........  40 26.0N........  124 24.0W ......
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.

[58 FR 45278, Aug. 27, 1993]

[[Page 117]]

                           Table 2 to Part 226

    Major Steller sea lion haulout sites in Alaska are identified in the 
following table. Where two sets of coordinates are given, the baseline 
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. Where only one set of coordinates is listed, that 
location is the basepoint.

[[Page 118]]



----------------------------------------------------------------------------------------------------------------
                                                                      Boundaries to--
            State/region/site             ----------------------------------------------------------------------
                                               Latitude          Longitude         Latitude         Longitude
----------------------------------------------------------------------------------------------------------------
Alaska:
    Western Aleutians:
        Alaid I.\1\......................  52 45.0N........  173 56.5E.......  52 46.5N........  173 51.5E
        Attu/Chirikof Pt.\1\.............  52 30.0N........  173 26.7E.......  ................  ...............
        Shemya I.\1\.....................  52 44.0N........  174 09.0E.......  ................  ...............
    Central Aleutians:
        Amatignak I.\1\..................  51 13.0N........  179 08.0E.......  ................  ...............
        Amlia I:
            East \1\.....................  52 05.0N........  172 58.5W.......  52 06.0N........  172 57.0W
            Sviech. Harbor \1\...........  52 02.0N........  173 23.0W.......  ................  ...............
        Amukta I. & Rocks \1\............  52 31.5N........  171 16.5W.......  52 26.5N........  171 16.5W
        Anagaksik I.\1\..................  51 51.0N........  175 53.5W.......  ................  ...............
        Atka I.\1\.......................  52 23.5N........  174 17.0W.......  52 24.5N........  174 07.5W
        Bobrof I.\1\.....................  51 54.0N........  177 27.0W.......  ................  ...............
        Chagulak I.\1\...................  52 34.0N........  171 10.5W.......  ................  ...............
        Chuginadak I.\1\.................  52 46.5N........  169 44.5W.......  52 46.5N........  169 42.0W
        Great Sitkin I.\1\...............  52 06.0N........  176 10.5W.......  52 07.0N........  176 08.5W
        Kagamil I.\1\....................  53 02.5N........  169 41.0W.......  ................  ...............
        Kanaga I:
            North Cape \1\...............  51 56.5N........  177 09.0W.......  ................  ...............
            Ship Rock \1\................  51 47.0N........  177 22.5W.......  ................  ...............
        Kavalga I.\1\....................  51 34.5N........  178 51.5W.......  51 34.5N........  178 49.5W
        Kiska I./Sirius Pt.\1\...........  52 08.5N........  177 36.5E.......  ................  ...............
        Kiska I./Sobaka & Vega \1\.......  51 50.0N........  177 20.0E.......  51 48.5N........  177 20.5E
        Little Sitkin I.\1\..............  51 59.5N........  178 30.0E.......  ................  ...............
        Little Tanaga I.\1\..............  51 50.5N........  176 13.0W.......  51 49.0N........  176 13.0W
        Sagigik I.\1\....................  52 00.5N........  173 08.0W.......  ................  ...............
        Seguam I:
            South \1\....................  52 19.5N........  172 18.0W.......  52 15.0N........  172 37.0W
            Finch Pt.\1\.................  52 23.5N........  172 25.5W.......  52 23.5N........  172 24.0W
        Segula I.\1\.....................  52 00.0N........  178 06.5E.......  52 03.5N........  178 09.0E
        Tanaga I.\1\.....................  51 55.0N........  177 58.5W.......  51 55.0N........  177 57.0W
        Tanadak I. (Amlia) \1\...........  52 04.5N........  172 57.0W.......  ................  ...............
        Tanadak I. (Kiska) \1\...........  51 57.0N........  177 47.0E.......  ................  ...............
        Ugidak I.\1\.....................  51 35.0N........  178 30.5W.......  ................  ...............
        Uliaga I.\1\.....................  53 04.0N........  169 47.0W.......  53 05.0N........  169 46.0W
        Unalga & Dinkum Rocks \1\........  51 34.0N........  179 04.0W.......  51 34.5N........  179 03.0W
    Eastern Aleutians:
        Akutan I./Reef-Lava \1\..........  54 10.5N........  166 04.5W.......  54 07.5N........  166 06.5W
        Amak I.\1\.......................  55 24.0N........  163 07.0W.......  55 26.0N........  163 10.0W
        Cape Sedanka & Island \1\........  53 50.5N........  166 05.0W.......  ................  ...............
        Emerald I.\1\....................  53 17.5N........  167 51.5W.......  ................  ...............
        Old Man Rocks \1\................  53 52.0N........  166 05.0W.......  ................  ...............
        Polivnoi Rock \1\................  53 16.0N........  167 58.0W.......  ................  ...............
        Tanginak I.\1\...................  54 13.0N........  165 19.5W.......  ................  ...............
        Tigalda I.\1\....................  54 08.5N........  164 58.5W.......  ................  ...............

[[Page 119]]

 
        Umnak I./Cape Aslik \1\..........  53 25.0N........  168 24.5W.......  ................  ...............
    Bering Sea:
        Cape Newenham \1\................  58 39.0N........  162 10.5W.......  ................  ...............
        Hall I.\1\.......................  60 37.0N........  173 00.0W.......  ................  ...............
        Round I.\1\......................  58 36.0N........  159 58.0W.......  ................  ...............
        St. Paul I:
            Northeast Point \1\..........  57 15.0N........  170 06.5W.......  ................  ...............
            Sea Lion Rock \1\............  57 06.0N........  170 17.5W.......  ................  ...............
        St. George I:
            S Rookery \1\................  56 33.5N........  169 40.0W.......  ................  ...............
            Dalnoi Point \1\.............  56 36.0N........  169 46.0W.......  ................  ...............
        St. Lawrence I:
            S Punuk I.\1\................  64 04.0N........  168 51.0W.......  ................  ...............
            SW Cape \1\..................  63 18.0N........  171 26.0W.......  ................  ...............
    Western Gulf of Alaska:
        Bird I. \1\......................  54 40.5N........  163 18.0W.......    ..............
        Castle Rock \1\..................  55 17.0N........  159 30.0W.......  ................  ...............
        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 \1\ \2\................  58 13.5N........  154 09.5W.......  58 12.5N........  154 10.5W
        Cape Ikolik \1\ \2\..............  57 17.0N........  154 47.5W.......  ................  ...............
        Cape Kuliak \1\ \2\..............  58 08.0N........  154 12.5W.......  ................  ...............
        Cape Sitkinak \1\................  56 32.0N........  153 52.0W.......  ................  ...............
        Cape Ugat \1\ \2\................  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 \1\ \2\................  57 41.0N........  155 23.0W.......  ................  ...............
        Sea Lion Rocks (Marmot) \1\......  58 21.0N........  151 48.5W.......  ................  ...............
        Sea Otter I.\1\..................  58 31.5N........  152 13.0W.......  ................  ...............
        Shakun Rock \1\ \2\..............  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. \1\ \2\.................  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.......    ..............

[[Page 120]]

 
        Cape St. Elias \1\...............  59 48.0N........  144 36.0W.......  ................  ...............
        Chiswell Islands \1\.............  59 36.0N........  149 34.0W.......  ................  ...............
        Graves Rock......................  58 14.5N........  136 45.5W.......
        Hook Point \1\...................  60 20.0N........  146 15.5W.......  ................  ...............
        Middleton I.\1\..................  59 26.5N........  146 20.0W.......  ................  ...............
        Perry I.\1\......................  60 39.5N........  147 56.0W.......  ................  ...............
        Point Eleanor \1\................  60 35.0N........  147 34.0W.......  ................  ...............
        Point Elrington \1\..............  59 56.0N........  148 13.5W.......  ................  ...............
        Seal Rocks \1\...................  60 10.0N........  146 50.0W.......  ................  ...............
        The Needle \1\...................  60 07.0N........  147 37.0W.......  ................  ...............
    Southeast Alaska:
        Benjamin I.......................  58 33.5N........  134 54.5W.......  ................  ...............
        Biali Rock.......................  56 43.0N........  135 20.5W.......  ................  ...............
        Biorka I.........................  56 50.0N........  135 34.0W.......    ..............
        Cape Addington...................  55 26.5N........  133 49.5W.......    ..............
        Cape Cross.......................  57 55.0N........  136 34.0W.......
        Cape Ommaney.....................  56 10.5N........  134 42.5W.......
        Coronation I.....................  55 56.0N........  134 17.0W.......
        Gran Point.......................  59 08.0N........  135 14.5W.......
        Lull Point.......................  57 18.5N........  134 48.5W.......
        Sunset I.........................  57 30.5N........  133 35.0W.......  ................  ...............
        Timbered I.......................  55 42.0N........  133 48.0W.......  ................  ...............
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.

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

[[Page 121]]


    Table 3.--Hydrologic Units \1\ Containing Critical Habitat for Endangered Snake River Sockeye Salmon and
                          Threatened Snake River Spring/Summer and Fall Chinook Salmon
----------------------------------------------------------------------------------------------------------------
                                                                                      Hydrologic unit number
                                                                                --------------------------------
                                                                                             Spring/
                              Hydrologic unit name                                Sockeye     summer      Fall
                                                                                   salmon    chinook    chinook
                                                                                              salmon     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.--Hydrologic Units \1\ Containing Critical Habitat for
 Endangered Umpqua River Cutthroat Trout and Counties Contained in Each
                            Hydrologic Unit.
------------------------------------------------------------------------
                                      Hydrologic   Counties contained in
        Hydrologic unit name           unit No.       hydrologic unit
------------------------------------------------------------------------
North Umpqua........................    17100301  Douglas, Lane,
                                                   Klamath.
South Umpqua........................    17100302  Douglas, Jackson,
                                                   Coos.
Umpqua..............................    17100303  Douglas, Lane, Coos.
------------------------------------------------------------------------
\1\ 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale
  State of Oregon (1974) hydrologic unit map (available from USGS).


[63 FR 1394, Jan. 9, 1998]

[[Page 122]]

                           Figures to Part 226
[GRAPHIC] [TIFF OMITTED] TC01JY91.008

[58 FR 45282, Aug. 27, 1993]

[[Page 123]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.009

[58 FR 45283, Aug. 27, 1993]

[[Page 124]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.010

[58 FR 45284, Aug. 27, 1993]

[[Page 125]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.011

[58 FR 45285, Aug. 27, 1993]

[[Page 126]]

       Figure 5:  Designated critical habitat, Snake River salmon
[GRAPHIC] [TIFF OMITTED] TC01JY91.012

[58 FR 68552, Dec. 28, 1993]

[[Page 127]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.013

[59 FR 28805, June 3, 1994]

[[Page 128]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.014

[59 FR 28805, June 3, 1994]

[[Page 129]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.015

[59 FR 28805, June 3, 1994]

[[Page 130]]

[GRAPHIC] [TIFF OMITTED] TR09JA98.004

[63 FR 1394, Jan. 9, 1998]

[[Page 131]]



PART 227--THREATENED SPECIES--Table of Contents




                      Subpart A--General Provisions

Sec.
227.1  Purpose.
227.2  Scope.
227.3  Definitions.
227.4  Enumeration of threatened species.

                  Subpart B--Threatened Marine Mammals

227.11  Guadalupe fur seal.
227.12  Steller sea lion.

            Subpart C--Threatened Marine and Anadromous Fish

227.21  Threatened salmon.
227.22  Southern Oregon/Northern California Coast (SONCC) coho salmon.

                  Subpart D--Threatened Marine Reptiles

227.71  Prohibitions.
227.72  Exceptions to prohibitions.

Figure 1 to Part 227--NMFS TED
Figure 2 to Part 227--Cameron TED
Figure 3 to Part 227--Matagorda TED
Figure 4 to Part 227--Georgia TED
Figure 5 to Part 227--Net Diagram for the Excluder Panel of the Parker 
          Soft TED
Figures 6--9b to Part 227 [Reserved]
Figure 10 to Part 227--Flounder TED
Figure 11 to Part 227--Jones TED
Figure 12a to Part 227--Attachment of the Exit Hole Cover
Figure 12b to Part 227--Grid TED Leatherback Modification
Figure 13 to Part 227--Single Grid Hard TED Escape Opening
Figure 14a to Part 227--Maximum Angle of Deflector Bars with Straight 
          Bars Attached to the Bottom of the Frame
Figure 14b to Part 227--Maximum Angle of Deflector Bars with Bent Bars 
          Attached to the Bottom of the Frame
Figure 15 to Part 227--Maximum Angle of Deflector Bars with Bars 
          Unattached to the Bottom of the Frame

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also issued 
under 16 U.S.C. 1361 et seq.

    Source: 43 FR 32809, July 28, 1978, unless otherwise noted.

    Editorial Note: For a document relating to adoption of alternative 
scientific testing protocol for evaluating TEDs see 55 FR 41092, Oct. 9, 
1990.



                      Subpart A--General Provisions



Sec. 227.1  Purpose.

    The regulations contained in this part identify the species, 
subspecies, or any other group of fish and wildlife of the same species 
or smaller taxa in common spatial arrangement that interbreed when 
mature, under the jurisdiction of the Secretary of Commerce which have 
been determined to be threatened species under the Endangered Species 
Act of 1973 and provide for the conservation of such species by 
establishing rules and procedures to govern activities involving the 
species.



Sec. 227.2  Scope.

    (a) The regulations contained in this part apply only to the 
threatened species enumerated in Sec. 227.4.
    (b) The provision of this part are in addition to, and not in lieu 
of other regulations of parts 217 through 222 and part 225 of this 
chapter II which prescribe additional restrictions or conditions 
governing threatened species.
    (c) Certain of the threatened fish or wildlife listed in 50 CFR 
17.11 and enumerated in 50 CFR 227.4 are included in Appendix I or II to 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora. The importation, exportation, and reexportation of such 
species are subject to additional regulations provided in part 23, 
chapter I (title 50).



Sec. 227.3  Definitions.

    In addition to the definitions contained in the Act, and in parts 
217 and 225 of this chapter, and unless the context otherwise requires, 
in this part 227:
    (a) Act means the Endangered Species Act of 1973, as amended, 16 
U.S.C. 1531 through 1547;
    (b) Assistant Administrator means the Assistant Administrator for 
Fisheries, National Oceanic and Atmospheric Administration, Department 
of Commerce, or his authorized delegate. The Assistant Administrator for 
Fisheries is in charge of the National Marine Fisheries Service;

[[Page 132]]

    (c) Ongoing project(s) means an activity for scientific purposes or 
to enhance the propagation or survival of such species which are not 
conducted in the course of a commercial activity initiated before the 
listing of the effected species;
    (d) Plastron means the ventral part of the shell of a sea turtle 
consisting typically of nine symmetrically placed bones overlaid by 
horny plates; and
    (e) Sea turtle(s) means those sea turtle species enumerated in 
Sec. 227.4 and any part(s), product(s), egg(s) or offspring thereof, or 
the dead body or part(s) thereof.



Sec. 227.4  Enumeration of threatened species.

    The species listed as threatened under the Act which are under the 
jurisdiction of the Secretary of Commerce are:
    (a) Green sea turtle (Chelonia mydas) except for those populations 
listed under 50 CFR 222.23(a).1
    (b) Loggerhead sea turtle (Caretta caretta ).1
    (c) Pacific ridley sea turtle (Lepidochelys olivacea) except 
for those populations listed under 50 CFR 222.23(a).1
---------------------------------------------------------------------------

    1 Department of Commerce, National Oceanic and Atmospheric 
Administration, National Marine Fisheries Service, jurisdiction for sea 
turtles is limited to turtles while in the water.

The effective date of the listing of the species in paragraphs (a), (b), 
and (c) of this section is September 6, 1978.
    (d) Guadalupe fur seal (Arctocephalus townsendi).
    (e) Steller (northern) sea lion (Eumetopias jubatus), eastern 
population, which consists of all Steller sea lions from breeding 
colonies located east of 144  deg.W. longitude.
    (f) Snake River spring/summer chinook salmon (Oncorhynchus 
tshawytscha). Includes all natural population(s) of spring/summer 
chinook salmon in the mainstream Snake River and any of the following 
subbasins: Tucannon River, Grande Ronde River, Imnaha River, and Salmon 
River.
    (g) Snake River fall chinook salmon (Oncorhynchus tshawytscha). 
Includes all natural population(s) of fall chinook in the mainstem Snake 
River and any of the following subbasins: Tucannon River, Grande Ronde 
River, Imnaha River, Salmon River, and Clearwater River.
    (h) Central California Coast Coho Salmon. Includes all coho salmon 
naturally reproduced in streams between Punta Gorda in Humboldt County, 
CA, and the San Lorenzo River in Santa Cruz County, CA.
    (i) Southern Oregon/Northern California Coast coho salmon 
(Oncorhynchus kisutch). Includes all coho salmon naturally reproduced in 
streams between Cape Blanco in Curry County, OR, and Punta Gorda in 
Humboldt County, CA.
    (j) Central California Coast steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in streams from the Russian River to Aptos Creek, Santa Cruz 
County, California (inclusive), and the drainages of San Francisco and 
San Pablo Bays eastward to the Napa River (inclusive), Napa County, 
California. Excludes the Sacramento-San Joaquin River Basin of the 
Central Valley of California;
    (k) South-Central California Coast steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in streams from the Pajaro River (inclusive), located in Santa 
Cruz County, California, to (but not including) the Santa Maria River;
    (l) Snake River Basin steelhead (Oncorhynchus mykiss). Includes all 
naturally spawned populations of steelhead (and their progeny) in 
streams in the Snake River Basin of southeast Washington, northeast 
Oregon, and Idaho.
    (m) Lower Columbia River steelhead (Oncorhynchus mykiss). Includes 
all naturally spawned populations of steelhead (and their progeny) in 
streams and tributaries to the Columbia River between the Cowlitz and 
Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers, 
Oregon, inclusive. Excluded are steelhead in the upper Willamette River 
Basin above Willamette Falls and steelhead from the Little and Big White 
Salmon Rivers in Washington;

[[Page 133]]

    (n) Central Valley, California steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in the Sacramento and San Joaquin Rivers and their tributaries. 
Excluded are steelhead from San Francisco and San Pablo Bays and their 
tributaries.
    (o) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all 
naturally spawned populations of coho salmon in streams south of the 
Columbia River and north of Cape Blanco in Curry County, OR.
    (p) Johnson's seagrass (Halophila johnsonii)

[43 FR 32809, July 18, 1978, as amended at 45 FR 29055, May 1, 1980; 50 
FR 51258, Dec. 16, 1985; 55 FR 46523, Nov. 5, 1990; 55 FR 49210, Nov. 
26, 1990; 57 FR 14662, Apr. 22, 1992; 59 FR 450, Jan. 4, 1994; 59 FR 
42532, Aug. 18, 1994; 60 FR 19342, Apr. 17, 1995; 61 FR 56149, Oct. 31, 
1996; 62 FR 1297, Jan. 9, 1997; 62 FR 24355, May 5, 1997; 62 FR 24609, 
May 6, 1997; 62 FR 43953, Aug. 18, 1997; 63 FR 13371, Mar. 19, 1998; 63 
FR 42591, Aug. 10, 1998; 63 FR 49041, Sept. 14, 1998]

    Effective Date Note: 1. At 63 FR 42591, Aug. 10, 1998, in 
Sec. 227.4, paragraph (o) was added, effective Oct. 9, 1998.
    2. At 63 FR 49041, Sept. 14, 1998, in Sec. 227.4, paragraph (p) was 
added, effective Oct. 14, 1998.



                  Subpart B--Threatened Marine Mammals



Sec. 227.11  Guadalupe fur seal.

    (a) Prohibitions. The prohibitions of section 9 of the Act (16 
U.S.C. 1538) relating to endangered species apply to the Guadalupe fur 
seal except as provided in paragraph (b) of this section.
    (b) Exceptions. (1) The Assistant Administrator may issue permits 
authorizing activities which would otherwise be prohibited under 
paragraph (a) of this section in accordance with the subject to the 
provisions of part 222 subpart C--Endangered Fish or Wildlife Permits.
    (2) Any Federal, State or local government official, employee, or 
designated agent may, in the course of official duties, take a stranded 
Guadalupe fur seal without a permit if such taking:
    (i) Is accomplished in a humane manner;
    (ii) Is for the protection or welfare of the animal, is for the 
protection of the public health or welfare, or is for the salvage or 
disposal of a dead specimen;
    (iii) Includes steps designed to ensure the return of the animal to 
its natural habitat, if feasible; and
    (iv) Is reported within 30 days to the Director, Southwest Region, 
National Marine Fisheries Service, 300 S. Ferry Street, Terminal Island, 
CA 90731.
    (3) Any animal or specimen taken under paragraph (b)(2) of this 
section may only be retained, disposed of, or salvaged in accordance 
with directions from the Director, Southwest Region.

[50 FR 51258, Dec. 16, 1985]



Sec. 227.12  Steller sea lion.

    (a) General prohibitions. The prohibitions of section 9 of the Act 
(16 U.S.C. 1538) and the following regulatory provisions shall apply to 
the eastern population of Steller sea lions:
    (1) No discharge of firearms. Except as provided in paragraph (b) of 
this section, no person subject to the jurisdiction of the United States 
may discharge a firearm at or within 100 yards (91.4 meters) of a 
Steller sea lion. A firearm is any weapon, such as a pistol or rifle, 
capable of firing a missile using an explosive charge as a propellant.
    (2) No approach in buffer areas. Except as provided in paragraph (b) 
of this section:
    (i) No owner or operator of a vessel may allow the vessel to 
approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion 
rookery site listed in paragraph (a)(3) of this section;
    (ii) No person may approach on land not privately owned within one-
half statutory miles (0.8 kilometers) or within sight of a Steller sea 
lion rookery site listed in paragraph (a)(3) of this section, whichever 
is greater, except on Marmot Island; and
    (iii) No person may approach on land not privately owned within one 
and one-half statutory miles (2.4 kilometers) or within sight of the 
eastern shore of Marmot Island, including the Steller sea lion rookery 
site listed in paragraph (a)(3) of this section, whichever is greater.
    (3) Listed sea lion rookery sites. Listed Steller sea lion rookery 
sites consist of the rookeries in the Aleutian Islands

[[Page 134]]

and the Gulf of Alaska listed in Table 1.

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

[[Page 135]]

 
34. Agattu I......................  52 deg.23.5 N         173 deg.43.5 E       52 deg.22.0 N        173 deg.41.0 E           16420  Cape Sabak.
35. Attu I........................  52 deg.54.5N          172 deg.28.5E        52 deg.57.5N         172 deg.31.5E            16681  S Quadrant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second
  set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower
  low water.


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    (4) Commercial Fishing Operations. The incidental mortality and 
serious injury of endangered and threatened Steller sea lions in 
commercial fisheries can be authorized in compliance with sections 
101(a)(5) and 118 of the Marine Mammal Protection Act.
    (b) Exceptions--(1) Permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
paragraph (a) of this section in accordance with and subject to the 
provisions of 50 CFR part 222, subpart C--Endangered Fish or Wildlife 
Permits.
    (2) Official activities. The taking of Steller sea lions must be 
reported within 30 days to the Regional Administrator, Alaska Region. 
Paragraph (a) of this section does not prohibit or restrict a Federal, 
state or local government official, or his or her designee, who is 
acting in the course of official duties from:
    (i) Taking a Steller sea lion in a humane manner, if the taking is 
for the protection or welfare of the animal, the protection of the 
public health and welfare, or the nonlethal removal of nuisance animals; 
or
    (ii) Entering the buffer areas to perform activities that are 
necessary for national defense, or the performance of other legitimate 
governmental activities.
    (3) Subsistence takings by Alaska natives. Paragraph (a) of this 
section does not apply to the taking of Steller sea lions for 
subsistence purposes under section 10(e) of the Act.
    (4) Emergency situations. Paragraph (a)(2) of this section does not 
apply to an emergency situation in which compliance with that provision 
presents a threat to the health, safety, or life of a person or presents 
a significant threat to the vessel or property.
    (5) Exemptions. Paragraph (a)(2) of this section does not apply to 
any activity authorized by a prior written exemption from the Director, 
Alaska Region, National Marine Fisheries Service. Concurrently with the 
issuance of any exemption, the Assistant Administrator will publish 
notice of the exemption in the Federal Register. An exemption may be 
granted only if the activity will not have a significant adverse affect 
on Steller sea lions, the activity has been conducted historically or 
traditionally in the buffer zones, and there is no readily available and 
acceptable alternative to or site for the activity.
    (6) Navigational transit. Paragraph (a)(2) of this section does not 
prohibit a vessel in transit from passing through a strait, narrows, or 
passageway listed in this paragraph if the vessel proceeds in continuous 
transit and maintains a minimum of 1 nautical mile from the rookery 
site. The listing of a strait, narrows, or passageway does not indicate 
that the area is safe for navigation. The listed straits, narrows, or 
passageways include the following:

------------------------------------------------------------------------
                Rookery                     Straits, narrows, or pass
------------------------------------------------------------------------
Akutan Island..........................  Akutan Pass between Cape Morgan
                                          and Unalga Island.
Clubbing Rocks.........................  Between Clubbing Rocks and
                                          Cherni Island.
Outer Island...........................  Wildcat Pass between Rabbit and
                                          Ragged Islands.
------------------------------------------------------------------------

    (c) Penalties. (1) Any person who violates this section or the Act 
is subject to the penalties specified in section 11 of the Act, and any 
other penalties provided by law.
    (2) Any vessel used in violation of this section or the Endangered 
Species Act is subject to forfeiture under section 11(e)(4)(B) of the 
Act.

[55 FR 49210, Nov. 26, 1990, as amended at 56 FR 42542, Aug. 28, 1991; 
56 FR 58184, Nov. 18, 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, 
53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; 62 FR 24355, May 5, 
1997]



            Subpart C--Threatened Marine and Anadromous Fish



Sec. 227.21  Threatened salmon.

    (a) Prohibitions. The prohibitions of section 9 of the ESA (16 
U.S.C. 1538) relating to endangered species apply to the threatened 
species of salmon listed in Sec. 227.4 (f), (g), (h), and (i), except as 
provided in paragraph (b) of this section. These prohibitions shall 
become effective for the threatened species of salmon listed in 
Sec. 227.4(i) on August 18, 1997.
    (b) Exceptions. (1) The exceptions of section 10 of the ESA (16 
U.S.C. 1539) and other exceptions under the Act relating to endangered 
species, including

[[Page 166]]

regulations implementing such exceptions, also apply to the threatened 
species of salmon listed in Sec. 227.4 (f), (g), (h), and (i). This 
section supersedes other restrictions on the applicability of parts 217 
and 222 of this chapter, including, but not limited to, the restrictions 
specified in Secs. 217.2 through 222.22(a) of this chapter with respect 
to the species identified in Sec. 227.21(a).
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmon listed in Sec. 227.4(i) do not apply to 
activities specified in an application for a permit for scientific 
purposes or to enhance the propagation or survival of the species, 
provided that the application has been received by the Assistant 
Administrator for Fisheries, NOAA (AA), by September 16, 1997. This 
exception ceases upon the AA's rejection of the application as 
insufficient, upon issuance or denial of a permit, or on Janury 20, 1998 
whichever occurs earliest.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmon listed in Sec. 227.4(i) do not apply to any 
employee or agent of the NMFS, any other Federal land management agency, 
or the Oregon Department of Fish and Wildlife (ODFW) or the California 
Department of Fish and Game (CDFG), who is designated by his/her agency 
for such purposes, when that employee or agent, acting in the course of 
his/her official duties, takes a coho salmon in California or Oregon 
without a permit if such action is necessary to: (1) Aid a sick, 
injured, or stranded individual, (2) dispose of a dead individual, or 
(3) salvage a dead individual, which may be useful for scientific study.

[62 FR 38483, July 18, 1997]



Sec. 227.22  Southern Oregon/Northern California Coast (SONCC) coho salmon.

    The following exceptions to the prohibitions of section 227.21(a) 
apply to SONCC coho salmon:
    (a) Take of SONCC coho salmon within three miles (approximately 5 
km) of the coast, and in bay, estuarine or freshwater fisheries 
regulated under the sole authority of the State of Oregon is not 
prohibited, if the take results from a fisheries harvest program 
conducted in accordance with the Oregon Coastal Salmon Restoration 
Initiative of March 1997 (OCSRI), provided that NMFS has issued written 
concurrence that the fisheries regulations are consistent with the OCSRI 
using information provided through the April 1997 Memorandum of 
Agreement (MOA) between the State of Oregon and NMFS.
    (b) Incidental take of SONCC coho salmon in ocean fisheries within 3 
miles (approximately 5 km) of the coast that are regulated under the 
sole authority of the State of California is not prohibited, provided 
that the ocean salmon fishing regulations adopted by the California Fish 
and Game Commission and CDFG for recreational and commercial fisheries 
within 3 miles (approximately 5 km) of the coast are consistent with the 
Pacific Fishery Management Council's Fishery Management Plan for Ocean 
Salmon Fisheries and the annual ocean salmon fishing regulations issued 
by the Secretary of Commerce for the Federal EEZ.
    (c) Take of SONCC coho salmon in a hatchery program regulated under 
the sole authority of the State of Oregon is not prohibited, if the take 
results from a hatchery program conducted in accordance with the OCSRI, 
and the take is counted against the total allocation of harvest-related 
mortality as specified in the OCSRI, provided that NMFS has issued 
written concurrence that the hatchery program is consistent with the 
OCSRI including the hatchery and genetic management plan adopted 
pursuant to the OCSRI, using information provided through the MOA.
    (d) Take of SONCC coho salmon in fisheries research and monitoring 
activities conducted in California and Oregon is not prohibited provided 
that:
    (1) Research and monitoring involving directed take of coho salmon 
is conducted by CDFG personnel (in California) and ODFW personnel (in 
Oregon).
    (2) The CDFG and ODFW, respectively, provide NMFS with a list of all 
research and monitoring activities involving coho salmon directed take 
planned for the coming year for NMFS' review and approval, including an 
estimate of the total directed take that is anticipated, a description 
of the study

[[Page 167]]

design including a justification for taking the species and a 
description of the techniques to be used, and a point of contact.
    (3) The CDFG and ODFW, respectively, annually provide NMFS with the 
results of research and monitoring studies directed at SONCC coho 
salmon, including a report of the directed take resulting from the 
studies.
    (4) The CDFG and ODFW, respectively, provide NMFS annually with a 
list of all research and monitoring studies each permits that may 
incidentally take listed coho salmon during the coming year and report 
the level of incidental take of listed coho salmon from the previous 
year's research and monitoring activities, for NMFS' review and 
approval.
    (5) The research and monitoring activities do not include the use of 
electrofishing in any body of water known or suspected to contain coho 
salmon.
    (e) Incidental take of the SONCC coho salmon in Oregon that results 
from a habitat restoration activity, as defined in paragraph (4), is not 
prohibited, provided that:
    (1) The activity is conducted pursuant to a watershed action or 
restoration plan that the state has affirmed in writing is consistent 
with state watershed plan guidelines that NMFS has found meet the 
standards set forth in 50 CFR 222.22(c), and NMFS concurs in writing 
that the plan is consistent with those guidelines; or
    (2) Until a watershed action or restoration plan is approved by both 
Oregon and NMFS as described in paragraph (e)(1) of this section, or 
until August 18, 1999, whichever occurs first, the ODFW has made a 
written finding that the activity is consistent with state restoration 
activity guidelines that NMFS has agreed in writing meet the standards 
set forth in 50 CFR 222.22(c); or January 19, 1998.
    (3) Until January 20, 1998, the activity is any restoration action 
listed in the Southwest Oregon Salmon Restoration Initiative (OCSRI ch. 
17F), provided that any action involving in-water work receives written 
approval from ODFW as to timing, scope, and methods.
    (4) ``Habitat restoration activity'' is defined as an activity that 
has the sole objective of restoring natural aquatic or riparian habitat 
conditions or processes.
    (f) Incidental take of the SONCC coho salmon in California that 
results from a habitat restoration activity, as defined in paragraph (3) 
of this section, is not prohibited, provided that California has a 
program in effect that NMFS finds will assure technically supported 
watershed assessments and coordinated long-term monitoring strategies 
for watershed protection plans and activities and:
    (1) The activity is conducted pursuant to a watershed protection 
plan that CDFG has affirmed in writing is consistent with state 
watershed plan guidelines for California's Watershed Protection Program 
that NMFS has found meet the standards set forth in 50 CFR 222.22(c), 
and NMFS concurs in writing that the plan is consistent with those 
guidelines; or
    (2) Until a watershed protection or restoration plan is certified by 
the State of California and NMFS as described in paragraph (f)(1) of 
this section, or until August 18, 1999, whichever occurs first, NMFS has 
made a written finding that the activity is consistent with State of 
California conservation guidelines that NMFS has previously found meet 
the standards set forth in 50 CFR 222.22(c).
    (3) ``Habitat restoration activity'' is defined as an activity that 
has the sole objective of restoring natural aquatic or riparian habitat 
conditions or processes.

[62 FR 38484, July 18, 1997]



                  Subpart D--Threatened Marine Reptiles



Sec. 227.71  Prohibitions.

    (a) Except as provided in Sec. 227.72, the prohibitions of section 9 
of the Act (16 U.S.C. 1538) relating to endangered species apply to any 
species of sea turtle enumerated in Sec. 227.4.
    (b) Except as provided in Sec. 227.72, it is unlawful for any person 
subject to the jurisdiction of the United States to do any of the 
following:

[[Page 168]]

    (1) Own, operate, or be on board a vessel, except if that vessel is 
in compliance with all applicable provisions of Sec. 227.72(e);
    (2) Fish for, catch, take, harvest, or possess, fish or wildlife 
while on board a vessel, except if that vessel is in compliance with all 
applicable provisions of Sec. 227.72(e);
    (3) Fish for, catch, take, harvest, or possess, fish or wildlife 
contrary to any notice of tow-time or other restriction specified in, or 
issued under, Sec. 227.72(e) (3) or (6);
    (4) Possess fish or wildlife taken in violation of paragraph (b) of 
this section;
    (5) Fail to follow any of the sea turtle handling and resuscitation 
requirements specified in Sec. 227.72(e)(1);
    (6) Possess a sea turtle in any manner contrary to the handling and 
resuscitation requirements of Sec. 227.72(e) (1);
    (7) Fail to comply immediately, in the manner specified at 50 CFR 
620.8 (b)-(d), with instructions and signals specified therein issued by 
an authorized officer, including instructions and signals to haul back a 
net for inspection;
    (8) Refuse to allow an authorized officer to board a vessel, or to 
enter an area where fish or wildlife may be found, for the purpose of 
conducting a boarding, search, inspection, seizure, investigation, or 
arrest in connection with enforcement of this section;
    (9) Destroy, stave, damage, or dispose of in any manner, fish or 
wildlife, gear, cargo, or any other matter after a communication or 
signal from an authorized officer, or upon the approach of such an 
officer or of an enforcement vessel or aircraft, before the officer has 
an opportunity to inspect same, or in contravention of directions from 
the officer;
    (10) Assault, resist, oppose, impede, intimidate, threaten, 
obstruct, delay, prevent, or interfere with an authorized officer in the 
conduct of any boarding, search, inspection, seizure, investigation, or 
arrest in connection with enforcement of this section;
    (11) Interfere with, delay, or prevent by any means, the 
apprehension of another person, knowing that such person committed an 
act prohibited by this section;
    (12) Resist a lawful arrest for an act prohibited by this section;
    (13) Make a false statement, oral or written, to an authorized 
officer or to the agency concerning the fishing for, catching, taking, 
harvesting, landing, purchasing, selling, or transferring fish or 
wildlife, or concerning any other matter subject to investigation under 
this section by such officer, or required to be submitted under this 
part 227;
    (14) Sell, barter, trade or offer to sell, barter, or trade, a TED 
that is not an approved TED; or
    (15) Attempt to do, solicit another to do, or cause to be done, any 
of the foregoing.
    (c) In connection with any action alleging a violation of this 
section, any person claiming the benefit of any exemption, exception, or 
permit under this subpart D has the burden of proving that the 
exemption, exception, or permit is applicable, was granted, and was 
valid and in force at the time of the alleged violation. Further, any 
person claiming that a modification made to a TED that is the subject of 
such an action complies with the requirements of Sec. 227.72(e) (4)(iii) 
has the burden of proving such claim.

[57 FR 57354, Dec. 4, 1992]



Sec. 227.72  Exceptions to prohibitions.

    (a) Scientific, propagation, or survival permits. (1) The Assistant 
Administrator may issue permits authorizing activities which would 
otherwise be prohibited under Sec. 227.71 for scientific purposes or to 
enhance the propagation or survival of such species. Applications for 
these permits are subject to the provisions of part 220 of this chapter 
II.
    (2) Ongoing scientific, propagation, or survival projects, which 
would otherwise be prohibited by Sec. 227.71 may continue without a 
permit until an application for a permit has been denied or 90 days from 
the effective date of the listing of the effected species, whichever 
comes first. If a permit has not been denied, ongoing projects may 
continue beyond this 90-day period provided that the individual 
responsible for such project(s) has applied for a permit and receives a 
letter from the Assistant Administrator stating that

[[Page 169]]

the application is complete and sufficient for processing within the 90-
day period. Projects not receiving a permit or letter indicating 
sufficiency by the 90th day must cease. Within 30 days of receipt of an 
application, the Assistant Administrator will determine the completeness 
and sufficiency of the application for processing. If an application is 
deemed complete and sufficient for processing, a permit will be issued 
or denied within the next 90 days beginning with the date of the letter 
informing the applicant that the application is sufficient. Approved 
projects shall continue in accordance with the conditions of the permit.
    (b) Permits for zoological exhibition or educational purposes. The 
Assistant Administrator may issue permits authorizing activities which 
would be otherwise prohibited under Sec. 227.71 for zoological 
exhibition or educational purposes. Applications for these permits are 
subject to the provisions of part 220 of this chapter II.
    (c) Exceptions for injured, dead, or stranded specimens. If any 
member of any threatened species listed in Sec. 227.4 is found injured, 
dead, or stranded, any agent or employee of the National Marine 
Fisheries Service, the Fish and Wildlife Service, the U.S. Coast Guard, 
or any other Federal land or water management agency, or any agent or 
employee of a State agency responsible for fish and wildlife who is 
designated by his or her agency for such purposes, may, when acting in 
the course of his or her official duties, take such specimens without a 
permit if such taking is necessary to aid a sick, injured, or stranded 
specimen or dispose of a dead specimen or salvage a dead specimen which 
may be useful for scientific study. Wherever possible, live specimens 
shall be returned to their aquatic environment as soon as possible. 
Every action shall be reported in writing to the Assistant Administrator 
within 30 days, and reports of further occurrence shall be made as 
deemed appropriate by the Assistant Administrator until the specimen is 
either returned to its environment or disposed of. Reports shall be 
mailed by registered or certified mail, return receipt requested, to the 
Assistant Administrator for Fisheries, National Marine Fisheries 
Service, Washington, DC 20235, and shall contain the following 
information:
    (1) Name and position of the official or employee involved;
    (2) Description of the specimen(s) involved;
    (3) Date and location of disposal;
    (4) Circumstances requiring the action;
    (5) Method of disposal;
    (6) Disposition of the specimen(s), including, where the specimen(s) 
has been retained in captivity, a description of the place and means of 
confinement, and the measures taken for its maintenance and care; and
    (7) Such other information as the Assistant Administrator may 
require.
    (d) Exception for research or conservation. Any employee or agent of 
the National Marine Fisheries Service, the Fish and Wildlife Service, or 
a State fish and wildlife agency operating a conservation program 
pursuant to the terms of a Cooperative Agreement with the National 
Marine Fisheries Service or the Fish and Wildlife Service in accordance 
with section 6(c) of the Act, designated by his or her agency for such 
purposes, may, when acting in the course of his or her official duties, 
take any threatened species to carry out scientific research or 
conservation programs. All such takings shall be reported within 30 days 
of the taking to the Assistant Administrator who may request additional 
reports of the taking and research at his discretion.
    (e) Exception for incidental taking--(1) General. The prohibitions 
against taking in Sec. 227.71(a) do not apply to the incidental take of 
any member of any species of sea turtle listed in Sec. 227.4 (i.e., a 
take not directed toward such member) during fishing or scientific 
research activities, to the extent that those involved are in compliance 
with the requirements of paragraphs (e)(1), (2), (3), and (6) of this 
section, or in compliance with the terms and conditions of an incidental 
take permit issued pursuant to paragraph (e)(7) of this section.
    (i) Any specimen so taken must be handled with due care to prevent 
injury to live specimens, observed for activity, and returned to the 
water according to the following procedures:

[[Page 170]]

    (A) Sea turtles that are dead or actively moving must be released 
over the stern of the boat. In addition, they must be released only when 
trawls are not in use, when the engine gears are in neutral position, 
and in areas where they are unlikely to be recaptured or injured by 
vessels.
    (B) Resuscitation must be attempted on sea turtles that are comatose 
or inactive but not dead by:
    (1) Placing the turtle on its back (carapace) and pumping its 
breastplate (plastron) with hand or foot; or
    (2) Placing the turtle on its breastplate (plastron) and elevating 
its hindquarter several inches for a period of 1 up to 24 hours. The 
amount of the elevation depends on the size of the turtle; greater 
elevations are needed for larger turtles. Sea turtles being resuscitated 
must be shaded and kept wet or moist. Those that revive and become 
active must be released over the stern of the boat only when trawls are 
not in use, when the engine gears are in neutral position, and in areas 
where they are unlikely to be recaptured or injured by vessels. 
Similarly, sea turtles that fail to move within several hours (up to 24, 
if possible) must be returned to the water in the same manner.
    (ii) Any specimen so taken must not be consumed, sold, landed, 
offloaded, transshipped, or kept below deck.
    (2) Gear requirements--(i) TED requirement. Except as provided in 
paragraph (e)(2)(ii) of this section, any shrimp trawler that is in the 
Atlantic Area or Gulf Area must have an approved TED (as defined in 
Sec. 217.12 of this subchapter) installed in each net that is rigged for 
fishing. A net is rigged for fishing if it is in the water, or if it is 
shackled, tied, or otherwise connected to any trawl door or board, or to 
any tow rope, cable, pole or extension, either on board or attached in 
any manner to the shrimp trawler.
    (ii) Exemptions from the TED requirement. (A) A shrimp trawler is 
exempt from the TED requirements of paragraph (e)(2)(i) of this section 
if it complies with the alternative tow-time restrictions in paragraph 
(e)(3)(i) of this section and if it:
    (1) Has on board no power or mechanical-advantage trawl retrieval 
system (i.e., any device used to haul any part of the net aboard);
    (2) Is a bait shrimper that retains all live shrimp on board in a 
container with a circulating seawater system, if it does not possess 
more than 32 pounds (14.5 kg) of dead shrimp on board, and if it has on 
board a valid original state bait-shrimp license (if in a state that 
requires such a license);
    (3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged 
for fishing;
    (4) Is in an area during a period for which tow-time restrictions 
apply under paragraphs (e)(3)(ii) or (iii) of this section, if it 
complies with all applicable provisions imposed under those paragraphs;
    (5) Prior to December 1, 1994, is in inshore waters, if it has no 
more than one net rigged for fishing (other than a test (or try) net), 
if that net has both a headrope length of less than 35 feet (10.7 m) and 
a footrope length of less than 44 feet (13.4 m).
    (B) The following fishing gear or activities are exempted from the 
TED requirements of paragraph (e)(2)(i) of this section:
    (1)(i) For any shrimp trawler fishing in the Gulf SFSTCA or the 
Atlantic SFSTCA, a single test net (try net) with a headrope length of 
12 ft (3.6 m) or less and with a footrope length of 15 ft (4.6 m) or 
less, if it is either pulled immediately in front of another net or is 
not connected to another net in any way, if no more than one test net is 
used at a time, and if it is not towed as a primary net.
    (ii) Prior to December 19, 1997, in areas other than the Gulf SFSTCA 
or the Atlantic SFSTCA, a single test net (try net) with a headrope 
length of 20 ft (6.1 m) or less, if it is either pulled immediately in 
front of another net or is not connected to another net in any way, if 
no more than one test net is used at a time, and if it is not towed as a 
primary net.
    (iii) Applicable after December 19, 1997, a single test net (try 
net) with a headrope length of 12 ft (3.6 m) or less and with a footrope 
length of 15 ft (4.6 m) or less, if it is either pulled immediately in 
front of another net or is not connected to another net in any way, if 
no more than one test net is used at a

[[Page 171]]

time, and if it is not towed as a primary net.
    (2) A beam or roller trawl fished without doors, boards, or similar 
devices, that has a mouth formed by a rigid frame and rigid vertical 
bars, if none of the spaces between the bars, or between the bars and 
the frame, exceed 4 inches (10.2 cm); and
    (3) A shrimp trawler fishing for, or possessing, royal red shrimp, 
if at least 90 percent (by weight) of all shrimp either found on board, 
or offloaded from that shrimp trawler, is royal red shrimp.
    (iii) Gear requirement--summer flounder trawlers--(A) TED 
requirement. Except as provided in paragraph (e)(2)(iii)(B) of this 
section, any summer flounder trawler in the summer flounder fishery-sea 
turtle protection area must have an approved TED (as defined in 
Sec. 217.12 of this chapter) installed in each net that is rigged for 
fishing. A net is rigged for fishing if it is in the water, or if it is 
shackled, tied, or otherwise connected to any trawl door or board, or to 
any tow rope, cable, pole or extension, either on board or attached in 
any manner to the summer flounder trawler.
    (B) Exemptions from the TED requirement. Any summer flounder trawler 
north of 35 deg.46.1' N. lat. (Oregon Inlet, NC) from January 
15 through March 15 annually is exempt from the TED requirement of 
paragraph (e)(2)(iii)(A) of this section, unless the Assistant 
Administrator determines that TED use is necessary to protect sea 
turtles or ensure compliance, pursuant to the procedures of paragraph 
(e)(6) of this section.
    (C) Monitoring. Summer flounder trawlers must carry onboard a NMFS-
approved observer if requested upon written notification from the 
Director, Southeast Region, NMFS, or the Director, Northeast Region, 
NMFS, sent to the address specified for the vessel in either the NMFS or 
state fishing permit application, or to the address specified for 
registration or documentation purposes, or upon written notification 
otherwise served on the owner or operator of the vessel. Owners and 
operators must comply with the terms and conditions specified in such 
written notification. All NMFS-approved observers will report any 
violations of this section, or other applicable regulations and laws; 
such information may be used for enforcement purposes.
    (D) Additional sea turtle conservation measures. The Assistant 
Administrator may impose other such restrictions upon summer flounder 
trawlers as he or she deems necessary or appropriate to protect sea 
turtles and ensure compliance, pursuant to the procedures of paragraph 
(e)(6) of this section. Such measures may include, but are not limited 
to, a requirement to use TEDs in areas other than summer flounder 
fishery-sea turtle protection area, a requirement to use limited tow-
times, and closure of the fishery.
    (iv) Gear requirement--leatherback conservation zone--(A) 
Leatherback surveys. From January 1 through June 30 of each year, weekly 
aerial surveys will be conducted (contingent upon weather conditions) by 
NMFS or state agents in the leatherback conservation zone (defined in 
Sec. 217.12 of this chapter). If sighting rates of greater than 10 
leatherback turtles per 50 nautical miles (92.6 km) of trackline are 
observed, the aerial surveys of that area will be replicated within 24 
hours, or as soon as practicable thereafter.
    (B) TED requirements and registration. If surveys pursuant to 
(e)(2)(iv)(A) of this section indicate a sighting rate within the 
leatherback conservation zone of greater than 10 leatherback sea turtles 
per 50 nautical miles (92.6 km) of trackline, NMFS will close, for a 2-
week period, an area of the leatherback conservation zone encompassing 
all, or a portion of, inshore waters and offshore waters 10 nautical 
miles (18.5 km) seaward of the COLREGS demarcation line, bounded by 
1 deg. lat. coinciding with the trackline, within the leatherback 
conservation zone. Within such closed area, fishing by any shrimp 
trawler required to have a NMFS-approved TED installed in each net 
rigged for fishing is prohibited, unless the TED installed is one 
described at paragraph (e)(4)(i)(G)(2)(ii) or, prior to October 13, 
1999, paragraph (e)(4)(iii)(A)(4)(ii) of this section, and the owner or 
operator of the shrimp trawler has notified the Director, Southeast 
Region, NMFS (Regional Director) of his or her intention to fish in that 
area, in accordance

[[Page 172]]

with the procedure provided in paragraphs (e)(6)(iv) (A) through (F) of 
this section. If requested in writing from the Regional Director, owners 
and operators of shrimp trawlers in the leatherback conservation zone 
must carry NMFS-approved observers aboard such vessel(s). A shrimp 
trawler in the leatherback conservation zone must comply with the terms 
and conditions specified in such written request, as well as provide 
information on trawling hours, gear modifications, and turtle captures.
    (C) Notification. NMFS will immediately announce specific area 
closures on the NOAA weather radio channel, in newspapers, and other 
media. Specific area closures will be effective upon filing for public 
inspection at the Office of the Federal Register. Owners and operators 
of shrimp trawl vessels in the leatherback conservation zone are 
responsible for monitoring the NOAA weather radio channel for closure 
announcements. Shrimp trawlers may also call the Southeast Regional 
Office at (813) 570-5312 to receive updated area closure information.
    (3) Tow-time restrictions--(i) Duration of tows. If tow-time 
restrictions are utilized pursuant to paragraphs (e)(2)(ii), (e)(3)(ii), 
or (e)(3)(iii) of this section, a shrimp trawler must limit tow times to 
no more than 55 minutes from April 1 through October 31; and to no more 
than 75 minutes from November 1 through March 31. A shrimp trawler in 
the North Carolina restricted area must limit tow times to no more than 
30 minutes from May 16 through August 15. The tow time is measured from 
the time that the trawl door enters the water until it is removed from 
the water. For a trawl that is not attached to a door, the tow time is 
measured from the time the codend enters the water until it is removed 
from the water.
    (ii) Alternative--special environmental conditions. (A) The 
Assistant Administrator may allow compliance with tow-time restrictions, 
as an alternative to the TED requirement of paragraph (e)(2)(i) of this 
section, if he/she determines that the presence of algae, seaweed, 
debris or other special environmental conditions in a particular area 
makes trawling with TED-equipped nets impracticable.
    (B) North Carolina restricted area. From June 27, 1994 through 
November 30, 1994, a shrimp trawler in the North Carolina restricted 
area, as an alternative to complying with the TED requirement of 
paragraph (e)(2)(i) of this section, may comply with the tow-time 
restrictions set forth in paragraph (e)(3)(i) of this section. The owner 
or operator of a shrimp trawler who wishes to operate his or her shrimp 
trawler in the North Carolina restricted area must register pursuant to 
paragraph (e)(3)(v) of this section, with registration received by the 
Director, Southeast Region, NMFS, at least 24 hours before the first use 
of such tow times. Registration may be made by telephoning (813) 893-
3141 or writing to 9721 Executive Center Drive, St. Petersburg, FL 
33702. The owner or operator of a shrimp trawler in the North Carolina 
restricted area must carry onboard a NMFS-approved observer upon written 
notification by the Director, Southeast Region, NMFS. Notification shall 
be made to the address specified for the vessel in either the NMFS or 
state fishing permit application, the registration or documentation 
papers, or otherwise served upon the owner or operator of the vessel. 
The owner or operator must comply with the terms and conditions 
specified in such written notification. All observers will report any 
violations of this section, or other applicable regulations and laws; 
such information may be used for enforcement purposes.
    (iii) Substitute--ineffectiveness of TEDs. The Assistant 
Administrator may require compliance with tow-time restrictions, as a 
substitute for the TED requirement of paragraph (e)(2)(i) of this 
section, if he/she determines that TEDs are ineffective in protecting 
sea turtles.
    (iv) Notice; applicability; conditions. The Assistant Administrator 
will publish notification concerning any tow-time restriction imposed 
under paragraphs (e)(3) (ii) or (iii) of this section in the Federal 
Register and will announce it in summary form on channel 16 of the 
marine VHF radio. A notification of tow-time restrictions will include 
findings in support of these restrictions as an alternative to, or as

[[Page 173]]

substitute for, the TED requirements of paragraph (e)(2)(i) of this 
section. The notification will specify the effective dates, the 
geographic area where tow-time restrictions apply, and any applicable 
conditions or restrictions that the Assistant Administrator determines 
are necessary or appropriate to protect sea turtles and ensure 
compliance, including, but not limited to, a requirement to carry 
observers, or for all shrimp trawlers in the area to synchronize their 
tow times so that all trawl gear remains out of the water during certain 
times. A notification withdrawing tow-time restrictions will include 
findings in support of that action.
    (v) Registration. If the Assistant Administrator imposes 
restrictions under paragraph (e)(3) (ii) or (iii) of this section, he/
she may require the owner and operator of a shrimp trawler to register 
before entering an area where, and during the time when, the 
restrictions apply. If registration is required, the trawler's owner and 
operator must submit the following information to the NMFS Regional 
Office:
    (A) The name and official number (or registration number) of the 
shrimp trawler;
    (B) The names, mailing and street addresses, and telephone numbers 
of the trawler owner and operator;
    (C) The permit number or other identification of relevant state or 
Federal fishing permit(s);
    (D) Where and when the trawler intends to fish;
    (E) Where and when the trawler will depart on any fishing trip, with 
sufficient specificity to allow for an observer to embark on the trip; 
and
    (F) Any changes in the information submitted under paragraphs 
(e)(3)(v) (A) through (E) of this section. Failure to do so immediately 
will void the registration, which will render unlawful any subsequent 
entry of the shrimp trawler into the area where and during the time when 
the restrictions apply.
    (vi) Procedures. The Assistant Administrator will consult with the 
appropriate fishery officials (state or Federal) where the affected 
shrimp fishery is located in issuing a notification concerning tow-time 
restrictions. An emergency notification can be effective for a period of 
up to 30 days and may be renewed for additional periods of up to 30 days 
each if the Assistant Administrator finds that the conditions that 
necessitated the imposition of tow-time restrictions continue to exist. 
The Assistant Administrator may invite comments on such an action, and 
may withdraw or modify the action by following procedures similar to 
those for implementation. The Assistant Administrator will implement any 
permanent tow-time restriction through rulemaking.
    (4) Approved TEDs. Any netting, webbing, or mesh that may be 
measured to determine compliance with this paragraph (e)(4) is subject 
to measurement, regardless of whether it is wet or dry. Any such 
measurement will be of the stretched mesh size.
    (i) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and are 
categorized as ``hooped hard TEDs,'' such as the NMFS and Cameron TEDs 
(Figures 1 & 2), or ``single-grid hard TEDs,'' such as the Matagorda and 
Georgia TEDs (Figures 3 & 4). Hard TEDs complying with the following 
generic design criteria are approved TEDs:
    (A) Construction materials. A hard TED must be constructed of one or 
a combination of the following materials, with minimum dimensions as 
follows:
    (1) Solid steel rod with a minimum outside diameter of \1/4\ inch 
(0.64 cm);
    (2) Fiberglass or aluminum rod with a minimum outside diameter of 
\1/2\ inch (1.27 cm); or
    (3) Steel or aluminum tubing with a minimum outside diameter of 1/2 
inch (1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) (also 
known as schedule 40 tubing).
    (B) Method of attachment. A hard TED must be sewn into the trawl 
around the entire circumference of the TED with heavy twine.
    (C) Angle of deflector bars. (1) Except as provided in paragraph 
(e)(4)(i)(C)(2) of this section, the angle of the deflector bars must be 
between 301/2 and 551/2 from the normal, horizontal flow through the 
interior of the trawl.
    (2) For any shrimp trawler fishing in the Gulf SFSTCA or the 
Atlantic SFSTCA, a hard TED with the position of the escape opening at 
the bottom of

[[Page 174]]

the net when the net is in its deployed position, the angle of the 
deflector bars from the normal, horizontal flow through the interior of 
the trawl, at any point, must not exceed 551/2, and:
    (i) If the deflector bars that run from top to bottom are attached 
to the bottom frame of the TED, the angle of the bottom-most 4 inches 
(10.2 cm) of each deflector bar, measured along the bars, must not 
exceed 451/2 (Figures 14a and 14b);
    (ii) If the deflector bars that run from top to bottom are not 
attached to the bottom frame of the TED, the angle of the imaginary 
lines connecting the bottom frame of the TED to the bottom end of each 
deflector bar which runs from top to bottom must not exceed 451/2 
(Figure 15).
    (D) Space between bars. The space between deflector bars, and 
between the deflector bars and the frame, must not exceed 4 inches (10.2 
cm).
    (E) Direction of bars. The deflector bars must run from top to 
bottom of the TED, as the TED is positioned in the net, except that up 
to four of the bottom bars and two of the top bars, including the frame, 
may run from side to side of the TED.
    (F) Position of escape opening. The entire width of the escape 
opening from the trawl must be centered on and immediately forward of 
the frame at either the top or bottom of the net when the net is in its 
deployed position. The escape opening must be at the top of the net when 
the slope of the deflector bars from forward to aft is upward, and must 
be at the bottom when such slope is downward. For a single-grid TED, the 
escape opening must be cut horizontally along the same plane as the TED, 
and may not be cut in a fore-and-aft direction.
    (G) Size of escape opening. (1) On a hooped hard TED, the escape 
opening must not be smaller than 25 inches by 25 inches (63.5 cm by 63.5 
cm) in the Gulf Area, or 30 inches by 30 inches (76.2 cm by 76.2 cm) in 
the Atlantic Area. A door frame may not be used over the escape opening; 
however, a webbing flap may be used as provided in paragraph 
(e)(4)(iv)(C) of this section.
    (2)(i) On a single-grid hard TED, the cut in the trawl webbing for 
the escape opening cannot be narrower than the outside width of the grid 
minus 4 inches (10.2 cm) on both sides of the grid, when measured as a 
straight line width. (Figure 13 of this part illustrates the dimensions 
of this cut.) The resulting escape opening in the net webbing must 
measure at least 32 inches (81.3 cm) in horizontal taut length and, 
simultaneously, 10 inches (25.4 cm) in vertical taut height in the Gulf 
Area; or 35 inches (88.9 cm) in horizontal taut length and, 
simultaneously, 12 inches (30.5 cm) in vertical taut height in the 
Atlantic Area. The vertical measurement must be taken at the midpoint of 
the horizontal measurement.
    (ii) Escape opening for leatherback turtles. A single-grid hard TED 
escape opening shall be enlarged to allow leatherback turtles to escape 
by cutting an exit hole in the extension forward of the TED frame 26 
inches (66 cm) deep, on each side, by 83 inches (211 cm) across (Figures 
12a and 12b of this part). Excess webbing is removed by cutting across 
\1/2\ mesh forward of the TED frame. The exit hole cover is made by 
cutting a 133-inch (338-cm) by 58-inch (148 cm) piece of webbing no 
smaller than 1\1/2\ inch (4 cm) stretch mesh and no larger than 1\5/8\ 
inch (4.2 cm) stretch mesh. The 133-inch (338 cm) edge of the cover is 
attached to the forward edge of the opening (83-inch (211-cm) edge) with 
a sewing sequence of 3:2. The cover should overlap 5 inches (13 cm) of 
the exit hole on each side. The side of the cover is attached, 
maintaining the 5-inch (13-cm) overlap, to the side of the opening by 
sewing 28 inches (71 cm) of the cover to 26 inches (66 cm) of the 
opening forward of the TED frame and by sewing 15 inches (38 cm) of the 
cover to 15 inches (38 cm) of the extension behind the TED frame. The 
cover may extend no more than 24 inches (61 cm) behind the posterior 
edge of the TED frame. The circumference of the exit opening must be 142 
inches (361 cm) when stretched. If an accelerator funnel is used with a 
single-grid hard TED, modified as above, it must also have a minimum 
circumference of 142 inches (361 cm).
    (H) Size of hoop or grid--(1) Hooped hard TED. (i) An oval front 
hoop on a

[[Page 175]]

hard TED must have an inside horizontal measurement of at least 32 
inches (81.3 cm) and an inside vertical measurement of at least 20 
inches (50.8 cm) in the Gulf Area, or an inside horizontal measurement 
of at least 35 inches (88.9 cm) and an inside vertical measurement of at 
least 30 inches (76.2 cm) in the Atlantic Area.
    (ii) A circular front hoop on a hard TED must have an inside 
diameter of at least 32 inches (81.3 cm) in the Gulf Area or 35 inches 
(88.9 cm) in the Atlantic Area.
    (2) Single-grid hard TED. A single-grid hard TED must have an inside 
horizontal and vertical measurement of at least 28 inches (71.1 cm) in 
the Gulf Area or 30 inches (76.2 cm) in the Atlantic Area. The required 
inside measurements must be at the mid-point of the deflector grid.
    (I) Flotation. Floats must be attached to the top one-half of all 
hard TEDs with bottom escape openings. The floats may be attached either 
outside or inside the net, but not to a flap. Floats attached inside the 
net must be behind the rear surface. Floats must be attached with heavy 
twine or rope. Floats must be constructed of aluminum, hard plastic, 
expanded polyvinyl chloride, or expanded ethylene vinyl acetate unless 
otherwise specified. The requirements of this paragraph may be satisfied 
by compliance with either the dimension requirements of paragraph 
(e)(4)(i)(I)(1) of this section, or the buoyancy requirements of 
paragraph (e)(4)(i)(I)(2) of this section, or the buoyancy-dimension 
requirements of paragraph (e)(4)(i)(I)(3) of this section. If roller 
gear is used pursuant to paragraph (e)(4)(iv)(E), the roller gear must 
be included in the circumference measurement of the TED or the total 
weight of the TED.
    (1) Float dimension requirements. (i) For hard TEDs with a 
circumference of 120 inches (304.8 cm) or more, a minimum of either one 
round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 
cm) in diameter, or two expanded polyvinyl chloride or expanded ethylene 
vinyl acetate floats, each no smaller than 6.75 inches (17.2 cm) in 
diameter by 8.75 inches (22.2 cm) in length, must be attached.
    (ii) For hard TEDs with a circumference of less than 120 inches 
(304.8 cm), a minimum of either one round, aluminum or hard plastic 
float, no smaller than 9.8 inches (25.0 cm) in diameter, or one expanded 
polyvinyl chloride or expanded ethylene vinyl acetate float, no smaller 
than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in 
length, must be attached.
    (2) Float buoyancy requirements. Floats of any size and in any 
combination must be attached such that the combined buoyancy of the 
floats, as marked on the floats, equals or exceeds the weight of the 
hard TED, as marked on the TED. The buoyancy of the floats and the 
weight of the TED must be clearly marked on the floats and the TED as 
follows:
    (i) Float buoyancy markings. Marking must be made in clearly legible 
raised or recessed lettering by the original manufacturer. The marking 
must identify the buoyancy of the float in water, expressed in grams or 
kilograms, and must include the metric unit of measure. The marking may 
additionally include the buoyancy in English units. The marking must 
identify the nominal buoyancy for the manufactured float.
    (ii) TED weight markings. The marking must be made by a registered 
TED manufacturer and must be permanent and clearly legible and must be 
accompanied by the identifying symbol of the registered manufacturer. 
The marking must identify the in-air, dry weight of the TED, expressed 
in grams or kilograms, and must include the metric unit of measure. The 
marking may additionally include the weight in English units. The marked 
weight must represent the actual weight of the individual TED as 
manufactured. Previously manufactured TEDs may be marked upon return to 
a registered TED manufacturer. Where a TED is comprised of multiple 
detachable components, the weight of each component must be separately 
marked. A TED manufacturer may become registered to mark TEDs by 
requesting registration in writing from the NMFS Southeast Regional 
Director. To request registration, the manufacturer should write to the 
Director, Southeast Region, NMFS, 9721 Executive Center Dr.

[[Page 176]]

North, St. Petersburg, FL 33702, and include the manufacturer's name, 
address, and telephone number; the sizes, styles, and anticipated number 
of TEDs to be produced annually; the method of marking; and a 
description of the manufacturer's distinctive, identifying symbol. Upon 
receipt of a complete request, the Director, Southeast Region, NMFS, 
will notify the manufacturer in writing of their registration.
    (3) Buoyancy-dimension requirements. Floats of any size and in any 
combination, provided that they are marked pursuant to paragraph 
(e)(4)(i)(I)(2)(i) of this section, must be attached such that the 
combined buoyancy of the floats equals or exceeds the following values:
    (i) For floats constructed of aluminum or hard plastic, regardless 
of the size of the TED grid, the combined buoyancy must equal or exceed 
14 lb (6.4 kg);
    (ii) For floats constructed of expanded polyvinyl chloride or 
expanded ethylene vinyl acetate, where the circumference of the TED is 
120 inches (304.8 cm) or more, the combined buoyancy must equal or 
exceed 20 lb (9.1 kg); or
    (iii) For floats constructed of expanded polyvinyl chloride or 
expanded ethylene vinyl acetate, where the circumference of the TED is 
less than 120 inches (304.8 cm), the combined buoyancy must equal or 
exceed 10 lb (4.5 kg).
    (ii) Special Hard TEDs. Special hard TEDs are hard TEDs which do not 
meet all of the design and construction criteria of the generic 
standards. The following special hard TEDs are approved TEDs:
    (A) Flounder TED (Figure 10 of this part). The Flounder TED must be 
constructed of at least 1 1/4 inch (3.2 cm) outside diameter aluminum or 
steel pipe with a wall thickness of at least 1/8 inch (0.3 cm). It must 
have a rectangular frame with outside dimensions which can be no less 
than 51 inches (129.5 cm) in length and 32 inches (81.3 cm) in width. It 
must have at least five vertical deflector bars, with bar spacings of no 
more than 4 inches (10.2 cm). The vertical bars must be connected to the 
top of the frame and to a single horizontal bar near the bottom. The 
horizontal bar must be connected at both ends to the sides of the frame 
and parallel to the bottom bar of the frame. There must be a space no 
larger than 10 inches (25.4 cm) between the horizontal bar and the 
bottom bar of the frame. An additional vertical bar runs from the middle 
of the bottom bar to the middle of the horizontal bar dividing the 
opening at the bottom into two rectangles with an opening height of no 
more than 10 inches (25.4 cm) and an opening width of no more than 14 1/
2 inches (36.8 cm). If, because of the width of the TED, the opening 
width of the bottom rectangles exceeds the maximum allowed, additional 
vertical bars must be added. This TED must comply with paragraphs 
(e)(4)(i)(B), (e)(4)(i)(C), (e)(4)(i)(F), and (e)(4)(i)(G) of this 
section with respect to the method of attachment, the angle of the 
deflector bars, the position of the escape opening, and the size of the 
escape opening, except that the deflector bars must be positioned in the 
net to deflect turtles to the escape opening in the top of the trawl. 
This TED may not be configured with a bottom escape opening. 
Installation of an accelerator funnel is not permitted with this TED. 
Use of this TED is restricted to the Atlantic summer flounder bottom 
trawl fishery.
    (B) Jones TED (Figure 11 of this part). The Jones TED must be 
constructed of at least 1 1/4 inch (3.2 cm) outside diameter aluminum or 
steel pipe, and the pipe must have a wall thickness of at least 1/8 inch 
(0.3 cm). It must be generally oval in shape with a flattened bottom. 
The deflector bars must be attached to the frame at a 45 deg. angle from 
the horizontal positioning downward and each bar must be attached at 
only one end to the frame. The deflector bars must be attached and lie 
in the same plane as the frame. The space between the ends of the bottom 
deflector bars and the bottom frame bar must be no more than 3 inches 
(7.6 cm). The spacing between the bottom three deflector bars on each 
side must be no greater than 2 1/2 inches (6.4 cm). The spacing between 
all other deflector bars must not exceed 3 1/2 inches (8.9 cm) and 
spacing between ends of opposing deflector bars also must not exceed 3 
1/2 inches (8.9 cm). This TED must comply with paragraphs (e)(4)(i)(B),

[[Page 177]]

(e)(4)(i)(C), (e)(4)(i)(F), (e)(4)(i)(G), (e)(4)(i)(H)(2), and 
(e)(4)(i)(I) of this section with respect to the method of attachment, 
the angle of the deflector bars, the position of the escape opening, the 
size of the escape opening, the size of the grid, and flotation.
    (iii) Soft TEDs. Soft TEDs are TEDs with deflector panels made from 
polypropylene or polyethylene netting. Prior to October 13, 1999, the 
following soft TEDs are approved TEDs:
    (A) Parker TED. The Parker TED is a soft TED, consisting of a single 
triangular panel, composed of webbing of two different mesh sizes, that 
forms a complete barrier inside a trawl and that angles toward an escape 
opening in the top of the trawl.
    (1) Excluder Panel. (Figure 5) The excluder panel of the Parker TED 
must be constructed of a single triangular piece of 8-inch (20.3 cm) 
stretched mesh webbing and two trapezoidal pieces of 4-inch (10.2-cm) 
stretched mesh webbing. The webbing must consist of number 48 (3-mm 
thick) or larger polypropylene or polyethylene webbing that is heat-set 
knotted or braided. The leading edge of the 8-inch (20.3-cm) mesh panel 
must be 36 meshes wide. The 8-inch (20.3-cm) mesh panel must be tapered 
on each side with all-bar cuts to converge on an apex, such that the 
length of each side is 36 bars. The leading edges of the 4-inch (10.2-
cm) mesh panels must be 8 meshes wide. The edges of the 4-inch (10.2-cm) 
mesh panels must be cut with all-bar cuts running parallel to each 
other, such that the length of the inner edge is 72 bars and the length 
of the outer edge is 89 bars and the resulting fore-and-aft edge is 8 
meshes deep. The two 4-inch (10.2-cm) mesh panels must be sewn to the 8-
inch (20.3-cm) mesh panel to create a single triangular excluder panel. 
The 72-bar edge of each 4-inch (10.2-cm) mesh panel must be securely 
joined with twine to one of the 36-bar edges of the 8-inch (20.3-cm) 
mesh panel, tied with knots at each knot of the 4-inch (10.2-cm) webbing 
and at least two wraps of twine around each bar of 4-inch (10.2-cm) mesh 
and the adjoining bar of the 8-inch (20.3-cm) mesh. The adjoining fore-
and-aft edges of the two 4-inch (10.2-cm) mesh panels must be sewn 
together evenly.
    (2) Limitations on which trawls may have a Parker TED installed. The 
Parker TED must not be installed or used in a two-seam trawl with a 
tongue, nor in a triple-wing trawl (a trawl with a tongue along the 
headrope and a second tongue along the footrope). The Parker TED may be 
installed and used in any other trawl if the taper of the body panels of 
the trawl does not exceed 4b1p and if it can be properly installed in 
compliance with paragraph (c)(1)(iii) of this section.
    (3) Panel installation--(i) Leading edge attachment. The leading 
edge of the excluder panel must be attached to the inside of the bottom 
of the trawl across a straight row of meshes. For a two-seam trawl or a 
four-seam, tapered-wing trawl, the row of meshes for attachment to the 
trawl must run the entire width of the bottom body panel, from seam to 
seam. For a four-seam, straight-wing trawl, the row of meshes for 
attachment to the trawl must run the entire width of the bottom body 
panel and half the height of each wing panel of the trawl. Every mesh of 
the leading edge of the excluder panel must be evenly sewn to this row 
of meshes; meshes may not be laced to the trawl. The row of meshes for 
attachment to the trawl must contain the following number of meshes, 
depending on the stretched mesh size used in the trawl: for a mesh size 
of 2\1/4\ inches (5.7 cm), 152-168 meshes; for a mesh size of 2\1/8\ 
inches (5.4 cm), 161-178 meshes; for a mesh size of 2 inches (5.1 cm), 
171-189 meshes; for a mesh size of 1\7/8\ inches (4.8 cm), 182-202 
meshes; for a mesh size of 1\3/4\ inches (4.4 cm), 196-216 meshes; for a 
mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes; for a mesh size of 
1\1/2\ inches (3.8 cm), 228-252 meshes; for a mesh size of 1\3/8\ inches 
(3.5 cm), 249-275 meshes; and for a mesh size of 1\1/4\ inches (3.2 cm), 
274-302 meshes.
    (ii) Apex attachment. The apex of the triangular excluder panel must 
be attached to the inside of the top body panel of the trawl at the 
centerline of the trawl. The distance, measured aft along the centerline 
of the top body panel from the same row of meshes for attachment of the 
excluder panel to the bottom body panel of the trawl, to the apex 
attachment point must contain the following number of meshes,

[[Page 178]]

depending on the stretched mesh size used in the trawl: for a mesh size 
of 2\1/4\ inches (5.7 cm), 78-83 meshes; for a mesh size of 2\1/8\ 
inches (5.4 cm), 83-88 meshes; for a mesh size of 2 inches (5.1 cm), 87-
93 meshes; for a mesh size of 1\7/8\ inches (4.8 cm) , 93-99 meshes; for 
a mesh size of 1\3/4\ inches (4.4 cm) , 100-106 meshes; for a mesh size 
of 1\5/8\ inches (4.1 cm), 107-114 meshes; for a mesh size of 1\1/2\ 
inches (3.8 cm), 114-124 meshes; for a mesh size of 1\3/8\ inches (3.5 
cm), 127-135 meshes; and for a mesh size of 1\1/4\ inches (3.2 cm), 137-
146 meshes.
    (iii) Side attachment. The sides of the excluder panel must be 
attached evenly to the inside of the trawl from the outside attachment 
points of the excluder panel's leading edge to the apex of the excluder 
panel. Each side must be sewn with the same sewing sequence, and, if the 
sides of the excluder panel cross rows of bars in the trawl, then the 
crossings must be distributed evenly over the length of the side 
attachment.
    (4) Escape opening. The escape opening for the Parker soft TED must 
match one of the following specifications:
    (i) Longitudinal cut. A slit at least 56 inches (1.4 m) in taut 
length must be cut along the centerline of the top body panel of the 
trawl net immediately forward of the apex of the panel webbing. The slit 
must not be covered or closed in any manner. The edges and end points of 
the slit must not be reinforced in any way; for example, by attaching 
additional rope or webbing or by changing the orientation of the 
webbing.
    (ii) Leatherback escape opening. A horizontal cut extending from the 
attachment of one side of the deflector panel to the trawl to the 
attachment of the other side of the deflector panel to the trawl must be 
made in a single row of meshes across the top of the trawl and measure 
at least 96 inches (244 cm) in taut width. All trawl webbing above the 
deflector panel between the 96-inch (244-cm) cut and edges of the 
deflector panel must be removed. A rectangular flap of nylon webbing not 
larger than 2-inch (5.1-cm) stretched mesh may be sewn to the forward 
edge of the escape opening. The width of the flap must not be larger 
than the width of the forward edge of the escape opening. The flap must 
not extend more than 12 inches (30.4 cm) beyond the rear point of the 
escape opening. The sides of the flap may be attached to the top of the 
trawl but must not be attached farther aft than the row of meshes 
through the rear point of the escape opening. One row of steel chain not 
larger than \3/16\ inch (4.76 mm) may be sewn evenly to the back edge of 
the flap. The stretched length of the chain must not exceed 96 inches 
(244 cm). A Parker TED using the escape opening described in this 
paragraph meets the requirements of paragraph (e)(2)(iv)(B) of this 
section.
    (B) [Reserved]
    (iv) Allowable modifications to TEDs. No modifications may be made 
to an approved soft TED. Unless otherwise prohibited in paragraph 
(e)(4)(ii) of this section, only the following modifications may be made 
to an approved hard TED and an approved special hard TED:
    (A) Floats. In addition to floats required pursuant to paragraph 
(e)(4)(i)(I) of this section, floats may be attached to the top one-half 
of the TED, either outside or inside the net, but not to a flap. Floats 
attached inside the net must be behind the rear surface at the top of 
the TED.
    (B) Accelerator funnel. An accelerator funnel may be installed in 
the trawl, if it is made of net webbing material with a stretched mesh 
size not greater than 1 5/8 inches (4.1 cm), if it has an 
insidehorizontal opening of at least 39 inches (99.1 cm) when measured 
in a taut position, if it is inserted in the net immediately forward of 
the TED, and if its rear edge does not extend past the bars of the TED. 
The trailing edge of the accelerator funnel may be attached to the TED 
on the side opposite the escape opening if not more than 1/3 of the 
circumference of the funnel is attached, and if the inside horizontal 
opening of at least 39 inches (99.1 cm) is maintained. In a downward 
shooting TED, only the top 1/3 of the circumference of the funnel may be 
attached to the TED. In an upward shooting TED, only the bottom 1/3 of 
the circumference of the funnel may be attached to the TED.
    (C) Webbing flap. A webbing flap may be used to cover the escape 
opening if: No device holds it closed or otherwise

[[Page 179]]

restricts the opening; it is constructed of webbing with a stretched 
mesh size no larger than 1 5/8 inches (4.1 cm); it lies on the outside 
of the trawl; it is attached along its entire forward edge forward of 
the escape opening; it is not attached on the sides beyond the row of 
meshes that lies 6 inches (15.2 cm) behind the posterior edge of the 
grid; and it does not extend more than 24 inches (61.0 cm) beyond the 
posterior edge of the grid, except for trawlers fishing in the Gulf 
SFSTCA or Atlantic SFSTCA with a hard TED with the position of the 
escape opening at the bottom of the net when the net is in its deployed 
position, in which case the webbing flap must not extend beyond the 
posterior edge of the grid.
    (D) Chafing webbing. A single piece of nylon webbing, with a twine 
size no smaller than size 36 (2.46 mm in diameter), may be attached 
outside of the escape opening webbing flap to prevent chafing on bottom 
opening TEDs. This webbing may be attached along its leading edge only. 
This webbing may not extend beyond the trailing edge or sides of the 
existing escape opening webbing flap, and it must not interfere or 
otherwise restrict the turtle escape opening.
    (E) Roller gear. Roller gear may be attached to the bottom of a TED 
to prevent chafing on the bottom of the TED and the trawl net. When a 
webbing flap is used in conjunction with roller gear, the webbing flap 
must be of a length such that no part of the webbing flap can touch or 
come in contact with any part of the roller gear assembly or the means 
of attachment of the roller gear assembly to the TED, when the trawl net 
is in its normal, horizontal position. Roller gear must be constructed 
according to one of the following design criteria:
    (1) A single roller consisting of hard plastic shall be mounted on 
an axle rod, so that the roller can roll freely about the axle. The 
maximum diameter of the roller shall be 6 inches (15.24 cm), and the 
maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod 
must be attached to the TED by two support rods. The maximum clearance 
between the roller and the TED shall not exceed 1 inch (2.5 cm) at the 
center of the roller. The support rods and axle rod must be made from 
solid steel or solid aluminum rod no larger than 1/2 inch (1.28 cm) in 
diameter. The attachment of the support rods to the TED shall be such 
that there are no protrusions (lips, sharp edges, burrs, etc.) on the 
front face of the grid. The axle rod and support rods must lie entirely 
behind the plane of the face of the TED grid.
    (2) A single roller consisting of hard plastic tubing shall be 
tightly tied to the back face of the TED grid with rope or heavy twine 
passed through the center of the roller tubing. The roller shall lie 
flush against the TED. The maximum outside diameter of the roller shall 
be 3 1/2 inches (8.0 cm), the minimum outside diameter of the roller 
shall be 2 inches (5.1 cm), and the maximum length of the roller shall 
be 12 inches (30.4 cm). The roller must lie entirely behind the plane of 
the face of the grid.
    (5)(i) Revision of generic design criteria, and approval of TEDs, of 
allowable modifications of hard TEDs, and of special hard TEDs. The 
Assistant Administrator may revise the generic design criteria for hard 
TEDs set forth in paragraph (e)(4)(i) of this section, may approve 
special hard TEDs in addition to those listed in paragraph (e)(4)(ii) of 
this section, may approve allowable modifications to hard TEDs in 
addition to those authorized in paragraph (e)(4)(iv) of this section, or 
may approve other TEDs, by regulatory amendment, if, according to a 
NMFS-approved scientific protocol, the TED demonstrates a sea turtle 
exclusion rate of 97 percent or greater (or an equivalent exclusion 
rate). Two such protocols have been published by NMFS (52 FR 24262, June 
29, 1987; and 55 FR 41092, October 9, 1990) and will be used only for 
testing relating to hard TED designs. Testing under any protocol must be 
conducted under the supervision of the Assistant Administrator, and 
shall be subject to all such conditions and restrictions as the 
Assistant Administrator deems appropriate. Any person wishing to 
participate in such testing should contact the Director, Southeast 
Fisheries Science Center, NMFS.

[[Page 180]]

    (ii) Upon application, the Assistant Administrator may issue 
permits, subject to such conditions and restrictions as the Assistant 
Administrator deems appropriate, authorizing public or private 
experimentation aimed at improving shrimp retention efficiency of 
existing approved TEDs and at developing additional TEDs, or conducting 
fishery research, that would otherwise be subject to paragraph (e)(2) of 
this section. Applications should be addressed to the Director, 
Southeast Region, NMFS, 9450 Koger Blvd., St. Petersburg, FL 33702.
    (6) Limitations on incidental takings during fishing activities--(i) 
Limitations. The exemption for incidental takings of sea turtles in 
paragraph (e)(1) of this section does not authorize incidental takings 
during fishing activities if the takings:
    (A) Would violate the restrictions, terms, or conditions of an 
incidental take statement or biological opinion;
    (B) Would violate the restrictions, terms, or conditions of an 
incidental take permit; or
    (C) May be likely to jeopardize the continued existence of a species 
listed under the Act.
    (ii) Determination; restrictions on fishing activities. The 
Assistant Administrator may issue a determination that incidental 
takings during fishing activities are unauthorized. Pursuant thereto, 
the Assistant Administrator may restrict fishing activities in order to 
conserve a species listed under the Act, including, but not limited to, 
restrictions on the fishing activities of vessels subject to paragraph 
(e)(2)(i) of this section. The Assistant Administrator will take such 
action if he/she determines that restrictions are necessary to avoid 
unauthorized takings that may be likely to jeopardize the continued 
existence of a listed species. The Assistant Administrator may withdraw 
or modify a determination concerning unauthorized takings or any 
restriction on fishing activities if the Assistant Administrator 
determines that such action is warranted.
    (iii) Notice; applicability; conditions. The Assistant Administrator 
will publish a notification of a determination concerning unauthorized 
takings or a notification concerning the restriction of fishing 
activities in the Federal Register. The Assistant Administrator will 
provide as much advance notice as possible, consistent with the 
requirements of the Act, and will announce the notification in summary 
form on channel 16 of the marine VHF radio. Notification of a 
determination concerning unauthorized takings will include findings in 
support of that determination; specify the fishery, including the target 
species and gear used by the fishery, the area, and the times, for which 
incidental takings are not authorized; and include such other conditions 
and restrictions as the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. 
Notification of restriction of fishing activities will include findings 
in support of the restriction, will specify the time and area where the 
restriction is applicable, and will specify any applicable conditions or 
restrictions that the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. Such 
conditions and restrictions may include, but are not limited to, 
limitations on the types of fishing gear that may be used, tow-time 
restrictions, alteration or extension of the periods of time during 
which particular tow-time requirements apply, requirements to use TEDs, 
and requirements to provide observers. Notification of withdrawal or 
modification will include findings in support of that action.
    (iv) Registration. If the Assistant Administrator imposes 
restrictions under paragraph (e)(6)(ii) of this section, he/she may 
require the owner and operator of a vessel to register before entering 
an area where, and during the time when, the restrictions apply. If 
registration is required, the vessel's owner and operator must submit 
the following information to the NMFS Regional Office:
    (A) The name and official number (or registration number) of the 
vessel;
    (B) The names, mailing and street addresses, and telephone numbers 
of the vessel owner and operator;
    (C) The permit number or other identification of relevant state or 
Federal fishing permit(s);

[[Page 181]]

    (D) Where and when the vessel intends to fish; and
    (E) Where and when the vessel will depart on any fishing trip, with 
sufficient specificity to allow for an observer to embark on the trip.
    (F) Any changes in the information submitted under paragraphs 
(e)(6)(iv) (A) through (E) of this section. Failure to do so immediately 
will void the registration, which will render unlawful any subsequent 
entry of the fishing vessel into the area where and during the time when 
the restrictions apply.
    (v) Procedures. The Assistant Administrator will consult with the 
appropriate fisheries officials (state or Federal) where the fishing 
activities are located in issuing notification of a determination 
concerning unauthorized takings or notification concerning the 
restriction of fishing activities. An emergency notification will be 
effective for a period of up to 30 days and may be renewed for 
additional periods of up to 30 days each. The Assistant Administrator 
may invite comments on such action, and may withdraw or modify the 
action by following procedures similar to those for implementation. The 
Assistant Administrator will implement any permanent determination or 
restriction through rulemaking.
    (7) Incidental-take permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited in 
Sec. 227.71(a) of this chapter in accordance with section 10(a)(1)(B) of 
the Act (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject 
to, the provisions of parts 220 and 222 of this chapter. Such permits 
may be issued for the incidental taking of both endangered and 
threatened species of sea turtles. This section supersedes restrictions 
on the scope of parts 220 and 222, including, but not limited to, the 
restrictions specified in Secs. 220.3, 222.1, 222.2(a) and 222.22(a).
    (f) Subsistence. The prohibition in Sec. 227.71(b) shall not apply 
with respect to the taking of any member of the species of green sea 
turtle (Chelonia mydas) in waters seaward of mean low tide for personal 
consumption by residents of the Trust Territory of the Pacific Islands 
if such taking is customary, traditional and necessary for the 
sustenance of such resident and his immediate family. Sea turtles so 
taken cannot be transferred to non-residents or sold.

[43 FR 32809, July 28, 1978]

    Editorial Note: For Federal Register citations affecting 
Sec. 227.72, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.

    Effective Date Note: At 60 FR 15516, Mar. 24, 1995 in Sec. 227.72, 
paragraph (e)(4)(i)(I) was revised. Paragraph (e)(4)(i)(I)(2)(ii) 
contains information collection requirements and will not become 
effective until approval has been given by the Office of Management and 
Budget.

[[Page 182]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.045

[60 FR 15519, Mar. 24, 1995]

[[Page 183]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.046

                         Figure 2 (Cameron TED)

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

[[Page 184]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.047

                         Figure 3 Matagorda TED

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

[[Page 185]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.048

                         Figure 4 (Georgia TED)

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

[[Page 186]]

[GRAPHIC] [TIFF OMITTED] TR13AP98.001

   Figure 5 Net Diagram for the Excluder Panel of the Parker Soft TED

[63 FR 17958, Apr. 13, 1998]

[[Page 187]]

                   Figures 6-9b to Part 227 [Reserved]
[GRAPHIC] [TIFF OMITTED] TC01JY91.056

[58 FR 54069, Oct. 20, 1993]

[[Page 188]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.057

[58 FR 54070, Oct. 20, 1993]

[[Page 189]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.058

[59 FR 25830, May 18, 1994]

[[Page 190]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.059

[59 FR 25831, May 18, 1994]

[[Page 191]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.060

[60 FR 15520, Mar. 24, 1995]

[[Page 192]]

[GRAPHIC] [TIFF OMITTED] TR19DE96.002

[61 FR 66946, Dec. 19, 1996]

[[Page 193]]

[GRAPHIC] [TIFF OMITTED] TR19DE96.003

[61 FR 66947, Dec. 19, 1996]

[[Page 194]]



PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972--Table of Contents




                      Subpart A--General Provisions

Sec.
229.1  Purpose and scope.
229.2  Definitions.
229.3  Prohibitions.
229.4  Requirements for Category I and II fisheries.
229.5  Requirements for Category III fisheries.
229.6  Reporting requirements.
229.7  Monitoring of incidental mortalities and serious injuries.
229.8  Publication of List of Fisheries.
229.9  Emergency regulations.
229.10  Penalties.
229.11  Confidential fisheries data.
229.12  Consultation with the Secretary of the Interior.

      Subpart B--Takes of Endangered and Threatened Marine Mammals

229.20  Issuance of permits.

  Subpart C--Take Reduction Plan Regulations and Emergency Regulations

229.31  Pacific Offshore Cetacean Take Reduction Plan.
229.32  Atlantic large whale take reduction plan regulations.

Figure 1 to Part 229--Drift Gillnet Pinger Configuration and Extender 
          Requirements

    Authority: 16 U.S.C. 1361 et seq.

    Source: 60 FR 45100, Aug. 30, 1995, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 229.1  Purpose and scope.

    (a) The regulations in this part implement sections 101(a)(5)(E) and 
118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 
1371(a)(5)(E) and 1387) that provide for exceptions for the taking of 
marine mammals incidental to certain commercial fishing operations from 
the Act's general moratorium on the taking of marine mammals.
    (b) Section 118 of the Act, rather than sections 103 and 104, 
governs the incidental taking of marine mammals in the course of 
commercial fishing operations by persons using vessels of the United 
States, other than vessels fishing for yellowfin tuna in the eastern 
tropical Pacific Ocean purse seine fishery, and vessels that have valid 
fishing permits issued in accordance with section 204(b) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1824(b)).
    (c) The regulations of Subpart B also govern the incidental taking 
by commercial fishers of marine mammals from species or stocks 
designated under the Act as depleted on the basis of their listing as 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.).
    (d) The regulations of this part do not apply to the incidental 
taking of California sea otters or to Northwest treaty Indian tribal 
members exercising treaty fishing rights.
    (e) Authorizations under subpart A of this part are exemptions only 
from the taking prohibitions under the Act and not those under the 
Endangered Species Act of 1973. To be exempt from the taking 
prohibitions under the Endangered Species Act, specific authorization 
under subpart B of this part is required.
    (f) Authorizations under this part do not apply to the intentional 
lethal taking of marine mammals in the course of commercial fishing 
operations.
    (g) The purposes of the regulations in this part are to:
    (1) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations below 
the potential biological removal level for a particular stock, and
    (2) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations to 
insignificant levels approaching a zero mortality and serious injury 
rate by the statutory deadline of April 30, 2001.



Sec. 229.2  Definitions.

    In addition to the definitions contained in the Act and Sec. 216.3 
of this chapter, and unless the context otherwise requires, in this part 
229:
    Act or MMPA means the Marine Mammal Protection Act of 1972, as 
amended (16 U.S.C. 1361 et seq.).

[[Page 195]]

    American lobster or lobster means Homarus americanus.
    Anchored gillnet means any gillnet gear, including sink gillnets, 
that is set anywhere in the water column and which is anchored, secured 
or weighted to the bottom.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Oceanic and Atmospheric Administration.
    Authorization Certificate means a document issued by the Assistant 
Administrator, or designee, under the authority of section 118 of the 
Act that authorizes the incidental, but not intentional, taking of 
marine mammals in Category I or II fisheries.
    Breaking strength means the highest tensile force which an object 
can withstand before breaking.
    Bridle means the lines connecting a gillnet to an anchor or buoy 
line.
    Buoy line means a line connecting fishing gear in the water to a 
buoy at the surface of the water.
    Category I fishery means a commercial fishery determined by the 
Assistant Administrator to have frequent incidental mortality and 
serious injury of marine mammals. A commercial fishery that frequently 
causes mortality or serious injury of marine mammals is one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level.
    Category II fishery means a commercial fishery determined by the 
Assistant Administrator to have occasional incidental mortality and 
serious injury of marine mammals. A commercial fishery that occasionally 
causes mortality or serious injury of marine mammals is one that, 
collectively with other fisheries, is responsible for the annual removal 
of more than 10 percent of any marine mammal stock's potential 
biological removal level and that is by itself responsible for the 
annual removal of between 1 and 50 percent, exclusive, of any stock's 
potential biological removal level. In the absence of reliable 
information indicating the frequency of incidental mortality and serious 
injury of marine mammals by a commercial fishery, the Assistant 
Administrator will determine whether the taking is ``occasional'' by 
evaluating other factors such as fishing techniques, gear used, methods 
used to deter marine mammals, target species, seasons and areas fished, 
qualitative data from logbooks or fisher reports, stranding data, and 
the species and distribution of marine mammals in the area, or at the 
discretion of the Assistant Administrator. Eligible commercial fisheries 
not specifically identified in the list of fisheries are deemed to be 
Category II fisheries until the next list of fisheries is published.
    Category III fishery means a commercial fishery determined by the 
Assistant Administrator to have a remote likelihood of, or no known 
incidental mortality and serious injury of marine mammals. A commercial 
fishery that has a remote likelihood of causing incidental mortality and 
serious injury of marine mammals is one that collectively with other 
fisheries is responsible for the annual removal of:
    (1) Ten percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) More than 10 percent of any marine mammal stock's potential 
biological removal level, yet that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level. In the absence of reliable information 
indicating the frequency of incidental mortality and serious injury of 
marine mammals by a commercial fishery, the Assistant Administrator will 
determine whether the taking is ``remote'' by evaluating other factors 
such as fishing techniques, gear used, methods used to deter marine 
mammals, target species, seasons and areas fished, qualitative data from 
logbooks or fisher reports, stranding data, and the species and 
distribution of marine mammals in the area or at the discretion of the 
Administrator.
    Commercial fishing operation means the catching, taking, or 
harvesting of fish from the marine environment (or other areas where 
marine mammals occur) that results in the sale or barter of all or part 
of the fish harvested. The term includes licensed commercial passenger 
fishing vessel (as defined in Sec. 216.3 of this chapter) activities and 
aquaculture activities.

[[Page 196]]

    Depleted species means any species or population that has been 
designated as depleted under the Act and is listed in Sec. 216.15 of 
this chapter or part 18, subpart E of this title, or any endangered or 
threatened species of marine mammal.
    Driftnet, drift gillnet, or drift entanglement gear means gillnet 
gear that is not anchored, secured or weighted to the bottom.
    Fish with or fishing with means to use, set, or haul back gear or 
allow gear that is set to remain in the water.
    Fisher means the vessel owner or operator or owner or operator of 
gear in a nonvessel fishery.
    Fishery has the same meaning as in section 3 of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1802).
    Fishing trip means any time spent away from port actively engaged in 
commercial fishing operations. The end of a fishing trip will be the 
time of a fishing vessel's return to port or the return of a fisher from 
tending gear in a nonvessel fishery.
    Fishing vessel or vessel means any vessel, boat, ship, or other 
craft that is used for, equipped to be used for, or of a type normally 
used for, fishing.
    Float-line means the rope at the top of a gillnet from which the 
mesh portion of the net is hung.
    Gillnet means fishing gear consisting of a wall of webbing or nets, 
designed or configured so that the webbing or nets are held 
approximately vertically in the water column designed to capture fish by 
entanglement, gilling, or wedging. Gillnets include gillnets of all 
types such as sink gillnets, other anchored gillnets, and drift 
gillnets.
    Groundline, with reference to lobster pot gear, means a line 
connecting lobster pots in a lobster pot trawl, and, with reference to 
gillnet gear, means a line connecting a gillnet or gillnet bridle to an 
anchor or buoy line.
    Incidental, but not intentional, take means the non-intentional or 
accidental taking of a marine mammal that results from, but is not the 
purpose of, carrying out an otherwise lawful action.
    Incidental mortality means the non-intentional or accidental death 
of a marine mammal that results from, but is not the purpose of, 
carrying out an otherwise lawful action.
    Injury means a wound or other physical harm. Signs of injury to a 
marine mammal include, but are not limited to, visible blood flow, loss 
of or damage to an appendage or jaw, inability to use one or more 
appendages, asymmetry in the shape of the body or body position, 
noticeable swelling or hemorrhage, laceration, puncture or rupture of 
eyeball, listless appearance or inability to defend itself, inability to 
swim or dive upon release from fishing gear, or signs of equilibrium 
imbalance. Any animal that ingests fishing gear, or any animal that is 
released with fishing gear entangling, trailing or perforating any part 
of the body will be considered injured regardless of the absence of any 
wound or other evidence of an injury.
    Inshore Lobster waters means all state and Federal waters between 
36 deg.33'00.8"N lat. (the Virginia/North Carolina border) and the U.S./
Canada border that is shoreward of the area designated below as 
``offshore lobster waters.''
    Interaction means coming in contact with fishing gear or catch. An 
interaction may be characterized by a marine mammal entangled, hooked, 
or otherwise trapped in fishing gear, regardless of whether injury or 
mortality occurs, or situations where marine mammals are preying on 
catch. Catch means fish or shellfish that has been hooked, entangled, 
snagged, trapped or otherwise captured by commercial fishing gear.
    Lead-line means the rope, weighted or otherwise, to which the bottom 
edge of a gillnet is attached.
    List of Fisheries means the most recent final list of commercial 
fisheries published in the Federal Register by the Assistant 
Administrator, categorized according to the likelihood of incidental 
mortality and serious injury of marine mammals during commercial fishing 
operations.
    Lobster pot means any trap, structure or other device that is placed 
on the ocean bottom and is designed to or is capable of catching 
lobsters.
    Lobster pot trawl means two or more lobster pots attached to a 
single groundline.
    Mid-Atlantic coastal waters means waters bounded by the line defined 
by the

[[Page 197]]

following points: The southern shoreline of Long Island, New York at 
72 deg.30'W, then due south to 33 deg.51'N lat., thence west to the 
North Carolina/South Carolina border.
    Minimum population estimate means an estimate of the number of 
animals in a stock that:
    (1) Is based on the best available scientific information on 
abundance, incorporating the precision and variability associated with 
such information; and
    (2) Provides reasonable assurance that the stock size is equal to or 
greater than the estimate.
    Negligible impact has the same meaning as in Sec. 228.3 of this 
chapter.
    Net productivity rate means the annual per capita rate of increase 
in a stock resulting from additions due to reproduction, less losses due 
to mortality.
    NMFS means the National Marine Fisheries Service.
    Nonvessel fishery means a commercial fishing operation that uses 
fixed or other gear without a vessel, such as gear used in set gillnet, 
trap, beach seine, weir, ranch, and pen fisheries.
    Northeast waters means those U.S. waters east of 72 deg.30'W and 
north of 36 deg.33'00.8"N lat. (the Virginia-North Carolina border).
    Observer means an individual authorized by NMFS, or a designated 
contractor, to record information on marine mammal interactions, fishing 
operations, marine mammal life history information, and other scientific 
data, and collect biological specimens during commercial fishing 
activities.
    Offshore lobster waters includes all U.S. waters seaward of the 
following lines except for waters in the Great South Channel critical 
right whale habitat: Beginning at the international boundary between the 
U.S. and Canada; thence southerly along the boundary to the LORAN C 
9960-Y-44400 line; thence southwesterly along the 44400 line to 70 deg.W 
long.; thence south along the 70 deg. meridian to the LORAN C 9960-W-
13700 line; thence southeasterly to the intersection with the LORAN C 
9960-Y-43700 line; thence westerly to the intersection with the LORAN C 
9960-W-14610 line; thence southerly along the 14610 line to the 
intersection with the LORAN C 9960-Y-43700 line; thence southwesterly to 
the intersection of the LORAN C lines 9960-Y-43500 and 9960-X-26400; 
thence southerly to the intersection of the LORAN C lines 9960-Y-42600 
and 9960-X-26550; thence southerly to the intersection of the LORAN C 
lines 9960-Y-42300 and 9960-X-26700; thence southerly to the 
intersection of the LORAN C lines 9960-Y-41600 and 9960-X-26875; thence 
southerly in a line toward the intersection of LORAN C lines 9960-Y-
40600 and 9960-X-26800 but stopping at 36 deg.33'00.8"N lat. (the North 
Carolina/Virginia border); thence due west to the shore.
    Operator, with respect to any vessel, means the master, captain, or 
other individual in charge of that vessel.
    Potential biological removal level means the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population. The potential biological removal level 
is the product of the following factors:
    (1) The minimum population estimate of the stock;
    (2) One-half the maximum theoretical or estimated net productivity 
rate of the stock at a small population size; and
    (3) A recovery factor of between 0.1 and 1.0.
    Regional Fishery Management Council means a regional fishery 
management council established under section 302 of the Magnuson Fishery 
Conservation and Management Act.
    Serious injury means any injury that will likely result in 
mortality.
    Sink gillnet has the meaning specified in 50 CFR 648.2.
    Sinking line means rope that sinks and does not float at any point 
in the water column. Polypropylene rope is not sinking line unless it 
contains a lead core.
    Southeast waters means waters south of a line extending due eastward 
from 33 deg.51'N lat. (the North Carolina/South Carolina border).
    Spotter plane means a plane that is deployed for the purpose of 
locating schools of target fish for a fishing vessel that intends to set 
fishing gear on them.

[[Page 198]]

    Stellwagen Bank/Jeffreys Ledge area means all Federal waters in the 
Gulf of Maine, except those designated as right whale critical habitat, 
that lie south of the 43 deg.15'N lat. line and west of the 70 deg. W 
long. line.
    Strategic stock means a marine mammal stock:
    (1) For which the level of direct human-caused mortality exceeds the 
potential biological removal level;
    (2) Which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
Endangered Species Act of 1973 within the foreseeable future;
    (3) Which is listed as a threatened species or endangered species 
under the Endangered Species Act of 1973; or
    (4) Which is designated as depleted under the Marine Mammal 
Protection Act of 1972, as amended.
    Strikenet or to fish with strikenet gear means a gillnet, or a net 
similar in construction to a gillnet, that is designed so that when it 
is deployed, it encircles or encloses an area of water either with the 
net, or by utilizing the shoreline to complete encirclement, or to fish 
with such a net and method.
    Take Reduction Plan means a plan developed to reduce the incidental 
mortality and serious injury of marine mammals during commercial fishing 
operations in accordance with section 118 of the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Team means a team established to recommend methods of 
reducing the incidental mortality and serious injury of marine mammals 
due to commercial fishing operations, in accordance with section 118 of 
the Marine Mammal Protection Act of 1972, as amended.
    Tended gear or tend means active fishing gear that is physically 
attached to a vessel or to fish so that active gear is attached to the 
vessel.
    U.S. waters means both state and Federal waters to the outer 
boundaries of the U.S. exclusive economic zone along the east coast of 
the United States from the Canadian/U.S. border southward to a line 
extending eastward from the southernmost tip of Florida on the Florida 
shore.
    Vessel owner or operator means the owner or operator of:
    (1) A fishing vessel that engages in a commercial fishing operation; 
or
    (2) Fixed or other commercial fishing gear that is used in a 
nonvessel fishery.
    Vessel of the United States has the same meaning as in section 3 of 
the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).
    Weak link means a breakable device that will part when subject to a 
certain tension load.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997]



Sec. 229.3  Prohibitions.

    (a) It is prohibited to take any marine mammal incidental to 
commercial fishing operations except as otherwise provided in part 216 
of this chapter or in this part 229.
    (b) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with an observer, or attempt the same. This prohibition 
includes, but is not limited to, any action that interferes with an 
observer's responsibilities, or that creates an intimidating, hostile, 
or offensive environment.
    (c) It is prohibited to provide false information when registering 
for an Authorization Certificate, applying for renewal of the 
Authorization Certificate, reporting the taking of any marine mammal, or 
providing information to any observer.
    (d) It is prohibited to tamper with or destroy observer equipment in 
any way.
    (e) It is prohibited to intentionally lethally take any marine 
mammal in the course of commercial fishing operations unless imminently 
necessary in self-defense or to save the life of a person in immediate 
danger, and such taking is reported in accordance with the requirements 
of Sec. 229.6.
    (f) It is prohibited to violate any regulation in this part or any 
provision of section 118 of the Act.
    (g) It is prohibited to fish with lobster pot gear in the areas and 
for the times specified in Sec. 229.32 (c)(4) through (c)(10) unless the 
lobster pot gear meets the marking requirements specified in

[[Page 199]]

Sec. 229.32(c)(1) and complies with the closures, modifications, and 
restrictions specified in Sec. 229.32 (c)(2) through (c)(10).
    (h) It is prohibited to fish with anchored gillnet gear in the areas 
and for the times specified in Sec. 229.32 (d)(3) through (d)(8) unless 
that gillnet gear meets the marking requirements specified in 
Sec. 229.32(d)(1) and complies with the closures, modifications, and 
restrictions specified in Sec. 229.32 (d)(2) through (d)(8).
    (i) It is prohibited to fish with drift gillnets in the areas and 
for the times specified in Sec. 229.32(e)(2) unless the drift gillnet 
gear meets the marking requirements specified in Sec. 229.32(e)(1) and 
complies with the restrictions specified in Sec. 229.32(e)(2).
    (j) It is prohibited to fish with shark driftnet gear in the areas 
and for the times specified in Sec. 229.32(f) (2) and (3) unless the 
gear meets the marking requirements specified in Sec. 229.32(f)(1) and 
complies with the restrictions and requirements specified in 
Secs. 229.32 (f)(2) and (f)(3).

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997]



Sec. 229.4  Requirements for Category I and II fisheries.

    (a) General. (1) For a vessel owner or crew members to lawfully 
incidentally take marine mammals in the course of a commercial fishing 
operation in a Category I or II fishery, the owner or authorized 
representative of a fishing vessel or nonvessel fishing gear must have 
in possession a valid Certificate of Authorization. The owner of a 
fishing vessel or nonvessel fishing gear is responsible for obtaining a 
Certificate of Authorization.
    (2) The granting and administration of Authorization Certificates 
under this part will be integrated and coordinated with existing fishery 
license, registration, or permit systems and related programs wherever 
possible. These programs may include, but are not limited to, state or 
interjurisdictional fisheries programs. If the administration of 
Authorization Certificates is integrated into a program, NMFS will 
publish a notice in the Federal Register announcing the integrated 
program and summarizing how an owner or authorized representative of a 
fishing vessel or non-fishing gear may register under that program or 
how registration will be achieved if no action is required on the part 
of the affected fisher. NMFS will make additional efforts to contact 
participants in the affected fishery via other appropriate means of 
notification.
    (b) Registration. (1) The owner of a vessel, or for nonvessel gear 
fisheries, the owner of gear, who participates in a Category I or II 
fishery is required to be registered for a Certificate of Authorization.
    (2) Unless a notice is published in the Federal Register announcing 
an integrated registration program, the owner of a vessel, or for 
nonvessel fishery, the owner of the gear must register for and receive 
an Authorization Certificate. To register, owners must submit the 
following information using the format specified by NMFS:
    (i) Name, address, and phone number of owner.
    (ii) Name, address, and phone number of operator, if different from 
owner, unless the name of the operator is not known or has not been 
established at the time the registration is submitted.
    (iii) For a vessel fishery, vessel name, length, home port; U.S. 
Coast Guard documentation number or state registration number, and if 
applicable; state commercial vessel license number and for a nonvessel 
fishery, a description of the gear and state commercial license number, 
if applicable.
    (iv) A list of all Category I and II fisheries in which the fisher 
may actively engage during the calendar year.
    (v) The approximate time, duration, and location of each such 
fishery operation, and the general type and nature of use of the fishing 
gear and techniques used.
    (vi) A certification signed and dated by the owner of an authorized 
representative of the owner as follows: ``I hereby certify that I am the 
owner of the vessel, that I have reviewed all information contained on 
this document, and that it is true and complete to the best of my 
knowledge.''
    (3) If a notice is published in the Federal Register announcing an 
integrated registration program, the owner of a vessel, or for nonvessel 
fishery, the

[[Page 200]]

owner of the gear may register by following the directions provided in 
that notice. If a person receives a registration to which he or she is 
not entitled or if the registration contains incorrect, inaccurate or 
incomplete information, the person shall notify NMFS within 10 days 
following receipt. If a fisher participating in a Category I or II 
fishery who expects to receive automatic registration does not receive 
that registration within the time specified in the notice announcing the 
integrated registration program, the person shall notify NMFS as 
directed in the notice or may apply for registration by submitting the 
information required under paragraph (b)(1)(i) through (b)(1)(vi) of 
this section.
    (c) Fee. A check or money order made payable to NMFS in the amount 
specified in the notice of the final List of Fisheries must accompany 
each registration submitted to NMFS. The amount of this fee will be 
based on recovering the administrative costs incurred in granting an 
authorization. The Assistant Administrator may waive the fee requirement 
for good cause upon the recommendation of the Regional Director.
    (d) Address. Unless the granting and administration of 
authorizations under part 229 is integrated and coordinated with 
existing fishery licenses, registrations, or related programs pursuant 
to paragraph (a) of this section, requests for registration forms and 
completed registration forms should be sent to the NMFS Regional Offices 
are given:
    (1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, 
Juneau, AK 99802; telephone: 907-586-7235;
    (2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 
98115-0070; telephone: 206-526-4353;
    (3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213; telephone: 310-980-4001;
    (4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; 
telephone: 508-281-9254; or
    (5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; telephone: 813-570-5301.
    (e) Issuance. (1) Unless an integrated registration program is in 
place, NMFS will issue an Authorization Certificate and, if necessary, a 
decal to an owner or authorized representative who:
    (i) Submits a completed registration form and the required fee.
    (ii) Has complied with the requirements of this section and 
Secs. 229.6 and 229.7.
    (iii) Has submitted updated registration or renewal registration 
which includes a statement (yes/no) whether any marine mammals were 
killed or injuried during the current or previous calendar year.
    (2) If an integrated registration program has been established, an 
Authorization Certificate or other proof of registration will be issued 
annually to each fisher registered for that fishery.
    (3) If a person receives a renewed Authorization Certificate or a 
decal to which he or she is not entitled, the person shall notify NMFS 
within 10 days following receipt. In order for a Authorization 
Certificate to be valid, the certification must be signed and dated by 
the owner or an authorized representative of the owner.
    (f) Authorization Certificate and decal requirements. (1) The annual 
decal must be attached to the vessel on the port side of the cabin or, 
in the absence of a cabin, on the forward port side of the hull, and 
must be free of obstruction and in good condition. The decal must be 
attached to the Authorization Certificate for nonvessel fisheries.
    (2) The Authorization Certificate, or a copy, must be on board the 
vessel while it is operating in a Category I or II fishery, or, in the 
case of nonvessel fisheries, the Authorization Certificate with decal 
attached, or copy must be in the possession of the person in charge of 
the fishing operation. The Authorization Certificate, or copy, must be 
made available upon request to any state or Federal enforcement agent 
authorized to enforce the Act, any designated agent of NMFS, or any 
contractor providing observer services to NMFS.
    (3) Authorization Certificates and annual decals are not 
transferable. In the event of the sale or change in ownership of the 
vessel, the Authorization Certificate is void and the new owner must 
register for an Authorization Certificate and decal.

[[Page 201]]

    (4) An Authorization Certificate holder must notify the issuing 
office in writing:
    (i) If the vessel or nonvessel fishing gear will engage in any 
Category I or II fishery not listed on the initial registration form at 
least 30 days prior to engaging in that fishery; and,
    (ii) If there are any changes in the mailing address or vessel 
ownership within 30 days of such change.
    (g) Reporting. Any Authorization Certificate holders must comply 
with the reporting requirements specified under Sec. 229.6.
    (h) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury, unless directed otherwise by NMFS personnel, a designated 
contractor or an official onboard observer, or authorized otherwise by a 
scientific research permit that is in the possession of the operator.
    (i) Monitoring. Authorization Certificate holders must comply with 
the observer or other monitoring requirements specified under 
Sec. 229.7.
    (j) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch, or other private property, or from 
endangering personal safety, vessel owners and crew members engaged in a 
Category I or II fishery must comply with all deterrence provisions set 
forth in the Act and all guidelines and prohibitions published 
thereunder.
    (k) Self defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with the 
requirements of Sec. 229.6.
    (l) Take reduction plans and emergency regulations. Authorization 
Certificate holders must comply with any applicable take reduction plans 
and emergency regulations.
    (m) Expiration. Authorization Certificates and annual decals expire 
at the end of each calendar year.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997]



Sec. 229.5  Requirements for Category III fisheries.

    (a) General. Vessel owners and crew members of such vessels engaged 
only in Category III fisheries may incidentally take marine mammals 
without registering for or receiving an Authorization Certificate.
    (b) Reporting. Vessel owners engaged in a Category III fishery must 
comply with the reporting requirements specified in Sec. 229.6.
    (c) Disposition of marine mammals. Any marine mammal incidentally 
taken must be immediately returned to the sea with a minimum of further 
injury unless directed otherwise by NMFS personnel, a designated 
contractor, or an official onboard observer, or authorized otherwise by 
a scientific research permit in the possession of the operator.
    (d) Monitoring. Vessel owners engaged in a Category III fishery must 
comply with the observer requirements specified under Sec. 229.7(f).
    (e) Deterrence. When necessary to deter a marine mammal from 
damaging fishing gear, catch, or other private property, or from 
endangering personal safety, vessel owners and crew members engaged in a 
Category I or II fishery must comply with all deterrence provisions set 
forth in the Act and all guidelines and prohibitions published 
thereunder.
    (f) Self-defense. When imminently necessary in self-defense or to 
save the life of a person in immediate danger, a marine mammal may be 
lethally taken if such taking is reported to NMFS in accordance with the 
requirements of Sec. 229.6.
    (g) Emergency regulations. Vessel owners engaged in a Category III 
fishery must comply with any applicable emergency regulations.



Sec. 229.6  Reporting requirements.

    (a) Vessel owners or operators engaged in any Category I, II, or III 
fishery must report all incidental mortality and injury of marine 
mammals in the course of commercial fishing operations to the Assistant 
Administrator, or appropriate Regional Office, by mail or other means, 
such as fax or overnight mail specified by the Assistant Administrator. 
Reports must be sent

[[Page 202]]

within 48 hours after the end of each fishing trip during which the 
incidental mortality or injury occurred, or, for nonvessel fisheries, 
within 48 hours of an occurrence of an incidental mortality or injury. 
Reports must be submitted on a standard postage-paid form as provided by 
the Assistant Administrator. The vessel owner or operator must provide 
the following information on this form:
    (1) The vessel name, and Federal, state, or tribal registration 
numbers of the registered vessel;
    (2) The name and address of the vessel owner or operator;
    (3) The name and description of the fishery, including gear type and 
target species; and
    (4) The species and number of each marine mammal incidentally killed 
or injured, and the date, time, and approximate geographic location of 
such occurrence. A description of the animal(s) killed or injured must 
be provided if the species is unknown.
    (b) Participants in nonvessel fisheries must provide all of the 
information in paragraphs (a)(1) through (4) of this section with the 
exception of the vessel name and registration number.



Sec. 229.7  Monitoring of incidental mortalities and serious injuries.

    (a) Purpose. The Assistant Administrator will establish a program to 
monitor incidental mortality and serious injury of marine mammals during 
the course of commercial fishing operations in order to:
    (1) Obtain statistically reliable estimates of incidental mortality 
and serious injury;
    (2) Determine the reliability of reports of incidental mortality and 
injury under Sec. 229.6; and
    (3) Identify changes in fishing methods or technology that may 
increase or decrease incidental mortality and serious injury.
    (b) Observer program. Pursuant to paragraph (a) of this section, the 
Assistant Administrator may place observers aboard Category I and II 
vessels as necessary. Observers may, among other tasks:
    (1) Record incidental mortality and injury, and bycatch of other 
nontarget species;
    (2) Record numbers of marine mammals sighted; and
    (3) Perform other scientific investigations, which may include, but 
are not limited to, sampling and photographing incidental mortalities 
and serious injuries.
    (c) Observer requirements for Authorization Certificate holders. (1) 
If requested by NMFS or a designated contractor providing observer 
services to NMFS, an Authorization Certificate holder engaged in a 
Category I or II fishery must take aboard an observer to accompany the 
vessel on fishing trips.
    (2) After being notified by NMFS, or by a designated contractor 
providing observer services to NMFS, that the vessel is required to 
carry an observer, the Authorization Certificate holder must comply with 
the notification by providing information requested within the specified 
time on scheduled or anticipated fishing trips.
    (3) NMFS, or a designated contractor providing observer services to 
NMFS, may waive the observer requirement based on a finding that the 
facilities for housing the observer or for carrying out observer 
functions are so inadequate or unsafe that the health or safety of the 
observer or the safe operation of the vessel would be jeopardized.
    (4) The Authorization Certificate holder and crew must cooperate 
with the observer in the performance of the observer's duties including:
    (i) Providing adequate accommodations;
    (ii) Allowing for the embarking and debarking of the observer as 
specified by NMFS personnel or designated contractors. The operator of a 
vessel must ensure that transfers of observers at sea are accomplished 
in a safe manner, via small boat or raft, during daylight hours if 
feasible, as weather and sea conditions allow, and with the agreement of 
the observer involved;
    (iii) Allowing the observer access to all areas of the vessel 
necessary to conduct observer duties;
    (iv) Allowing the observer access to communications equipment and 
navigation equipment, when available on the vessel, as necessary to 
perform observer duties;

[[Page 203]]

    (v) Providing true vessel locations by latitude and longitude, 
accurate to the minute, or by loran coordinates, upon request by the 
observer;
    (vi) Sampling marine mammal or other protected species specimens, 
upon request by NMFS personnel;
    (vii) Sampling, retaining and storing mammal or other protected 
species specimens, upon request by NMFS personnel, designated 
contractors, or the observer aboard, if adequate facilities are 
available and if feasible;
    (viii) Notifying the observer in a timely fashion of when all 
commercial fishing operations are to begin and end;
    (ix) Not impairing or in any way interfering with the research or 
observations being carried out; and
    (x) Complying with other guidelines or regulations that NMFS may 
develop to ensure the effective deployment and use of observers.
    (5) Marine mammals incidentally killed during fishing operations and 
which are readily accessible to crew members, must be brought onboard 
the vessel as biological specimens and retained for the purposes of 
scientific research if feasible and requested by NMFS personnel, 
designated contractors, or the aboard observer. Marine mammals so 
collected and retained as biological specimens must, upon request by 
NMFS personnel, designated contractors, or the observer aboard, be 
retained in cold storage on board the vessel, if feasible, until removed 
at the request of NMFS personnel, designated contractors, or the 
observer aboard, retrieved by authorized personnel of NMFS, or released 
by the observer for return to the ocean. Such biological specimens may 
be transported on board the vessel during the fishing trip and back to 
port under this authorization.
    (6) Any marine mammal incidentally taken may be retained only if 
authorized by NMFS personnel, designated contractors or an official 
observer aboard, or by a scientific research permit that is in the 
possession of the operator.
    (d) Observer requirements for Category III fisheries. (1) The 
Assistant Administrator may place observers on Category III vessels if 
the Assistant Administrator:
    (i) Believes that the incidental mortality and serious injury of 
marine mammals from such fishery may be contributing to the immediate 
and significant adverse impact on a species or stock listed as a 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.); and
    (ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
    (iii) Has the consent of the vessel owner.
    (2) If an observer is placed on a Category III vessel, the vessel 
owner and/or operator must comply with the requirements of 
Sec. 229.7(c).
    (e) Alternative observer program. The Assistant Administrator may 
establish an alternative observer program to provide statistically 
reliable information on the species and number of marine mammals 
incidentally taken in the course of commercial fishing operations. The 
alternative observer program may include direct observation of fishing 
activities from vessels, airplanes, or points on shore.



Sec. 229.8  Publication of List of Fisheries.

    (a) The Assistant Administrator will publish in the Federal Register 
a proposed revised List of Fisheries on or about July 1 of each year for 
the purpose of receiving public comment. Each year, on or about October 
1, the Assistant Administrator will publish a final revised List of 
Fisheries, which will become effective January 1 of the next calendar 
year.
    (b) The proposed and final revised List of Fisheries will:
    (1) Categorize each commercial fishery based on the definitions of 
Category I, II, and III fisheries set forth in Sec. 229.2; and
    (2) List the marine mammals that interact with commercial fishing 
operations and the estimated number of vessels or persons involved in 
each commercial fishery.
    (c) The Assistant Administrator may publish a revised List of 
Fisheries at other times, after notification and opportunity for public 
comment. The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.

[[Page 204]]



Sec. 229.9  Emergency regulations.

    (a) If the Assistant Administrator finds that the incidental 
mortality or serious injury of marine mammals from commercial fisheries 
is having, or is likely to have, an immediate and significant adverse 
impact on a stock or species, the Assistant Administrator will:
    (1) In the case of a stock or species for which a take reduction 
plan is in effect--
    (i) Prescribe emergency regulations that, consistent with such plan 
to the maximum extent practicable, reduce incidental mortality and 
serious injury in that fishery; and
    (ii) Approve and implement on an expedited basis, any amendments to 
such plan that are recommended by the Take Reduction Team to address 
such adverse impact;
    (2) In the case of a stock or species for which a take reduction 
plan is being developed--
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery; and
    (ii) Approve and implement, on an expedited basis, such plan, which 
will provide methods to address such adverse impact if still necessary;
    (3) In the case of a stock or species for which a take reduction 
plan does not exist and is not being developed, or in the case of a 
Category III fishery that the Assistant Administrator believes may be 
contributing to such adverse impact,
    (i) Prescribe emergency regulations to reduce such incidental 
mortality and serious injury in that fishery, to the extent necessary to 
mitigate such adverse impact;
    (ii) Immediately review the stock assessment for such stock or 
species and the classification of such commercial fishery under this 
section to determine if a take reduction team should be established; and
    (iii) Where necessary to address such adverse impact on a species or 
stock listed as a threatened species or endangered species under the 
Endangered Species Act (16 U.S.C. 1531 et seq.), place observers on 
vessels in a Category III fishery if the Assistant Administrator has 
reason to believe such vessels may be causing the incidental mortality 
and serious injury to marine mammals from such stock.
    (b) Prior to taking any action under Sec. 229.9(a)(1) through (3), 
the Assistant Administrator will consult with the Marine Mammal 
Commission, all appropriate Regional Fishery Management Councils, state 
fishery managers, and the appropriate take reduction team, if 
established.
    (c) Any emergency regulations issued under this section:
    (1) Shall be published in the Federal Register and will remain in 
effect for no more than 180 days or until the end of the applicable 
commercial fishing season, whichever is earlier, except as provided in 
paragraph (d) of this section; and
    (2) May be terminated by notification in the Federal Register at an 
earlier date if the Assistant Administrator determines that the reasons 
for the emergency regulations no longer exist.
    (d) If the Assistant Administrator finds that incidental mortality 
and serious injury of marine mammals in a commercial fishery is 
continuing to have an immediate and significant adverse impact on a 
stock or species, the Assistant Administrator may extend the emergency 
regulations for an additional period of not more than 90 days or until 
reasons for the emergency regulations no longer exist, whichever is 
earlier.



Sec. 229.10  Penalties.

    (a) Except as provided for in paragraphs (b) and (c) of this 
section, any person who violates any regulation under this part or any 
provision of section 118 of the MMPA shall be subject to all penalties 
set forth in the Act.
    (b) The owner or master of a vessel that fails to comply with a take 
reduction plan shall be subject to the penalties of sections 105 and 107 
of the Act, and may be subject to the penalties of section 106 of the 
Act.
    (c) The owner of a vessel engaged in a Category I or II fishery who 
fails to ensure that a decal, or other physical evidence of such 
authorization issued by NMFS, is displayed on the vessel or is in 
possession of the operator of the vessel shall be subject to a penalty 
of not more than $100.

[[Page 205]]

    (d) Failure to comply with take reduction plans or emergency 
regulations issued under this part may result in suspension or 
revocation of an Authorization Certificate, and failure to comply with a 
take reduction plan is also subject to the penalties of sections 105 and 
107 of the Act, and may be subject to the penalties of section 106 of 
the Act.
    (e) For fishers operating in Category I or II fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip, or failure to comply with requirements to 
carry an observer, will subject such persons to the penalties of 
sections 105 and 107 and may subject them to the penalties of section 
106 of the Act, which will result in suspension, revocation, or denial 
of an Authorization Certificate until such requirements have been 
fulfilled.
    (f) For fishers operating in Category III fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip will subject such persons to the penalties of 
sections 105 and 107, and may subject them to section 106, of the Act.
    (g) Suspension, revocation or denial of Authorization Certificates. 
(1) Until the Authorization Certificate holder complies with the 
regulations under this part, the Assistant Administrator shall suspend 
or revoke an Authorization Certificate or deny an annual renewal of an 
Authorization Certificate in accordance with the provisions in 15 CFR 
part 904 if the Authorization Certificate holder fails to report all 
incidental mortality and serious injury of marine mammals as required 
under Sec. 229.6; or fails to take aboard an observer if requested by 
NMFS or its designated contractors.
    (2) The Assistant Administrator may suspend or revoke an 
Authorization Certificate or deny an annual renewal of an Authorization 
Certificate in accordance with the provisions in 15 CFR part 904 if the 
Authorization Certificate holder fails to comply with any applicable 
take reduction plan, take reduction regulations, or emergency 
regulations developed under this subpart or subparts B and C of this 
part or if the Authorization Certificate holder fails to comply with 
other requirements of these regulations;
    (3) A suspended Authorization Certificate may be reinstated at any 
time at the discretion of the Assistant Administrator provided the 
Assistant Administrator has determined that the reasons for the 
suspension no longer apply or corrective actions have been taken.



Sec. 229.11  Confidential fisheries data.

    (a) Proprietary information collected under this part is 
confidential and includes information, the unauthorized disclosure of 
which could be prejudicial or harmful, such as information or data that 
are identifiable with an individual fisher. Proprietary information 
obtained under part 229 will not be disclosed, in accordance with NOAA 
Administrative Order 216-100, except:
    (1) To Federal employees whose duties require access to such 
information;
    (2) To state employees under an agreement with NMFS that prevents 
public disclosure of the identity or business of any person;
    (3) When required by court order; or
    (4) In the case of scientific information involving fisheries, to 
employees of Regional Fishery Management Councils who are responsible 
for fishery management plan development and monitoring.
    (5) To other individuals or organizations authorized by the 
Assistant Administrator to analyze this information, so long as the 
confidentiality of individual fishers is not revealed.
    (b) Information will be made available to the public in aggregate, 
summary, or other such form that does not disclose the identity or 
business of any person in accordance with NOAA Administrative Order 216-
100 (see ADDRESSES). Aggregate or summary form means data structured so 
that the identity of the submitter cannot be determined either from the 
present release of the data or in combination with other releases.



Sec. 229.12  Consultation with the Secretary of the Interior.

    The Assistant Administrator will consult with the Secretary of the 
Interior prior to taking actions or making

[[Page 206]]

determinations under this part that affect or relate to species or 
population stocks of marine mammals for which the Secretary of the 
Interior is responsible under the Act.



      Subpart B--Takes of Endangered and Threatened Marine Mammals



Sec. 229.20  Issuance of permits.

    (a) Determinations. During a period of up to 3 consecutive years, 
NMFS will allow the incidental, but not the intentional, taking by 
persons using vessels of the United States or foreign vessels that have 
valid fishing permits issued by the Assistant Administrator in 
accordance with section 204(b) of the Magnuson Fishery Conservation and 
Management Act (16 U.S.C. 1824(b)), while engaging in commercial fishing 
operations, of marine mammals from a species or stock designated as 
depleted because of its listing as an endangered species or threatened 
species under the Endangered Species Act of 1973 if the Assistant 
Administrator determines that:
    (1) The incidental mortality and serious injury from commercial 
fisheries will have a negligible impact on such species or stock;
    (2) A recovery plan has been developed or is being developed for 
such species or stock pursuant to the Endangered Species Act of 1973; 
and
    (3) Where required under regulations in subpart A of this part:
    (i) A monitoring program has been established under Sec. 229.7;
    (ii) Vessels engaged in such fisheries are registered in accordance 
with Sec. 229.4; and
    (iii) A take reduction plan has been developed or is being developed 
for such species or stock in accordance with regulations at subpart C of 
this part.
    (b) Procedures for making determinations. In making any of the 
determinations listed in paragraph (a) of this section, the Assistant 
Administrator will publish an announcement in the Federal Register of 
fisheries having takes of marine mammals listed under the Endangered 
Species Act, including a summary of available information regarding the 
fisheries interactions with listed species. Any interested party may, 
within 45 days of such publication, submit to the Assistant 
Administrator written data or views with respect to the listed 
fisheries. As soon as practicable after the end of the 45 days following 
publication, NMFS will publish in the Federal Register a list of the 
fisheries for which the determinations listed in paragraph (a) of this 
section have been made. This publication will set forth a summary of the 
information used to make the determinations.
    (c) Issuance of authorization. The Assistant Administrator will 
issue appropriate permits for vessels in fisheries that are required to 
register under Sec. 229.4 and for which determinations under the 
procedures of paragraph (b) of this section can be made.
    (d) Category III fisheries. Vessel owners engaged only in Category 
III fisheries for which determinations are made under the procedures of 
paragraph (b) of this section will not be subject to the penalties of 
this Act for the incidental taking of marine mammals to which this 
subpart applies, as long as the vessel owner or operator of such vessel 
reports any incidental mortality or injury of such marine mammals in 
accordance with the requirements of Sec. 229.6.
    (e) Emergency authority. During the course of the commercial fishing 
season, if the Assistant Administrator determines that the level of 
incidental mortality or serious injury from commercial fisheries for 
which such a determination was made under this section has resulted or 
is likely to result in an impact that is more than negligible on the 
endangered or threatened species or stock, the Assistant Administrator 
will use the emergency authority of Sec. 229.9 to protect such species 
or stock, and may modify any permit granted under this paragraph as 
necessary.
    (f) Suspension, revocation, modification and amendment. The 
Assistant Administrator may, pursuant to the provisions of 15 CFR part 
904, suspend or revoke a permit granted under this section if the 
Assistant Administrator determines that the conditions or limitations 
set forth in such permit are not being complied with. The Assistant 
Administrator may amend or modify,

[[Page 207]]

after notification and opportunity for public comment, the list of 
fisheries published in accordance with Sec. 229.21(b) whenever the 
Assistant Administrator determines there has been a significant change 
in the information or conditions used to determine such a list.
    (g) Southern sea otters. This subpart does not apply to the taking 
of Southern (California) sea otters.



  Subpart C--Take Reduction Plan Regulations and Emergency Regulations



Sec. 229.31  Pacific Offshore Cetacean Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b) 
through (d) of this section apply to all U.S. drift gillnet fishing 
vessels operating in waters seaward of the coast of California or 
Oregon, including adjacent high seas waters. For purposes of this 
section, the fishing season is defined as beginning May 1 and ending on 
January 31 of the following year.
    (b) Extenders. An extender is a line that attaches a buoy (float) to 
a drift gillnet's floatline. The floatline is attached to the top of the 
drift gillnet. All extenders (buoy lines) must be at least 6 fathoms (36 
ft; 10.9 m) in length during all sets. Accordingly, all floatlines must 
be fished at a minimum of 36 feet (10.9 m) below the surface of the 
water.
    (c) Pingers. (1) For the purposes of this paragraph (c), a pinger is 
an acoustic deterrent device which, when immersed in water, broadcasts a 
10 kHz ( 2 kHz) sound at 132 dB ( 4 dB) re 1 
micropascal at 1 m, lasting 300 milliseconds (+ 15 milliseconds), and 
repeating every 4 seconds (+ .2 seconds); and remains operational to a 
water depth of at least 100 fathoms (600 ft or 182.88 m).
    (2) While at sea, drift gillnet vessels with gillnets onboard must 
carry enough pingers to meet the configuration requirements set forth 
under paragraph (c)(3) of this section.
    (3) Pingers must be attached on or near the floatline and on or near 
the leadline and spaced no more than 300 ft (90.9 m) apart. Pingers 
attached on extenders, or attached to the floatline with lanyards, must 
be within 3 ft (0.91 m) of the floatline. Pingers attached with lanyards 
to the leadline must be within 6 ft (1.82 m) of the leadline. Pingers on 
or near the floatline and on or near the leadline must be staggered, 
such that the horizontal distance between a pinger on or near the 
floatline and a pinger on the leadline is no more than 150 ft (45.5 m). 
Any materials used to weight pingers must not change its specifications 
set forth under paragraph (c)(1) of this section.
    (4) The pingers must be operational and functioning at all times 
during deployment.
    (5) If requested, NMFS may authorize the use of pingers with 
specifications or pinger configurations differing from those set forth 
in paragraphs (c)(1) and (c)(3) of this section for limited, 
experimental purposes within a single fishing season.
    (d) Skipper education workshops. After notification from NMFS, 
vessel operators must attend a skipper education workshop before 
commencing fishing each fishing season. For the 1997/1998 fishing 
season, all vessel operators must have attended one skipper education 
workshop by October 30, 1997. NMFS may waive the requirement to attend 
these workshops by notice to all vessel operators.

[62 FR 51813, Oct. 3, 1997, as amended at 63 FR 27861, May 21, 1998]



Sec. 229.32  Atlantic large whale take reduction plan regulations.

    (a)(1) Regulated waters. The regulations in this section apply to 
all U.S. waters except for the areas exempted in paragraph (a)(2) of 
this section.
    (2) Exempted waters. The regulations in this section do not apply to 
waters landward of the following lines:

                         Maine and New Hampshire

44 deg. 49.52' N 66 deg. 56.10' W TO 44 deg. 48.90' N 66 deg. 57.00' W
44 deg. 38.60' N 67 deg. 11.50' W TO 44 deg. 36.26' N 67 deg. 15.70' W
44 deg. 36.26' N 67 deg. 15.70' W TO 44 deg. 27.80' N 67 deg. 32.85' W
44 deg. 27.80' N 67 deg. 32.85' W TO 44 deg. 26.48' N 67 deg. 36.00' W
44 deg. 26.48' N 67 deg. 36.00' W TO 44 deg. 21.75' N 67 deg. 51.85' W

[[Page 208]]

44 deg. 21.75' N 67 deg. 51.85' W TO 44 deg. 19.60' N 68 deg. 03.00' W
44 deg. 19.45' N 68 deg. 02.00' W TO 44 deg. 14.40' N 68 deg. 11.55' W
44 deg. 14.15' N 68 deg. 11.90' W TO 44 deg. 13.25' N 68 deg. 20.20' W
44 deg. 13.25' N 68 deg. 20.20' W TO 44 deg. 13.71' N 68 deg. 28.31' W
44 deg. 13.21' N 68 deg. 28.92' W TO 44 deg. 10.48' N 68 deg. 35.80' W
44 deg. 10.48' N 68 deg. 35.80' W TO 44 deg. 08.80' N 68 deg. 40.80' W
44 deg. 08.80' N 68 deg. 40.80' W TO 44 deg. 02.25' N 68 deg. 48.25' W
44 deg. 02.10' N 68 deg. 48.40' W TO 43 deg. 51.75' N 69 deg. 17.10' W
43 deg. 51.75' N 69 deg. 17.10' W TO 43 deg. 48.15' N 69 deg. 35.90' W
43 deg. 48.15' N 69 deg. 35.90' W TO 43 deg. 42.00' N 69 deg. 51.10' W
43 deg. 42.00' N 69 deg. 50.10' W TO 43 deg. 33.47' N 70 deg. 12.35' W
43 deg. 33.47' N 70 deg. 12.35' W TO 43 deg. 21.90' N 70 deg. 24.90' W

                              Rhode Island

41 deg. 22.41' N 71 deg. 30.80' W TO 41 deg. 22.41' N 71 deg. 30.85' W 
          (Pt. Judith Pond Inlet)
41 deg. 21.31' N 71 deg. 38.30' W TO 41 deg. 21.30' N 71 deg. 38.33' W 
          (Ninigret Pond Inlet)
41 deg. 19.90' N 71 deg. 43.08' W TO 41 deg. 19.90' N 71 deg. 43.10' W 
          (Quonochontaug Pond Inlet)

                                New York

    West of the line from the Northern fork of the eastern end of Long 
Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch Hill, 
RI. (Long Island Sound)
41 deg. 11.40' N 72 deg. 09.70' W TO 41 deg. 04.50' N 71 deg. 51.60' W 
          (Gardiners Bay)
40 deg. 50.30' N 72 deg. 28.50' W TO 40 deg. 50.36' N 72 deg. 28.67' W 
          (Shinnecock Bay Inlet)
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W 
          (Moriches Bay Inlet)
40 deg. 37.73' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W 
          (Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W 
          (Jones Inlet)

                               New Jersey

39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg. 06.20' W 
          (Barnegat Inlet)
39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg. 19.75' W 
          (Beach Haven to Brigantine Inlet)
38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg. 51.90' W 
          (Cape May Inlet)
39 deg. 16.70' N 75 deg. 14.60' W TO 39 deg. 11.25' N 75 deg. 23.90' W 
          (Delaware Bay)

                            Maryland/Virginia

 38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25' W 
          (Ocean City Inlet)
37 deg. 52.50' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W 
          (Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60' W 
          (Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.50' W 
          (Smith Island Inlet)

                        North Carolina to Florida

    All marine and tidal waters landward of the 72 COLREGS demarcation 
line (International Regulations for Preventing Collisions at Sea, 1972), 
as depicted or noted on nautical charts published by the National 
Oceanic and Atmospheric Administration (Coast Charts 1:80,000 scale), 
and as described in 33 CFR part 80.

    (b) Gear marking provisions--(1) Gear marking required for specified 
gear--(i) Specified gear. Specified fishing gear consists of lobster pot 
gear in inshore and offshore lobster waters, anchored gillnet gear in 
northeast waters and in mid-Atlantic coastal waters; drift gillnet gear 
in mid-Atlantic coastal waters; and shark driftnet gear in southeast 
waters.
    (ii) Requirement. From January 1, 1998, and as otherwise required in 
paragraphs (c)(1), (d)(1), (e)(1), and (f)(1) of this section, any 
person who owns or fishes with specified fishing gear must mark that 
gear as specified in paragraphs (b)(2) and (b)(3) of this section, 
unless otherwise required by the Assistant Administrator under paragraph 
(g) of this section.
    (2) Color code. Gear must be marked as specified with the 
appropriate colors to designate gear-types as follows:

Lobster pot gear in inshore lobster waters--red and green
Lobster pot gear in offshore lobster waters--red and blue
Anchored gillnet gear in northeast waters--green and yellow
Anchored gillnet gear in mid-Atlantic waters--green and black
Mid-Atlantic driftnet gear--blue and yellow
Shark driftnet gear--blue and black

    (3) Markings. Each color of the color codes must be permanently 
marked on or along the line or lines specified under paragraphs (c)(1), 
(d)(1), (e)(1), and (f)(1) of this section. Each color mark of the color 
codes must be clearly visible when the gear is hauled or removed from 
the water. Each mark must be at least 4 inches (10.2 cm) long. The two 
color marks must be placed

[[Page 209]]

within 6 inches (15.2 cm) of each other. (For example, buoy lines of 
inshore lobster pot gear must have a red mark and a green mark, each at 
least 4 inches long, with the red and green marks placed within 6 inches 
of each other.) If the color of the rope is the same or similar to a 
color code, a white mark may be substituted for that color code. In 
marking or affixing the color code or associated neutral band, the line 
may be dyed, painted, or marked with thin colored whipping line, thin 
colored plastic or heat shrink tubing, or other material, or thin line 
may be woven into or through the line, or the line may be marked as 
approved in writing by the Assistant Administrator. If the Assistant 
Administrator revises the gear marking requirements under paragraph (g) 
of this section, the gear must be marked in compliance with those 
requirements.
    (c) Restrictions applicable to lobster pot gear in regulated 
waters--(1) Gear marking requirements. No person may fish with lobster 
pot gear in regulated waters unless that gear is marked by gear type and 
region according to the gear marking code specified under paragraph (b) 
of this section. From January 1, 1998, all buoy lines used in connection 
with lobster pot gear must be marked within 2 ft (0.6 m) of the top of 
the buoy line (or 2 ft below a weak link) and midway along the length of 
the buoy line.
    (2) No line floating at the surface. No person may fish with lobster 
pot gear that has any portion of the buoy line floating at the surface 
at any time, except that, if there are more than one buoy attached to a 
single buoy line or if there are a high flyer and a buoy used together 
on a single buoy line, floating line may be used between these objects.
    (3) No wet storage of gear. No person may leave lobster pot gear in 
the water without hauling it out of the water at least once in 30 days.
    (4) Cape Cod Bay Restricted area--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
extends that area in accordance with paragraph (g) of this section.
    (ii) Winter restricted period. The winter restricted period for this 
area is from January 1 through May 15 of each year, unless the Assistant 
Administrator revises the restricted period in accordance with paragraph 
(g) of this section. The Assistant Administrator may waive the 
restrictions of these paragraphs through a document in the Federal 
Register if it is determined that right whales have left the critical 
habitat and are unlikely to return for the remainder of the winter 
restricted period. During the winter restricted period, no person may 
fish with lobster pot gear in the Cape Cod Bay Restricted Area unless 
that person's gear complies with the following requirements:
    (A) Weak links. All buoy lines are attached to the buoy with a weak 
link. The breaking strength of this weak link must be no more than 1100 
lb;
    (B) Multiple pot trawls. All pots are set in trawls of four or more 
pots. Single pots and two or three pot trawls are not allowed.
    (C) Sinking buoy lines. All buoy lines are sinking line except the 
bottom portion of the line, which may be a section of floating line not 
to exceed 1/3 the overall length of the buoy line.
    (D) Sinking ground line. All ground lines are made entirely of 
sinking line.
    (iii) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with lobster pot gear in the Cape Cod Bay 
Restricted Area unless that person's gear complies with at least two of 
the characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (5) Great South Channel Restricted Lobster Area--(i) Area. The Great 
South Channel restricted area consists of the Great South Channel 
Critical Habitat area specified under 50 CFR 216.13(a) unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (ii) Spring closed period. The spring closed period for this area is 
from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with

[[Page 210]]

paragraph (g) of this section. During the spring closed period, no 
person may fish with or set lobster pot gear in the Great South Channel 
restricted lobster area unless the Assistant Administrator specifies 
gear modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.
    (iii) Other restricted period. From July 1 through March 31 no 
person may fish with lobster pot gear in the Great South Channel 
Restricted Lobster Area unless that person's gear complies with at least 
two of the characteristics of the Lobster Take Reduction Technology List 
in paragraph (c)(11) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (6) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15' N 
lat. line and west of the 70 deg. W long. line, except for right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear Requirements. No person may fish with lobster pot gear in 
the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that person's 
gear complies with at least two of the characteristics of the Lobster 
Take Reduction Technology List in paragraph (c)(11) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (7) Northern offshore lobster waters--(i) Area. The northern 
offshore waters area includes all offshore lobster waters north of 
41 deg.30' N lat., except for areas included in the Great South Channel 
Critical Habitat.
    (ii) Gear requirements. No person may fish with lobster pot gear in 
the northern offshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(11) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (8) Southern offshore lobster waters--(i) Area. The southern 
offshore waters area includes all offshore lobster waters south of 
41 deg.30' N lat., except for areas included in the Great South Channel 
Critical Habitat.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster pot gear in the southern offshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (9) Northern inshore lobster waters--(i) Area. Northern inshore 
lobster waters consist of all inshore lobster waters north of 41 deg.30' 
N lat., except the Cape Cod Bay restricted area, Great South Channel 
restricted area and the Stellwagen Bank/Jeffreys Ledge restricted area.
    (ii) Gear requirements. No person may fish with lobster pot gear in 
the northern inshore lobster waters area unless that person's gear 
complies with at least one of the characteristics of the Lobster Take 
Reduction Technology List in paragraph (c)(11) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (10) Southern inshore lobster waters--(i) Area. The southern inshore 
lobster waters consist of all inshore lobster waters south of 41 deg.30' 
N lat., except the Great South Channel restricted area.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with lobster pot gear in the southern inshore lobster waters 
area unless that person's gear complies with at least one of the 
characteristics of the Lobster Take Reduction Technology List in 
paragraph (c)(11) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (11) Lobster Take Reduction Technology List. The following gear 
characteristics comprise the Lobster Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches in diameter or less.

[[Page 211]]

    (ii) All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb. Weak links may include 
swivels, plastic weak links, rope of appropriate diameter, hog rings, 
rope stapled to a buoy stick, or other materials or devices approved in 
writing by the Assistant Administrator.
    (iii) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line with a weak link having a maximum breaking 
strength of up to 3780 lb.
    (iv) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no more than \3/4\ the 
diameter of the buoy line.
    (v) All buoy lines are composed entirely of sinking line.
    (vi) All ground lines are made of sinking line.
    (d) Restrictions applicable to anchored gillnet gear in regulated 
waters--(1) Marking requirements. No person may fish with anchored 
gillnet gear in northeast or mid-Atlantic waters unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. From January 1, 1998, all buoy lines used in connection 
with anchored gillnets must be marked within 2 ft (0.6 m) of the top of 
the buoy line (or two ft below a weak link) and midway along the length 
of the buoy line.
    (2) No line floating at the surface. No person may fish with 
anchored gillnet gear that has any portion of the buoy line floating at 
the surface at any time, except that, if there are more than one buoy 
attached to a single buoy line or if there are a high flyer and a buoy 
used together on a single buoy line, floating line may be used between 
these objects.
    (3) Cape Cod Bay restricted area--(i) Area. The Cape Cod Bay 
restricted area consists of the Cape Cod Bay Critical Habitat area 
specified under 50 CFR 216.13(b), unless the Assistant Administrator 
extends that area under paragraph (g) of this section.
    (ii) Winter restricted period. The winter restricted period for this 
area is from January 1 through May 15 of each year, unless the Assistant 
Administrator revises the restricted period under paragraph (g) of this 
section. During the winter restricted period, no person may fish with 
anchored gillnet gear in the Cape Cod Bay restricted area unless the 
Assistant Administrator specifies gear modifications or alternative 
fishing practices under paragraph (g) of this section and the gear or 
practices comply with those specifications. The Assistant Administrator 
may waive this closure for the remaining portion of any year through a 
notification in the Federal Register if NMFS determines that right 
whales have left the critical habitat and are unlikely to return for the 
remainder of the season.
    (iii) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with anchored gillnet gear in the Cape Cod 
Bay Restricted Area unless that person's gear complies with at least two 
of the characteristics of the Gillnet Take Reduction Technology List in 
paragraph (d)(9) of this section. The Assistant Administrator may revise 
this restricted period in accordance with paragraph (g) of this section.
    (4) Great South Channel restricted gillnet area--(i) Area. The Great 
South Channel restricted gillnet area consists of the area bounded by 
lines connecting the following four points: 41 deg.02.2' N/69 deg.02' 
W., 41 deg.43.5' N/69 deg.36.3' W., 42 deg.10' N/68 deg.31' W., and 
41 deg.38' N/68 deg.13' W., unless the Assistant Administrator changes 
that area in accordance with paragraph (g) of this section. This area 
includes the Great South Channel critical habitat area specified under 
50 CFR 216.13(a), except for the ``sliver area'' identified below.
    (ii) Spring closed period. The spring closed period for this area is 
from April 1 through June 30 of each year unless the Assistant 
Administrator revises the closed period in accordance with paragraph (g) 
of this section. During the spring closed period, no person may set or 
fish with anchored gillnet gear in the Great South Channel restricted 
gillnet area unless the Assistant Administrator specifies gear 
modifications or alternative fishing practices in accordance with 
paragraph (g) of this section and the gear or practices comply with 
those specifications.

[[Page 212]]

    (iii) Other restricted period. From July 1 through March 31 no 
person may fish with lobster pot gear in the Great South Channel 
restricted gillnet area unless that person's gear complies with at least 
two of the characteristics of the Gillnet Take Reduction Technology List 
in paragraph (d)(9) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (5) Great South Channel sliver restricted area--(i) Area. The Great 
South Channel sliver restricted area consists of the area bounded by 
lines connecting the following points: 41 deg.02.2' N/69 deg.02' W., 
41 deg.43.5' N/69 deg.36.3' W., 41 deg.40' N/69 deg.45' W., and 
41 deg.00' N/69 deg.05' W., unless the Assistant Administrator changes 
that area in accordance with paragraph (g) of this section.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the Great South Channel sliver restricted area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(9) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (6) Stellwagen Bank/Jeffreys Ledge restricted area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge restricted area consists of all Federal 
waters of the Gulf of Maine that lie to the south of the 43 deg.15 N. 
lat. line and west of the 70 deg. W long. line, except right whale 
critical habitat, unless the Assistant Administrator changes that area 
in accordance with paragraph (g) of this section.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the Stellwagen Bank/Jeffreys Ledge restricted area unless that 
person's gear complies with at least two of the characteristics of the 
Gillnet Take Reduction Technology List in paragraph (d)(9) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (7) Other northeast waters area--(i) Area. The other northeast 
waters area consists of all northeast waters except for the Cape Cod Bay 
restricted area, the Great South Channel restricted gillnet area and 
Great South Channel sliver restricted areas and the Stellwagen Bank/
Jeffreys Ledge restricted area.
    (ii) Gear requirements. No person may fish with anchored gillnet 
gear in the other northeast waters area unless that person's gear 
complies with at least one of the characteristics of the Gillnet Take 
Reduction Technology List in paragraph (d)(9) of this section. The 
Assistant Administrator may revise these requirements in accordance with 
paragraph (g) of this section.
    (8) Mid-Atlantic coastal waters area--(i) Area. The mid-Atlantic 
coastal waters area is defined in Sec. 229.2.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with anchored gillnets in mid-Atlantic coastal waters area 
unless that person's gear complies with at least one of the 
characteristics of the Gillnet Take Reduction Technology List in 
paragraph (d)(9) of this section. The Assistant Administrator may revise 
these requirements in accordance with paragraph (g) of this section.
    (9) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb. Weak links may include 
swivels, plastic weak links, rope of appropriate diameter, hog rings, 
rope stapled to a buoy stick, or other materials or devices approved in 
writing by the Assistant Administrator.
    (iii) Gear is anchored with the holding power of a 22 lb. danforth-
style anchor at each end.
    (iv) Gear is anchored with a 50 lb dead weight at each end.
    (v) Nets are attached to a lead line weighing 100 lb or more per 300 
feet.
    (vi) Weak links with a breaking strength of up to 1100 lb are 
installed in the float rope between net panels.
    (vii) All buoy lines are composed entirely of sinking line.
    (e) Restrictions applicable to mid-Atlantic driftnet gear--(1) Gear 
marking requirements. No person may fish in mid-

[[Page 213]]

Atlantic coastal waters with drift gillnet gear unless that gear is 
marked by gear type and region according to the gear marking code 
specified under paragraph (b) of this section. From January 1, 1998, all 
buoy lines used in connection with driftnet gear in the mid-Atlantic 
must be marked within 2 ft (0.6 m) of the top of the buoy line and 
midway along the length of the buoy line according to gear type and 
region.
    (2) Restrictions. From January 1, 1998, during the winter/spring 
restricted period, no person may fish at night with driftnet gear in the 
mid-Atlantic coastal waters area unless that gear is tended. Before a 
vessel returns to port, all driftnet gear set by that vessel in the mid-
Atlantic coastal waters area must be removed from the water and stowed 
on board the vessel. The winter/spring restricted period for this area 
is from December 1 through March 31 unless the Assistant Administrator 
revises that restricted period in accordance with paragraph (g) of this 
section.
    (f) Restrictions applicable to shark driftnet gear--(1) Gear marking 
requirements. No person may fish with drift gillnet gear in southeast 
waters unless that gear is marked according to the gear marking code 
specified under paragraph (b) of this section. From November 1, 1998, 
all buoy lines must be marked within 2 ft (0.6 m) of the top of the buoy 
line and midway along the length of the buoy line. From November 1, 
1999, each net panel must be marked along both the float line and the 
lead line at least once every 100 feet (30.8 m).
    (2) Management areas--(i) SEUS restricted area. The southeast U.S. 
restricted area consists of the area from 32 deg.00' N lat. (near 
Savannah, GA) south to 27 deg.51' N lat. (near Sebastian Inlet, FL), 
extending from the shore eastward to 80 deg.00' W long., unless the 
Assistant Administrator changes that area in accordance with paragraph 
(g) of this section.
    (ii) SEUS observer area. The SEUS observer area consists of the SEUS 
restricted area and an additional area along the coast south to 
26 deg.46.5' N lat. (near West Palm Beach, FL) and extending from the 
shore eastward out to 80 deg.00' W long., unless the Assistant 
Administrator changes that area in accordance with paragraph (g) of this 
section.
    (3) Restrictions--(i) Closure. Except as provided under paragraph 
(f)(3)(iii) of this section, no person may fish with driftnet gear in 
the SEUS restricted area during the closed period. The closed period for 
this area is from November 1 through March 31 of the following year, 
unless the Assistant Administrator changes that closed period in 
accordance with paragraph (g) of this section.
    (ii) Observer requirement. No person may fish with driftnet gear in 
the SEUS observer area from November 1 through March 31 of the following 
year unless the operator of the vessel calls the SE Regional Office in 
St. Petersburg, FL, not less than 48 hours prior to departing on any 
fishing trip in order to arrange for observer coverage. If the Regional 
Office requests that an observer be taken on board a vessel during a 
fishing trip at any time from November 1 through March 31 of the 
following year, no person may fish with driftnet gear aboard that vessel 
in the SEUS observer area unless an observer is on board that vessel 
during the trip.
    (iii) Special provision for strikenets. Fishing with strikenet gear 
is exempt from the restriction under paragraph (e)(3)(i) of this section 
if:
    (A) No nets are set at night or when visibility is less than 500 
yards (460 m).
    (B) Each set is made under the observation of a spotter plane.
    (C) No net is set within 3 nautical miles of a right, humpback, or 
fin whale.
    (D) If a right, humpback or fin whale moves within 3 nautical miles 
of the set gear, the gear is removed immediately from the water.
    (g) Other provisions. In addition to any other emergency authority 
under the Marine Mammal Protection Act, the Endangered Species Act, the 
Magnuson-Stevens Fishery Conservation and Management Act, or other 
appropriate authority, the Assistant administrator may take action under 
this section in the following situations:
    (1) Entanglements in critical habitat. If a serious injury or 
mortality of a right whale occurs in the Cape Cod Bay critical habitat 
from January 1 through

[[Page 214]]

May 15, in the Great South Channel restricted areas from April 1 through 
June 30, or in the SEUS restricted area from November 1 through March 31 
as a result of an entanglement by gear types allowed to be used in those 
areas and times, the Assistant Administrator shall close that area to 
that gear type for the rest of that time period and for that same time 
period in each subsequent year, unless the Assistant Administrator 
revises the restricted period in accordance with paragraph (g)(2) of 
this section or unless other measures are implemented under paragraph 
(g)(2) of this section.
    (2) Other special measures. The Assistant Administrator may revise 
the requirements of this section through publication of a rule in the 
Federal Register if:
    (i) NMFS verifies that certain gear characteristics are both 
operationally effective and reduce serious injuries and mortalities of 
endangered whales;
    (ii) New gear technology is developed and determined to be 
appropriate;
    (iii) Revised breaking strengths are determined to be appropriate;
    (iv) New marking systems are developed and determined to be 
appropriate;
    (v) NMFS determines that right whales are remaining longer than 
expected in a closed area or have left earlier than expected;
    (vi) NMFS determines that the boundaries of a closed area are not 
appropriate;
    (vii) Gear testing operations are considered appropriate; or
    (viii) Similar situations occur.

[62 FR 39184, July 22, 1997]
[GRAPHIC] [TIFF OMITTED] TR21MY98.061

[63 FR 27861, May 21, 1998]

[[Page 215]]



                          SUBCHAPTER D--WHALING





PART 230--WHALING PROVISIONS--Table of Contents




Sec.
230.1  Purpose and scope.
230.2  Definitions.
230.3  General prohibitions.
230.4  Aboriginal subsistence whaling.
230.5  Licenses for aboriginal subsistence whaling.
230.6  Quotas and other restrictions.
230.7  Salvage of stinkers.
230.8  Reporting by whaling captains.

    Authority: 16 U.S.C. 916 et seq.

    Source: 61 FR 29631, June 11, 1996, unless otherwise noted.



Sec. 230.1  Purpose and scope.

    The purpose of the regulations in this part is to implement the 
Whaling Convention Act (16 U.S.C. 916 et seq.) by prohibiting whaling 
except for aboriginal subsistence whaling allowed by the International 
Whaling Commission. Provisions of the Marine Mammal Protection Act of 
1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973 (16 
U.S.C. 1531 et seq.) also pertain to human interactions with whales. 
Rules elsewhere in this chapter govern such topics as scientific 
research permits, and incidental take and harassment of marine mammals.



Sec. 230.2  Definitions.

    Aboriginal subsistence whaling means whaling authorized by paragraph 
13 of the Schedule annexed to and constituting a part of the Convention.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Oceanic and Atmospheric Administration.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard;
    (2) Any special agent or enforcement officer of the National Marine 
Fisheries Service;
    (3) Any officer designated by the head of a Federal or state agency 
that has entered into an agreement with the Secretary of Commerce or the 
Commandant of the Coast Guard to enforce the provisions of the Whaling 
Convention Act; or
    (4) Any Coast Guard personnel accompanying and acting under the 
direction of any person described in paragraph (1) of this definition.
    Calf means any whale less than 1 year old or having milk in its 
stomach.
    Commission means the International Whaling Commission established by 
article III of the Convention.
    Convention means the International Convention for the Regulation of 
Whaling signed at Washington on December 2, 1946.
    Cooperative agreement means a written agreement between the National 
Oceanic and Atmospheric Administration and a Native American whaling 
organization for the cooperative management of aboriginal subsistence 
whaling operations.
    Landing means bringing a whale or any parts thereof onto the ice or 
land in the course of whaling operations.
    Native American whaling organization means an entity recognized by 
the National Oceanic and Atmospheric Administration as representing and 
governing Native American whalers for the purposes of cooperative 
management of aboriginal subsistence whaling.
    Regulations of the Commission means the regulations in the Schedule 
annexed to and constituting a part of the Convention, as modified, 
revised, or amended by the Commission from time to time.
    Stinker means a dead, unclaimed whale found upon a beach, stranded 
in shallow water, or floating at sea.
    Strike means hitting a whale with a harpoon, lance, or explosive 
device.
    Wasteful manner means a method of whaling that is not likely to 
result in the landing of a struck whale or that does not include all 
reasonable efforts to retrieve the whale.
    Whale products means any unprocessed part of a whale and blubber, 
meat, bones, whale oil, sperm oil, spermaceti, meal, and baleen.
    Whaling means the scouting for, hunting, striking, killing, 
flensing, or landing of a whale, and the processing of whales or whale 
products.

[[Page 216]]

    Whaling captain or captain means any Native American who is 
authorized by a Native American whaling organization to be in charge of 
a vessel and whaling crew.
    Whaling crew means those Native Americans under the control of a 
captain.
    Whaling village means any U.S. village recognized by the Commission 
as having a cultural and/or subsistence need for whaling.



Sec. 230.3  General prohibitions.

    (a) No person shall engage in whaling in a manner that violates the 
Convention, any regulation of the Commission, or this part.
    (b) No person shall engage in whaling without first having obtained 
a license or scientific research permit issued by the Assistant 
Administrator.
    (c) No person shall ship, transport, purchase, sell, offer for sale, 
import, export, or possess any whale or whale products taken or 
processed in violation of the Convention, any regulation of the 
Commission, or this part, except as specified in Sec. 230.4(f).
    (d) No person shall fail to make, keep, submit, or furnish any 
record or report required of him/her by the Convention, any regulation 
of the Commission, or this part.
    (e) No person shall refuse to permit any authorized officer to 
enforce the Convention, any regulation of the Commission, or this part.



Sec. 230.4  Aboriginal subsistence whaling.

    (a) No person shall engage in aboriginal subsistence whaling, except 
a whaling captain licensed pursuant to Sec. 230.5 or a member of a 
whaling crew under the control of a licensed captain.
    (b) No whaling captain shall engage in whaling that is not in 
accordance with the regulations of the Commission, this part, and the 
relevant cooperative agreement.
    (c) No whaling captain shall engage in whaling for any calf or any 
whale accompanied by a calf.
    (d) No whaling captain shall engage in whaling without an adequate 
crew or without adequate supplies and equipment.
    (e) No person may receive money for participation in aboriginal 
subsistence whaling.
    (f) No person may sell or offer for sale whale products from whales 
taken in an aboriginal subsistence hunt, except that authentic articles 
of Native handicrafts may be sold or offered for sale.
    (g) No whaling captain shall continue to whale after:
    (1) The quota set for his/her village by the relevant Native 
American whaling organization is reached;
    (2) The license under which he/she is whaling is suspended as 
provided in Sec. 230.5(b); or
    (3) The whaling season for that species has been closed pursuant to 
Sec. 230.6.
    (h) No whaling captain shall claim domicile in more than one whaling 
village.
    (i) No person may salvage a stinker without complying with the 
provisions of Sec. 230.7.
    (j) No whaling captain shall engage in whaling with a harpoon, 
lance, or explosive dart that does not bear a permanent distinctive mark 
identifying the captain as the owner thereof.
    (k) No whaling captain shall engage in whaling in a wasteful manner.



Sec. 230.5  Licenses for aboriginal subsistence whaling.

    (a) A license is hereby issued to whaling captains identified by the 
relevant Native American whaling organization.
    (b) The Assistant Administrator may suspend the license of any 
whaling captain who fails to comply with the regulations in this part.



Sec. 230.6  Quotas and other restrictions.

    (a) Quotas for aboriginal subsistence whaling shall be set in 
accordance with the regulations of the Commission. Quotas shall be 
allocated to each whaling village or captain by the appropriate Native 
American whaling organization. The Assistant Administrator shall publish 
in the Federal Register, at least annually, aboriginal subsistence 
whaling quotas and any other limitations on aboriginal subsistence 
whaling deriving from regulations of the Commission. These quotas and 
restrictions shall also be incorporated in the relevant cooperative 
agreements.

[[Page 217]]

    (b) The relevant Native American whaling organization shall monitor 
the whale hunt and keep tally of the number of whales landed and struck. 
When a quota is reached, the organization shall declare the whaling 
season closed, and there shall be no further whaling under that quota 
during the calendar year. If the organization fails to close the whaling 
season after the quota has been reached, the Assistant Administrator may 
close it by filing notification in the Federal Register.



Sec. 230.7  Salvage of stinkers.

    (a) Any person salvaging a stinker shall submit to the Assistant 
Administrator or his/her representative an oral or written report 
describing the circumstances of the salvage within 12 hours of such 
salvage. He/she shall provide promptly to the Assistant Administrator or 
his/her representative each harpoon, lance, or explosive dart found in 
or attached to the stinker. The device shall be returned to the owner 
thereof promptly, unless it is retained as evidence of a possible 
violation.
    (b) There shall be a rebuttable presumption that a stinker has been 
struck by the captain whose mark appears on the harpoon, lance, or 
explosive dart found in or attached thereto, and, if no strike has been 
reported by such captain, such strike shall be deemed to have occurred 
at the time of recovery of the device.



Sec. 230.8  Reporting by whaling captains.

    (a) The relevant Native American whaling organization shall require 
each whaling captain licensed pursuant to Sec. 230.5 to provide a 
written statement of his/her name and village of domicile and a 
description of the distinctive marking to be placed on each harpoon, 
lance, and explosive dart.
    (b) Each whaling captain shall provide to the relevant Native 
American whaling organization an oral or written report of whaling 
activities including but not limited to the striking, attempted 
striking, or landing of a whale and, where possible, specimens from 
landed whales. The Assistant Administrator is authorized to provide 
technological assistance to facilitate prompt reporting and collection 
of specimens from landed whales, including but not limited to ovaries, 
ear plugs, and baleen plates. The report shall include at least the 
following information:
    (1) The number, dates, and locations of each strike, attempted 
strike, or landing.
    (2) The length (taken as the straight-line measurement from the tip 
of the upper jaw to the notch between the tail flukes) and the sex of 
the whales landed.
    (3) The length and sex of a fetus, if present in a landed whale.
    (4) An explanation of circumstances associated with the striking or 
attempted striking of any whale not landed.
    (c) If the relevant Native American whaling organization fails to 
provide the National Marine Fisheries Service the required reports, the 
Assistant Administrator may require the reports to be submitted by the 
whaling captains directly to the National Marine Fisheries Service.

[[Page 218]]



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





                     SUBCHAPTER F--AID TO FISHERIES





PART 253--FISHERIES ASSISTANCE PROGRAMS--Table of Contents




                           Subpart A--General

Sec.
253.1  Purpose.

            Subpart B--Fisheries Obligation Guarantee Program

253.10  Definitions.
253.11  Guarantee policy.
253.12  Guaranteed note, U.S. note, and security documents.
253.13  Ability and experience requirements.
253.14  Economic and financial requirements.
253.15  Miscellaneous.
253.16  Fees.
253.17  Demand and payment.
253.18  Program operating guidelines.
253.19  Default and liquidation.

                Subpart C--Interjurisdictional Fisheries

253.20  Definitions.
253.21  Apportionment.
253.22  State projects.
253.23  Other funds.
253.24  Administrative requirements.

    Authority: 46 U.S.C. 1271-1279 and 16 U.S.C. 4101 et seq.

    Source: 61 FR 19172, May 1, 1996, unless otherwise noted.



                           Subpart A--General



Sec. 253.1  Purpose.

    (a) The regulations in this part pertain to fisheries assistance 
programs. Subpart B of these rules governs the Fisheries Obligation 
Guarantee Program, which guarantees the repayment of certain long-term 
fisheries and aquacultural debts. This allows those debts to be placed 
in the same private investment market that buys U.S. Treasury 
securities, where interest rates are lower and maturities are longer. 
The Program does all credit work and holds and services all credit 
collateral. The Program's guarantee fee makes it self-supporting.
    (b) Subpart C implements Title III of Public Law 99-659 (16 U.S.C. 
4100 et seq.), which has two objectives:
    (1) To promote and encourage State activities in support of the 
management of interjurisdictional fishery resources identified in 
interstate or Federal fishery management plans; and
    (2) To promote and encourage management of interjurisdictional 
fishery resources throughout their range.
    (3) The scope of this part includes guidance on making financial 
assistance awards to States or Interstate Commissions to undertake 
projects in support of management of interjurisdictional fishery 
resources in both the exclusive economic zone (EEZ) and State waters, 
and to encourage States to enter into enforcement agreements with either 
the Department of Commerce or the Department of the Interior.



            Subpart B--Fisheries Obligation Guarantee Program



Sec. 253.10  Definitions.

    The terms used in this subpart have the following meanings:
    Act means Title XI of the Merchant Marine Act, 1936, as amended.
    Actual cost means project cost (less a 10-percent salvage value), 
depreciated (excluding land) on a straightline basis at 1-year intervals 
over the project property's useful life including architectural, 
engineering, inspection, delivery, outfitting, and interest costs, as 
well as the cost of any consulting contract the Division requires.
    Applicant means the one applying for a guarantee (the prospective 
notemaker).
    Application means an application for a guarantee.
    Application fee means 0.5 percent of the dollar amount of an 
application.
    Aquacultural facility means land, land structures, water structures, 
water craft built in the U.S., and equipment for hatching, caring for, 
or growing fish under controlled circumstances

[[Page 219]]

and for its unloading, receiving, holding, processing, or distribution 
for commercial purposes.
    CCF means Capital Construction Fund.
    Citizen means a citizen or national of the U.S. who is otherwise 
also a citizen for the purpose of documenting a vessel in the coastwise 
trade under section 2 of the Shipping Act, 1916, as amended.
    Contributory project means any project that contributes to 
developing the U.S. fishing industry by: Causing any vessel to catch 
less overutilized species than before; applying new technology; 
improving safety or fuel efficiency; making project property more 
efficient, productive, or competitive; potentially increasing fisheries 
exports; helping develop an underutilized fishery; or enhancing 
financial stability, financial performance, growth, productivity, or any 
other business attribute.
    Demand means a noteholder's request that the guarantor pay a 
guaranteed note's full principal and interest balance.
    Division means the Financial Services Division, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, U.S. 
Department of Commerce.
    Dual Use CCF means a CCF agreement whose qualified vessel is project 
property and whose deposits are pledged to repayment of the U.S. note.
    Facility means a fisheries facility or aquacultural facility.
    Financing means the first permanent debt placed on project property 
for financing its project cost.
    Fish means all forms of aquatic animal and plant life, except marine 
mammals and birds.
    Fishery facility means land, land structures, water craft that do 
not fish, and equipment used for transporting, unloading, receiving, 
holding, processing, or distributing fish for commercial purposes 
(including any fishery facility for passenger fishing).
    Fishing means catching wild fish for commercial purposes (including 
passenger fishing).
    Guarantee means the guarantor's contractual promise, backed by the 
full faith and credit of the United States, to repay a guaranteed note 
if a notemaker fails to repay it as agreed.
    Guarantee fee means 1 percent of a guaranteed note's average annual 
unpaid principal balance.
    Guaranteed note means a promissory note from a notemaker to a 
noteholder whose repayment the guarantor guarantees.
    Guarantor means the U.S., acting, under the Act, by and through the 
Secretary of Commerce.
    Industry means the fisheries and/or aquacultural industry.
    Noteholder means a guaranteed note payee.
    Notemaker means a guaranteed note payor.
    Passenger fishing means carrying in vessels for commercial purposes 
passengers who catch fish.
    Program means the Fisheries Obligation Guarantee Program.
    Project means the construction of new project property or the 
refurbishing or purchase of used project property including 
architectural, engineering, inspection, delivery, outfitting, and 
interest costs, as well as the cost of any consulting contract the 
Division requires.
    Project property means the vessel or facility involved in a project 
whose actual cost is eligible under the Act for guarantee and controls 
the dollar amount of a guaranteed note.
    Property means the project property and all other property pledged 
as security for a U.S. note.
    Qualified means acceptable, in the Division's credit risk judgment, 
and otherwise meeting the Division's requirements for guarantee.
    Refinancing means newer debt that either replaces older debt or 
reimburses applicants for previous expenditures.
    Refinancing/assumption fee means 0.25 percent of the principal 
amount of a guaranteed note to be refinanced or assumed.
    Refurbishing means any reconstruction, reconditioning, or other 
improvement of used project property involving more than routine repair 
or maintenance.
    Security documents mean all collateral securing the U.S. note's 
repayment and all other assurances, undertakings, and

[[Page 220]]

contractual arrangements associated with the U.S. note.
    Underutilized fishery means:
    (1) For a vessel, any fish species harvested below its sustainable 
yield.
    (2) For a fisheries facility, any facility using that species or any 
for which aggregate facilities are inadequate to best use harvests of 
that or any other species.
    U.S. means the United States of America and, for citizenship 
purposes, includes the Commonwealth of Puerto Rico; American Samoa; the 
U.S. Virgin Islands; Guam; the Republic of the Marshal Islands; the 
Federated States of Micronesia; the Commonwealth of the Northern Mariana 
Islands; any other commonwealth, territory, or possession of the United 
States; or any political subdivision of any of them.
    U.S. note means a promissory note payable by the notemaker to the 
guarantor.
    Useful life means the period during which project property will, as 
determined by the Division, remain economically productive.
    Vessel means any vessel documented under U.S. law and used for 
fishing.
    Wise use means the wise use of fisheries resources and their 
development, advancement, management, conservation, and protection.



Sec. 253.11  Guarantee policy.

    (a) A guarantee financing or refinancing up to 80 percent of a 
project's actual cost shall be available to any qualified citizen 
otherwise eligible under the Act and these rules, except:
    (1) Vessel construction. The Program will not finance this project 
cost. The Program will only refinance this project cost for an existing 
vessel whose previous construction cost has already been financed (or 
otherwise paid). Refinancing this project cost for a vessel that already 
exists is not inconsistent with wise use, but financing it may be.
    (2) Vessel refurbishing that materially increases an existing 
vessel's harvesting capacity. The Program will not finance this project 
cost. The Program will only refinance this project cost for a vessel 
whose previous refurbishing cost has already been financed (or otherwise 
paid). Refinancing this project cost is not inconsistent with wise use, 
but financing it may be.
    (3) Purchasing a used vessel or used fishery facility. The Program 
will neither finance nor refinance this project cost (except for a used 
vessel or fishery facility that the Program purchased and is reselling), 
unless the used vessel or fishery facility will be refurbished in the 
United States and will be a contributory project or it will be used in 
an underutilized fishery.
    (b) Every project, other than those specified in paragraphs (a) (1) 
and (2) of this section, is consistent with wise use and every project, 
other than those specifically precluded in paragraphs (a) (1) and (2) of 
this section, may be financed, as well as refinanced.



Sec. 253.12  Guaranteed note, U.S. note, and security documents.

    (a) Guaranteed note--(1) Principal. This may not exceed 80 percent 
of actual cost, but may, in the Division's credit judgment, be less.
    (2) Maturity. This may not exceed 25 years, but shall not exceed the 
project property's useful life and may, in the Division's credit 
judgment, be less.
    (3) Interest rate. This may not exceed the amount the Division deems 
reasonable.
    (4) Prepayment penalty. The Division will allow a reasonable 
prepayment penalty, but the guarantor will not guarantee a notemaker's 
payment of it.
    (5) Form. This will be the simple promissory note (with the 
guarantee attached) the Division prescribes, promising only to pay 
principal, interest, and prepayment penalty.
    (6) Sole security. The guaranteed note and the guarantee will be the 
noteholder's sole security.
    (b) U.S. note and security documents--(1) Form. The U.S. note and 
security documents will be in the form the Division prescribes.
    (2) U.S. note. This exists to evidence the notemaker's actual and 
contingent liability to the guarantor (contingent if the guarantor does 
not pay the guaranteed note (including any portion of it), on the 
notemaker's behalf or if the guarantor does not advance any other 
amounts or incur any other expenses on the notemaker's behalf to protect

[[Page 221]]

the U.S. or accommodate the notemaker; actual if, and to the same 
monetary extent that, the guarantor does). Payment of the guaranteed 
note by anyone but the guarantor will amortize the original principal 
balance (and interest accruing on it) of the U.S. note to the same 
extent that it amortizes the guaranteed note. The U.S note will, among 
other things, contain provisions for adding to its principal balance all 
amounts the Program advances, or expenses it incurs, to protect the U.S. 
or accommodate the notemaker.
    (3) Security documents. The Division will, at a minimum, require a 
pledge of all project property (or adequate substitute collateral). The 
Division will require such other security as it deems the circumstances 
of each notemaker and project require to protect the U.S. All security 
documents will secure the U.S. note. The security documents will, among 
other things, contain provisions for adding to the U.S. note all Program 
advances, expenditures, and expenses required to protect the U.S. or 
accommodate the notemaker.
    (4) Recourse. Significant Program reliance, as a secondary means of 
repayment, on the net worths of parties other than the notemaker will 
ordinarily require secured recourse against those net worths. Recourse 
may be by a repayment guarantee or irrevocable letter of credit. 
Ordinarily, the Division will require recourse against: All major 
shareholders of a closely-held corporate notemaker, the parent 
corporation of a subsidiary corporate notemaker without substantial 
pledged assets other than the project property, and all major limited 
partners. The Division may also require recourse against others it deems 
necessary to protect the U.S. The principal parties in interest, who 
ultimately stand most to benefit from the project, should ordinarily be 
held financially accountable for the project's performance. Where 
otherwise appropriate recourse is unavailable, the conservatively 
projected net liquidating value of the notemaker's assets pledged to the 
Program must, in the Division's credit judgment, substantially exceed 
all projected Program exposure.
    (c) Dual-use CCF. For a vessel, the Division may require annually 
depositing some portion of the project property's net income into a 
dual-use CCF. A dual-use CCF provides the normal CCF tax-deferral 
benefits, but also both gives the Program control of CCF withdrawals and 
recourse against CCF deposits and ensures an emergency refurbishing 
reserve (tax-deferred) for project property.



Sec. 253.13  Ability and experience requirements.

    A notemaker and the majority of its principals must generally have 
the ability, experience, resources, character, reputation, and other 
qualifications the Division deems necessary for successfully operating 
the project property and protecting the U.S. The Program will ordinarily 
not provide guarantees: For venture capital purposes; to a notemaker 
whose principals are all from outside the industry; or for a notemaker 
the majority of whose principals cannot document successful industry 
ability and experience of a duration, degree, and nature consistent with 
protecting the U.S.



Sec. 253.14  Economic and financial requirements.

    (a) Income and expense projections. The Division's conservative 
income and expense projections for the project property's operation must 
prospectively indicate net earnings that can service all debt, properly 
maintain the project property, and protect the U.S. against the 
industry's cyclical economics and other risks of loss.
    (b) Working capital. The Division's conservative assessment of an 
applicant's financial condition must indicate initial working capital 
prospectively sufficient to provide for the project property to achieve 
net earnings projections, fund all foreseeable contingencies, and 
protect the U.S. At the Division's discretion, some portion of projected 
working capital needs may be met by something other than current assets 
minus current liabilities (i.e., by a line or letter of credit, 
noncurrent assets readily capable of generating working capital, a 
guarantor with sufficient financial resources, etc.).

[[Page 222]]

    (c) Audited financial statements. These will ordinarily be required 
for any notemaker with large or financially extensive operations whose 
financial condition the Division believes it cannot otherwise assess 
with reasonable certainty.
    (d) Consultant services. Infrequently, expert consulting services 
may be necessary to help the Division assess a project's economic, 
technical, or financial feasibility. The Division will select and employ 
the necessary consultant, but require the applicant to reimburse the 
Division. A subsequently approved application will not be closed until 
the applicant reimburses the Division. This cost may, at the Division's 
discretion, be included in a guaranteed note's amount. For a declined 
application, the Division may reimburse itself from the remaining 25 
percent of the application fee.



Sec. 253.15  Miscellaneous.

    (a) Applicant. Only the legal title holder of project property (or 
the lessee of an appropriate long-term financing lease) may apply for a 
guarantee. Applicants must submit an ``Application for Fisheries 
Obligation Program Guarantee'' to the appropriate NMFS Regional 
Financial Services Branch to be considered for a guaranteed loan.
    (b) Investigation and approval. The Division shall do a due 
diligence investigation of every application it accepts and determine 
if, in the Division's sole judgment, the application is eligible and 
qualified. Applications the Division deems ineligible or unqualified 
will be declined. The Division will approve eligible and qualified 
applications based on the applicability of the information obtained 
during the application and investigation process to the programmatic 
goals and financial requirements of the program and under terms and 
conditions that, in the Division's sole discretion, protect the U.S. The 
Division will state these terms and conditions in its approval in 
principal letter.
    (c) Insurance. All property and other risks shall be continuously 
insured during the term of the U.S. note. Insurers must be acceptable to 
the Division. Insurance must be in such forms and amounts and against 
such risks as the Division deems necessary to protect the U.S. Insurance 
must be endorsed to include the requirements the U.S., as respects its 
interest only, deems necessary to protect the U.S. (e.g., the Program 
will ordinarily be an additional insured as well as the sole loss payee 
for the amount of its interest; cancellation will require 20 days' 
advance written notice; vessel seaworthiness will be admitted, and the 
Program will be adequately protected against other insureds' breaches of 
policy warranties, negligence, omission, etc.)
    (d) Property inspections. The Division will require adequate 
condition and valuation inspection of all property as the basis for 
assessing the property's worth and suitability for guarantee. The 
Division may also require these at specified periods during guarantee 
life. These must be conducted by competent and impartial inspectors 
acceptable to the Division. Inspection cost will be at an applicant's 
expense. Those occurring before application approval may be included in 
actual cost.
    (e) Guarantee terms and conditions. The Division's approval in 
principle letter shall specify the terms and conditions of the 
guarantor's willingness to guarantee. These shall be incorporated in 
closing documents that the Division prepares. Terms and conditions are 
at the Division's sole discretion. An applicant's nonacceptance will 
result in disqualification for guarantee.
    (f) Noteholder. The Division will, as a gratuitous service, request 
parties interested in investing in guaranteed notes to submit offers to 
fund each prospective guaranteed note. The Division and the applicant 
will, by mutual consent, choose the responsive bidder, which ordinarily 
will be the prospective noteholder whose bid represents the lowest net 
effective annual cost of capital. Until the Division has closed the 
guarantee, arrangements between an applicant and a prospective 
noteholder are a matter of private contract between them, and the 
Program is not responsible to either for nonperformance by the other.
    (g) Closing--(1) Approval in principle letters. Every closing will 
be in strict accordance with a final approval in principle letter.

[[Page 223]]

    (2) Contracts. The guaranteed note, U.S. note, and security 
documents will ordinarily be on standard Program forms that may not be 
altered without Divisional approval. The Division will ordinarily 
prepare all contracts, except certain pledges involving real property, 
which will be prepared by each notemaker's attorney at the direction and 
approval of the Division's attorney.
    (3) Closing schedules. The Division will ordinarily close guarantee 
transactions with minimal services from applicants' attorneys, except 
where real property pledges or other matters appropriate for private 
counsel are involved. Real property services required from an 
applicant's attorney may include: Title search, mortgage and other 
document preparation, execution and recording, escrow and disbursement, 
and a legal opinion and other assurances. An applicant's attorney's 
expense, and that of any other private contractor required, is for 
applicant's account. Attorneys and other contractors must be 
satisfactory to the Division. The Division will attempt to meet 
reasonable closing schedules, but will not be liable for adverse 
interest-rate fluctuations, loss of commitments, or other consequences 
of being unable to meet an applicant's and a prospective noteholder's 
closing schedule. These parties should work closely with the Division to 
ensure a closing schedule the Division can meet.



Sec. 253.16  Fees.

    (a) Application fee. The Division will not accept an application 
without the application fee. Fifty percent of the application fee is 
fully earned at application acceptance, and is not refundable. The rest 
is fully earned when the Division issues an approval in principal 
letter, and it is refundable only if the Division declines an 
application or an applicant requests refund before the Division issues 
an approval in principal letter.
    (b) Guarantee fee. Each guarantee fee will be due in advance and 
will be based on the guaranteed note's repayment provisions for the 
prospective year. The first annual guarantee fee is due at guarantee 
closing. Each subsequent one is due and payable on the guarantee 
closing's anniversary date. Each is fully earned when due, and shall not 
subsequently be refunded for any reason.
    (c) Refinancing or assumption fee. This fee applies only to 
refinancing or assuming existing guaranteed notes. It is due upon 
application for refinancing or assuming a guaranteed note. It is fully 
earned when due and shall be nonrefundable. The Division may waive a 
refinancing or assumption fee's payment when the refinancing or 
assumption's primary purpose is to protect the U.S.
    (d) Where payable. Fees are payable by check made payable to ``NMFS/
FSFF.'' Other than those collected at application or closing, fees are 
payable by mailing checks to: U.S. Department of Commerce, National 
Oceanic and Atmospheric Administration, National Marine Fisheries 
Service, P.O. Box 73004, Chicago, Ill. 60673. To ensure proper 
crediting, each check must include the official case number the Division 
assigns to each guarantee.



Sec. 253.17  Demand and payment.

    Every demand must be delivered in writing to the Division. Each must 
include the noteholder's certified record of the date and amount of each 
payment made on the guaranteed note and the manner of its application. 
Should the Division not acknowledge receipt of a timely demand, the 
noteholder must possess evidence of the demand's timely delivery.



Sec. 253.18  Program operating guidelines.

    The Division may issue Program operating guidelines, as the need 
arises, governing national Program policy and administrative issues not 
addressed by these rules.



Sec. 253.19  Default and liquidation.

    Upon default of the security documents, the Division shall take such 
remedial action (including, where appropriate, liquidation) as it deems 
best able to protect the U.S.' interest.

[[Page 224]]



                Subpart C--Interjurisdictional Fisheries



Sec. 253.20  Definitions.

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

[[Page 225]]

    Volume means the weight of the fishery resource as landed, at the 
first point of landing.



Sec. 253.21  Apportionment.

    (a) Apportionment formula. The amount of funds apportioned to each 
state is to be determined by the Secretary as the ratio which the 
equally weighted average of the volume and value of fishery resources 
harvested by domestic commercial fishermen and landed within such state 
during the 3 most recent calendar years for which data satisfactory to 
the Secretary are available bears to the total equally weighted average 
of the volume and value of all fishery resources harvested by domestic 
commercial fishermen and landed within all of the states during those 
calendar years.
    (1) The equally weighted average value is determined by the 
following formula:
[GRAPHIC] [TIFF OMITTED] TR01MY96.004

[GRAPHIC] [TIFF OMITTED] TR01MY96.005

[GRAPHIC] [TIFF OMITTED] TR01MY96.006

    (2) Upon appropriation of funds by Congress, the Secretary will take 
the following actions:
    (i) Determine each state's share according to the apportionment 
formula.
    (ii) Certify the funds to the respective NMFS Regional Director.
    (iii) Instruct NMFS Regional Directors to promptly notify states of 
funds' availability.
    (b) No state, under the apportionment formula in paragraph (a) of 
this section, that has a ratio of one-third of 1 percent or higher may 
receive an apportionment for any fiscal year that is less than 1 percent 
of the total amount of funds available for that fiscal year.
    (c) If a State's ratio under the apportionment formula in paragraph 
(b) of this section is less than one-third of 1 percent, that state may 
receive funding if the state:
    (1) Is signatory to an interstate fishery compact;
    (2) Has entered into an enforcement agreement with the Secretary 
and/or the Secretary of the Interior for a fishery that is managed under 
an interstate fishery management plan;
    (3) Borders one or more of the Great Lakes;
    (4) Has entered into an interstate cooperative fishery management 
agreement and has in effect an interstate fisheries management plan or 
an interstate fisheries research program; or
    (5) Has adopted a Federal fishery management plan for an 
interjurisdictional fishery resource.
    (d) Any state that has a ratio of less than one-third of 1 percent 
and meets any of the requirements set forth in paragraphs (c) (1) 
through (5) of this section may receive an apportionment for any fiscal 
year that is not less than 0.5 percent of the total amount of funds 
available for apportionment for such fiscal year.
    (e) No state may receive an apportionment under this section for any 
fiscal year that is more than 6 percent of the total amount of funds 
available for apportionment for such fiscal year.
    (f) Unused apportionments. Any part of an apportionment for any 
fiscal year to any state:
    (1) That is not obligated during that year;
    (2) With respect to which the state notifies the Secretary that it 
does not wish to receive that part; or
    (3) That is returned to the Secretary by the state, may not be 
considered to be appropriated to that state and must be added to such 
funds as are appropriated for the next fiscal year. Any notification or 
return of funds by a state referred to in this section is irrevocable.



Sec. 253.22  State projects.

    (a) General--(1) Designation of state agency. The Governor of each 
state shall notify the Secretary of which agency of the state government 
is authorized under its laws to regulate commercial fisheries and is, 
therefore, designated receive financial assistance awards. An official 
of such agency shall certify which official(s) is authorized

[[Page 226]]

in accordance with state law to commit the state to participation under 
the Act, to sign project documents, and to receive payments.
    (2) States that choose to submit proposals in any fiscal year must 
so notify the NMFS Regional Director before the end of the third quarter 
of that fiscal year.
    (3) Any state may, through its state agency, submit to the NMFS 
Regional Director a completed NOAA Grants and Cooperative Agreement 
Application Package with its proposal for a project, which may be 
multiyear. Proposals must describe the full scope of work, 
specifications, and cost estimates for such project.
    (4) States may submit a proposal for a project through, and request 
payment to be made to, an Interstate Fisheries Commission. Any payment 
so made shall be charged against the apportionment of the appropriate 
state(s). Submitting a project through one of the Commissions does not 
remove the matching funds requirement for any state, as provided in 
paragraph (c) of this section.
    (b) Evaluation of projects. The Secretary, before approving any 
proposal for a project, will evaluate the proposal as to its 
applicability, in accordance with 16 U.S.C. 4104(a)(2).
    (c) State matching requirements. The Federal share of the costs of 
any project conducted under this subpart, including a project submitted 
through an Interstate Commission, cannot exceed 75 percent of the total 
estimated cost of the project, unless:
    (1) The state has adopted an interstate fishery management plan for 
the fishery resource to which the project applies; or
    (2) The state has adopted fishery regulations that the Secretary has 
determined are consistent with any Federal fishery management plan for 
the species to which the project applies, in which case the Federal 
share cannot exceed 90 percent of the total estimated cost of the 
project.
    (d) Financial assistance award. If the Secretary approves or 
disapproves a proposal for a project, he or she will promptly give 
written notification, including, if disapproved, a detailed explanation 
of the reason(s) for the disapproval.
    (e) Restrictions. (1) The total cost of all items included for 
engineering, planning, inspection, and unforeseen contingencies in 
connection with any works to be constructed as part of such a proposed 
project shall not exceed 10 percent of the total cost of such works, and 
shall be paid by the state as a part of its contribution to the total 
cost of the project.
    (2) The expenditure of funds under this subpart may be applied only 
to projects for which a proposal has been evaluated under paragraph (b) 
of this section and approved by the Secretary, except that up to $25,000 
each fiscal year may be awarded to a state out of the state's regular 
apportionment to carry out an ``enforcement agreement.'' An enforcement 
agreement does not require state matching funds.
    (f) Prosecution of work. All work must be performed in accordance 
with applicable state laws or regulations, except when such laws or 
regulations are in conflict with Federal laws or regulations such that 
the Federal law or regulation prevails.



Sec. 253.23  Other funds.

    (a) Funds for disaster assistance. (1) The Secretary shall retain 
sole authority in distributing any disaster assistance funds made 
available under section 308(b) of the Act. The Secretary may distribute 
these funds after he or she has made a thorough evaluation of the 
scientific information submitted, and has determined that a commercial 
fishery failure of a fishery resource arising from natural or 
undetermined causes has occurred. Funds may only be used to restore the 
resource affected by the disaster, and only by existing methods and 
technology. Any fishery resource used in computing the states' amount 
under the apportionment formula in Sec. 253.21(a) will qualify for 
funding under this section. The Federal share of the cost of any 
activity conducted under the disaster provision of the Act shall be 
limited to 75 percent of the total cost.

[[Page 227]]

    (2) In addition, pursuant to section 308(d) of the Act, the 
Secretary is authorized to award grants to persons engaged in commercial 
fisheries, for uninsured losses determined by the Secretary to have been 
suffered as a direct result of a fishery resource disaster. Funds may be 
distributed by the Secretary only after notice and opportunity for 
public comment of the appropriate limitations, terms, and conditions for 
awarding assistance under this section. Assistance provided under this 
section is limited to 75 percent of an uninsured loss to the extent that 
such losses have not been compensated by other Federal or State 
programs.
    (b) Funds for interstate commissions. Funds authorized to support 
the efforts of the three chartered Interstate Marine Fisheries 
Commissions to develop and maintain interstate fishery management plans 
for interjurisdictional fisheries will be divided equally among the 
Commissions.



Sec. 253.24  Administrative requirements.

    Federal assistance awards made as a result of this Act are subject 
to all Federal laws, Executive Orders, Office of Management and Budget 
Circulars as incorporated by the award; Department of Commerce and NOAA 
regulations; policies and procedures applicable to Federal financial 
assistance awards; and terms and conditions of the awards.



PART 259--CAPITAL CONSTRUCTION FUND--Table of Contents




                          Joint Tax Regulations

Sec.
259.1  Execution of agreements and deposits made in a Capital 
          Construction Fund.

                   Capital Construction Fund Agreement

259.30  Application for Interim Capital Construction Fund Agreement 
          (``Interim CCF Agreement'').
259.31  Acquisition, construction, or reconstruction.
259.32  Conditional fisheries.
259.33  Constructive deposits and withdrawals; ratification of 
          withdrawals (as qualified) made without first having obtained 
          Secretary's consent; first tax year for which Interim CCF 
          Agreement is effective.
259.34  Minimum and maximum deposits; maximum time to deposit.
259.35  Annual deposit and withdrawal reports required.
259.36  CCF accounts.
259.37  Conditional consents to withdrawal qualification.
259.38  Miscellaneous.

    Authority: 46 U.S.C. 1177.

                          Joint Tax Regulations



Sec. 259.1  Execution of agreements and deposits made in a Capital Construction Fund.

    In the case of a taxable year of a taxpayer beginning after December 
31, 1969, and before January 1, 1972, the rules governing the execution 
of agreements and deposits under such agreements shall be as follows:
    (a) A capital construction fund agreement executed and entered into 
by the taxpayer on or prior to the due date, with extensions, for the 
filing of his Federal income tax return for such taxable year or years 
will be deemed to be effective on the date of the execution of such 
agreement or as of the close of business of the last regular business 
day of each such taxable year or years to which such deposit relates, 
whichever day is earlier.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
where:
    (1) For taxable years beginning after December 31, 1969, and prior 
to January 1, 1971, an application for a capital construction fund 
agreement is filed by a taxpayer prior to January 1, 1972, and a capital 
construction fund agreement is executed and entered into by the taxpayer 
prior to March 1, 1972, and
    (2) For taxable years beginning after December 31, 1970, and prior 
to January 1, 1972, an application for a capital construction fund 
agreement is filed by a taxpayer prior to January 1, 1973, and a capital 
construction fund agreement is executed and entered into by the taxpayer 
prior to March 1, 1973 (or, if earlier, 60 days after the publication of 
final joint regulations under section 607 of the Merchant Marine Act, 
1936, as amended); then such a capital construction fund agreement will 
be deemed to be effective as of the close of business of the last 
regular business day of each such taxable year or years to which such 
deposit related.

[[Page 228]]

    (c)(1) Deposits made in a capital construction fund pursuant to such 
an agreement within 60 days after the date of execution of the 
agreement, or on or prior to the due date, with extensions, for the 
filing of his Federal income tax return for such taxable year or years, 
whichever date shall be later, shall be deemed to have been made on the 
date of the actual deposit or as of the close of business of the last 
regular business day of each such taxable year or years to which such 
deposit relates, whichever day is earlier.
    (2) Notwithstanding paragraph (c)(1) of this section, for taxable 
years beginning after December 31, 1970, and ending prior to January 1, 
1972, deposits made later than the last date permitted under paragraph 
(c)(1) of this section but on or before January 9, 1973, in a capital 
construction fund pursuant to an agreement with the Secretary of 
Commerce, acting by and through the Administrator of the National 
Oceanic and Atmospheric Administration, shall be deemed to have been 
made on the date of the actual deposit or as of the close of business of 
the last regular business day of such taxable year, whichever is 
earlier.
    (d) Nothing in this section shall alter the rules and regulations 
governing the timing of deposits with respect to existing capital and 
special reserve funds or with respect to the treatment of deposits for 
any taxable year or years other than a taxable year or years beginning 
after December 31, 1969, and before January 1, 1972.1
---------------------------------------------------------------------------

    1 The phrase ``existing capital and special reserve funds'' 
does not refer to the Capital Construction Fund program but rather to 
funds established with the Maritime Administration prior to the 
amendment of the Merchant Marine Act, 1936, which authorized the Capital 
Construction Fund program.

[37 FR 25025, Nov. 25, 1972, as amended at 38 FR 8163, Mar. 29, 1973]

                   Capital Construction Fund Agreement

    Source: Sections 259.30 to 259.38 appear at 39 FR 33675, Sept. 19, 
1974, unless otherwise noted.



Sec. 259.30  Application for Interim Capital Construction Fund Agreement (``Interim CCF Agreement'').

    (a) General qualifications. To be eligible to enter into an Interim 
CCF Agreement an applicant must:
    (1) Be a citizen of the United States (citizenship requirements are 
those for documenting vessels in the coastwise trade within the meaning 
of section 2 of the Shipping Act, 1916, as amended);
    (2) Own or lease one or more eligible vessels (as defined in section 
607(k)(1) of the Act) operating in the foreign or domestic commerce of 
the United States.
    (3) Have an acceptable program for the acquisition, construction, or 
reconstruction of one or more qualified vessels (as defined in section 
607(k)(2) of the Act). Qualified vessels must be for commercial 
operation in the fisheries of the United States. If the qualified vessel 
is 5 net tons or over, it must be documented in the fisheries of the 
United States. Dual documentation in both the fisheries and the 
coastwise trade of the United States is permissible. Any vessel which 
will carry fishing parties for hire must be inspected and certified 
(under 46 CFR part 176) by the U.S. Coast Guard as qualified to carry 
more than six passengers or demonstrate to the Secretary's satisfaction 
that the carrying of fishing parties for hire will constitute its 
primary activity. The program must be a firm representation of the 
applicant's actual intentions. Vague or contingent objectives will not 
be acceptable.
    (b) Content of application. Applicants seeking an Interim CCF 
Agreement may make application by letter providing the following 
information:
    (1) Proof of U.S. citizenship;
    (2) The first taxable year for which the Interim CCF Agreement is to 
apply (see Sec. 259.33 for the latest time at which applications for an 
Interim CCF Agreement relating to a previous taxable year may be 
received);
    (3) The following information regarding each ``eligible vessel'' 
which is to be incorporated in Schedule A of the Interim CCF Agreement 
for purposes of making deposits into a CCF pursuant to section 607 of 
the Act:
    (i) Name of vessel,

[[Page 229]]

    (ii) Official number, or, in the case of vessels under 5 net tons, 
the State registration number where required,
    (iii) Type of vessel (i.e., catching vessel, processing vessel, 
transporting vessel, charter vessel, barge, passenger carrying fishing 
vessel, etc.),
    (iv) General characteristic (i.e., net tonnage, fish-carrying 
capacity, age, length, type of fishing gear, number of passengers 
carried or in the case of vessels operating in the foreign or domestic 
commerce the various uses of the vessel, etc.),
    (v) Whether owned or leased and, if leased, the name of the owner, 
and a copy of the lease,
    (vi) Date and place of construction,
    (vii) If reconstructed, date of redelivery and place of 
reconstruction,
    (viii) Trade (or trades) in which vessel is documented and date last 
documented,
    (ix) If a fishing vessel, the fishery of operation (which in this 
section means each species or group of species--each species must be 
specifically identified by acceptable common names--of fish, shellfish, 
or other living marine resources which each vessel catches, processes, 
or transports or will catch, process, or transport for commercial 
purposes such as marketing or processing the catch),
    (x) If a fishing vessel, the area of operation (which for fishing 
vessels means the general geographic areas in which each vessel will 
catch, process, or transport, or charter for each species or group of 
species of fish, shellfish, or other living marine resources).
    (4) The specific objectives to be achieved by the accumulation of 
assets in a Capital Construction Fund (to be incorporated in Schedule B 
of the Interim CCF Agreement) including:
    (i) Number of vessels,
    (ii) Type of vessel (i.e., catching, processing, transporting, or 
passenger carrying fishing vessel),
    (iii) General characteristics (i.e., net tonnage, fish-carrying 
capacity, age, length, type of fishing gear, number of passengers 
carried),
    (iv) Cost of projects,
    (v) Amount of indebtedness to be paid for vessels to be constructed, 
acquired, or reconstructed (all notes, mortgages, or other evidences of 
the indebtedness must be submitted as soon as available, together with 
sufficient additional evidence to establish that full proceeds of the 
indebtedness to be paid from a CCF under an Interim CCF Agreement, were 
used solely for the purpose of the construction, acquisition, or 
reconstruction of Schedule B vessels),
    (vi) Date of construction, acquisition, or reconstruction,
    (vii) Fishery of operation (which in this section means each species 
or group of species--each species must be specifically identified by 
acceptable common name--of fish, shellfish, or other living marine 
resources),
    (viii) Area of operation (which in this section means the general 
geographic areas in which each vessel will will operate for each species 
or group of species of fish, shellfish, or other living marine 
resources).
    (c) Filing. The application must be signed and submitted in 
duplicate to the Regional Office of the National Marine Fisheries 
Service's Financial Assistance Division corresponding to the region in 
which the party conducts its business. As a general rule, the Interim 
CCF Agreement must be executed and entered into by the taxpayer on or 
prior to the due date, with extensions, for the filing of the Federal 
tax return in order to be effective for the tax year to which that 
return relates. It is manifestly in the Applicant's best interest to 
file at least 45 days in advance of such date.

[39 FR 33675, Sept. 19, 1974, as amended at 42 FR 65185, Dec. 30, 1978]



Sec. 259.31  Acquisition, construction, or reconstruction.

    (a) Acquisition. No vessel having previously been operated in a 
fishery of the United States prior to its acquisition by the party 
seeking CCF withdrawal therefor shall be a qualified vessel for the 
purpose of acquisition, except in the cases specified in paragraphs 
(a)(1) and (2) of this section:
    (1) A vessel not more than 5 years old, at the time of its 
acquisition by the party seeking CCF withdrawal therefor may be a 
qualified vessel for the purpose of acquisition, but only if each 
acquisition in this category becomes a Schedule A vessel and there

[[Page 230]]

exists for each acquisition in this category (on a one-for-one basis) an 
additional Schedule B construction or reconstruction. The sole 
consideration for permitting an acquisition in this category is that it 
will enable the party (but the Secretary will not attempt to 
predetermine such an ability) to accelerate accomplishment of the 
additional Schedule B construction or reconstruction. Should this 
consideration materially fail, the Secretary shall, at his discretion, 
disqualify previously qualified withdrawals in this category, seek 
liquidated damages as provided for in paragraph (a)(4) of this section 
and/or terminate the Interim CCF Agreement.
    (2) A vessel more than 5 years old, but not more than 25 years old 
(special showing required if more than 25 years old, see paragraph (b) 
of this section), at the time of acquisition by the party seeking CCF 
withdrawal therefor may be a qualified vessel for the purpose of 
acquisition, but only if that same vessel becomes a Schedule A vessel 
and (in addition to being a Schedule B vessel for the purpose of its 
acquisition) becomes a Schedule B vessel for the purpose of that same 
vessel's reconstruction to be accomplished ordinarily within 7 years 
from the date of acquisition. The sole consideration for permitting an 
acquisition in this category is that it will enable a party (but the 
Secretary will not attempt to predetermine such an ability) to 
accelerate accomplishment of the Schedule B reconstruction of the vessel 
so acquired. Should this consideration materially fail, the same penalty 
prescribed in paragraph (a)(1) of this section applies.
    (3) Reserved for minimum deposits under this section.
    (4) Reserved for liquidated damages.
    (b) Reconstruction. No reconstruction project costing less than 
$100,000 shall qualify a vessel for reconstruction, unless the 
reconstruction project costs, or will cost, 20 percent or more of the 
reconstructed vessel's acquisition cost (in its unreconstructed state) 
to the party seeking CCF withdrawal therefor. If the reconstruction 
project meets the $100,000 test, then the 20 percent test does not 
apply. Conversely, if the reconstruction project does not meet the 
$100,000 test, then the 20 percent test applies.
    (1) Reconstruction may include rebuilding, replacing, 
reconditioning, converting and/or improving any portion of a vessel. A 
reconstruction project must, however, substantially prolong the useful 
life of the reconstructed vessel, increase its value, or adapt it to a 
different commercial use in the fishing trade or industry.
    (2) All, or the major portion (ordinarily, not less than 80 
percent), of a reconstruction project's actual cost must (for the 
purpose of meeting the above dollar or percentage tests) be classifiable 
as a capital expenditure for Internal Revenue Service (IRS) purposes. 
That otherwise allowable (i.e., for the purpose of meeting the above 
dollar or percentage tests) portion of a reconstruction project's actual 
cost which is not classifiable as a capital expenditure shall, however, 
be excluded from the amount qualified for withdrawal as a result of the 
reconstruction project.
    (3) No vessel more than 25 years old at the time of withdrawal or 
request for withdrawal shall be a qualified vessel for the purpose of 
reconstruction unless a special showing is made, to the Secretary's 
discretionary satisfaction, that the type and degree of reconstruction 
intended will result in an efficient and productive vessel with an 
economically useful life at least 10 years beyond the date 
reconstruction is completed.
    (c) Time permitted for construction or reconstruction. Construction 
or reconstruction must be completed within 18 months from the date 
construction or reconstruction first commences, unless otherwise 
consented to by the Secretary.
    (d) Energy saving improvements. An improvement made to a vessel to 
conserve energy shall, regardless of cost, be treated as a 
reconstruction for the purpose of qualifying a CCF withdrawal for such 
expenditure and shall be exempted from having to meet conditional 
fishery requirements for reconstruction as set forth in Sec. 259.32 and 
from all qualifying tests for reconstruction set forth in paragraph (b) 
of this section with the following exceptions:

[[Page 231]]

    (1) An energy saving improvement shall be required to meet both 
conditional fishery requirements and the qualifying tests for 
reconstruction if it serves the dual purpose of saving energy and 
meeting the reconstruction requirement of paragraph (a) of this section 
for qualifying a withdrawal for the acquisition of a used vessel.
    (2) That portion of the actual cost of an energy saving improvement 
which is to be paid for from the CCF must be classifiable and treated as 
a capital expenditure for Internal Revenue Service purposes.
    (e) Safety projects. The acquisition and installation of safety 
equipment for a qualified vessel and vessel modifications whose central 
purpose is materially increasing the safety of a qualified vessel or the 
acquisition and installation of equipment required by law or regulation 
that materially increases the safety of a qualified vessel shall, 
regardless of cost, be treated as reconstruction for the purpose of 
qualifying a CCF withdrawal for such expenditure, shall be exempt from 
having to meet conditional fishery requirements for reconstruction as 
set forth in Sec. 259.32, and shall be exempt from all qualifying tests 
for reconstruction set forth in paragraph (b) of this section, with the 
following exceptions:
    (1) A safety improvement shall be required to meet both conditional 
fishery requirements and all qualifying tests for reconstruction if it 
serves the dual purpose of safety and meeting the reconstruction 
requirement of paragraph (a) of this section for qualifying a withdrawal 
for the acquisition of a used vessel;
    (2) That portion of the actual cost of a safety improvement that is 
to be paid for from the CCF must be classifiable and treated as a 
capital expenditure for Internal Revenue Service purposes;
    (3) Safety improvement projects whose clear and central purpose is 
restricted to complying with the requirements of the Commercial Fishing 
Industry Vessel Safety Act of 1988 (Public Law 100-424 Sec. 1, 102 stat. 
1585 (1988) (codified in scattered sections of 46 U.S.C.)) shall, 
without further documentation, be considered to fall within this 
paragraph (e). Satisfactory documentation will be required for all other 
projects proposed to be considered as falling within this paragraph (e). 
Projects not required by law or regulation whose central purpose clearly 
involves something other than an improvement that materially increases 
the safety of a vessel will not be considered to fall within this 
paragraph (e).

[39 FR 33675, Sept. 19, 1974, as amended at 46 FR 54563, Nov. 3, 1981; 
62 FR 331, Jan. 3, 1997]



Sec. 259.32  Conditional fisheries.

    (a) The Secretary may from time-to-time establish certain fisheries 
in which CCF benefits will be restricted. The regulatory mechanism for 
so doing is part 251 of this chapter. Each fishery so restricted is 
termed a ``conditional fishery''. Subpart A of part 251 of this chapter 
establishes the procedure to be used by the Secretary in proposing and 
adopting a fishery as a conditional fishery. Subpart B of part 251 of 
this chapter enumerates each fishery actually adopted as a conditional 
fishery (part 251 of this chapter should be referred to for details). 
The purpose of this Sec. 259.32 is to establish the effect of 
conditional fishery adoption upon Interim CCF Agreements.
    (b) If a written request for an otherwise permissible action under 
an Interim CCF Agreement is submitted prior to the date upon which 
conditional fishery adoption occurs, then the Secretary will act, in an 
otherwise normal manner, upon so much of the action then applied for as 
is then permissible without regard to the subsequent adoption of a 
conditional fishery (even, if that adoption occurs before the Secretary 
gives his consent or issues an Interim CCF Agreement or amendment 
thereto, all as the case may be). Nevertheless, the conditions as set 
forth in paragraph (d) of this section shall apply.
    (c) If a written request for an otherwise permissible action under 
an Interim CCF Agreement, or an application for an Interim CCF 
Agreement, is submitted after the date upon which conditional fishery 
adoption occurs, then the Secretary will act, in an otherwise normal 
manner, upon so much of the action then applied for as is then 
permissible without regard to the previous adoption of a conditional 
fishery

[[Page 232]]

provided, however, that this paragraph shall apply only to construction 
or reconstruction for which a binding contract has been reduced to 
writing prior to the date upon which conditional fishery adoption 
occurred. Nevertheless, the conditions as set forth in paragraph (d) of 
this section shall apply.
    (d) Conditional fishery adoption shall have no effect whatsoever 
upon a Schedule B objective whose qualification for withdrawal (which 
may be in an amount equal to the total cost over time of a Schedule B 
objective, i.e., a series of withdrawals) has been, prior to the date of 
conditional fishery adoption, either consented to by the Secretary or 
requested in accordance with paragraph (b) or (c) of this section. This 
extends to past, present, and future withdrawals in an amount 
representing up to 100 percent of the cost of a Schedule B objective. 
Commencement of any project in these categories shall, however, be 
started not later than 6 months from the date of conditional fishery 
adoption and shall be completed within 24 months from the date of 
conditional fishery adoption, unless for good and sufficient cause shown 
the Secretary, at his discretion, consents to a longer period for either 
project commencement or completion. Consent to the qualification of 
withdrawal for any project in these categories not commenced or 
completed within the periods allowed shall be revoked at the end of the 
periods allowed.
    (e) Conditional fishery adoption shall have no effect whatsoever 
upon Schedule B objectives which will not result in significantly 
increasing harvesting capacity in a fishery adopted as a conditional 
fishery.
    (1) Construction of a new vessel (vessel ``Y'') for operation in an 
adopted conditional fishery shall be deemed to significantly increase 
harvesting capacity in that fishery unless the party causing the ``Y'' 
vessel to be constructed causes (within 1 year after the delivery of 
vessel ``Y'') to be permanently removed from all fishing, or placed 
permanently in a fishery not then adopted as a conditional fishery, 
under such conditions as the Secretary may deem necessary or desirable, 
a vessel (vessel ``Z'') which has during the previous 18 months operated 
substantially in the same fishery as the ``Y'' vessel and which has a 
fishing capacity substantially equivalent to the ``Y'' vessel. Failure 
to remove a vessel could subject all withdrawals to be treated as 
nonqualified and may be cause for termination of the CCF. What 
constitutes substantially equivalent fishing capacity shall be a matter 
for the Secretary's discretion. Ordinarily, in exercising his discretion 
about what does or does not constitute substantially equivalent fishing 
capacity, the Secretary will take into consideration (i) the average 
size of vessels constructed for the adopted conditional fishery in 
question at the time vessel ``Z'' was constructed (or, if constructed 
for a different fishery, the average size of vessels in the adopted 
conditional fishery at the time vessel ``Z'' entered it), (ii) the 
average size of vessels constructed for the adopted conditional fishery 
at the time vessel ``Y'' was or will be constructed, and (iii) such 
other factors as the Secretary may deem material and equitable, 
including the length of time the party had owned or leased vessel ``Z'' 
and the length of time the vessel has operated in the conditional 
fishery. The Secretary will consider these factors, and exercise his 
discretion, in such a way as to encourage use of this program by 
established fishermen who have owned or leased for substantial periods 
vessels which need to be replaced, even though a ``Z'' vessel may have 
been constructed at a time which dictated a lesser fishing capacity than 
dictated for a ``Y'' vessel at the time of its construction.
    (2) Acquisition and/or reconstruction of a used vessel for operation 
in an adopted conditional fishery shall be deemed to significantly 
increase harvesting capacity in that fishery unless the vessel to be 
acquired and/or reconstructed had during the previous 3 years operated 
substantially in the same fishery as the adopted conditional fishery in 
which it will operate after acquisition and/or reconstruction. If less 
than 3 years, then acquisition and/or reconstruction of a used vessel 
for operation in an adopted conditional fishery shall be deemed to 
significantly increase harvesting capacity in that

[[Page 233]]

fishery unless there occurs vessel removal or permanent placement 
elsewhere under the same conditions specified for construction in 
paragraph (e)(1) of this section.
    (3) Construction of a new vessel or the acquisition and/or 
reconstruction of a used vessel for operation in an adopted conditional 
fishery shall not be deemed to significantly increase the harvesting 
capacity where the vessel constructed, acquired and/or reconstructed 
replaces another vessel which was lost or destroyed and which had, 
immediately prior to the loss or destruction, operated in the same 
fishery as the adopted conditional fishery, provided, however, that the 
fishing capacity of the replacement vessel has a fishing capacity 
substantially equivalent to the vessel lost or destroyed and that the 
construction, acquisition and/or reconstruction is completed within 2 
years after the close of the taxable year in which the loss or 
destruction occurred. The Secretary may, at his discretion, and for good 
and sufficient cause shown, extend the replacement period, provided that 
the request for extension of time to replace is timely filed with the 
Secretary
    (f) Conditional fishery adoption shall have the following effect on 
all Schedule B objectives (whether for acquisition, construction, or 
reconstruction) which the Secretary deems to significantly increase 
harvesting capacity in that fishery, excluding those circumstances 
specifically exempted by paragraphs (b) through (e) of this section 
(which shall be governed by the provisions of paragraphs (b) through (e) 
of this section).
    (1) The Secretary may nevertheless consent to the qualification of 
withdrawal, but only up to an amount not exceeding the total of eligible 
ceilings actually deposited during tax years other than the taxable year 
in which conditional fishery adoption occurs plus a pro-rata portion of 
eligible ceilings generated in the tax year in which conditional fishery 
adoption occurs. Pro-ration shall be according to the number of months 
or any part thereof in a party's tax year which elapse before the 
adoption of the conditional fishery occurs. For example, if a party's 
tax year runs from January 1, 1974, to December 31, 1974, and 
conditional fishery adoption occurs on August 15, 1974, (i.e., during 
the 8th month of the party's tax year), then the pro-rata portion for 
that year is eight-twelfths of the total eligible ceilings generated 
during that year.
    (2) Qualified withdrawals in excess of the amount specified in 
paragraph (f)(1) of this section shall not, during the continuance of 
the adopted conditional fishery, be consented to. Parties at this point 
shall have the following option:
    (i) Make, with the Secretary's consent, a nonqualified withdrawal of 
the excess and discontinue the future deposit of eligible ceilings 
(which may effect termination of the Interim CCF Agreement).
    (ii) Reserve the excess, as well as the future deposit of eligible 
ceilings, for a Schedule B objective not then involving an adopted 
conditional fishery. If amendment of an Interim CCF Agreement is 
necessary in order to include a Schedule B objective not then involving 
an adopted conditional fishery, the party may, with the Secretary's 
consent, make the necessary amendment.
    (iii) Reserve the excess, as well as the future deposit of eligible 
ceilings, for a Schedule B objective involving a then adopted 
conditional fishery in anticipation that the then adopted conditional 
fishery will eventually be disadopted, in which case all deposits of 
eligible ceilings will once again be eligible for the Secretary's 
consent as qualified withdrawals. If the adoption of a conditional 
fishery continues for a substantial length of time and there is no 
forseeable prospect of disadoption, then the Secretary, in his 
discretion, may require paragraph (f)(2)(i) or (ii) of this section to 
be effected.
    (g) The Secretary shall neither enter into a new Interim CCF 
Agreement, nor permit amendment of an existing one, which involves a 
Schedule B objective in a then adopted conditional fishery unless 
paragraph (b), (c) or (d) of this Sec. 259.32 applies or unless the 
Schedule B objective is expressly conditioned upon acquisition 
construction, or reconstruction of the type permitted under paragraph 
(e) of this Sec. 259.32. Such an express condition would not survive 
beyond the time at which conditional fishery status is removed.

[[Page 234]]



Sec. 259.33  Constructive deposits and withdrawals; ratification of withdrawals (as qualified) made without first having obtained Secretary's consent; first tax 
          year for which Interim CCF Agreement is effective.

    (a) Periods controlling permissibility. For the purpose of this 
Sec. 259.33, the period between the beginning and the end of a party's 
tax year is designated ``Period (aa)''; the period between the end of a 
party's tax year and the party's tax due date for that tax year is 
designated ``Period (bb)''; the period between the party's tax due date 
and the date on which ends the party's last extension (if any) of that 
tax due date is designated ``Period (cc)''.
    (b) Constructive deposits and withdrawals (before Interim CCF 
Agreement effectiveness date). Constructive deposits and withdrawals 
shall be permissible only during the Period (aa) during which a written 
application for an interim CCF Agreement is submitted to the Secretary 
and so much of the next succeeding Period (aa), if any, which occurs 
before the Secretary executes the Interim CCF Agreement previously 
applied for. All otherwise qualified expenditures of eligible ceilings 
during Period (aa) may be consented to by the Secretary as constructive 
deposits and withdrawals: Provided, The applicant's application for an 
Interim CCF Agreement and for consent to constructive deposit and 
withdrawal qualification (together with sufficient supporting data to 
enable the Secretary's execution or issuance of consent) is submitted to 
the Secretary either before the end of Period (bb) or, if extension was 
requested and received, before the end of Period (cc). If, however, the 
Secretary receives the completed application in proper form so close to 
the latest permissible period that the Interim CCF Agreement cannot be 
executed and/or the consent given before the end of Period (bb) or 
Period (cc), whichever applies, then the burden is entirely upon the 
applicant to negotiate with the Internal Revenue Service (IRS) for such 
relief as may be available (e.g., filing an amended tax return, if 
appropriate). The Secretary willl nevertheless execute the Interim CCF 
Agreement and issue his consent however long past the applicant's Period 
(bb) or Period (cc), whichever applies, the Secretary's administrative 
workload requires. Should IRS relief be, for any reason, unavailable, 
the Secretary shall regard the same as merely due to the applicant's 
having failed to apply in a more timely fashion.
    (c) Constructive deposits (after Interim CCF Agreement effectiveness 
date). The Secretary shall not permit constructive deposits or 
withdrawals after the effective date of an Interim CCF Agreement. 
Eligible ceilings must, after the effective date of an interim CCF 
Agreement, be physically deposited in money or kind in scheduled 
depositories before the last date eligible ceilings for any Period (aa) 
of any party become ineligible for deposit (the last date being Period 
(bb) or Period (cc), whichever applies).
    (d) Ratification of withdrawals (as qualified) made without first 
having obtained Secretary's consent. The Secretary may ratify as 
qualified any withdrawal made without first having obtained the 
Secretary's consent therefor, provided the withdrawal was such as would 
have resulted in the Secretary's consent had it been requested before 
withdrawal, and provided further that the party's request for consent 
(together with sufficient supporting data to enable issuance of the 
Secretary's consent) is submitted to the Secretary either before the end 
of Period (bb) or, if extension was requested and received, before the 
end of Period (cc).
    (1) If, however, the Secretary receives the request in proper form 
so close to the latest permissible period that the consent cannot be 
given before expiration of Period (bb) or Period (cc), whichever 
applies, then the burden is entirely upon the party to negotiate with 
IRS for such relief as may be available (e.g., filing an amended tax 
return, if appropriate). The Secretary will nevertheless issue his 
consent however long past the party's Period (bb) or Period (cc), 
whichever applies, the Secretary's administrative workload requires. 
Should IRS relief be, for any reason, unavailable, the Secretary shall 
regard the same as merely due to the party's having failed to apply in a 
more timely fashion.

[[Page 235]]

    (2) All parties shall be counseled that it is manifestly in their 
best interest to request the Secretary's consent 45 days in advance of 
the expected date of withdrawal. Withdrawals made without the 
Secretary's consent, in reliance on obtaining the Secretary's consent, 
are made purely at a party's own risk. Should any withdrawal made 
without the Secretary's consent prove, for any reason, to be one to 
which the Secretary will not or cannot consent by ratification, then the 
result will be either, or both, at the Secretary's discretion, an 
unqualified withdrawal or an involuntary termination of the Interim CCF 
Agreement.
    (3) Should the withdrawal made without having first obtained the 
Secretary's consent be made in pursuance of a project not then an 
eligible Schedule B objective, then the Secretary may entertain an 
application to amend the Interim CCF Agreement's Schedule B objectives 
as the prerequisite to consenting by ratification to the withdrawal, all 
under the same time constraints and conditions as otherwise specified 
herein.
    (4) Any withdrawals made, after the effective date of an Interim CCF 
Agreement, without the Secretary's consent are automatically non-
qualified withdrawals unless the Secretary subsequently consents to them 
by ratification as otherwise specified herein.
    (5) Redeposit of that portion of the ceiling withdrawn without the 
Secretary's consent, and for which such consent is not subsequently 
given (either by ratification or otherwise), shall not be permitted. If 
such a non-qualified withdrawal adversely affects the Interim CCF 
Agreement's general status in any wise deemed by the Secretary, at his 
discretion, to be significant and material, the Secretary may 
involuntarily terminate the Interim CCF Agreement.
    (e) First tax year for which Interim CCF Agreement is effective. An 
Agreement, to be effective for any party's Period (aa), must be executed 
and entered into by the party, and submitted to the Secretary, before 
the end of Period (bb) or Period (cc), whichever applies, for such 
Period (aa). If executed and entered into by the party, and/or received 
by the Secretary, after the end of Period (bb) or Period (cc), whichever 
applies, then the Agreement will be first effective for the next 
succeeding Period (aa).
    (1) If, however, the Secretary receives an Agreement executed and 
entered into by the party in proper form so close to the latest 
permissible period that the Secretary cannot execute the Agreement 
before expiration of Period (bb) or Period (cc), whichever applies, then 
the burden is entirely upon the party to negotiate with IRS for such 
relief as may be available (e.g., filing an amended tax return, if 
appropriate). The Secretary will nevertheless execute the Agreement 
however long past the party's Period (bb) or Period (cc), whichever 
applies, the Secretary's administrative workload requires. Should IRS 
relief be, for any reason, unavailable, the Secretary shall regard the 
same as merely due to the party's having failed to apply in a more 
timely manner.
    (2) All parties shall be counseled that it is manifestly in their 
best interest to enter into and execute an Agreement, and submit the 
same to the Secretary, at least 45 days in advance of the Period (bb) or 
Period (cc), whichever applies, for the Period (aa) for which the 
Agreement is first intended to be effective.



Sec. 259.34  Minimum and maximum deposits; maximum time to deposit.

    (a) Minimum annual deposit. The minimum annual (based on each 
party's taxable year) deposit required by the Secretary in order to 
maintain an Interim CCF Agreement shall be an amount equal to 2 percent 
of the total anticipated cost of all Schedule B objectives unless such 2 
percent exceeds during any tax year 50 percent of a party's Schedule A 
taxable income, in which case the minimum deposit for that year shall be 
50 percent of the party's Schedule A taxable income.
    (1) Minimum annual deposit compliance shall be audited at the end of 
each party's taxable year unless any one or more of the Schedule B 
objectives is scheduled for commencement more than 3 taxable years in 
advance of the taxable year in which the agreement is

[[Page 236]]

effected, in which case minimum annual deposit compliance shall be 
audited at the end of each 3 year taxable period. In any taxable year, a 
Party may apply any eligible amount in excess of the 2 percent minimum 
annual deposit toward meeting the party's minimum annual deposit 
requirement in past or future years: Provided, however, At the end of 
each 3 year period, the aggregate amount in the fund must be in 
compliance with 2 percent minimum annual deposit rule (unless the 50 
percent of taxable income situation applies).
    (2) The Secretary may, at his discretion and for good and sufficient 
cause shown, consent to minimum annual deposits in any given tax year or 
combination of tax years in an amount lower than prescribed herein: 
Provided, The party demonstrates to the Secretary's satisfaction the 
availability of sufficient funds from any combination of sources to 
accomplish Schedule B objectives at the time they are scheduled for 
accomplishment.
    (b) Maximum deposits. Other than the maximum annual ceilings 
established by the Act, the Secretary shall not establish a maximum 
annual ceiling: Provided, however, That deposits can no longer be made 
once a party has deposited 100 percent of the anticipated cost of all 
Schedule B objectives, unless the Interim CCF Agreement is then amended 
to establish additional Schedule B objectives.
    (c) Maximum time to deposit. Ten years shall ordinarily be the 
maximum time the Secretary shall permit in which to accumulate deposits 
prior to commencement of any given Schedule B objective. A time longer 
than 10 years, either by original scheduling or by subsequent extension 
through amendment, may, however, be permitted at the Secretary's 
discretion and for good and sufficient cause shown.



Sec. 259.35  Annual deposit and withdrawal reports required.

    (a) The Secretary will require from each Interim CCF Agreement 
holder (Party) the following annual deposit and withdrawal reports. 
Failure to submit such reports may be cause for involuntary termination 
of CCF Agreements.
    (1) A preliminary deposit and withdrawal report at the end of each 
calendar year, which must be submitted not later than 45 days after the 
close of the calendar year. The report must give the amounts withdrawn 
from and deposited into the party's CCF during the subject year, and be 
in letter form showing the agreement holder's name, FVCCF identification 
number, and taxpayer identification number. Each report must bear 
certification that the deposit and withdrawal information given includes 
all deposit and withdrawal activity for the year and the account 
reported. Negative reports must be submitted in those cases where there 
is no deposit and/or withdrawal activity. If the party's tax year is the 
same as the calendar year, and if the final deposit and withdrawal 
report required under paragraph (a)(2) of this section is submitted 
before the due date for this preliminary report, then this report is not 
required.
    (2) A final deposit and withdrawal report at the end of the tax 
year, which shall be submitted not later than 30 days after expiration 
of the due date, with extensions (if any), for filing the party's 
Federal income tax return. The report must be made on a form prescribed 
by the Secretary using a separate form for each FVCCF depository. Each 
report must bear certification that the deposit and withdrawal 
information given includes all deposit and withdrawal activity for the 
year and account reported. Negative reports must be submitted in those 
cases where there is no deposit and/or withdrawal activity.
    (b) Failure to submit the required annual deposit and withdrawal 
reports shall be cause after due notice for either, or both, 
disqualification of withdrawals or involuntary termination of the 
Interim CCF Agreement, at the Secretary's discretion.
    (c) Additionally, the Secretary shall require from each Interim CCF 
Agreement holder, not later than 30 days after expiration of the party's 
tax due date, with extensions (if any), a copy of the party's Federal 
Income Tax Return filed with IRS for the preceding tax year. Failure to 
submit shall after due notice be cause for the same adverse

[[Page 237]]

action specified in the paragraph above.

[39 FR 33675, Sept. 19, 1974, as amended at 48 FR 57302, Dec. 29, 1983; 
53 FR 35203, Sept. 12, 1988]



Sec. 259.36  CCF accounts.

    (a) General: Each CCF account in each scheduled depository shall 
have an account number, which must be reflected on the reports required 
by Sec. 259.35. All CCF accounts shall be reserved only for CCF 
transactions. There shall be no intermingling of CCF and non-CCF 
transactions and there shall be no pooling of 2 or more CCF accounts 
without prior consent of the Secretary. Safe deposit boxes, safes, or 
the like shall not be eligible CCF depositories without the Secretary's 
consent and then only under such conditions as the Secretary, in his 
discretion, prescribes.
    (b) Assignment: The use of Fund assets for transactions in the 
nature of a countervailing balance, compensating balance, pledge, 
assignment, or similar security arrangement shall constitute a material 
breach of the Agreement unless prior written consent of the Secretary is 
obtained.
    (c) Depositories: (1) Section 607(c) of the Act provides that 
amounts in a CCF must be kept in the depository or depositories 
specified in the Agreements and be subject to such trustee or other 
fiduciary requirements as the Secretary may specify.
    (2) Unless otherwise specified in the Agreement, the party may 
select the type or types of accounts in which the assets of the Fund may 
be deposited.
    (3) Non-cash deposits or investments of the Fund should be placed in 
control of a trustee under the following conditions:
    (i) The trustee should be specified in the Agreement;
    (ii) The trust instrument should provide that all investment 
restrictions stated in section 607(c) of the Act will be observed;
    (iii) The trust instrument should provide that the trustee will give 
consideration to the party's withdrawal requirements under the Agreement 
when investing the Fund;
    (iv) The trustee must agree to be bound by all rules and regulations 
which have been or will be promulgated governing the investment or 
management of the Fund.



Sec. 259.37  Conditional consents to withdrawal qualification.

    The Secretary may conditionally consent to the qualification of 
withdrawal, such consent being conditional upon the timely submission to 
the Secretary of such further proofs, assurances, and advices as the 
Secretary, in his discretion, may require. Failure of a party to comply 
with the conditions of such a consent within a reasonable time and after 
due notice shall, at the Secretary's discretion, be cause for either, or 
both, nonqualification of withdrawal or involuntary Interim CCF 
Agreement termination.



Sec. 259.38  Miscellaneous.

    (a) Wherever the Secretary prescribes time constraints herein for 
the submission of any CCF transactions, the postmark date shall control 
if mailed or, if personally delivered, the actual date of submission. 
All required materials may be submitted to any Financial Assistance 
Division office of the National Marine Fisheries Service.
    (b) All CCF information received by the Secretary shall be held 
strictly confidential, except that it may be published or disclosed in 
statistical form provided such publication does not disclose, directly 
or indirectly, the identity of any fundholder.
    (c) While recognizing that precise regulations are necessary in 
order to treat similarly situated parties similarly, the Secretary also 
realizes that precision in regulations can often cause inequitable 
effects to result from unavoidable, unintended, or minor discrepancies 
between the regulations and the circumstances they attempt to govern. 
The Secretary will, consequently, at his discretion, as a matter of 
privilege and not as a matter of right, attempt to afford relief to 
parties where literal application of the purely procedural, as opposed 
to substantive, aspects of these regulations would otherwise work an 
inequitable hardship. This privilege will be sparingly granted and no 
party should before the fact attempt to act in reliance on its being 
granted after the fact.

[[Page 238]]

    (d) These Secs. 259.30 through 259.38 are applicable absolutely to 
all Interim CCF Agreements first entered into (or the amendment of all 
then existing Interim CCF Agreements, which amendment is first entered 
into) on or after the date these Secs. 259.30 through 259.38 are 
adopted. These Secs. 259.30 through 259.38 are applicable to all Interim 
CCF Agreements entered into before the date these Secs. 259.30 through 
259.38 are adopted, with the following exceptions only:
    (1) The vessel age limitations imposed by Sec. 259.31 shall not 
apply to already scheduled Schedule B objectives.
    (2) The minimum deposits imposed by Sec. 259.34 shall not apply to 
any party's tax year before that party's tax year next following the one 
in which these Secs. 259.30 through 259.38 are adopted.
    (e) These Secs. 259.30 through 259.38 are specifically incorporated 
in all past, present, and future Interim CCF Agreements by reference 
thereto made in Whereas Clause number 2 of all such Interim CCF 
Agreements.

[[Page 239]]



 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS





PART 260--INSPECTION AND CERTIFICATION--Table of Contents




 Subpart A--Inspection and Certification of Establishments and Fishery 
                     Products for Human Consumption

Sec.
260.1  Administration of regulations.

                               Definitions

260.6  Terms defined.
260.7  Designation of official certificates, memoranda, marks, other 
          identifications, and devices for purposes of the Agricultural 
          Marketing Act.

                           Inspection Service

260.12  Where inspection service is offered.
260.13  Who may obtain inspection service.
260.14  How to make application.
260.15  Information required in connection with application.
260.16  Filing of application.
260.17  Record of filing time.
260.18  When application may be rejected.
260.19  When application may be withdrawn.
260.20  Disposition of inspected sample.
260.21  Basis of inspection and grade or compliance determination.
260.22  Order of inspection service.
260.23  Postponing inspection service.
260.24  Financial interest of inspector.
260.25  Forms of certificates.
260.26  Issuance of certificates.
260.27  Issuance of corrected certificates.
260.28  Issuance of an inspection report in lieu of an inspection 
          certificate.
260.29  Disposition of inspection certificates.
260.30  Report of inspection results prior to issuance of formal report.

                            Appeal Inspection

260.36  When appeal inspection may be requested.
260.37  Where to file for an appeal inspection and information required.
260.38  When an application for an appeal inspection may be withdrawn.
260.39  When appeal inspection may be refused.
260.40  Who shall perform appeal inspection.
260.41  Appeal inspection certificate.

                  Licensing of Samplers and Inspectors

260.47  Who may become licensed sampler.
260.48  Application to become a licensed sampler.
260.49  Inspectors.
260.50  Suspension or revocation of license of licensed sampler or 
          licensed inspector.
260.51  Surrender of license.

                                Sampling

260.57  How samples are drawn by inspectors or licensed samplers.
260.58  Accessibility for sampling.
260.59  How officially drawn samples are to be identified.
260.60  How samples are to be shipped.
260.61  Sampling plans and procedures for determining lot compliance.
260.62  Issuance of certificate of sampling.
260.63  Identification of lots sampled.

                            Fees and Charges

260.69  Payment fees and charges.
260.70  Schedule of fees.
260.71  [Reserved]
260.72  Fees for inspection service performed under cooperative 
          agreement.
260.73  Disposition of fees for inspections made under cooperative 
          agreement.
260.74  Fee for appeal inspection.
260.76  [Reserved]
260.77  Fees for score sheets.
260.78  Fees for additional copies of inspection certificates.
260.79  Travel and other expenses.
260.80  Charges for inspection service on a contract basis.
260.81  Readjustment and increase in hourly rates of fees.

                              Miscellaneous

260.84  Policies and procedures.
260.86  Approved identification.
260.88  Political activity.
260.90  Compliance with other laws.
260.91  Identification.
260.93  Debarment and suspension.

   Requirements for Plants Operating Under Continuous Inspection on a 
                             Contract Basis

260.96  Application for fishery products inspection service on a 
          contract basis at official establishments.
260.97  Conditions for providing fishery products inspection service at 
          official establishments.
260.98  Premises.
260.99  Buildings and structures.
260.100  Facilities.
260.101  Lavatory accommodations.
260.102  Equipment.

[[Page 240]]

260.103  Operations and operating procedures shall be in accordance with 
          an effective sanitation program.
260.104  Personnel.

                          Labeling Requirements

260.200-260.201  [Reserved]

    Authority: Sec. 6, 70 Stat. 1122, 16 U.S.C. 742e; secs. 203, 205, 60 
Stat. 1087, 1090 as amended; 7 U.S.C. 1622, 1624; Reorganization Plan 
No. 4 of 1970 (84 Stat. 2090).

    Source: 31 FR 16052, Dec. 15, 1966, unless otherwise noted.



 Subpart A--Inspection and Certification of Establishments and Fishery 
                     Products for Human Consumption



Sec. 260.1  Administration of regulations.

    The Secretary of Commerce is charged with the administration of the 
regulations in this part except that he may delegate any or all of such 
functions to any officer or employee of the National Marine Fisheries 
Service of the Department in his discretion.1
---------------------------------------------------------------------------

    1 All functions of the Department of Agriculture which pertain 
to fish, shellfish, and any products thereof, now performed under the 
authority of title II of the Act of August 14, 1946, popularly known as 
the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627) 
including but not limited to the development and promulgation of grade 
standards, the inspection and certification, and improvement of 
transportation facilities and rates for fish and shellfish and any 
products thereof, were transferred to the Department of the Interior by 
the Director of the Budget (23 FR 2304) pursuant to section 6(a) of the 
Act of Aug. 8, 1956, popularly known as the Fish and Wildlife Act of 
1956 (16 U.S.C. 742e). Reorganization Plan No. 4 of 1970 (84 Stat. 2090) 
transferred, among other things, such functions from the U.S. Department 
of the Interior to the U.S. Department of Commerce.

[36 FR 21037, Nov. 3, 1971]

                               Definitions



Sec. 260.6  Terms defined.

    Words in the regulations in this part in the singular form shall be 
deemed to import the plural and vice versa, as the case may demand. For 
the purposes of the regulations in this part, unless the context 
otherwise requires, the following terms shall have the following 
meanings:
    Acceptance number. ``Acceptance number'' means the number in a 
sampling plan that indicates the maximum number of deviants permitted in 
a sample of a lot that meets a specific requirement.
    Act. ``Act'' means the applicable provisions of the Agricultural 
Marketing Act of 1946 (60 Stat. 1087 et seq., as amended; 7 U.S.C. 1621 
et seq.).
    Applicant. ``Applicant'' means any interested party who requests 
inspection service under the regulations in this part.
    Case. ``Case'' means the number of containers (cased or uncased) 
which, by the particular industry are ordinarily packed in a shipping 
container.
    Certificate of loading. ``Certificate of loading'' means a 
statement, either written or printed, issued pursuant to the regulations 
in this part, relative to check-loading of a processed product 
subsequent to inspection thereof.
    Certificate of sampling. ``Certificate of sampling'' means a 
statement, either written or printed issued pursuant to the regulations 
in this part, identifying officially drawn samples and may include a 
description of condition of containers and the condition under which the 
processed product is stored.
    Class. ``Class'' means a grade or rank of quality.
    Condition. ``Condition'' means the degree of soundness of the 
product which may affect its merchantability and includes, but is not 
limited to those factors which are subject to change as a result of age, 
improper preparation and processing, improper packaging, improper 
storage, or improper handling.
    Department. ``Department'' means the U.S. Department of Commerce.
    Deviant. ``Deviant'' means a sample unit affected by one or more 
deviations or a sample unit that varies in a specifically defined manner 
from the requirements of a standard, specification, or other inspection 
document.
    Deviation. ``Deviation'' means any specifically defined variation 
from a particular requirement.
    Director. ``Director'' means the Director of the National Marine 
Fisheries Service.

[[Page 241]]

    Establishment. ``Establishment'' means any premises, buildings, 
structures, facilities, and equipment (including vehicles) used in the 
processing, handling, transporting, and storage of fish and fishery 
products.
    Inspection certificate. ``Inspection certificate'' means a 
statement, either written or printed, issued pursuant to the regulations 
in this part, setting forth in addition to appropriate descriptive 
information relative to a processed product, and the container thereof, 
the quality and condition, or any part thereof, of the product and may 
include a description of the conditions under which the product is 
stored.
    Inspection service. ``Inspection service'' means:
    (1) The sampling pursuant to the regulations in this part;
    (2) The determination pursuant to the regulations in this part of:
    (i) Essential characteristics such as style, type, size, or identity 
of any processed product which differentiates between major groups of 
the same kind;
    (ii) The class, quality, and condition of any processed product, 
including the condition of the container thereof by the examination of 
appropriate samples;
    (3) The issuance of any certificate of sampling, inspection 
certificates, or certificates of loading of a processed product, or any 
report relative to any of the foregoing; or
    (4) Performance by an inspector of any related services such as to 
observe the preparation of the product from its raw state through each 
step in the entire process; or observe conditions under which the 
product is being harvested, prepared, handled, stored, processed, 
packed, preserved, transported, or held; or observe sanitation as a 
prerequisite to the inspection of the processed product, either on a 
contract basis or periodic basis; or checkload the inspected processed 
product in connection with the marketing of the product, or any other 
type of service of a consultative or advisory nature related herewith.
    Inspector. ``Inspector'' means any employee of the Department 
authorized by the Secretary or any other person licensed by the 
Secretary to investigate, sample, inspect, and certify in accordance 
with the regulations in this part to any interested party the class, 
quality and condition of processed products covered in this part and to 
perform related duties in connection with the inspection service.
    Interested party. ``Interested party'' means any person who has a 
financial interest in the commodity involved.
    Licensed sampler. ``Licensed sampler'' means any person who is 
authorized by the Secretary to draw samples of processed products for 
inspection service, to inspect for identification and condition of 
containers in a lot, and may, when authorized by the Secretary, perform 
related services under the act and the regulations in this part.
    Lot. ``Lot'' has the following meanings:
    (1) For the purpose of charging fees and issuing certificates, 
``Lot'' means any number of containers of the same size and type which 
contain a processed product of the same type and style located in the 
same or adjacent warehouses and which are available for inspection at 
any one time: Provided, That:
    (i) Processed products in separate piles which differ from each 
other as to grade or other factors may be deemed to be separate lots;
    (ii) Containers in a pile bearing an identification mark different 
from other containers of such processed product in that pile, if 
determined to be of lower grade or deficient in other factors, may be 
deemed to be a separate lot; and
    (iii) If the applicant requests more than one inspection certificate 
covering different portions of such processed product, the quantity of 
the product covered by each certificate shall be deemed to be a separate 
lot.
    (2) For the purpose of sampling and determining the grade or 
compliance with a specification, ``Lot'' means each pile of containers 
of the same size and type containing a processed product of the same 
type and style which is separated from other piles in the same 
warehouse, but containers in the same pile bearing an identification 
mark different from other containers in that

[[Page 242]]

pile may be deemed to be a separate lot.
    Official establishment. ``Official establishment'' means any 
establishment which has been approved by National Marine Fisheries 
Service, and utilizes inspection service on a contract basis.
    Officially drawn sample. ``Officiallydrawn sample'' means any sample 
that has been selected from a particular lot by an inspector, licensed 
sampler, or by any other person authorized by the Secretary pursuant to 
the regulations in this part.
    Person. ``Person'' means any individual, partnership, association, 
business trust, corporation, any organized group of persons (whether 
incorporated or not), the United States (including, but not limited to, 
any corporate agencies thereof), any State, county, or municipal 
government, any common carrier, and any authorized agent of any of the 
foregoing.
    Plant. ``Plant'' means the premises, buildings, structures, and 
equipment (including, but not being limited to, machines, utensils, and 
fixtures) employed or used with respect to the manufacture or production 
of processed products.
    Processed product. ``Processed product'' means any fishery product 
or other food product covered under the regulations in this part which 
has been preserved by any recognized commercial process, including, but 
not limited to, canning, freezing, dehydrating, drying, the addition of 
chemical substances, or by fermentation.
    Quality. ``Quality'' means the inherent properties of any processed 
product which determine the relative degree of excellence of such 
product, and includes the effects of preparation and processing, and may 
or may not include the effects of packing media, or added ingredients.
    Rejection number. ``Rejection number'' means the number in a 
sampling plan that indicates the minimum number of deviants in a sample 
that will cause a lot to fail a specific requirement.
    Sample. ``Sample'' means any number of sample units to be used for 
inspection.
    Sample unit. ``Sample unit'' means a container and/or its entire 
contents, a portion of the contents of a container or other unit of 
commodity, or a composite mixture of a product to be used for 
inspection.
    Sampling. ``Sampling'' means the act of selecting samples of 
processed products for the purpose of inspection under the regulations 
in this part.
    Secretary. ``Secretary'' means the Secretary of the Department or 
any other officer or employee of the Department authorized to exercise 
the powers and to perform the duties of the Secretary in respect to the 
matters covered by the regulations in this part.
    Shipping container. ``Shipping container'' means an individual 
container designed for shipping a number of packages or cans ordinarily 
packed in a container for shipping or designed for packing unpackaged 
processed products for shipping.
    Unofficially drawn sample. ``Unofficially drawn sample'' means any 
sample that has been selected by any person other than an inspector or 
licensed sampler, or by any other person not authorized by the Director 
pursuant to the regulations in this part.
    Wholesome. ``Wholesome'' means the minimum basis of acceptability 
for human food purposes, of any fish or fishery product as defined in 
section 402 of the Federal Food, Drug, and Cosmetic Act, as amended.

[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 21037, Nov. 3, 1971]



Sec. 260.7  Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.

    Subsection 203(h) of the Agricultural Marketing Act of 1946 provides 
criminal penalties for various specified offenses relating to official 
certificates, memoranda, marks or other identifications and devices for 
making such marks or identifications, issued or authorized under section 
203 of said act, and certain misrepresentations concerning the 
inspection or grading of agricultural products under said section. For 
the purposes of said subsection and the provisions in this part, the 
terms listed below shall have the respective meanings specified:

[[Page 243]]

    Official certificate. ``Official certificate'' means any form of 
certification, either written or printed, including those defined in 
Sec. 260.6, used under this part to certify with respect to the 
inspection, class, grade, quality, size, quantity, or condition of 
products (including the compliance of products with applicable 
specifications).
    Official device. ``Official device'' means a stamping appliance, 
branding device, stencil, printed label, or any other mechanically or 
manually operated tool that is approved by the Director for the purpose 
of applying any official mark or other identification to any product or 
the packaging material thereof.
    Official identification. ``Official identification'' means any 
United States (U.S.) standard designation of class, grade, quality, 
size, quantity, or condition specified in this part or any symbol, 
stamp, label, or seal indicating that the product has been graded or 
inspected and/or indicating the class, grade, quality, size, quantity, 
or condition of the product approved by the Director and authorized to 
be affixed to any product, or affixed to or printed on the packaging 
material of any product.
    Official mark. ``Official mark'' means the grade mark, inspection 
mark, combined form of inspection and grade mark, and any other mark, or 
any variations in such marks, including those prescribed in Sec. 260.86, 
approved by the Secretary and authorized to be affixed to any product, 
or affixed to or printed on the packaging material of any product, 
stating that the product was graded or inspected or both, or indicating 
the appropriate U.S. Grade or condition of the product, or for the 
purpose of maintaining the identity of products graded or inspected or 
both under this part.
    Official memorandum. ``Official memorandum'' means any initial 
record of findings made by an authorized person in the process of 
grading, inspecting, or sampling pursuant to this part, any processing 
or plant-operation report made by an authorized person in connection 
with grading, inspecting, or sampling under this part, and any report 
made by an authorized person of services performed pursuant to this 
part.

                           Inspection Service



Sec. 260.12  Where inspection service is offered.

    Inspection service may be furnished wherever an inspector or 
licensed sampler is available and the facilities and conditions are 
satisfactory for the conduct of such service.



Sec. 260.13  Who may obtain inspection service.

    An application for inspection service may be made by any interested 
party, including, but not limited to, the United States and any 
instrumentality or agency thereof, any State, county, municipality, or 
common carrier, and any authorized agent in behalf of the foregoing.



Sec. 260.14  How to make application.

    An application for inspection service may be made to the officer of 
inspection or to any inspector, at or nearest the place where the 
service is desired. An up-to-date list of the Inspection Field Offices 
of the Department may be obtained upon request to the Director. 
Satisfactory proof that the applicant is an interested party shall be 
furnished.



Sec. 260.15  Information required in connection with application.

    Application for inspection service shall be made in the English 
language and may be made orally (in person or by telephone), in writing, 
or by telegraph. If an application for inspection service is made 
orally, such application shall be confirmed promptly in writing. In 
connection with each application for inspection service, there shall be 
furnished such information as may be necessary to perform an inspection 
on the processed product for which application for inspection is made, 
including but not limited to, the name of the product, name and address 
of the packer or plant where such product was packed, the location of 
the product, its lot or car number, codes or other identification marks, 
the number of containers, the type and size of the containers, the 
interest of the applicant in the product, whether the lot has been 
inspected previously to the application by any Federal agency and the 
purpose for which inspection is desired.

[[Page 244]]



Sec. 260.16  Filing of application.

    An application for inspection service shall be regarded as filed 
only when made in accordance with the regulations in this part.



Sec. 260.17  Record of filing time.

    A record showing the date and hour when each application for 
inspection or for an appeal inspection is received shall be maintained.



Sec. 260.18  When application may be rejected.

    An application for inspection service may be rejected by the 
Secretary (a) for noncompliance by the applicant with the regulations in 
this part, (b) for nonpayment for previous inspection services rendered, 
(c) when the product is not properly identifiable by code or other 
marks, or (d) when it appears that to perform the inspection service 
would not be to the best interests of the Government. Such applicant 
shall be promptly notified of the reason for such rejection.



Sec. 260.19  When application may be withdrawn.

    An application for inspection service may be withdrawn by the 
applicant at any time before the inspection is performed: Provided, 
That, the applicant shall pay at the hourly rate prescribed in 
Sec. 260.70 for the time incurred by the inspector in connection with 
such application, any travel expenses, telephone, telegraph or other 
expenses which have been incurred by the inspection service in 
connection with such application.

[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]



Sec. 260.20  Disposition of inspected sample.

    Any sample of a processed product that has been used for inspection 
may be returned to the applicant, at his request and expense; otherwise 
it shall be destroyed, or disposed of to a charitable institution.



Sec. 260.21  Basis of inspection and grade or compliance determination.

    (a) Inspection service shall be performed on the basis of the 
appropriate U.S. standards for grades of processed products, Federal, 
Military, Veterans Administration or other government agency 
specifications, written contract specification, or any written 
specification or instruction which is approved by the Secretary.
    (b) Unless otherwise approved by the Director compliance with such 
grade standards, specifications, or instructions shall be determined by 
evaluating the product, or sample, in accordance with the requirements 
of such standards, specifications, or instructions: Provided, That when 
inspection for quality is based on any U.S. grade standard which 
contains a scoring system the grade to be assigned to a lot is the grade 
indicated by the average of the total scores of the sample units: 
Provided further, That:
    (1) Such sample complies with the applicable standards of quality 
promulgated under the Federal Food, Drug, and Cosmetic Act;
    (2) Such sample complies with the product description;
    (3) Such sample meets the indicated grade with respect to factors of 
quality which are not rated by score points; and
    (4) With respect to those factors of quality which are rated by 
score points, each of the following requirements is met:
    (i) None of the sample units falls more than one grade below the 
indicated grade because of any quality factor to which a limiting rule 
applies;
    (ii) None of the sample units falls more than 4 score points below 
the minimum total score for the indicated grade; and
    (iii) The number of sample units classed as deviants does not exceed 
the applicable acceptance number indicated in the sampling plans 
contained in Sec. 260.61. A ``deviant,'' as used in this paragraph, 
means a sample unit that falls into the next grade below the indicated 
grade but does not score more than 4 points below the minimum total 
score for the indicated grade.
    (5) If any of the provisions contained in paragraphs (b)(3) and (4) 
of this section are not met the grade is determined by considering such 
provisions in connection with succeedingly lower

[[Page 245]]

grades until the grade of the lot, if assignable, is established.



Sec. 260.22  Order of inspection service.

    Inspection service shall be performed, insofar as practicable, in 
the order in which applications therefor are made except that precedence 
may be given to any such applications which are made by the United 
States (including, but not being limited to, any instrumentality or 
agency thereof) and to any application for an appeal inspection.



Sec. 260.23  Postponing inspection service.

    If the inspector determines that it is not possible to accurately 
ascertain the quality or condition of a processed product immediately 
after processing because the product has not reached equilibrium in 
color, or drained weight, or for any other substantial reason, he may 
postpone inspection service for such period as may be necessary.



Sec. 260.24  Financial interest of inspector.

    No inspector shall inspect any processed product in which he is 
directly or indirectly financially interested.



Sec. 260.25  Forms of certificates.

    Inspection certificates, certificates of sampling or loading, and 
other memoranda concerning inspection service shall be issued on forms 
approved by the Secretary.



Sec. 260.26  Issuance of certificates.

    (a) An inspection certificate may be issued only by an inspector: 
Provided, That, another employee of the inspection service may sign any 
such certificate covering any processed product inspected by an 
inspector when given power of attorney by such inspector and authorized 
by the Secretary, to affix the inspector's signature to an inspection 
certificate which has been prepared in accordance with the facts set 
forth in the notes, made by the inspector, in connection with the 
inspection.
    (b) A certificate of loading shall be issued and signed by the 
inspector or licensed sampler authorized to check the loading of a 
specific lot of processed products: Provided, That, another employee of 
the inspection service may sign such certificate of loading covering any 
processed product checkloaded by an inspector or licensed sampler when 
given power of attorney by such inspector or licensed sampler and 
authorized by the Secretary to affix the inspector's or licensed 
sampler's signature to a certificate of loading which has been prepared 
in accordance with the facts set forth in the notes made by the 
inspector or licensed sampler in connection with the checkloading of a 
specific lot of processed products.



Sec. 260.27  Issuance of corrected certificates.

    A corrected inspection certificate may be issued by the inspector 
who issued the original certificate after distribution of a certificate 
if errors, such as incorrect dates, code marks, grade statements, lot or 
car numbers, container sizes, net or drained weights, quantities, or 
errors in any other pertinent information require the issuance of a 
corrected certificate. Whenever a corrected certificate is issued, such 
certificate shall supersede the inspection certificate which was issued 
in error and the superseded certificate shall become null and void after 
the issuance of the corrected certificate.



Sec. 260.28  Issuance of an inspection report in lieu of an inspection certificate.

    A letter report in lieu of an inspection certificate may be issued 
by an inspector when such action appears to be more suitable than an 
inspection certificate: Provided, That, the issuance of such report is 
approved by the Secretary.



Sec. 260.29  Disposition of inspection certificates.

    The original of any inspection certificate, issued under the 
regulations in this part, and not to exceed four copies thereof, if 
requested prior to issuance, shall be delivered or mailed promptly to 
the applicant, or person designated by the applicant. All other copies 
shall be filed in such manner as the Secretary may designate. Additional 
copies of any such certificates may be supplied to any interested party 
as provided in Sec. 260.78.

[[Page 246]]



Sec. 260.30  Report of inspection results prior to issuance of formal report.

    Upon request of any interested party, the results of an inspection 
may be telegraphed or telephoned to him, or to any other person 
designated by him, at his expense.

                            Appeal Inspection



Sec. 260.36  When appeal inspection may be requested.

    An application for an appeal inspection may be made by any 
interested party who is dissatisfied with the results of an inspection 
as stated in an inspection certificate, if the lot of processed products 
can be positively identified by the inspection service as the lot from 
which officially drawn samples were previously inspected. Such 
application shall be made within thirty (30) days following the day on 
which the previous inspection was performed, except upon approval by the 
Secretary the time within which an application for appeal inspection may 
be made, may be extended.



Sec. 260.37  Where to file for an appeal inspection and information required.

    (a) Application for an appeal inspection may be filed with:
    (1) The inspector who issued the inspection certificate on which the 
appeal covering the processed product is requested; or
    (2) The inspector in charge of the office of inspection at or 
nearest the place where the processed product is located.
    (b) The application for appeal inspection shall state the location 
of the lot of processed products and the reasons for the appeal; and 
date and serial number of the certificate covering inspection of the 
processed product on which the appeal is requested, and such application 
may be accompanied by a copy of the previous inspection certificate and 
any other information that may facilitate inspection. Such application 
may be made orally (in person or by telephone), in writing, or by 
telegraph. If made orally, written confirmation shall be made promptly.



Sec. 260.38  When an application for an appeal inspection may be withdrawn.

    An application for appeal inspection may be withdrawn by the 
applicant at any time before the appeal inspection is performed: 
Provided, That the applicant shall pay at the hourly rate prescribed in 
Sec. 260.70, for the time incurred by the inspector in connection with 
such application, any travel expenses, telephone, telegraph, or other 
expenses which have been incurred by the inspection service in 
connection with such application.

[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]



Sec. 260.39  When appeal inspection may be refused.

    An application for an appeal inspection may be refused if:
    (a) The reasons for the appeal inspection are frivolous or not 
substantial;
    (b) The quality or condition of the processed product has undergone 
a material change since the inspection covering the processed product on 
which the appeal inspection is requested;
    (c) The lot in question is not, or cannot be made accessible for the 
selection of officially drawn samples;
    (d) The lot relative to which appeal inspection is requested cannot 
be positively identified by the inspector as the lot from which 
officially drawn samples were previously inspected; or
    (e) There is noncompliance with the regulations in this part. Such 
applicant shall be notified promptly of the reason for such refusal.



Sec. 260.40  Who shall perform appeal inspection.

    An appeal inspection shall be performed by an inspector or 
inspectors (other than the one from whose inspection the appeal is 
requested) authorized for this purpose by the Secretary and, whenever 
practical, such appeal inspection shall be conducted jointly by two such 
inspectors: Provided, That the inspector who made the inspection on 
which the appeal is requested may be authorized to draw the samples when 
another inspector or licensed sampler is not available in the area where 
the product is located.

[[Page 247]]



Sec. 260.41  Appeal inspection certificate.

    After an appeal inspection has been completed, an appeal inspection 
certificate shall be issued showing the results of such appeal 
inspection; and such certificate shall supersede the inspection 
certificate previously issued for the processed product involved. Each 
appeal inspection certificate shall clearly identify the number and date 
of the inspection certificate which it supersedes. The superseded 
certificate shall become null and void upon the issuance of the appeal 
inspection certificate and shall no longer represent the quality or 
condition of the processed product described therein. The inspector or 
inspectors issuing an appeal inspection certificate shall forward notice 
of such issuance to such persons as he considers necessary to prevent 
misuse of the superseded certificate if the original and all copies of 
such superseded certificate have not previously been delivered to the 
inspector or inspectors issuing the appeal inspection certificate. The 
provisions in the regulations in this part concerning forms of 
certificates, issuance of certificates, and disposition of certificates 
shall apply to appeal inspection certificates, except that copies of 
such appeal inspection certificates shall be furnished all interested 
parties who received copies of the superseded certificate.

                  Licensing of Samplers and Inspectors



Sec. 260.47  Who may become licensed sampler.

    Any person deemed to have the necessary qualifications may be 
licensed as a licensed sampler to draw samples for the purpose of 
inspection under the regulations in this part. Such a license shall bear 
the printed signature of the Secretary, and shall be countersigned by an 
authorized employee of the Department. Licensed samplers shall have no 
authority to inspect processed products under the regulations in this 
part except as to identification and condition of the containers in a 
lot. A licensed sampler shall perform his duties pursuant to the 
regulations in this part as directed by the Director.



Sec. 260.48  Application to become a licensed sampler.

    Application to become a licensed sampler shall be made to the 
Secretary on forms furnished for that purpose. Each such application 
shall be signed by the applicant in his own handwriting, and the 
information contained therein shall be certified by him to be true, 
complete, and correct to the best of his knowledge and belief, and the 
application shall contain or be accompanied by:
    (a) A statement showing his present and previous occupations, 
together with names of all employers for whom he has worked, with 
periods of service, during the 10 years previous to the date of his 
application;
    (b) A statement that, in his capacity as a licensed sampler, he will 
not draw samples from any lot of processed products with respect to 
which he or his employer is an interested party;
    (c) A statement that he agrees to comply with all terms and 
conditions of the regulations in this part relating to duties of 
licensed samplers; and
    (d) Such other information as may be requested.



Sec. 260.49  Inspectors.

    Inspections will ordinarily be performed by employees under the 
Secretary who are employed as Federal Government employees for that 
purpose. However, any person employed under any joint Federal-State 
inspection service arrangement may be licensed, if otherwise qualified, 
by the Secretary to make inspections in accordance with this part on 
such processed products as may be specified in his license. Such license 
shall be issued only in a case where the Secretary is satisfied that the 
particular person is qualified to perform adequately the inspection 
service for which such person is to be licensed. Each such license shall 
bear the printed signature of the Secretary and shall be countersigned 
by an authorized employee of the Department. An inspector shall perform 
his duties pursuant to the regulations in this part as directed by the 
Director.

[[Page 248]]



Sec. 260.50  Suspension or revocation of license of licensed sampler or licensed inspector.

    Pending final action by the Secretary, the Director may, whenever he 
deems such action necessary, suspend the license of any licensed 
sampler, or licensed inspector, issued pursuant to the regulations in 
this part, by giving notice of such suspension to the respective 
licensee, accompanied by a statement of the reasons therefor. Within 7 
days after the receipt of the aforesaid notice and statement of reasons 
by such licensee, he may file an appeal, in writing, with the Secretary 
supported by any argument or evidence that he may wish to offer as to 
why his license should not be suspended or revoked. After the expiration 
of the aforesaid 7 day period and consideration of such argument and 
evidence, the Secretary shall take such action as he deems appropriate 
with respect to such suspension or revocation.



Sec. 260.51  Surrender of license.

    Upon termination of his services as a licensed sampler or licensed 
inspector, or suspension or revocation of his license, such licensee 
shall surrender his license immediately to the office of inspection 
serving the area in which he is located. These same provisions shall 
apply in a case of an expired license.

                                Sampling



Sec. 260.57  How samples are drawn by inspectors or licensed samplers.

    An inspector or a licensed sampler shall select samples, upon 
request, from designated lots of processed products which are so placed 
as to permit thorough and proper sampling in accordance with the 
regulations in this part. Such person shall, unless otherwise directed 
by the Secretary, select sample units of such products at random, and 
from various locations in each lot in such manner and number, not 
inconsistent with the regulations in this part, as to secure a 
representative sample of the lot. Samples drawn for inspection shall be 
furnished by the applicant at no cost to the Department.



Sec. 260.58  Accessibility for sampling.

    Each applicant shall cause the processed products for which 
inspection is requested to be made accessible for proper sampling. 
Failure to make any lot accessible for proper sampling shall be 
sufficient cause for postponing inspection service until such time as 
such lot is made accessible for proper sampling.



Sec. 260.59  How officially drawn samples are to be identified.

    Officially drawn samples shall be marked by the inspector or 
licensed sampler so such samples can be properly identified for 
inspection.



Sec. 260.60  How samples are to be shipped.

    Unless otherwise directed by the Secretary, samples which are to be 
shipped to any office of inspection shall be forwarded to the office of 
inspection serving the area in which the processed prodcuts from which 
the samples were drawn is located. Such samples shall be shipped in a 
manner to avoid, if possible, any material change in the quality or 
condition of the sample of the processed product. All transportation 
charges in connection with such shipments of samples shall be at the 
expense of the applicant and wherever practicable, such charges shall be 
prepaid by him.



Sec. 260.61  Sampling plans and procedures for determining lot compliance.

    (a) Except as otherwise provided for in this section in connection 
with in-plant inspection and unless otherwise approved by the Secretary, 
samples shall be selected from each lot in the exact number of sample 
units indicated for the lot size in the applicable single sampling plan 
or, at the discretion of the inspection service, any comparable multiple 
sampling plan: Provided, That at the discretion of the inspection 
service the number of sample units selected may be increased to the 
exact number of sample units indicated for any one of the larger sample 
sizes provided for in the appropriate plans.
    (b) Under the single sampling plans with respect to any specified 
requirement:

[[Page 249]]

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

[[Page 250]]



                                 Single Sampling Plans and Acceptance Levels
 


                      Table I--Canned or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Lot size (number of containers)
           Container size group           ------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 group 1
 
Any type of container of less volume than
 that of a No. 300 size can (300 x 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   300,001-420,000    Over 420,000
 
                 group 2
 
Any type of container of 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 x 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   168,001-240,000    Over 240,000
 
                 group 3
 
Any type of container of a volume
 exceeding that of a No. 3 cylinder size
 can, but not exceeding that of a No. 12
 size can (603 x 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    84,001-120,000    Over 120,000
 
                 group 4
 
Any type of container of a volume
 exceeding that of a No. 12 size can, but
 not exceeding that of a 5-gallon
 container...............................     200 or less         201-800       801-1,600     1,601-2,400      2,401-3,600       3,601-8,000      8,001-16,000     16,001-28,000     Over 28,000
 
                 group 5
 
Any type of container of a volume
 exceeding that of a 5-gallon container..      25 or less           26-80          81-200         201-400          401-800         801-1,200       1,201-2,000       2,001-3,200      Over 3,200
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                            Single sampling plans \1\
  ...........................................................................................................
 


[[Page 251]]


Sample size (number of sample units)\2\..               3               6              13              21               29                38                48                60              72
Acceptance number........................               0               1               2               3                4                 5                 6                 7  ..............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.
\2\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. Groups 4 and 5--approximately 2 pounds of product. When
  determined by the inspector that a 2-pound sample unit is inadequate, a larger sample unit may be substituted.


                      Table II--Frozen or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Lot size (number of containers)
           Container size group           ------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 group 1
 
Any type of container of 1 pound or less
 net weight..............................   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   168,001-240,000    Over 240,000
 
                 group 2
 
Any type of container over 1 pound but
 not over 4 pounds net weight............   1,800 or less     1,801-8,400    8,401-18,000   18,001-36,000    36,001-60,000     60,001-96,000    96,001-132,000   132,001-168,000    Over 168,000
 
                 group 3
 
Any type of container over 4 pounds but
 not over 10 pounds net weight...........     900 or less       901-3,600    3,601-10,800   10,801-18,000    18,001-36,000     36,001-60,000     60,001-84,000    84,001-120,000    Over 120,000
 
                 group 4
 
Any type of container over 10 pounds but
 not over 100 pounds net weight..........     200 or less         201-800       801-1,600     1,601-2,400      2,401-3,600       3,601-8,000      8,001-16,000     16,001-28,000     Over 28,000
 
                 group 5
 
Any type of container over 100 pounds net
 weight..................................      25 or less           26-80          81-200         201-400          401-800         801-1,200       1,201-2,000       2,001-3,200      Over 3,200
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Single sampling plans\1\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units)\2\..               3               6              13              21               29                38                48                60              72
Acceptance number........................               0               1               2               3                4                 5                 6                 7               8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.

[[Page 252]]

 
\2\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. Groups 4 and 5--approximately 3 pounds of product. When
  determined by the inspector that a 3-pound sample unit is inadequate, a larger sample unit or 1 or more containers and their entire contents may be substituted for 1 or more sample units of
  3 pounds.


                        Table III--Canned, Frozen, or Otherwise Processed Fishery and Related Products, and Products Thereof of a Comminuted, Fluid, or Homogeneous State
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Lot size (number of containers)
           Container size group \1\           --------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                   group 1
 
Any type of container of 12 ounces or less...      5,400 or
                                                       less  5,401-21,600   21,601-62,400   62,401-112,000   112,001-174,000   174,001-240,000   240,001-360,000   360,001-480,000  Over 480,000
 
                   group 2
 
Any type of container over 12 ounces but not
 over 60 ounces..............................      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   300,001-420,000  Over 420,000
 
                   group 3
 
Any type of container over 60 ounces but not
 over 160 ounces.............................      1,800 or
                                                       less   1,801-8,400    8,401-18,000    18,001-60,000     36,001-60,000     60,001-96,000    96,001-132,000   132,001-168,000  Over 168,000
 
                   group 4
 
Any type of container over 160 ounces but not
 over 10 gallons or 100 pounds whichever is
 applicable..................................   200 or less       201-800       801-1,600      1,601-3,200       3,201-8,000      8,001-16,000     16,001-24,000     24,001-32,000   Over 32,000
 
                   group 5
 
Any type of container over 10 gallons or 100
 pounds whichever is applicable..............    25 or less         26-80          81-200          201-400           401-800         801-1,200       1,201-2,000       2,001-3,200    Over 3,200
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Single sampling plans\2\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units)\3\......             3             6              13               21                29                38                48                60            72
Acceptance number............................             0             1               2                3                 4                 5                 6                 7             8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Ounces pertain to either fluid ounces of volume or avoirdupois ounces of net weight whichever is applicable for the product involved.
\2\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.
\3\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. A smaller sample unit may be substituted in group 3 at the
  inspector's discretion. Groups 4, 5, and 6--approximately 16 ounces of product. When determined by the inspector that a 16-ounce sample unit is inadequate, a larger sample unit may be
  substituted.


[[Page 253]]


                                                                        Table IV--Dehydrated Fishery and Related Products
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Lot size (number of containers)
          Container size group           -------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 group 1
 
Any type of container of 1 pound or less
 net weight.............................   1,800 or less     1,801-8,400    8,401-18,000   18,001-36,000     36,001-60,000     60,001-96,000    96,001-132,000   132,001-168,000    Over 168,000
 
                 group 2
 
Any type of container over 1 pound but
 not over 6 pounds net weight...........     900 or less       901-3,600    3,601-10,800   10,801-18,000     18,001-36,000     36,001-60,000     60,001-84,000    84,001-120,000    Over 120,000
 
                 group 3
 
Any type of container over 6 pounds but
 not over 20 pounds net weight..........     200 or less         201-800       801-1,600     1,601-3,200       3,201-8,000      8,001-16,000     16,001-24,000     24,001-32,000     Over 32,000
 
                 group 4
 
Any type of container over 20 pounds but
 not over 100 pounds net weight.........      48 or less          49-400       401-1,200     1,201-2,000       2,001-2,800       2,801-6,000       6,001-9,600      9,601-15,000     Over 15,000
 
                 group 5
 
Any type of container over 100 pounds
 net weight.............................      16 or less           17-80          81-200         201-400           401-800         801-1,200       1,201-2,000       2,001-3,200      Over 3,200
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Single sampling plans\1\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units)\2\.               3               6              13              21                29                38                48                60              72
Acceptance number.......................               0               1               2               3                 4                 5                 6                 7               8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.
\2\ The sample units for the various container size groups are as follows: Group 1--1 container and its entire contents. Groups 2, 3, 4, and 5--1 container and its entire contents or a smaller
  sample unit when determined by the inspector to be adequate.


                                                     Table V--Single Sampling Plans for Use in Increasing Sample Size Beyond 72 Sample Units
Sample size, n.....................................................   84   96  108  120  132  144  156  168  180  192  204  216  230  244  258  272  286  300  314  328  342  356  370  384  400
Acceptance numbers, c..............................................    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
 


[[Page 254]]


                                                               Multiple Sampling Plans \1\
                                   Table VI--Multiple Sampling Plans Comparable to the Indicated Single Sampling Plans
Indicated single sampling plan:
  Single sample size, n.........         6             13             21             29             38             48             60             72
                                 -----------------------------------------------------------------------------------------------------------------------
  Acceptance numbers, c.........         1              2              3              4              5              6              7              8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cumulative sample sizes, nc, and
 acceptance numbers, c,            nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r
    and rejection numbers, r,
     for multiple sampling.         4    0    2    8    0    3   10    0    3   12    0    4   14    0    4   16    0    4   18    0    5   22    0    5
                                    6    0    2   10    0    3   14    1    4   16    0    4   20    0    5   24    1    5   28    1    6   32    1    7
                                    8    1    2   12    1    3   18    1    4   20    1    5   26    1    6   32    2    6   38    2    7   42    2    8
                                                  14    2    3   22    2    5   24    2    5   32    2    6   40    3    8   48    3    8   52    3    9
                                                                 26    4    5   28    3    6   38    3    7   48    4    8   58    4    8   62    5   10
                                                                                32    3    6   44    6    7   56    7    8   68    8    9   72    6   10
                                                                                36    5    6                                                82    9   10
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ These multiple sampling plans may be used in lieu of the single sampling plans listed at the heading of each column.


[[Page 255]]



Sec. 260.62  Issuance of certificate of sampling.

    Each inspector and each licensed sampler shall prepare and sign a 
certificate of sampling to cover the samples drawn by the respective 
person, except that an inspector who inspects the samples which he has 
drawn need not prepare a certificate of sampling. One copy of each 
certificate of sampling prepared shall be retained by the inspector or 
licensed sampler (as the case may be) and the original and all other 
copies thereof shall be disposed of in accordance with the instructions 
of the Secretary.



Sec. 260.63  Identification of lots sampled.

    Each lot from which officially drawn samples are selected shall be 
marked in such manner as may be prescribed by the Secretary, if such 
lots do not otherwise possess suitable identification.

                            Fees and Charges



Sec. 260.69  Payment fees and charges.

    Fees and charges for any inspection service shall be paid by the 
interested party making the application for such service, in accordance 
with the applicable provisions of the regulations in this part, and, if 
so required by the person in charge of the office of inspection serving 
the area where the services are to be performed, an advance of funds 
prior to rendering inspection service in an amount suitable to the 
Secretary, or a surety bond suitable to the Secretary, may be required 
as a guarantee of payment for the services rendered. All fees and 
charges for any inspection service, performed pursuant to the 
regulations in this part shall be paid by check, draft, or money order 
made payable to the National Marine Fisheries Service. Such check, 
draft, or money order shall be remitted to the appropriate regional or 
area office serving the geographical area in which the services are 
performed, within ten (10) days from the date of billing, unless 
otherwise specified in a contract between the applicant and the 
Secretary, in which latter event the contract provisions shall apply.

[36 FR 21038, Nov. 3, 1971]



Sec. 260.70  Schedule of fees.

    (a) Unless otherwise provided in a written agreement between the 
applicant and the Secretary, the fees to be charged and collected for 
any inspection service performed under the regulations in this part at 
the request of the United States, or any other agency or instrumentality 
thereof, will be published as a notice in the Federal Register and will 
be in accordance with Sec. 260.81.
    (b) Fees are reviewed annually to ascertain that the hourly fees 
charged are adequate to recover the costs of the services rendered.
    (1) The TYPE I (Contract Inspection) hourly fee is determined by 
dividing the estimated annual costs by the estimated annual billable 
hours.
    (2) The TYPE II (Lot Inspection) hourly fee is determined by adding 
a factor of 50 percent to the TYPE I fee, to cover additional costs 
(down-time, etc.) associated with conducting lot inspection services.
    (3) The TYPE III (Miscellaneous and Consulting) hourly fee is 
determined by adding a factor of 25 percent to the TYPE I fee, to cover 
the additional costs (down-time, etc.) associated with conducting 
miscellaneous inspection services.

[48 FR 24901, June 3, 1983]



Sec. 260.71  [Reserved]



Sec. 260.72  Fees for inspection service performed under cooperative agreement.

    The fees to be charged and collected for any inspection or similar 
service performed under cooperative agreement shall be those provided 
for by such agreement.



Sec. 260.73  Disposition of fees for inspections made under cooperative agreement.

    Fees for inspection under a cooperative agreement with any State or 
person shall be disposed of in accordance with the terms of such 
agreement. Such portion of the fees collected under a cooperative 
agreement as may be due the United States shall be remitted in 
accordance with Sec. 260.69.

[[Page 256]]



Sec. 260.74  Fee for appeal inspection.

    The fee to be charged for an appeal inspection shall be at the rates 
prescribed in this part for other inspection services: Provided, That, 
if the result of any appeal inspection made for any applicant, other 
than the United States or any agency or instrumentality thereof, 
discloses that a material error was made in the inspection on which the 
appeal is made, no inspection fee shall be assessed.



Sec. 260.76  [Reserved]



Sec. 260.77  Fees for score sheets.

    If the applicant for inspection service requests score sheets 
showing in detail the inspection of each container or sample inspected 
and listed thereon, such score sheets may be furnished by the inspector 
in charge of the office of inspection serving the area where the 
inspection was performed; and such applicant shall be changed at the 
rate of $2.75 for each 12 sampled units, or fraction thereof, inspected 
and listed on such score sheets.



Sec. 260.78  Fees for additional copies of inspection certificates.

    Additional copies of any inspection certificate other than those 
provided for in Sec. 260.29, may be supplied to any interested party 
upon payment of a fee of $2.75 for each set of five (5) or fewer copies.



Sec. 260.79  Travel and other expenses.

    Charges may be made to cover the cost of travel and other expenses 
incurred in connection with the performance of any inspection service, 
including appeal inspections: Provided, That, if charges for sampling or 
inspection are based on an hourly rate, an additional hourly charge may 
be made for travel time including time spent waiting for transportation 
as well as time spent traveling, but not to exceed 8 hours of travel 
time for any one person for any one day: And provided further, That, if 
travel is by common carrier, no hourly charge may be made for travel 
time outside the employee's official work hours.



Sec. 260.80  Charges for inspection service on a contract basis.

    Irrespective of fees and charges prescribed in the foregoing 
sections, the Secretary may enter into a written memorandum of 
understanding or contract, whichever may be appropriate, with any 
administrative agency charged with the administration of a marketing 
order effective pursuant to the Agricultural Marketing Agreement Act of 
1937, as revised (16 U.S.C. 661 et seq.) for the making of inspections 
pursuant to said agreement or order on such basis as will reimburse the 
National Marine Fisheries Service of the Department for the full cost of 
rendering such inspection service as may be determined by the Secretary. 
Likewise, the Secretary may enter into a written memorandum of 
understanding or contract, whichever may be appropriate, with an 
administrative agency charged with the administration of a similar 
program operated pursuant to the laws of any State.

[36 FR 21038, Nov. 3, 1971]



Sec. 260.81  Readjustment and increase in hourly rates of fees.

    (a) When Federal Pay Act increases occur, the hourly rates for 
inspection fees will automatically be increased on the effective date of 
the pay act by an amount equal to the increase received by the average 
GS grade level of fishery product inspectors receiving such pay 
increases.
    (b) The hourly rates of fees to be charged for inspection services 
will be subject to review and reevaluation for possible readjustment not 
less than every 3 years: Provided, That, the hourly rates of fees to be 
charged for inspection services will be immediately reevaluated as to 
need for readjustment with each Federal Pay Act increase.

[35 FR 15925, Oct. 9, 1970]

                              Miscellaneous



Sec. 260.84  Policies and procedures.

    The policies and procedures pertaining to any of the inspection 
services are contained within the NMFS Fishery Products Inspection 
Manual. The policies and procedures are available

[[Page 257]]

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]



Sec. 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:
    (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 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.
[GRAPHIC] [TIFF OMITTED] TC01JY91.061

                                Figure 1.

                      Shield with plain background.
[GRAPHIC] [TIFF OMITTED] TC01JY91.062

                                Figure 2.
[GRAPHIC] [TIFF OMITTED] TC01JY91.063

                                Figure 3.

[GRAPHIC] [TIFF OMITTED] TC01JY91.064

                                Figure 4.

[GRAPHIC] [TIFF OMITTED] TC01JY91.065

                                Figure 5.
    (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

[[Page 258]]

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 this section.

                   Statement enclosed within a circle.
[GRAPHIC] [TIFF OMITTED] TC01JY91.066

                                Figure 6.

                Statement without the use of the circle.
[GRAPHIC] [TIFF OMITTED] TC01JY91.067

                                Figure 7.

                Statement without the use of the circle.
[GRAPHIC] [TIFF OMITTED] TC01JY91.068

                                Figure 8.

[[Page 259]]

    (c) Combined grade and inspection marks: The grade marks set forth 
in 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 
Department by stamping the shipping cases and inspection certificate(s) 
covering such lot(s) as appropriate, with marks similar in form and 
design to the examples in Figures 9 and 10 of this section.
[GRAPHIC] [TIFF OMITTED] TC01JY91.069

                                Figure 9.
[GRAPHIC] [TIFF OMITTED] TC01JY91.070

                               Figure 10.

[[Page 260]]

    (e) Removal of labels bearing inspection marks: At the time a lot of 
fishery products is found to be mislabeled and the labels on the 
packages are not removed within ten (10) consecutive calendar days, the 
following procedure shall be applicable:
    (1) The processor, under the supervision of the inspector, shall 
clearly and conspicuously mark all master cases in the lot by means of a 
``rejected by USDC Inspector'' stamp provided by the Department.
    (2) The processor shall be held accountable to the Department for 
all mislabeled products until the products are properly labeled.
    (3) Clearance for the release of the relabeled products shall be 
obtained by the processor from the inspector.
    (f) Users of inspection services having an inventory of labels which 
bear official approved identification marks stating ``U.S. Department of 
the Interior'' or otherwise referencing the Interior Department, will be 
permitted to use such marks until December 31, 1971, except that upon 
written request the Director, National Marine Fisheries Service, may 
extend such period for the use of specific labels.

[36 FR 4609, Mar. 10, 1971]



Sec. 260.88  Political activity.

    All inspectors and licensed samplers are forbidden, during the 
period of their respective appointments or licenses, to take an active 
part in political management or in political campaigns. 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.



Sec. 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, county, or municipal 
laws applicable to the operation of food processing establishments and 
to processed food products.



Sec. 260.91  Identification.

    Each inspector and licensed sampler shall have in his possession at 
all times and present upon request, while on duty, the means of 
identification furnished by the Department to such person.



Sec. 260.93  Debarment and suspension.

    (a) Debarment. Any person may be debarred from using or benefiting 
from the inspection service provided under the regulations of this 
subchapter or under the terms of any inspection contract, and such 
debarment may apply to one or more plants under his control, if such 
person engages in one or more of the following acts or activities:
    (1) Misrepresenting, misstating, or withholding any material or 
relevant facts or information in conjunction with any application or 
request for an inspection contract, inspection service, inspection 
appeal, lot inspection, or other service provided for under the 
regulations of this subchapter.
    (2) Using on a processed product any label which displays any 
official identification, official device, or official mark, when the 
label is not currently approved for use by the Director or his delegate.
    (3) Using on a processed product any label which displays the words 
``Packed Under Federal Inspection, U.S. Department of Commerce'', or 
which displays any official mark, official device, or official 
identification, or which displays a facsimile of the foregoing, when 
such product has not been inspected under the regulations of this 
subchapter.
    (4) Making any statement or reference to the U.S. Grade of any 
processed product or any inspection service provided under the 
regulations of this subchapter on the label or in the advertising of any 
processed product, when such product has not been inspected under the 
regulations of this subchapter.
    (5) Making, using, issuing or attempting to issue or use in 
conjunction with the sale, shipment, transfer or advertisement of a 
processed product any

[[Page 261]]

certificate of loading, certificate of sampling, inspection certificate, 
official device, official identification, official mark, official 
document, or score sheet which has not been issued, approved, or 
authorized for use with such product by an inspector.
    (6) Using any of the terms ``United States'', ``Officially graded'', 
``Officially inspected'', ``Government inspected'', ``Federally 
inspected'', ``Officially sampled'', or words of similar import or 
meanings, or using any official device, official identification, or 
official mark on the label, on the shipping container, or in the 
advertising of any processed product, when such product has not been 
inspected under the regulations of this subchapter.
    (7) Using, attempting to use, altering or reproducing any 
certificate, certificate form, design, insignia, mark, shield, device, 
or figure which simulates in whole or in part any official mark, 
official device, official identification, certificate of loading, 
certificate of sampling, inspection certificate or other official 
certificate issued pursuant to the regulations of this subchapter.
    (8) Assaulting, harassing, interfering, obstructing or attempting to 
interfere or obstruct any inspector or sampler in the performance of his 
duties under the regulations of this subchapter.
    (9) Violating any one or more of the terms of any inspection 
contract or the provisions of the regulations of this subchapter.
    (10) Engaging in acts or activities which destroy or interfere with 
the purposes of the inspection program or which have the effect of 
undermining the integrity of the inspection program.
    (b) Temporary suspension. (1) Whenever the Director has reasonable 
cause to believe that any person has engaged in any act or activity 
described in paragraph (a) of this section, and in such act or activity, 
in the judgment of the Director, would cause serious and irreparable 
injury to the inspection program and services provided under the 
regulations of this subchapter, the Director may, without a hearing, 
temporarily suspend, either before or after the institution of a 
debarment hearing, the inspection service provided under the regulations 
of this subchapter or under any inspection contract for one or more 
plants under the control of such person. Notice of suspension shall be 
served by registered or certified mail, return receipt requested, and 
the notice shall specifically state those acts or activities of such 
person which are the bases for the suspension. The suspension shall 
become effective five (5) days after receipt of the notice.
    (2) Once a person has received a notice of a temporary suspension, a 
debarment hearing will be set for 30 days after the effective date of 
the suspension. Within 60 days after the completion of the debarment 
hearing, the Hearing Examiner shall determine, based upon evidence of 
record, whether the temporary suspension shall be continued or 
terminated. A temporary suspension shall be terminated by the Hearing 
Examiner if he determines that the acts or activities, which were the 
bases for the suspension, did not occur or will not cause serious and 
irreparable injury to the inspection program and services provided under 
the regulations of this subchapter. This determination of the Hearing 
Examiner on the continuation or termination of the temporary suspension 
shall be final and there shall be no appeal of this determination. The 
initial decision by the Hearing Examiner on the debarment shall be made 
in accordance with paragraph (b)(1), Decisions, of this section.
    (3) After a debarment hearing has been instituted against any person 
by a suspension, such suspension will remain in effect until a final 
decision is rendered on the debarment in accordance with the regulations 
of this section or the temporary suspension is terminated by the Hearing 
Examiner.
    (4) When a debarment hearing has been instituted against any person 
not under suspension, the Director may, in accordance with the 
regulations of this paragraph (b) temporarily suspend such person, and 
the suspension will remain in effect until a final decision on the 
debarment is rendered in accordance with the regulations of this section 
or the temporary suspension is terminated by the Hearing Examiner.

[[Page 262]]

    (c) Hearing Examiner. All hearing shall be held before a Hearing 
Examiner appointed by the Secretary or the Director.
    (d) Hearing. If one or more of the acts or activities described in 
paragraph (a) of this section have occurred, the Director may institute 
a hearing to determine the length of time during which the person shall 
be debarred and those plants to which the debarment shall apply. No 
person may be debarred unless there is a hearing, as prescribed in this 
section, and it has been determined by the Hearing Examiner, based on 
evidence of record, that the one or more of the activities described in 
paragraph (a) of this section have occurred. Any debarment or suspension 
must be instituted within two (2) years of the time when such acts or 
activities described in paragraph (a) of this section have occurred.
    (e) Notice of hearing. The Director shall notify such person of the 
debarment hearing by registered or certified mail, return receipt 
requested. The notice shall set forth the time and place of the hearing, 
the specific acts or activities which are the basis for the debarment 
hearing, the time period of debarment being sought, and those plants to 
which the debarment shall apply. Except for the debarment hearing 
provided for in paragraph (b) of this section the hearing will be set 
for a time not longer than 120 days after receipt of the notice of 
hearing.
    (f) Time and place of hearing. The hearing shall be held at a time 
and place fixed by the Director: Provided, however, The Hearing Examiner 
may, upon a proper showing of inconvenience, change the time and place 
of the hearing. Motions for change of time or place of the hearing must 
be mailed to or served upon the Hearing Examiner no later than 10 days 
before the hearing.
    (g) Right to counsel. In all proceedings under this section, all 
persons and the Department of Commerce shall have the right to be 
represented by counsel, in accordance with the rules and regulations set 
forth in title 43, Code of Federal Regulations, part 1.
    (h) Form, execution, and service of documents. (1) All papers to be 
filed under the regulations in this section shall be clear and legible; 
and shall be dated, signed in ink, contain the docket description and 
title of the proceeding, if any, and the address of the signatory. Five 
copies of all papers are required to be filed. Documents filed shall be 
executed by:
    (i) The person or persons filing same,
    (ii) by an authorized officer thereof if it be a corporation or,
    (iii) by an attorney or other person having authority with respect 
thereto.
    (2) All documents, when filed, shall show that service has been made 
upon all parties to the proceeding. Such service shall be made by 
delivering one copy to each party in person or by mailing by first-class 
mail, properly addressed with postage prepaid. When a party has appeared 
by attorney or other representative, service on such attorney or other 
representative will be deemed service upon the party. The date of 
service of document shall be the day when the matter served is deposited 
in the U.S. mail, shown by the postmark thereon, or is delivered in 
person, as the case may be.
    (3) A person is deemed to have appeared in a hearing by the filing 
with the Director a written notice of his appearance or his authority in 
writing to appear on behalf of one of the persons to the hearing.
    (4) The original of every document filed under this section and 
required to be served upon all parties to a proceeding shall be 
accompanied by a certificate of service signed by the party making 
service, stating that such service has been made upon each party to the 
proceeding. Certificates of service may be in substantially the 
following form:

    I hereby certify that I have this day served the foregoing document 
upon all parties of record in this proceeding by: (1) Mailing postage 
prepaid, (2) delivering in person, a copy to each party.
    Dated at ________ this ________ day of __________, 19__
                                              Signature ________________

    (i) Procedures and evidence. (1) All parties to a hearing shall be 
entitled to introduce all relevant evidence on the issues as stated in 
the notice for hearing or as determined by the Hearing Examiner at the 
outset of or during the hearing.

[[Page 263]]

    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this section, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary.
    (j) Duties of Hearing Examiner. The Hearing Examiner shall have the 
authority and duty to:
    (1) Take or cause depositions to be taken.
    (2) Regulate the course of the hearings.
    (3) Prescribe the order in which evidence shall be presented.
    (4) Dispose of procedural requests or similar matters.
    (5) Hear and initially rule upon all motions and petitions before 
him.
    (6) Administer oaths and affirmations.
    (7) Rule upon offers of proof and receive competent, relevant, 
material, reliable, and probative evidence.
    (8) Control the admission of irrelevant, immaterial, incompetent, 
unreliable, repetitious, or cumulative evidence.
    (9) Hear oral arguments if the Hearing Examiner determined such 
requirement is necessary.
    (10) Fix the time for filing briefs, motions, and other documents to 
be filed in connection with hearings.
    (11) Issue the initial decision and dispose of any other pertinent 
matters that normally and properly arise in the course of proceedings.
    (12) Do all other things necessary for an orderly and impartial 
hearing.
    (k) The record. (1) The Director will designate an official reporter 
for all hearings. The official transcript of testimony taken, together 
with any exhibits and briefs filed therewith, shall be filed with the 
Director. Transcripts of testimony will be available in any proceeding 
under the regulations of this section, at rates fixed by the contract 
between the United States of America and the reporter. If the reporter 
is an employee of the Department of Commerce, the rate will be fixed by 
the Director.
    (2) The transcript of testimony and exhibits, together with all 
briefs, papers, and all rulings by the Hearing Examiner shall constitute 
the record. The initial decision will be predicated on the same record, 
as will be final decision.
    (l) Decisions. (1) The Hearing Examiner shall render the initial 
decision in all debarment proceedings before him. The same Hearing 
Examiner who presides at the hearing shall render the initial decision 
except when such Examiner becomes unavailable to the Department of 
Commerce. In such case, another Hearing Examiner will be designated by 
the Secretary or Director to render the initial decision. Briefs, or 
other documents, to be submitted after the hearing must be received not 
later than twenty (20) days after the hearing, unless otherwise extended 
by the Hearing Examiner upon motion by a party. The initial decision 
shall be made within sixty (60) days after the receipt of all briefs. If 
no appeals from the initial decision is served upon the Director within 
ten (10) days of the date of the initial decision, it will become the 
final decision on the 20th day following the date of the initial 
decision. If an appeal is received, the appeal will be transmitted to 
the Secretary who will render the final decision after considering the 
record and the appeal.
    (2) All initial and final decisions shall include a statement of 
findings and conclusions, as well as the reasons or bases therefore, 
upon the material issues presented. A copy of each decision shall be 
served on the parties to the proceeding, and furnished to interested 
persons upon request.
    (3) It shall be the duty of the Hearing Examiner, and the Secretary 
where there is an appeal, to determine whether the person has engaged in 
one or more of the acts or activities described in paragraph (a) of this 
section, and, if there is a finding that the person has engaged in such 
acts or activities, the length of time the person shall be debarred, and 
the plants to which the debarment shall apply.

[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]

[[Page 264]]

   Requirements for Plants Operating Under Continuous Inspection on a 
                          Contract Basis 1
---------------------------------------------------------------------------

    1  Compliance with the above requirements does not excuse 
failure to comply with all applicable sanitary rules and regulations of 
city, county, State, Federal, or other agencies having jursidiction over 
such establishments and operations.
---------------------------------------------------------------------------



Sec. 260.96  Application for fishery products inspection service on a contract basis at official establishments.

    Any person desiring to process and pack products in an establishment 
under fishery products inspection service on a contract basis, must 
receive approval of such buildings and facilities as an official 
establishment prior to the inauguration of such service. An application 
for inspection service to be rendered in an establishment shall be 
approved according to the following procedure:
    (a) Initial survey: When application has been filed for inspection 
service as aforesaid, NMFS inspector(s) shall examine the buildings, 
premises, and facilities according to the requirements of the fishery 
products inspection service and shall specify any additional facilities 
required for the service.
    (b) Final survey and establishment approval: Prior to the 
inauguration of the fishery products inspection service, a final survey 
of the buildings, premises, and facilities shall be made to verify that 
the buildings are constructed and facilities are in accordance with the 
approved drawings and the regulations in this part.
    (c) Drawings and specifications of new construction or proposed 
alterations of existing official establishments shall be furnished to 
the Director in advance of actual construction for prior approval with 
regard to compliance with requirements for facilities.

[36 FR 21039, Nov. 3, 1971]



Sec. 260.97  Conditions for providing fishery products inspection service at official establishments.

    (a) The determination as to the inspection effort required to 
adequately provide inspection service at any establishment will be made 
by NMFS. The man-hours required may vary at different official 
establishments due to factors such as, but not limited to, size and 
complexity of operations, volume and variety of products produced, and 
adequacy of control systems and cooperation. The inspection effort 
requirement may be reevaluated when the contracting party or NMFS deems 
there is sufficient change in production, equipment and change of 
quality control input to warrant reevaluation. Inspectors will not be 
available to perform any of employee or management duties, however, they 
will be available for consultation purposes. NMFS reserves the right to 
reassign inspectors as it deems necessary.
    (b) NMFS shall not be held responsible:
    (1) For damages occurring through any act of commission or omission 
on the part of its inspectors when engaged in performing services; or
    (2) For production errors, such as processing temperatures, length 
of process, or misbranding of products; or
    (3) For failure to supply enough inspection effort during any period 
of service.
    (c) The contracting party will:
    (1) Use only wholesome raw material which has been handled or stored 
under sanitary conditions and is suitable for processings; maintain the 
official establishment(s), designated on the contract in such sanitary 
condition and to employ such methods of handling raw materials for 
processing as may be necessary to conform to the sanitary requirements 
precribed or approved by NMFS;
    (2) Adequately code each primary container and master case of 
products sold or otherwise distributed from a manufacturing, processing, 
packing, or repackaging activity to enable positive lot identification 
to facilitate, where necessary, the segregation of specific food lots 
that may have become contaminated or otherwise unfit for their intended 
use;
    (3) Not permit any labels on which reference is made to Federal 
inspection, to be used on any product which is not packed under fishery 
products inspection service nor permit any labels on which reference is 
made to any U.S. Grade to be used on any product

[[Page 265]]

which has not been officially certified as meeting the requirements of 
such grade; nor supply labels bearing reference to Federal inspection to 
another establishment unless the products to which such labels are to be 
applied have been packed under Federal inspection at an official 
establishment;
    (4) Not affix any label on which reference is made to Federal 
inspection to any container of processed foods, produced in any 
designated official establishment, with respect to which the grade of 
such product is not certified because of adulteration due to the 
presence of contaminants in excess of limits established in accordance 
with the regulations or guidelines issued pursuant to the Food, Drug, 
and Cosmetic Act, as amended;
    (5) Not, with respect to any product for which U.S. Grade Standards 
are in effect, affix any label on which reference is made to Federal 
inspection to any container of processed food which is substandard: 
Provided, That such label may be affixed to any container of such 
substandard quality product if such label bears a statement to indicate 
the substandard quality;
    (6) Not, with respect to any product for which U.S. Grade Standard 
are not in effect, affix any label on which reference is made to the 
Federal inspection to containers of processed foods, except with the 
approval of NMFS;
    (7) Furnish such reports of processing, packaging, grading, 
laboratory analyses, and output of products inspected, processed, and 
packaged at the designated official establish-ment(s) as may be 
requested by NMFS, subject to the approval of the Bureau of the Budget 
in accordance with the Federal Reports Act of 1942;
    (8) Make available for use by inspectors, adequate office space in 
the designated official establishment(s) and furnish suitable desks, 
office equipment, and files for the proper care and storage of 
inspection records;
    (9) Make laboratory facilities and necessary equipment available for 
the use of inspectors to inspect samples of processed foods and/or 
components thereof;
    (10) Furnish and provide laundry service, as required by NMFS, for 
coats, trousers, smocks, and towels used by inspectors during 
performance of duty in official establishment(s);
    (11) Furnish stenographic and clerical assistance as may be 
necessary in the typing of certificates and reports and the handling of 
official correspondence, as well as furnish the labor incident to the 
drawing and grading of samples and other work required to facilitate 
adequate inspection procedures whenever necessary;
    (12) Submit to NMFS, three (3) copies of new product specifications 
in a manner prescribed by NMFS, and three (3) end-product samples for 
evaluation and/or laboratory analysis on all products for approval, for 
which U.S. Grade Standards are not available, when inspection is to be 
applied to such products. If requested of NMFS, such new specifications 
and end-product samples shall be considered confidential;
    (13) Submit, as required by NMFS, for approval, proofs prior to 
printing and thereafter four (4) copies of any finished label which may 
or may not bear official identification marks, when such products are 
packed under Federal inspection on a contract basis;
    (14) Not make deceptive, fraudulent, or unauthorized use in 
advertising, or otherwise, of the fishery products inspection service, 
the inspection certificates or reports issued, or the containers on 
which official identification marks are embossed or otherwise 
identified, in connection with the sale of any processed products;
    (15) Submit to NMFS, four (4) copies of each label which may or may 
not bear official identification marks, when such labels are to be 
withdrawn from inspection or when approved labels are disapproved for 
further use under inspection;
    (16) Notify NMFS in advance of the proposed use of any labels which 
require obliteration of any official identification marks, and all 
reference to the inspection service on approved labels which have been 
withdrawn or disapproved for use;

[[Page 266]]

    (17) Accord representatives of NMFS at all reasonable times free and 
immediate access to establishment(s) and official establishment(s) under 
applicant's control for the purpose of checking codes, coded products, 
coding devices, coding procedures, official identification marks 
obliteration, and use of withdrawn or disapproved labels.
    (d) Termination of inspection services:
    (1) The fishery products inspection service, including the issuance 
of inspection reports, shall be rendered from the date of the 
commencement specified in the contract and continue until suspended or 
terminated:
    (i) By mutual consent;
    (ii) by either party giving the other party sixty (60) days' written 
notice specifying the date of suspension or termination;
    (iii) by one (1) day's written notice by NMFS in the event the 
applicant fails to honor any invoice within ten (10) days after date of 
receipt of such invoice covering the full costs of the inspection 
service provided, or in the event the applicant fails to maintain its 
designated plants in a sanitary condition or to use wholesome raw 
materials for processing as required by NMFS, or in the event the 
applicant fails to comply with any provisions of the regulations 
contained in this part;
    (iv) by automatic termination in case of bankruptcy, closing out of 
business, or change in controlling ownership.
    (2) In case the contracting party wishes to terminate the fishery 
products inspection service under the terms of paragraph (d)(1)(i) or 
(ii) of this section, either the service must be continued until all 
unused containers, labels, and advertising material on hand or in 
possession of his supplier bearing official identification marks, or 
reference to fishery products inspection service have been used, or said 
containers, labels, and advertising material must be destroyed, or 
official identification marks, and all other reference to the fishery 
products inspection service on said containers, labels, advertising 
material must be obliterated, or assurance satisfactory to NMFS must be 
furnished that such containers, labels, and advertising material will 
not be used in violation of any of the provisions of the regulations in 
the part.
    (3) In case the fishery products inspection service is terminated 
for cause by NMFS under the terms of paragraph (d)(1)(iii) of this 
section, or in case of automatic termination under terms of paragraph 
(d)(1)(iv) of this section, the contracting party must destroy all 
unused containers, labels, and advertising material on hand bearing 
official identification marks, or reference to fishery products 
inspection service, or must obliterate official identification marks, 
and all reference to the fishery products inspection service on said 
containers, labels and advertising material.

After termination of the fishery products inspection service, NMFS may, 
at such time or times as it may determine to be necessary, during 
regular business hours, enter the establishment(s) or other facilities 
in order to ascertain that the containers, labels, and advertising 
material have been altered or disposed of in the manner provided herein, 
to the satisfaction of NMFS.

[36 FR 21039, Nov. 3, 1971]



Sec. 260.98  Premises.

    The premises about an official establishment shall be free from 
conditions which may result in the contamination of food including, but 
not limited to, the following:
    (a) Strong offensive odors;
    (b) Improperly stored equipment, litter, waste, refuse, and uncut 
weeds or grass within the immediate vicinity of the buildings or 
structures that may constitute an attractant, breeding place, or 
harborage for rodents, insects, and other pests;
    (c) Excessively dusty roads, yards, or parking lots that may 
constitute a source of contamination in areas where food is exposed;
    (d) Inadequately drained areas that may contribute contamination to 
food products through seepage or foot-borne filth and by providing a 
breeding place for insects or micro-organisms;

If the grounds of an official establishment are bordered by grounds not 
under the official establishment operator's control of the kind 
described in

[[Page 267]]

paragraphs (b) through (d) of this section, care must be exercised in 
the official establishment by inspection, extermination, or other means 
to effect exclusion of pests, dirt, and other filth that may be a source 
of food contamination.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.99  Buildings and structures.

    The buildings and structures shall be properly constructed and 
maintained in a sanitary condition, including, but not limited to the 
following requirements:
    (a) Lighting. There shall be sufficient light (1) consistent with 
the use to which the particular portion of the building is devoted, and 
(2) to provide for efficient cleaning. Belts and tables on which 
picking, sorting, or trimming operations are carried on shall be 
provided with sufficient nonglaring light to insure adequacy of the 
respective operation. Light bulbs, fixtures, skylights, or other glass 
suspended over exposed food in any step of preparation shall be of the 
safety type or otherwise protected to prevent food contamination in case 
of breakage.
    (b) Ventilation. There shall be sufficient ventilation in each room 
and compartment thereof to prevent excessive condensation of moisture 
and to insure sanitary and suitable processing and operating conditions. 
If such ventilation does not prevent excessive condensation, the 
Director may require that suitable facilities be provided to prevent the 
condensate from coming in contact with equipment used in processing 
operations and with any ingredient used in the manufacture or production 
of a processed product.
    (c) Drains and gutters. All drains and gutters shall be properly 
installed with approved traps and vents. The drainage and plumbing 
system must permit the quick runoff of all water from official 
establishment buildings, and surface water around buildings and on the 
premises; and all such water shall be disposed of in such a manner as to 
prevent a nuisance or health hazard. Tanks or other equipment whose 
drains are connected to the waste system must have such screens and 
vacuum breaking devices affixed so as to prevent the entrance of waste 
water, material, and the entrance of vermin to the processing tanks or 
equipment.
    (d) Water supply. There shall be ample supply of both hot and cold 
water; and the water shall be of safe and sanitary quality with adequate 
facilities for its (1) distribution throughout buildings, and (2) 
protection against contamination and pollution.

Sea water of safe suitable and sanitary quality may be used in the 
processing of various fishery products when approved by NMFS prior to 
use.
    (e) Construction. Roofs shall be weathertight. The walls, ceilings, 
partitions, posts, doors, and other parts of all buildings and 
structures shall be of such materials, construction, and finish as to 
permit their efficient and thorough cleaning. The floors shall be 
constructed of tile, cement, or other equally impervious material, shall 
have good surface drainage, and shall be free from openings or rough 
surfaces which would interfere with maintaining the floors in a clean 
condition.
    (f) Processing rooms. Each room and each compartment in which any 
processed products are handled, processed, or stored (1) shall be so 
designed and constructed as to insure processing and operating 
conditions of a clean and orderly character; (2) shall be free from 
objectional odors and vapors; and (3) shall be maintained in a clean and 
sanitary condition.
    (g) Prevention of animals and insects in official establishment(s). 
Dogs, cats, birds, and other animals (including, but not being limited 
to rodents and insects) shall be excluded from the rooms from which 
processed products are being prepared, handled, or stored and from any 
rooms from which ingredients (including, but not being limited to salt, 
sugar, spices, flour, batter, breading, and fishery products) are 
handled and stored. Screens, or other devices, adequate to prevent the 
passage of insects shall, where practical, be provided for all outside 
doors and openings. The use of chemical compounds such as cleaning 
agents, insecticides, bactericides, or rodent poisons shall not be 
permitted except under such precautions and restrictions as will prevent 
any possibility of their contamination of the processed product. The use 
of such compounds shall

[[Page 268]]

be limited to those circumstances and conditions as approved by NMFS.
    (h) Inspector's office. Furnished suitable and adequate office 
space, including, but not being limited to, light, heat, and janitor 
service shall be provided rent free in official establishments for use 
for official purposes by the inspector and NMFS representatives. The 
room or rooms designated for this purpose shall meet with the approval 
of NMFS and shall be conveniently located, properly ventilated, and 
provided with lockers or cabinets suitable for the protection and 
storage of inspection equipment and supplies and with facilities 
suitable for inspectors to change clothing.
    (i) Adequate parking space, conveniently located, for private or 
official vehicles used in connection with providing inspection services 
shall be provided.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.100  Facilities.

    Each official establishment shall be equipped with adequate sanitary 
facilities and accommodations, including, but not being limited to, the 
following:
    (a) Containers approved for use as containers for processed products 
shall not be used for any other purpose.
    (b) No product or material not intended for human food or which 
creates an objectionable condition shall be processed, handled, or 
stored in any room, compartment, or place where any fishery product is 
manufactured, processed, handled, or stored.
    (c) Suitable facilities for cleaning and sanitizing equipment (e.g., 
brooms, brushes, mops, clean cloths, hose, nozzles, soaps, detergent, 
sprayers) shall be provided at convenient locations throughout the 
plant.

[36 FR 21040, Nov. 3, 1971]



Sec. 260.101  Lavatory accommodations.

    Modern lavatory accommodations, and properly located facilities for 
cleaning and sanitizing utensils and hands, shall be provided.
    (a) Adequate lavatory and toilet accommodations, including, but not 
being limited to, running hot water (135 deg. F. or more) and cold 
water, soap, and single service towels, shall be provided. Such 
accommodations shall be in or near toilet and locker rooms and also at 
such other places as may be essential to the cleanliness of all 
personnel handling products.
    (b) Sufficient containers with covers shall be provided for used 
towels and other wastes.
    (c) An adequate number of hand washing facilities serving areas 
where edible products are prepared shall be operated by other than hand-
operated controls, or shall be of a continuous flow type which provides 
an adequate flow of water for washing hands.
    (d) Durable signs shall be posted conspicuously in each toilet room 
and locker room directing employees to wash hands before returning to 
work.
    (e) Toilet facilities shall be provided according to the following 
formula:

------------------------------------------------------------------------
                                                                Toilet
                      Number of persons                          bowls
                                                               required
------------------------------------------------------------------------
1 to 15, inclusive..........................................           1
16 to 35, inclusive.........................................           2
36 to 55, inclusive.........................................       \1\ 3
56 to 80, inclusive.........................................       \1\ 4
For each additional 30 persons in excess of 80..............       \1\ 1
------------------------------------------------------------------------
\1\ Urinals may be substituted for toilet bowls but only to the extent
  of one-third of the total number of bowls required.


All toilet equipment shall be kept operative, in good repair, and in a 
sanitary condition.

[36 FR 21041, Nov. 3, 1971]



Sec. 260.102  Equipment.

    All equipment used for receiving, washing, segregating, picking, 
processing, packaging, or storing any processed products or any 
ingredients used in the manufacture or production thereof, shall be of 
such design, material, and construction as will:
    (a) Enable the examination, segregation, preparation, packaging, and 
other processing operations applicable to processed products, in an 
efficient, clean, and sanitary manner, and
    (b) Permit easy access to all parts to insure thorough cleaning and 
effective bactericidal treatment. Insofar as is practicable, all such 
equipment shall be made of smooth impermeable corrosion-resistant 
material that will not adversely affect the processed product by 
chemical action or physical contact. Such equipment shall be kept in 
good repair and sanitary condition. Such

[[Page 269]]

equipment shall be cleaned and sanitized at a frequency as is necessary 
or required in accordance with Good Manufacturing Practice Regulations, 
21 CFR part 128.

[36 FR 21041, Nov. 3, 1971]



Sec. 260.103  Operations and operating procedures shall be in accordance with an effective sanitation program.

    (a) All operators in the receiving transporting, holdings, 
segregating, preparing, processing, packaging, and storing of processed 
products and ingredients, used as aforesaid, shall be strictly in accord 
with clean and sanitary methods and shall be conducted as rapidly as 
possible and at temperatures that will inhibit and retard the growth of 
bacterial and other micro-organisms and prevent any deterioration or 
contamination of such processed products or ingredients thereof. 
Mechanical adjustments or practices which may cause contamination of 
foods by oil, dust, paint, scale, fumes, grinding materials, decomposed 
food, filth, chemicals, or other foreign materials shall not be 
conducted during any manufacturing or processing operation.
    (b) All processed products, raw materials, ingredients, and 
components thereof shall be subject to inspection during each 
manufacturing or processing operation. To assure a safe, wholesome 
finished product, changes in processing methods and procedures as may be 
required by the Director shall be effectuated as soon as practicable. 
All processed products which are not manufactured or prepared in 
accordance with the requirements contained in Sec. 260.96 to 
Sec. 260.104 or are unwholesome or otherwise not fit for human food 
shall be removed and segregated prior to any further processing 
operation.
    (c) Official establishments operating under Federal inspection 
should have an effective quality control program as appropriate for the 
nature of the products and processing operations.
    (d) All ingredients used in the manufacture or processing of any 
processed product shall be wholesome and fit for human food.
    (e) The methods and procedures employed in the receiving, 
segregating, handling, transporting, and processing of ingredients in 
official estab lishment(s) shall be adequate to result in a satisfactory 
processed product. Such methods and procedures include, but are not 
limited to, the following requirements:
    (1) Containers, utensils, pans, and buckets used for the storage or 
transporting of partially processed food ingredients shall not be nested 
unless rewashed and sanitized before each use;
    (2) Containers which are used for holding partially processed food 
ingredients shall not be stacked in such manner as to permit 
contamination of the partially processed food ingredients;
    (3) Packages or containers for processed products shall be clean 
when being filled with such products; and all reasonable precautions 
shall be taken to avoid soiling or contaminating the surface of any 
package or container liner which is, or will be, in direct contact with 
such products.
    (f) Retention tags: (1) Any equipment such as, but not limited to, 
conveyors, tillers, sorters, choppers, and containers which fail to meet 
appropriate and adequate sanitation requirements will be identified by 
the inspector in an appropriate and conspicuous manner with the word 
``RETAINED.'' Following such identification, the equipment shall not be 
used until the discrepancy has been resolved, the equipment reinspected 
and approved by the inspector and the ``RETAINED'' identification 
removed by the inspector.
    (2) Lot(s) of processed products that may be considered to be 
mislabeled and/or unwholesome by reason of contaminants or which may 
otherwise be in such condition as to require further evaluation or 
testing to determine that the product properly labeled and/or wholesome 
will be identified by the inspector in an appropriate and conspicuous 
manner with the word ``RETAINED.'' Such lot(s) of product shall be held 
for reinspection or testing. Final disposition of the lot(s) shall be 
determined by NMFS and the removal of the ``RETAINED'' identification 
shall be performed by the inspector.

[36 FR 21041, Nov. 3, 1971]

[[Page 270]]



Sec. 260.104  Personnel.

    The establishment management shall be responsible for taking all 
precautions to assure the following:
    (a) Disease control. No person affected by disease in a communicable 
form, or while a carrier of such disease, or while affected with boils, 
sores, infected wounds, or other abnormal sources of microbiological 
contamination, shall work in a food plant in any capacity in which there 
is a reasonable possibility of food ingredients becoming contaminated by 
such person, or of disease being transmitted by such person to other 
individuals.
    (b) Cleanliness. All persons, while working in direct contact with 
food preparation, food ingredients, or surfaces coming into contact 
therewith shall:
    (1) Wear clean outer garments, maintain a high degree of personal 
cleanliness, and conform to hygenic practices while on duty, to the 
extent necessary to prevent contamination of food products.
    (2) Wash and sanitize their hands thoroughly to prevent 
contamination by undesirable microorganisms before starting work, after 
each absence from the work station, and at any other time when the hands 
may have become soiled or contaminated.
    (3) Remove all insecure jewelry and, when food is being manipulated 
by hand, remove from hands any jewelry that cannot be adequately 
sanitized.
    (4) If gloves are used in food handling, maintain them in an intact, 
clean, and sanitary condition. Such gloves shall be of an impermeable 
material except where their usage would be inappropriate or incompatible 
with the work involved.
    (5) Wear hair nets, caps, masks, or other effective hair restraints. 
Other persons that may incidentally enter the processing areas shall 
comply with this requirement.
    (6) Not store clothing or other personal belongings, eat food, drink 
beverages, chew gum, or use tobacco in any form in areas where food or 
food ingredients are exposed or in areas used for washing equipment or 
utensils.
    (7) Take any other necessary precautions to prevent contamination of 
foods with microorganisms or foreign substances including, but not 
limited to perspiration, hair, cosmetics, tobacco, chemicals, and 
medicants.
    (c) Education and training. Personnel responsible for identifying 
sanitation failures or food contamination should have a background of 
education or experience, or a combination thereof, to provide a level of 
competency necessary for production of clean wholesome food. Food 
handlers and supervisors should receive appropriate training in proper 
food-handling techniques and food-protection principles and should be 
cognizant of the danger of poor personal hygiene and unsanitary 
practices, and other vectors of contamination.

[36 FR 21041, Nov. 3, 1971]

                          Labeling Requirements



Secs. 260.200-260.201  [Reserved]



PART 261--UNITED STATES STANDARDS FOR GRADES--Table of Contents




Sec.
261.101  Standard description.
261.102  Publication and removal of U.S. Grade Standards.
261.103  Basis for determination of a U.S. Standard for Grades.

    Authority: 7 U.S.C. 1621-1630.

    Source: 61 FR 9369, Mar. 8, 1996, unless otherwise noted.



Sec. 261.101  Standard description.

    A U.S. Standard for Grades authorized under this part is a standard 
for a fish or fishery product that has been developed and adopted by the 
voluntary seafood inspection program pursuant to the Agricultural 
Marketing Act of 1946 (7 U.S.C. 1621 et seq.) and other authorities 
delegated to the U.S. Department of Commerce.



Sec. 261.102  Publication and removal of U.S. Grade Standards.

    (a) The voluntary U.S. Standards for Grades adopted pursuant to this 
part shall be issued as Program policies and contained within the NMFS 
Fishery Products Inspection Manual. Compliance with voluntary standards 
issued as Program policies within the manual shall satisfy the 
requirements of this

[[Page 271]]

part. Compliance with a voluntary standard issued as a Program policy 
does not relieve any party from the responsibility to comply with the 
provisions of the Federal Food, Drug, and Cosmetic Act; or other Federal 
laws and regulations.
    (b) Notification of an application for a new grade standard shall be 
published in the Federal Register. If adopted, the grade standard shall 
be issued as a Program policy and contained in the NMFS Fishery Products 
Inspection Manual.
    (c) Recision and revision of a U.S. Standard for Grades will be made 
a Program policy amendment and contained in the NMFS Fishery Products 
Inspection Manual.
    (d) The NMFS Fishery Products Inspection Manual is available to 
interested parties.



Sec. 261.103  Basis for determination of a U.S. Standard for Grades.

    (a) To address the inherently distinct and dissimilar attributes 
found in the fishery product groups, each standard for grades should 
have a different scope and product description, product forms, sample 
sizes, definition of defects, etc. The Secretary will make the final 
determination regarding the content of a U.S. Standard for Grades.
    (b) A proposal for a new or revised U.S. grade standard may include 
the following:
    (1) Scope and product description, which describes the products that 
are eligible for grading using the standard (e.g., fish portion, fish 
fillet).
    (2) Product forms, which describe the types, styles and market forms 
covered by the standard (e.g., skin-off, tail-on, headless).
    (3) Grade and inspection marks, which describe the grades and 
inspection mark criteria for each grade category (e.g., Grade A 
 15 points).
    (4) Grade determination, which describes the means by which the 
grade is determined (i.e., the factors rated by score points and those 
that are not). Standards may contain defect grouping limiting rules that 
contain additional provisions that must be met.
    (5) Sampling, which describes the method of sampling and sample unit 
sizes (e.g., 10 portions, 8 ounces, etc.).
    (6) Procedures that describe the process used to determine the 
product grade (e.g., label declarations, sensory evaluation).
    (7) Definitions of defects, which outline the defects associated 
with the products covered by the standard, defines them, and describes 
the method of counting or measuring the defects. This section may 
provide associated defect points or reference a defect table (e.g., 
bruises, blood spots, bones, black spots, coating defects, 1-inch 
squares, percent by weight, ratios).
    (8) Defect point assessment, which describes how to assess points 
and provides any special guidance that may be necessary to the 
particular standard (e.g., defect points for certain categories are 
added together and divided by the weight of the sample unit; the number 
of instances are counted to determine if it is slight, moderate, or 
excessive defect).
    (9) Tolerances for lot certification, which provide the sections 
from Title 50 CFR that regulate lot certification.
    (10) Hygiene, which specifies the sections of applicable Federal 
regulations regulating the safe, wholesome production of food for human 
consumption.
    (11) Methods of analysis, which describe the methods of analysis 
that will be used in the evaluation of the products covered by the 
standard for grades (e.g., net weight, deglazing, debreading).
    (12) Defect table, which is the table of defects and associated 
points to be assessed for each defect.

[[Page 272]]



                        SUBCHAPTER H  [RESERVED]





                      SUBCHAPTER I--TUNA FISHERIES





PART 285--ATLANTIC TUNA FISHERIES--Table of Contents




                           Subpart A--General

Sec.
285.1  Purpose and scope.
285.2  Definitions.
285.3  Prohibitions.
285.4  Facilitation of enforcement.
285.5  Civil procedures.
285.6  Civil penalties.
285.7  Experimental fishing exemption.
285.8  At-sea observer coverage.
285.9  Archival tags.

       Subpart B--Atlantic Bluefin Tuna (Thunnus thynnus thynnus)

285.20  Fishing seasons.
285.21  Vessel permits.
285.22  Quotas.
285.23  Incidental catch.
285.24  Catch limits.
285.25  Purse seine vessel requirements.
285.26  Size classes.
285.27  Tag and release program.
285.28  Dealer permits.
285.29  Recordkeeping and reporting.
285.30  Tags.
285.31  Prohibitions.
285.32  Civil penalties.
285.33  Gear restrictions.
285.34  Restrictions on sale.

            Subpart C--Atlantic Tunas Other Than Bluefin Tuna

285.50  Species subject to regulation.
285.51  Authorized fishing gear.
285.52  Size limits.
285.53  Vessel permits.
285.54  Vessel recordkeeping and reporting.
285.55  Dealer permits.
285.56  Dealer recordkeeping and reporting.
285.57  Purse seine vessel requirements.
285.58  Incidental catch.
285.59  Prohibitions.

                 Subpart D--Restrictions on Tuna Imports

285.80  Basis and purpose.
285.81  Species subject to regulation.
285.82  Species under investigation by the Commission.
285.83  Investigations authorized.
285.84  Publication of findings.
285.85  Proof of admissibility.
285.86  Removal of import restrictions.
285.87  Import restrictions for Belize, Honduras, and Panama.

                Subpart E--International Port Inspection

285.100  Basis and purpose.
285.101  Authorized officer.
285.102  Vessels subject to inspection.
285.103  Reports.

            Subpart F--Bluefin Tuna Statistical Documentation

285.200  Species subject to documentation requirements.
285.201  Documentation requirements.
285.202  Contents of documentation.
285.203  Validation requirements.
285.204  Ports of entry.
285.205  Prohibitions.

Figure 1 to Part 285

    Authority: 16 U.S.C. 971 et seq.

    Source: 50 FR 43398, Oct. 25, 1985, unless otherwise noted.



                           Subpart A--General



Sec. 285.1  Purpose and scope.

    (a) The Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971-971h) 
authorizes the Secretary to implement the recommendations of the 
International Commission for the Conservation of Atlantic Tunas (ICCAT). 
The Secretary's authority under the Act has been delegated to the 
Assistant Administrator.
    (b) This part implements the ICCAT recommendations for persons and 
vessels subject to the jurisdiction of the United States.
    (c) This part does not apply to any person or vessel authorized by 
the Commission, or in writing by the Director, or any state upon written 
authorization by the Director, to engage in fishing for research 
purposes.
    (d) Under section 9(d) of the Act, determinations made by the 
Assistant Administrator that the provisions of this part apply within 
the territorial sea of the United States adjacent to, and within the 
boundaries of, the States of Texas, Louisiana, Alabama, Florida, 
Georgia, South Carolina, North Carolina, Virginia, Maryland, Delaware, 
New Jersey, New York, Rhode Island, Massachusetts, New

[[Page 273]]

Hampshire, and the Commonwealths of Puerto Rico and the Virgin Islands, 
and, with the exceptions of Secs. 285.22 (c) and (d), 285.23 (a) and (b) 
and 285.25 within the territorial sea of the United States adjacent to, 
and within the boundaries of, the State of Maine, continue in effect.

[50 FR 43398, Oct. 25, 1985, as amended at 60 FR 38511, July 27, 1995]



Sec. 285.2  Definitions.

    The terms used in this part have the following meanings (definitions 
in the Act are repeated here to aid understanding of the rules):
    Act means the Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-
971h.
    Aircraft means any contrivance used for flight in air.
    Albacore means the fish species Thunnus alalunga.
    Angling means fishing for or catching of, or the attempted fishing 
for or catching of, fish by any person (angler) with a hook attached to 
a line which is hand held or by rod and reel made for this purpose.
    Archival tag means an electronic recording device that is implanted 
or affixed to a fish that is released alive back into the ocean to allow 
collection of scientific information about the migratory behavior of 
that fish.
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Oceanic and Atmospheric Administration, Department 
of Commerce, or an individual to whom appropriate authority has been 
delegated.
    Atlantic bluefin tuna means the subspecies of bluefin tuna Thunnus 
thynnus thynnus that is found in the Atlantic Ocean. Size classes for 
Atlantic bluefin tuna are defined in Sec. 285.26.
    Atlantic bonito means the fish species Sarda chiliensis or Sarda 
sarda.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard; or any U.S. Coast Guard personnel accompanying and acting under 
the direction of a commissioned, warrant, or petty officer of the U.S. 
Coast Guard;
    (2) Any special agent or fisheries enforcement officer of NMFS; or
    (3) Any person designated by the head of any Federal or state agency 
that has entered into an agreement with the Secretary or the Commandant 
of the U.S. Coast Guard to enforce the provisions of the Magnuson Act.
    Bandit gear means vertical hook-and-line gear with rods attached to 
a vessel, with no more than two hooks per line and with line retrieved 
by manual, electric, or hydraulic reels.
    Bigeye tuna means the fish species Thunnus obesus.
    Bluefin tuna means the fish species Thunnus thynnus that is found in 
any ocean area.
    Buy-boat means any vessel or other means of conveyance used by a 
dealer in purchasing or receiving Atlantic bluefin tuna from any person 
or fishing vessel engaged in fishing for any tuna.
    Cargo vessel means any fishing vessel used for transporting fish or 
fish products.
    Charter boat means a vessel less than 100 gross tons (90.8 metric 
tons) that meets the requirements of the Coast Guard to carry six or 
fewer passengers for hire and that carries a passenger for hire at any 
time during the calendar year.
    Commercial activity means any activity, other than fishing, of 
industry, trade, or commerce, including but not limited to the buying or 
selling of a regulated species and activities conducted for the purpose 
of facilitating such buying and selling.
    Commercial fishing means fishing for purposes including sale or 
barter of any or all of the fish harvested.
    Commission means the International Commission for the Conservation 
of Atlantic Tunas established under Article III of the Convention.
    Convention means the International Convention for the Conservation 
of Atlantic Tunas, signed at Rio de Janeiro, Brazil, on May 14, 1966, 20 
U.S.T. 2887, TIAS 6767, including any amendments or protocols thereto, 
which are binding upon the United States.
    Curved fork length means a measurement of the length of Atlantic 
tuna taken in a line tracing the contour of the body from the tip of the 
upper jaw to the fork of the tail, which abuts the ventral side of the 
pectoral fin and the ventral side of the caudal keel.
    Dealer means any person who engages in a commercial activity with 
respect to a regulated species or parts thereof.

[[Page 274]]

    Director means the Director of the Office of Fisheries Conservation 
and Management, 1335 East-West Highway, Silver Spring, MD 20910.
    Downrigger means a rod attached to a vessel and with a weight on a 
cable that is in turn attached to hook-and-line gear to maintain lures 
or bait at depth while trolling, and that has a release system to 
retrieve the weight by rod and reel or by manual, electric, or hydraulic 
winch after a fish strike on the hook-and-line.
    Dressed weight means the weight of a fish after it has been gilled, 
gutted, beheaded, and definned.
    Drift gillnet, sometimes called a drift entanglement net or drift 
net, means a flat net, unattached to the ocean bottom, whether or not 
attached to a vessel, designed to be suspended vertically in the water 
to entangle the head or other body parts of fish that attempt to pass 
through the meshes.
    Eviscerated means removal of the alimentary organs only.
    Fish or fishing means the catching or fishing for, or the attempted 
catching or fishing for, any species of fish covered by the Convention, 
or any activities in support of fishing.
    Fisheries Science Center Director means:
    (1) For areas south of Virginia, the Science and Research Director, 
Southeast Fisheries Science Center, NMFS, 75 Virginia Beach Drive, 
Miami, FL 33149, telephone 305-361-5761, or a designee; or
    (2) For Virginia and areas to the north, the Science and Research 
Director, Northeast Fisheries Science Center, NMFS, 166 Water Street, 
Woods Hole, MA 02543-1097, telephone 508-548-5123.
    Fishing record means all records of navigation and operations, as 
well as all records of catching, harvesting, transporting, landing, 
purchase or sale.
    Fishing trip means the time period between when a fishing vessel 
departs from port to carry out fishing operations and the time such 
vessel returns to port or offloads any of its catch.
    Fishing vessel means any vessel engaged in fishing, processing, or 
transporting fish loaded on the high seas, or any vessel outfitted for 
such activities.
    Fishing week means a period of time beginning at 0001 hours local 
time on Sunday, and ending at 2400 hours local time on the following 
Saturday.
    Fixed gear means stationary, anchored non-trawl gear.
    Handgear means handline, harpoon, or rod and reel.
    Handline or handline gear means fishing gear which is released by 
hand and consists of one main line of variable length to which is 
attached one or two leaders and hooks. Handlines are retrieved only by 
hand, and not by mechanical means.
    Harpoon or harpoon gear means fishing gear consisting of a pointed 
dart or iron attached to the end of a line several hundred feet in 
length, the other end of which is attached to a floatation device. 
Harpoon gear is attached to a pole or stick which is propelled only by 
hand, and not by mechanical means.
    Headboat (partyboat) means a vessel that holds a valid Certificate 
of Inspection issued by the U.S. Coast Guard to carry passengers for 
hire.
    Intermediate country means a country from which bluefin tuna or 
bluefin tuna products that were previously imported by that nation are 
exported to the United States. Shipments of bluefin tuna or bluefin tuna 
products through a country on a through bill of lading or in another 
manner that does not enter the shipments into that country as an 
importation do not make that country an intermediate country under this 
definition.
    Land means to begin offloading fish, to offload fish, or to arrive 
in port with the intention of offloading fish.
    Length overall means the length listed on the vessel's U.S. Coast 
Guard Certificate of Documentation or Certificate of Number, or if not 
documented, on the vessel's state registration certificate.
    Longline or longline gear means fishing gear which is set 
horizontally, either anchored, floating, or attached to a vessel, which 
consists of a main or groundline with three or more gangions and hooks. 
A longline may be retrieved by hand or mechanical means.
    Metric ton (mt) means 2204.6 pounds (1000 kilograms).

[[Page 275]]

    NMFS means the National Marine Fisheries Services, National Oceanic 
and Atmospheric Administration, Department of Commerce.
    Operator, with respect to any vessel, means the master or other 
individual on board and in charge of that vessel.
    Owner means, with respect to any vessel
    (1) Any person who owns that vessel in whole or part;
    (2) Any charterer of the vessel, whether bareboat, time, or voyage; 
or
    (3) Any person who acts in the capacity of a charterer, including 
but not limited to parties to a management agreement, operating 
agreement, or any similar agreement that bestows control over the 
destination, function, or operation of the vessel.
    Pacific bluefin tuna means the subspecies of bluefin tuna Thunnus 
thynnus orientalis that is found in the Pacific Ocean.
    Person means any individual, partnership, corporation, or 
association subject to the jurisdiction of the United States.
    Plastic tag means the plastic or combination plastic and metal 
marker issued for the tag and release program under Sec. 285.27
    Postmark means independently verifiable evidence of date of mailing, 
such as U.S. Postal Service postmark, United Parcel Service (U.P.S.) or 
other private carrier postmark, certified mail receipt, overnight mail 
receipt or a receipt issued upon hand delivery to an authorized 
representative of NMFS.
    Private boat means any vessel fishing in the Angling category other 
than charter or party boats.
    Purse seining means fishing for or catching a regulated species by 
means of an encircling net and associated gear.
    Recreational fishing means fishing for purposes not including sale 
or barter of any or all of the fish harvested.
    Regional Director means
    (1) For the purposes of Atlantic tuna vessel and dealer permits and 
Atlantic bluefin tuna dealer reports, the Director, Northeast Region, 
National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 
01930-3799; and for purposes of reporting for Atlantic tunas other than 
bluefin, the Regional Director, Southeast Region, National Marine 
Fisheries Service, 9721 Executive Center Drive, St. Petersburg, FL 
33702-2432.
    (2) For the purposes of Pacific bluefin dealer permits and 
reporting, the Director, Southwest Region, National Marine Fisheries 
Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
    Regulated species means albacore, Atlantic bluefin tuna, bigeye 
tuna, skipjack tuna, or yellowfin tuna.
    Regulatory area means all waters of the Atlantic Ocean including 
adjacent seas, except the waters over which the individual States 
exercise fishery management jurisdiction unless the Assistant 
Administrator has determined otherwise in accordance with this part, as 
noted in Sec. 285.1(d).
    Reporting week means a period of time beginning at 0001 hours local 
time on Sunday, and ending at 2400 hours local time the following 
Saturday.
    Restricted-fishing day means a date, beginning at 0001 hours and 
ending at 2400 hours, after the commencement date of the General 
category fishing season and before the effective date of fishery closure 
on attaining the annual or subperiod quota, designated by the Director 
under Sec. 285.24(a) upon which no fishing for, possession or retention 
of Atlantic bluefin tuna may be conducted by persons aboard vessels 
permitted in the Atlantic tunas General category.
    Rod and reel means vertical hook-and-line gear with a hand-held 
(includes rod holder) fishing rod and with a manually operated reel 
attached.
    Round or round weight means a fish or the weight of a fish before 
gilling, gutting, beheading, and definning.
    Secretary means the Secretary of Commerce, or a designee.
    Short ton (st) means 2,000 pounds (907 kilograms).
    Skipjack tuna means the fish species Katsuwonus (Euthynnus) pelamis.
    State means any State of the United States, the District of 
Columbia, the Commonwealths of Puerto Rico and the Virgin Islands, and 
territories and possessions of the United States.
    Straight fork length means a measurement of the length of Atlantic 
tuna

[[Page 276]]

taken in a straight line along the middle of the lateral surface from a 
line perpendicular to the tip of the upper jaw to a line perpendicular 
to the fork of the tail.
    Tag means the flexible, self-locking ribbon issued by NMFS for the 
identification of Atlantic bluefin tuna under Sec. 285.30.
    Trap means a pound net, weir or staked gill net that is maintained 
and operated at a fixed location.
    Tuna means albacore, Atlantic bluefin tuna, Atlantic bonito, bigeye 
tuna, skipjack tuna or yellowfin tuna.
    Yellowfin tuna means the fish species Thunnus albacares.

[50 FR 43398, Oct. 25, 1985, as amended at 51 FR 26899, July 28, 1986; 
52 FR 25011, July 2, 1987; 53 FR 24645, June 29, 1988; 57 FR 372, Jan. 
6, 1992; 57 FR 32920, July 24, 1992; 58 FR 45289, Aug. 27, 1993; 59 FR 
17725, Apr. 14, 1994; 60 FR 14386, Mar. 17, 1995; 60 FR 38511, July 27, 
1995; 61 FR 30186, June 14, 1996; 62 FR 30744, June 5, 1997; 62 FR 
38487, July 18, 1997; 63 FR 669, Jan. 7, 1998]



Sec. 285.3  Prohibitions.

    It is unlawful:
    (a) For any person or for any fishing vessel subject to the 
jurisdiction of the United States to engage in fishing or to land any 
Atlantic tuna in violation of these rules, except that fish implanted or 
affixed with archival tags may be possessed, retained and landed under 
the provisions of Sec. 285.9.
    (b) For any person to land, transship, ship, transport, purchase, 
sell, offer for sale, import, export, or have in custody, possession, or 
control any fish that the person knows, or should have known, was taken, 
retained, possessed, or landed contrary to this part, without regard to 
the citizenship of the person or registry of the fishing vessel that 
harvested the fish.
    (c) For a dealer or any person in charge of any fishing vessel 
subject to the jurisdiction of the United States to fail to make, keep, 
or furnish reports required by this part.
    (d) For a dealer or any person in charge of any fishing vessel 
subject to the jurisdiction of the United States to obstruct or to 
refuse to allow any authorized officer to enter the dealer's premises or 
to board the fishing vessel to search or inspect its catch, equipment, 
books, documents, records, or other articles, or to question the persons 
in the dealer's premises or aboard the fishing vessel under the 
provisions of this part.
    (e) For any person to import from any country any regulated species 
in any form subject to regulation under a recommendation of the 
Commission, or any fish in any form not under regulation but under 
investigation by the Commission, during the period such fish have been 
denied entry under this part.
    (f) For any person or vessel subject to the jurisdiction of the 
United States to land:
    (1) Any tuna, except bluefin, in forms other than round (fins 
intact), or other than eviscerated with the head, tail, and fins 
removed, except that one pectoral fin must remain attached; and
    (2) Bluefin tuna in forms other than round (fins intact), or other 
than eviscerated with the head and fins removed, except that one 
pectoral fin and tail must remain attached.
    (g) For any person subject to the jurisdiction of the United States 
to land, transship, ship, transport, purchase, sell, offer for sale, 
import, export, or have in custody, possession, or control any regulated 
species that was harvested, retained, or possessed in a manner contrary 
to the regulations of another country.
    (h) For any person to refuse to provide information requested by 
NMFS personnel or anyone collecting information for NMFS, under an 
agreement or contract, relating to the scientific monitoring or 
management of tuna.
    (i) For any person to assault, impede, oppose, intimidate, or 
interfere with, by any means, NMFS personnel or anyone collecting 
information for NMFS, under an agreement or contract, relating to the 
scientific monitoring or management of tuna.
    (j) For any person on board a vessel subject to the jurisdiction of 
the United States to fish for or catch any Atlantic tuna with gear that 
is not authorized under Sec. 285.21(b) or Sec. 285.51, or to retain or 
land Atlantic tunas taken with unauthorized gear.
    (k) For any person to possess any Atlantic tuna on board a vessel 
subject to the jurisdiction of the United States

[[Page 277]]

that has gear on board that is not authorized under Sec. 285.21(b) or 
Sec. 285.51, unless authorized under Sec. 285.7.
    (l) For any person to violate any conditions specified by the 
Director in any exemption issued under Sec. 285.7.
    (m) For any person to assault, resist, oppose, impede, intimidate, 
interfere with, obstruct, delay, or prevent, by any means, any 
authorized officer in the conduct of any search, inspection, seizure or 
lawful investigation made in connection with enforcement of this part.
    (n) For any person to assault, resist, oppose, impede, harass, 
intimidate, or interfere with a NMFS-approved observer aboard a vessel.
    (o) Interfere with or bar by command, impediment, threat, coercion, 
or refusal of reasonable assistance, an at-sea observer conducting his 
or her duties aboard a vessel.
    (p) Fail to provide an observer with the required food, 
accommodations, access, and assistance, as specified in Sec. 285.8(c).
    (q) Purchase, receive, or transfer for commercial purposes any 
Atlantic tunas landed by owners or operators of vessels not permitted to 
do so under this part, or purchase, receive, or transfer for commercial 
purposes any Atlantic tunas without a valid dealer permit issued under 
this part.
    (r) Sell, offer for sale, or transfer for commercial purposes any 
Atlantic tunas landed by owners or operators of a vessel not permitted 
to do so under this part or to any person or vessel without a valid 
dealer permit issued under this part.
    (s) Dispose of fish or parts thereof or other matter in any manner, 
after any communication or signal from an authorized officer, or after 
the approach of an authorized officer.

[50 FR 43398, Oct. 25, 1985, as amended at 57 FR 372, Jan. 6, 1992; 58 
FR 45289, Aug. 27, 1993; 60 FR 38511, July 27, 1995; 63 FR 669, Jan. 7, 
1998]



Sec. 285.4  Facilitation of enforcement.

    (a) The Secretary, the Secretary of the Department in which the U.S. 
Coast Guard is operating, and the U.S. Customs Service will enforce 
jointly this part and the provisions of the Act.
    (b) Enforcement agents of NMFS will enforce provisions of this part 
and the Act on behalf of the Secretary and may take any actions 
authorized with respect to enforcement. By agreement, the Secretary may 
utilize the personnel, services, and facilities of any other Federal 
Agency to enforce these rules and the Act. By agreement, the Secretary 
also may designate personnel of a State to enforce these rules and the 
Act.
    (c) The operator of, or any other person aboard, any fishing vessel 
subject to this part must immediately comply with instructions and 
signals issued by an authorized officer to stop the vessel and with 
instructions to facilitate safe boarding and inspection of the vessel, 
its gear, equipment, fishing record (where applicable), and catch for 
purposes of enforcing the Act and this part.
    (d) Communications. (1) Upon being approached by a U.S. Coast Guard 
vessel or aircraft, or other vessel or aircraft with an authorized 
officer aboard, the operator of a fishing vessel must be alert for 
communications conveying enforcement instructions.
    (2) VHF-FM radiotelephone is the preferred method of communicating 
between vessels. If the size of the vessel and the wind, sea, and 
visibility conditions allow, a loudhailer may be used instead of the 
radio. Hand signals, placards, high frequency radiotelephone, or voice 
may be employed by an authorized officer, and message blocks may be 
dropped from an aircraft.
    (3) If other communications are not practicable, visual signals may 
be transmitted by flashing light directed at the vessel signaled. Coast 
Guard units will normally use the flashing light signal ``L'' as the 
signal to stop. In the International Code of Signals, ``L'' (. -- . .) 
\1\ means ``you should stop your vessel instantly.''
---------------------------------------------------------------------------

    \1\ Period (.) means a short flash of light; dash (--) means a long 
flash of light.
---------------------------------------------------------------------------

    (4) Failure of a vessel's operator promptly to stop the vessel when 
directed to do so by an authorized officer

[[Page 278]]

using loudhailer, radiotelephone, flashing light signal, or other means 
constitutes Prima facie evidence of the offense of refusal to allow an 
authorized officer to board.
    (5) The operator of a vessel who does not understand a signal from 
an enforcement unit and who is unable to obtain clarification by 
loudhailer or radiotelephone must consider the signal to be a command to 
stop the vessel instantly.
    (e) Boarding. The operator of a vessel directed to stop must
    (1) Guard Channel 16, VHF-FM if so equipped;
    (2) Stop immediately and lay to or maneuver in such a way as to 
allow the authorized officer and his party to come aboard;
    (3) Except for those vessels with a freeboard of four feet or less, 
provide a safe ladder, if needed, for the authorized officer and his 
party to come aboard;
    (4) When necessary to facilitate the boarding or when requested by 
an authorized officer, provide a manrope or safety line, and 
illumination for the ladder; and
    (5) Take such other actions as necessary to facilitate boarding and 
to ensure the safety of the authorized officer and the boarding party.
    (f) Signals. The following signals, extracted from the International 
Code of Signals, may be sent by flashing light by an enforcement unit 
when conditions do not allow communications by loudhailer or 
radiotelephone. Knowledge of these signals by vessel operators is not 
required. However, knowledge of these signals and appropriate action by 
a vessel operator may preclude the necessity of sending the signal ``L'' 
and the necessity for the vessel to stop instantly.
    (1) ``AA'' repeated (.- .-) is the call to an unknown station. The 
operator of the signaled vessel should respond by identifying the vessel 
by radiotelephone or by illuminating the vessel's identification.
    (2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at 
slow speed, a boat is coming to you.'' This signal is normally employed 
when conditions allow an enforcement boarding without the necessity of 
the vessel being boarded coming to a complete stop, or, in some cases, 
without retrieval of fishing gear which may be in the water.
    (3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I 
am going to board you.''

[50 FR 43498, Oct. 25, 1985; 50 FR 45828, Nov. 4, 1985, as amended at 53 
FR 24645, June 29, 1988]



Sec. 285.5  Civil procedures.

    (a) The method for assessment of civil penalties for violation of 
these rules or the Act must be in accordance with the procedures set 
forth in 15 CFR part 904.
    (b) In view of the perishable nature of tuna when not processed 
otherwise than by chilling or freezing, authorized officers may cause to 
be sold, for not less than its reasonable market value, unchilled or 
unfrozen tunas that may be seized and forfeited under the Act and this 
part.
    (c) The purchaser must remit the proceeds of any sale made under 
paragraph (b) of this section to the Director. The Director will deposit 
and retain the proceeds in the Suspense Account of NMFS (Account No. DO 
6875--Phase 19) after deducting the reasonable cost of the sale, if any, 
pending judgement of the court or other disposition of the case.

[50 FR 43398, Oct. 25, 1985, as amended at 53 FR 24645, June 29, 1988; 
57 FR 32923, July 24, 1992]



Sec. 285.6  Civil penalities.

    Any person who:
    (a) Violates any provisions of Sec. 285.3 (a), (b), or (f) of this 
part will be assessed a civil penalty of not more than $25,000 for a 
first violation and a civil penalty of not more than $50,000 for any 
subsequent violation;
    (b) Violates any provision of Sec. 285.3 (c) or (d) of this part 
will be assessed a civil penalty of not more than $1,000 for a first 
violation and a civil penalty of not more than $5,000 for any subsequent 
violation; or
    (c) Violates any provision of Sec. 285.3(e) will be assessed a civil 
penalty of not more than $100,000.

[50 FR 43398, Oct. 25, 1985, as amended at 52 FR 25012, July 2, 1987]

[[Page 279]]



Sec. 285.7  Experimental fishing exemption.

    (a) Upon a written request received at least 30 days before the 
desired effective date, the Director, in order to provide for the 
conduct of experimental fishing to gather data needed to make management 
decisions for the Atlantic tuna resources or fisheries, may exempt any 
person or vessel from specific requirements of this part.
    (b) A request for an exemption must be in writing and received by 
the Director at least thirty (30) days before the desired effective 
date. The request must specify any vessel(s) involved, describe the gear 
to be used, the manner in which the gear will be fished, the duration of 
the activity, the area where the activity will be conducted, the species 
of tuna that will be caught, the anticipated bycatch, the port(s) 
involved and the disposition of the catch, both domestic and foreign. 
The request must include any fee specified by the Director pursuant to 
Sec. 285.7(e).
    (c) The Director may not grant such exemption unless it is 
determined that the purpose, design, and administration of the 
experimental fishing is consistent with the objectives of the management 
program, ICCAT recommendations, the provisions of the Atlantic Tunas 
Convention Act, and other applicable law, and that granting the 
exemption will not:
    (1) Have a detrimental effect on the Atlantic tunas resources and 
fisheries; or
    (2) Create significant enforcement problems.
    (d) Each vessel participating in any experimental fishing activity 
is subject to all provisions of this part except those specified in the 
exemption granted that activity by the Director. The conditions, 
duration of the experimental fishing, and the provisions of this part to 
which the exemption applies, will be specified in a letter issued by the 
Director to each vessel or person participating in the exempted 
activity. This letter must be carried aboard the vessel conducting the 
exempted activity. Any exemption authorization that has been altered, 
erased, or mutilated is invalid. A letter of exemption issued under this 
part is not transferable or assignable. Any violation of any condition 
in a letter of exemption shall render it null and void upon receipt of 
written notification from the Director.
    (e) The Director may charge a fee to recover the administrative 
expenses of issuing a letter of exemption. The amount of the fee will be 
calculated, at least annually, in accordance with the procedures of the 
NOAA Finance Handbook for determining administrative costs of each 
special product or service. The fee may not exceed such costs. Persons 
seeking an exemption may contact the Director at (301) 713-2334 to find 
out the applicable fee. Failure to pay the fee will preclude issuance of 
the exemption. Payment by a commercial instrument later determined to be 
insufficiently funded shall invalidate any letter of exemption.

[58 FR 45290, Aug. 27, 1993]



Sec. 285.8  At-sea observer coverage.

    (a) Notwithstanding the selection for placement or the placement of 
on-board fishery observers under the authority of any other Federal 
statute or fisheries regulation, NMFS may require observers for any 
vessel engaged in directed fishing for, or incidentally taking, Atlantic 
tunas at any time.
    (b) Owners of vessels selected for observer coverage are required to 
notify the appropriate Fisheries Science Center Director before 
commencing any fishing trip that may result in the harvest of any 
Atlantic tuna. Notification procedures will be specified in selection 
letters to vessel owners.
    (c) An owner or operator of a vessel on which a NMFS-approved 
observer is embarked must:
    (1) Provide accommodations and food that are equivalent to those 
provided to the crew;
    (2) Allow the observer access to and use of the vessel's 
communications equipment and personnel upon request for the transmission 
and receipt of messages related to the observer's duties;
    (3) Allow the observer access to and use of the vessel's navigation 
equipment and personnel upon request to determine the vessel's position;
    (4) Allow the observer free and unobstructed access to the vessel's 
bridge, working decks, holding bins, weight

[[Page 280]]

scales, holds, and any other space used to hold, process, weigh, or 
store fish; and
    (5) Allow the observer to inspect and copy the vessel's log, 
communications logs, and any records associated with the catch and 
distribution of fish for that trip.

[58 FR 45290, Aug. 27, 1993]



Sec. 285.9  Archival tags.

    (a) Reserved.
    (b) Landing. Notwithstanding other provisions of this part, any 
person may catch, possess, retain, and land any regulated species in 
which an archival tag has been affixed or implanted, provided that 
person complies with all requirements of paragraph (c) of this section.
    (c) Landing report. The person possessing, retaining, or landing, 
under the authority of paragraph (b) of this section, a regulated 
species in which an archival tag has been affixed or implanted must 
contact the NMFS, Southeast Science Center (1-800-437-3936) or any NMFS 
enforcement office (a list of local NMFS enforcement offices can be 
obtained from the Director) prior to, or at the time of landing, furnish 
all requested information regarding the location and method of capture, 
and, as instructed, remove the tag and return it to NMFS or make the 
fish available so that a NMFS scientist, enforcement agent, or other 
person designated in writing by the Director may inspect the fish and 
recover the tag.
    (d) Quota monitoring. If a regulated species landed under the 
authority of paragraph (b) of this section is subject to a quota, the 
fish shall be counted against the applicable quota category consistent 
with the fishing gear and activity which resulted in the catch. In the 
event such fishing gear or activity is otherwise prohibited under 
applicable provisions of this part, the fish shall be counted against 
the scientific reserve quota established for that species.

[63 FR 669, Jan. 7, 1998]



       Subpart B--Atlantic Bluefin Tuna (Thunnus thynnus thynnus)

    Source: 50 FR 43400, Oct. 25, 1985, unless otherwise noted.



Sec. 285.20  Fishing seasons.

    (a) Commencement. Fishing in the regulatory area for Atlantic 
bluefin tuna will begin
    (1) On January 1 of each year:
    (i) For anglers fishing for Atlantic bluefin tuna under the quota 
specified in Sec. 285.22(d);
    (ii) For vessels permitted in the Incidental Catch category fishing 
under the quota specified in Sec. 285.22(e); and
    (iii) For anglers participating in the tag and release program under 
Sec. 285.27.
    (2) On June 1 of each year:
    (i) For vessels permitted in the General category fishing under the 
quota specified in Sec. 285.22(a), and
    (ii) For vessels permitted in the Harpoon Boat category fishing 
under the quota specified in Sec. 285.22(b).
    (3) On August 15 of each year:
    (i) For vessels permitted in the Purse Seine category fishing under 
the quota specified in Sec. 285.22(c).
    (ii) [Reserved]
    (4) Consistent with the Convention, the Act and this part, the 
Assistant Administrator may change the commencement date under this 
section for any vessel permit category or person (angler) if the 
Assistant Administrator determines that the changed date will enable 
scientific research on the status of the stock to be conducted more 
effectively and will not prevent the quotas for the affected fishery 
from being caught, based upon historical catch data or other relevant 
information. The Assistant Administrator will publish a notice in the 
Federal Register of any change in the commencement date(s) for fishing 
under this section at least 60 days before commencement of the affected 
fishery.
    (b) Closure. (1)(i) NMFS will monitor catch and landing statistics, 
including catch and landing statistics from previous years and 
projections based on those statistics, of Atlantic bluefin tuna by 
vessels other than those permitted in the Purse Seine category. On

[[Page 281]]

the basis of these statistics, NMFS will project a date when the catch 
of Atlantic bluefin tuna will equal any quota established under this 
section, and will file notification with the Office of the Federal 
Register stating that fishing for or retaining Atlantic bluefin tuna 
under the quota must cease on that date at a specified hour.
    (ii) Upon determining that variations in seasonal distribution, 
abundance, or migration patterns of ABT, or the catch rate in one area 
may preclude anglers in an another area from a reasonable opportunity to 
harvest a portion of the quota, NMFS may close all or part of the 
Angling category, and may reopen it at a later date if NMFS determines 
that ABT have migrated into an identified area. In determining the need 
for any such temporary or area closure, NMFS will consider the following 
factors:
    (A) The usefulness of information obtained from catches of a 
particular geographic area of the fishery for biological sampling and 
monitoring the status of the stock;
    (B) The current year catches from the particular geographic area 
relative to the catches recorded for that area during the preceding four 
years;
    (C) The catches from the particular geographic area to date relative 
to the entire category and the likelihood of closure of that entire 
category of the fishery if no allocation is made;
    (D) The projected ability of the entire category to harvest the 
remaining amount of Atlantic bluefin tuna before the anticipated end of 
the fishing season.
    (2) Angling for Atlantic bluefin tuna under a tag and release 
program under Sec. 285.27 may continue even after fishing for a quota 
has ceased.
    (3) A vessel permitted in the Purse Seine category may fish under 
the bluefin tuna quota specified in Sec. 285.22(c), or in fisheries for 
Atlantic yellowfin or skipjack tuna or other fisheries where bluefin 
tuna might be taken as bycatch, only until the allocation of bluefin 
tuna assigned or transferred under Sec. 285.25(d) to that vessel is 
reached. Upon reaching its individual vessel allocation of Atlantic 
bluefin tuna, directed purse seine fisheries for Atlantic tunas are 
closed to such vessel and the vessel will be deemed to have been given 
notice to that effect.
    (c) State actions. Nothing in this section may be construed to 
invalidate any more restrictive commencement or closure date established 
by any State in waters under its jurisdiction.

[50 FR 43400, Oct. 25, 1985, as amended at 53 FR 24645, June 29, 1988; 
57 FR 32920, July 24, 1992; 60 FR 38512, July 27, 1995; 62 FR 8635, Feb. 
26, 1997]



Sec. 285.21  Vessel permits.

    (a) Permit requirements. A vessel that fishes for, takes, retains or 
possesses Atlantic bluefin tuna must have on board a valid permit issued 
to the vessel owner under this section.
    (b) Categories of permits. (1) Upon submission of a complete and 
valid application pursuant to paragraph (c) of this section, the owner 
of each qualifying vessel may be issued a permit by NMFS for one of the 
following permit categories: General, Charter/Headboat, Angling, Harpoon 
Boat, Purse Seine, or Incidental Catch. A permit will not be issued for 
more than one category.
    (2) Persons may fish for, retain or possess Atlantic bluefin tuna 
only under the quota, catch limits, and size classes applicable to the 
permit category of the carrying vessel, except that anglers on board 
General and Charter/Headboat category vessels may fish for and retain 
school, large school and small medium bluefin tuna, subject to the 
limits applicable to the Angling category only until such time that a 
large medium or giant bluefin tuna is caught, retained or possessed on 
board the vessel.
    (3) School, large school and small medium bluefin tuna landed by 
anglers on board General and Charter/Headboat category vessels are 
counted against the Angling category quota. When the General category 
fishery is open, large medium and giant bluefin tuna landed by anglers 
on board General and Charter/Headboat category vessels are counted 
against the General category quota. When the General category fishery is 
closed, or at any time in the Gulf of Mexico, large medium and giant 
bluefin tuna landed by anglers on board Angling and Charter/Headboat 
category vessels pursuant to Sec. 285.24(d)(2)

[[Page 282]]

may not be sold and are counted against the Angling category quota.
    (4) Persons fishing for Atlantic bluefin tuna must not possess on 
board or use any gear inappropriate to the category for which the 
carrying vessel is permitted:
    (i) General--rod and reel (including downriggers), handline, 
harpoon, bandit gear;
    (ii) Charter/Headboat--rod and reel (including downriggers), 
handline;
    (iii) Angling--rod and reel (including downriggers), handline;
    (iv) Harpoon Boat--harpoon;
    (v) Purse Seine--purse seine nets;
    (vi) Incidental Catch--purse seine nets, fixed gear, traps, 
longlines.
    (5) When fishing for, or possessing, Atlantic bluefin tuna, 
operators of vessels permitted for the Charter/Headboat category must 
have on board a current copy of the operator's merchant marine license 
or the operator's uninspected passenger vessel license.
    (6) Vessels permitted for any category other than the Angling 
category are eligible to conduct commercial fishing for Atlantic bluefin 
tuna.
    (7) Except for purse seine vessels for which a permit has been 
issued under this section, an owner may change the category of the 
vessels's Atlantic tunas permit to another category by application on 
the appropriate form to NMFS or by dialing 1-888-USA-TUNA before the 
specified deadline. After the deadline, the vessel's permit category may 
not be changed to another category for the remainder of the calendar 
year, regardless of any change in the vessel's ownership. For 1997, the 
deadline is July 28, 1997. In years after 1997, the deadline for 
category changes is May 15.
    (c) Application procedure. A vessel owner applying for a permit 
under this section must submit a completed permit application as 
indicated in the application instructions at least 30 days before the 
date on which the applicant desires to have the permit made effective.
    (1) Applicants must provide all information concerning vessel, gear 
used, fishing areas, and fisheries participation, including sworn 
statements relative to income requirements and permit conditions, as 
indicated in the instructions on the application form.
    (2) Applicants must also submit a copy of the official state 
registration or United States Coast Guard documentation, charter/
headboat license, and, if a boat is owned by a corporation or 
partnership, the corporate or partnership documents (copy of Certificate 
of Incorporation and Articles of Association or Incorporation), along 
with the names of all shareholders owning 5 percent or more of the 
corporation's stock.
    (3) NMFS may require the applicant to provide documentation 
supporting any sworn statements required under this section before a 
permit is issued or to substantiate why such permit should not be 
revoked or otherwise sanctioned under paragraph (j) of this section.
    (4) Applicants must also submit any other information that may be 
necessary for the issuance or administration of the permit, as requested 
by NMFS.
    (d) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, a permit shall be issued within 30 days of receipt of a completed 
application. An application is complete when all requested forms, 
reports, information, sworn statements and supporting documentation have 
been received.
    (2) The applicant will be notified of any deficiency in the 
application. If the applicant fails to correct the deficiency within 15 
days following the date of notification, the application will be 
considered abandoned.
    (e) Duration. A permit issued under this section remains valid until 
it expires or is suspended, revoked, or modified pursuant to subpart D 
of 15 CFR part 904. Permits expire on the date indicated on the permit 
or when any of the information previously submitted on the application 
changes. Permits must be renewed upon expiration. Renewal of permits 
must be initiated at least 30 days before the expiration date to avoid a 
lapse in validity.
    (f) Alteration. A permit issued under this section which is 
substantially altered, erased, or mutilated is invalid.
    (g) Replacement. Replacement permits will be issued when requested 
by the owner or authorized representative. A

[[Page 283]]

request for a replacement permit will not be considered a new 
application. An appropriate fee, consistent with paragraph (k) of this 
section, may be charged for issuance of the replacement permit.
    (h) Transfer. A permit issued under this section, except in the case 
of a purse seine permit as allowed under paragraph (m) of this section, 
is not transferable or assignable to another vessel or owner; it is 
valid only for the vessel and owner to which it is issued.
    (i) Display. A permit issued under this section must be carried on 
board the vessel at all times. The permit must be displayed for 
inspection upon request of any authorized officer or any employee of 
NMFS designated by the Regional Director for such purpose. Upon sale of 
any large medium or giant Atlantic bluefin tuna, the vessel permit must 
be presented for inspection to the permitted dealer completing the 
landing card.
    (j) Sanctions. The Administrator may suspend, revoke, modify, or 
deny a permit issued or sought under this section. Procedures governing 
permit sanctions and denials are found at subpart D of 15 CFR part 904.
    (k) Fees. NMFS may charge a fee to recover the administrative 
expenses of permit issuance. The amount of the fee shall be determined, 
at least biannually, in accordance with the procedures of the NOAA 
Finance Handbook, available from the Director, for determining 
administrative costs of each special product or service. The fee may not 
exceed such costs and is specified with application or renewal 
instructions. The required fee must accompany each application or 
renewal. Failure to pay the fee will preclude issuance of the permit.
    (l) Change in application information. Within 15 days after any 
change in the information contained in an application submitted under 
this section, the vessel owner must report the change by phone (1-888-
USA-TUNA) or internet (http://www.usatuna.com). In such case, a new 
permit will be issued to incorporate the new information. For certain 
informational changes, NMFS may require supporting documentation before 
a new permit will be issued or may require payment of an additional fee. 
Permittees will be notified of such requirements, if applicable, when 
reporting changes. In case of failure to report changes, the permit 
shall be void as of the sixteenth day after a change in the permit 
information should have been reported as found in an action under 15 CFR 
part 904.
    (m) Closed categories. The Regional Director will issue permits to 
catch and retain Atlantic bluefin tuna under Sec. 285.22(c) only to 
current owners of those purse seine vessels, or their replacements, that 
were granted allocations under this subpart and landed Atlantic bluefin 
tuna in the fishery for Atlantic bluefin tuna during the period 1980 
through 1982. The Regional Director will not issue a permit to take 
Atlantic bluefin tuna under this subpart to the owner of any vessel that 
was replaced or consolidated with another vessel and retired from the 
purse seine fishery during the period 1980 through 1982, unless that 
vessel is replacing another vessel being retired from the fishery.

[50 FR 43400, Oct. 25, 1985, as amended at 58 FR 45290, Aug. 27, 1993; 
60 FR 38512, July 27, 1995; 62 FR 332, Jan. 3, 1997; 62 FR 27519, May 
20, 1997; 62 FR 30744, June 5, 1997; 62 FR 38487, July 18, 1997]



Sec. 285.22  Quotas.

    The total annual (January 1-December 31) amount of Atlantic bluefin 
tuna that may be caught, retained, possessed or landed by persons and 
vessels subject to U.S. jurisdiction in the regulatory area is 
subdivided as follows:
    (a) General. (1) The total annual amount of large medium and giant 
Atlantic bluefin tuna that may be caught, retained, possessed or landed 
in the regulatory area by vessels permitted in the General category 
under Sec. 285.21(b) is 633 mt, of which 374 mt are available in the 
period beginning June 1 and ending August 31; 187 mt are available in 
the period beginning September 1 and ending September 30; and 72 mt are 
available in the period beginning October 1.
    (2) On the basis of the statistics referenced at Sec. 285.20(b)(1), 
the Assistant Administrator will project a date when the catch of 
Atlantic bluefin tuna will equal the available quota in any period, and 
will publish a notification in the Federal Register stating that

[[Page 284]]

fishing for, retaining, possessing, or landing Atlantic bluefin tuna 
under the quota for that period is prohibited from a specified time on 
that date until the opening of the subsequent quota period, whereupon a 
quota equal to the initial quota for that period as adjusted for 
estimated overharvest or underharvest prior to that period will become 
available.
    (3) When the coastwide General category fishery has been closed in 
any quota period under paragraph (a)(2) of this section, the Director 
may publish a notification in the  Federal Register to make available up 
to 10 mt of the quota set aside for an area comprising the waters south 
and west of a straight line originating at a point on the southern shore 
of Long Island at 72 deg.27' W. long. (Shinnecock Inlet) and running SSE 
150 deg. true, and north of 38 deg.47' N. lat. The daily catch limit for 
the set-aside area will be one large medium or giant ABT per vessel per 
day. Upon the effective date of the set-aside fishery, fishing for, 
retaining, or landing large medium or giant ABT is authorized only 
within the set-aside area. Any portion of the set-aside amount not 
harvested prior to the reopening of the coastwide General category 
fishery in the subsequent quota period established under paragraph 
(a)(1) of this section may be carried over for the purpose of renewing 
the set-aside fishery at a later date.
    (b) Harpoon Boat. The total annual amount of large medium and giant 
Atlantic bluefin tuna that may be caught, retained, possessed, or landed 
in the regulatory area by vessels permitted in the Harpoon Boat category 
under Sec. 285.21(b) is 53 mt.
    (c) Purse Seine. The total amount of large medium and giant Atlantic 
bluefin tuna that may be caught, retained, possessed, or landed in the 
regulatory area by vessels permitted in the Purse Seine category under 
Sec. 285.21(b) is 250 mt.
    (d) Angling. The total annual amount of Atlantic bluefin tuna that 
may be caught, retained, possessed, or landed in the regulatory area by 
anglers is 265 mt. No more than 6 mt of this quota may be large medium 
or giant bluefin tuna quota and no more than 108 mt of this quota may be 
school Atlantic bluefin tuna. The size class subquotas for Atlantic 
bluefin tuna are further subdivided as follows:
    (1) 51 mt of school, 71 mt of large school or small medium, and 4 mt 
of large medium or giant Atlantic bluefin tuna may be caught, retained, 
possessed, or landed south of 38 deg.47' N. lat.
    (2) 57 mt of school, 80 mt of large school or small medium, and 2 mt 
of large medium or giant Atlantic bluefin tuna may be caught, retained, 
possessed, or landed north of 38 deg.47' N. lat.
    (e) Incidental. The total annual amount of large medium and giant 
Atlantic bluefin tuna that may be caught, retained, possessed, or landed 
in the regulatory area by vessels permitted in the Incidental Catch 
category under Sec. 285.21(b) is 110 mt. This quota is further 
subdivided as follows:
    (1) 109 mt for longline vessels. No more than 86 mt may be caught, 
retained, possessed, or landed in the area south of 34 deg.00' N. lat.
    (2) For vessels fishing under Sec. 285.23 (a) and (b), 1 mt may be 
caught, retained, possessed, or landed in the regulatory area.
    (f) Reserve. The total amount of Atlantic bluefin tuna that will be 
held in reserve for inseason adjustments and fishery independent 
research is 33 mt. The Assistant Administrator may allocate any portion 
(from zero to 100 percent) of this amount to any category or categories 
of the fishery, including research activities authorized under 
Sec. 285.1(c). The Assistant Administrator will publish a notice of 
allocation of any inseason adjustment amount in the Federal Register 
before such allocation is to become effective. Before making any such 
allocation, the Assistant Administrator will consider the following 
factors:
    (1) The usefulness of information obtained from catches of the 
particular category of the fishery for biological sampling and 
monitoring the status of the stock;
    (2) The catches of the particular gear segment to date and the 
likelihood of closure of that segment of the fishery if no allocation is 
made;
    (3) The projected ability of the particular gear segment to harvest 
the additional amount of Atlantic bluefin

[[Page 285]]

tuna before the anticipated end of the fishing season; and
    (4) The estimated amounts by which quotas established for other gear 
segments of the fishery might be exceeded.
    (g) The catching or retention of school, large school or small 
medium Atlantic bluefin tuna is prohibited except as allowed by 
paragraph (d) of this section.
    (h) If the Assistant Administrator determines, based on landing 
statistics and other available information, that an annual quota in any 
category, or as appropriate, subcategory, has been exceeded or has not 
been reached, the Assistant Administrator will subtract the overharvest 
from, or add the underharvest to, that quota category for the following 
year; provided that the total of the adjusted quotas and the reserve is 
consistent with a recommendation of the Commission regarding country 
quotas. The Assistant Administrator will publish any amounts to be 
subtracted or added and the basis for the quota reductions or increases 
in the Federal Register.
    (i) Transfers between categories. The Assistant Administrator is 
authorized to make adjustments to quotas involving transfers between 
vessel categories or, as appropriate, subcategories if, during a single 
year quota period or the second year of a biannual quota period as 
defined by ICCAT, the Assistant Administrator determines, based on 
landing statistics, present year catch rates, effort, and other 
available information, that any category, or as appropriate, 
subcategory, is not likely to take its entire quota as previously 
allocated for that year. Given that determination, the Assistant 
Administrator may transfer inseason any portion of the quota of any 
fishing category to any other fishing category or to the reserve after 
considering the four factors indicated at paragraphs (f) (1) through (4) 
of this section, and the probability that any transfers between 
categories will not result in the total single-year quota or the total 
2-year quota being exceeded. The Assistant Administrator shall file a 
notification of transfer of any inseason adjustment amount with the 
Office of the Federal Register before such transfer is to become 
effective.

[57 FR 32920, July 24, 1992, as amended at 58 FR 45291, Aug. 27, 1993; 
59 FR 17725, Apr. 14, 1994; 60 FR 38512, July 27, 1995; 61 FR 30186, 
June 14, 1996; 62 FR 35109, June 30, 1997; 62 FR 38941, July 21, 1997; 
63 FR 27865, May 21, 1998]



Sec. 285.23  Incidental catch.

    (a) Herring, mackerel, and menhaden purse seine gear and fixed gear 
other than longlines or traps. Subject to the quotas in Sec. 285.22, 
large medium and giant Atlantic bluefin tuna may be retained during any 
fishing trip, on board a vessel for which an Incidental Catch permit has 
been issued under Sec. 285.21 that is fishing with herring, mackerel, 
and menhaden purse seine gear or fixed gear other than longlines or 
traps principally for species of fish other than tuna, provided that the 
total amount of Atlantic bluefin tuna taken does not exceed 2 percent, 
by weight, of all other fish on board the vessel at the end of each 
fishing trip.
    (b) Traps. Subject to the quotas in Sec. 285.22, large medium and 
giant Atlantic bluefin tuna may be retained during any fishing trip on 
board a vessel for which an Incidental Catch permit under Sec. 285.21 
has been issued that catches Atlantic bluefin tuna incidentally while 
fishing with traps, provided that the total amount of Atlantic bluefin 
tuna taken does not exceed 2 percent, by weight, of all other fish 
landed by the owner of the vessel within the preceding 30-day period.
    (c) Longlines. Subject to the quotas in Sec. 285.22, any person 
operating a vessel using longline gear possessing an Incidental Catch 
permit issued under Sec. 285.21 may retain or land large medium and 
giant Atlantic bluefin tuna as an incidental catch. The amount of 
Atlantic bluefin tuna retained or landed may not exceed:
    (1) One fish per vessel per fishing trip landed south of 34 deg.00' 
N. latitude, provided that for the months of January through April at 
least 1,500 pounds (680 kg), and for the months of May through December 
at least 3,500 pounds (1,588 kg), either dressed or round weight, of 
species other than Atlantic bluefin tuna are legally caught, retained, 
and offloaded from the same

[[Page 286]]

trip and are recorded on the dealer weighout as sold; and
    (2) Two percent by weight, either dressed or round weight, of all 
other fish legally landed, offloaded and documented on the dealer 
weighout as sold at the end of each fishing trip, north of 34 deg.00' N. 
latitude.
    (d) Purse Seine. When fishing for Atlantic yellowfin or skipjack 
tuna, vessels for which an Atlantic bluefin tuna Purse Seine category 
permit has been issued are allowed a 1 percent per trip (by weight) 
incidental take of bluefin less than the large medium size class. Any 
landings of these incidental catches may not be sold and will be counted 
against the Purse Seine category quota allocation for bluefin tuna.

[57 FR 32921, July 24, 1992, as amended at 58 FR 45292, Aug. 27, 1993; 
59 FR 17726, Apr. 14, 1994; 60 FR 38513, July 27, 1995]



Sec. 285.24  Catch limits.

    (a) General category. (1) From the start of each fishing year, 
except on designated restricted-fishing days, only one large medium or 
giant Atlantic bluefin tuna may be caught and landed per day from a 
vessel for which a General category permit has been issued under this 
part. On designated restricted-fishing days, persons aboard such vessels 
may not fish for, possess or retain Atlantic bluefin tuna. For calendar 
year 1997, designated restricted-fishing days are: July 16, 17, 23, and 
30; August 6, 10, 11, 12, 17, 20, 24, and 27; and September 1, 3, 6, 7, 
10, 11, 14, 17, 19, 21, 24, and 28.
    (2) The Assistant Administrator may increase or reduce the catch 
limit over a range from zero (restricted fishing days) to a maximum of 
three large medium or giant Atlantic bluefin tuna per day per vessel 
based on a review of dealer reports, daily landing trends, availability 
of the species on the fishing grounds, and any other relevant factors, 
to provide for maximum utilization of the quota. The Assistant 
Administrator will publish a document in the Federal Register of any 
adjustment in the allowable daily catch limit made under this paragraph. 
Other than fishery closures pursuant to attainment of quotas in any 
period, such notice of catch limit adjustment shall be filed at the 
Office of the Federal Register at least 3 calendar days prior to the 
change becoming effective.
    (3) Large medium and giant Atlantic bluefin tuna may be possessed or 
retained on board a vessel for which a General category permit has been 
issued if the amount does not exceed a single day's catch, regardless of 
the length of the trip, as allowed by the daily catch limit in effect on 
that day.
    (4) For calendar year 1997, anglers on board vessels permitted in 
the General category may possess school, large school, and small medium 
Atlantic bluefin tuna in an amount not to exceed a single day's catch, 
regardless of the length of the trip, as allowed by the daily catch 
limit for the Angling category in effect on that day. However, on 
allowable fishing days, once the applicable catch limit for large medium 
or giant bluefin tuna is possessed or retained, fishing by persons on 
board the vessel must cease and the vessel must proceed to port.
    (b) Harpoon Boat category. Vessels permitted in the Harpoon Boat 
category may catch multiple giant bluefin tuna but only one large medium 
bluefin tuna per day per vessel may be caught.
    (c) Purse Seine category. Large medium bluefin tuna may be caught 
from a vessel for which a Purse Seine category permit has been issued 
provided that the total amount of large medium bluefin landed per trip 
does not exceed 15 percent by weight of the total amount of giant 
Atlantic bluefin tuna landed on that trip, and the total annual amount 
of large medium bluefin landed does not exceed 10 percent by weight of 
the total amount of giant Atlantic bluefin tuna allocated to that vessel 
for that fishing season.
    (d) Angling category. (1) Each angler on board a vessel permitted in 
the Angling category may catch and retain each day no more than two 
Atlantic bluefin tuna which may be from the school or large school size 
class. In addition to the per angler limits, one small medium size class 
bluefin tuna may be retained each day, per angling category vessel. 
Anglers may not retain young school Atlantic bluefin tuna.
    (2) In addition to the daily catch limit for school, large school 
and small

[[Page 287]]

medium bluefin tuna, a vessel for which an Angling category permit has 
been issued may catch and retain annually one large medium or giant 
Atlantic bluefin tuna, to be counted against the Angling category quota 
specified in Sec. 285.22. The owner or operator of the vessel must 
report to the nearest NMFS enforcement office within 24 hours of landing 
any large medium or giant bluefin, and must make the tuna available for 
inspection and attachment of a tag. No such large medium or giant 
Atlantic bluefin tuna may be sold or transferred to any person for a 
commercial purpose except for taxidermic purposes. A list of local NMFS 
enforcement offices may be obtained from the Regional Director.
    (3) The Assistant Administrator may increase or reduce the per 
angler catch limit for any size class bluefin tuna or may change the per 
angler limit to a per boat limit or a per boat limit to a per angler 
limit based on a review of daily landing trends, availability of the 
species on the fishing grounds, and any other relevant factors, to 
provide for maximum utilization of the quota spread over the longest 
possible period of time. The Assistant Administrator will publish a 
document in the Federal Register of any adjustment in the allowable 
daily catch limit made under this paragraph. Other than fishery closures 
pursuant to attainment of quotas in any period, such notice of catch 
limit adjustment shall be filed at the Office of the Federal Register at 
least 3 calendar days prior to the change becoming effective.
    (4) Anglers on board vessels for which an Angling category permit 
has been issued may possess school, large school, and small medium 
Atlantic bluefin tuna in an amount not to exceed a single day's catch, 
regardless of the length of the trip, as allowed by the daily catch 
limit for the Angling category in effect on that day.
    (e) Charter/Headboat category. (1) Persons aboard vessels for which 
a Charter/Headboat category permit has been issued under this part are 
subject to the daily catch limit in effect on that day for school, large 
school, and small medium ABT applicable to the Angling category or the 
daily catch limit in effect on that day for large medium and giant ABT 
applicable to the General category. The size category of the first ABT 
retained or possessed shall determine the fishing category applicable to 
the vessel that day. Persons aboard the vessel may possess ABT in an 
amount not to exceed a single day's catch, regardless of the length of 
the trip, as allowed by the daily catch limit in effect on that day for 
the Angling or General category, as applicable. School, large school, 
and small medium ABT landed by persons aboard Charter/Headboat category 
vessels are counted against the Angling category quota. Large medium and 
giant ABT landed by persons aboard Charter/Headboat category vessels are 
counted against the General category quota if landed under paragraph 
(a)(1) of this section, or the Angling category quota, if landed under 
paragraph (d)(2) of this section.
    (2) When commercial fishing by vessels for which General category 
permits have been issued under this part is authorized, except when 
fishing in the Gulf of Mexico, operators of vessels for which a Charter/
Headboat category permit has been issued under this part are subject to 
the daily catch limit in effect for the General category for large 
medium or giant Atlantic bluefin tuna as specified in paragraph (a)(1) 
of this section. Once the applicable catch limit for large medium or 
giant bluefin tuna is possessed or retained on authorized commercial 
fishing days, persons aboard vessels for which Charter/Headboat category 
permits have been issued under this part must cease fishing and the 
vessel must proceed to port. Large medium or giant ABT landed under this 
paragraph (e)(2) may be sold.
    (3) When the General category fishery is closed, except when fishing 
in the Gulf of Mexico, operators of vessels for which a Charter/Headboat 
category permit has been issued under this part are subject to the 
annual vessel limit and reporting requirement for non-commercial take of 
large medium or giant Atlantic bluefin tuna as specified in paragraph 
(d)(2) of this section. Once the applicable catch limit for large medium 
or giant bluefin tuna is possessed or retained under the Angling 
category quota, fishing by persons aboard Charter/Headboat category 
vessels must

[[Page 288]]

cease and the vessel must proceed to port.
    (4) At any time when fishing in the Gulf of Mexico, operators of 
vessels for which Charter/Headboat category permits have been issued 
under this part may not fish for, catch, retain or possess bluefin tuna 
except that large medium and giant Atlantic bluefin tuna taken 
incidental to fishing for other species may be retained subject to the 
annual vessel limit and reporting requirement for non-commercial take of 
large medium or giant Atlantic bluefin tuna as specified in paragraph 
(d)(2) of this section. Once the applicable catch limit for large medium 
or giant bluefin tuna is possessed or retained under the Angling 
category quota, fishing by persons aboard Charter/Headboat category 
vessels must cease and the vessel must proceed to port.

[57 FR 32921, July 24, 1992, as amended at 59 FR 17726, Apr. 14, 1994; 
60 FR 38513, July 27, 1995; 61 FR 30187, June 14, 1996; 62 FR 30745, 
June 5, 1997; 62 FR 38941, July 21, 1997]



Sec. 285.25  Purse seine vessel requirements.

    (a) Mesh size. Any owner or operator of a vessel with a permit 
issued under Sec. 285.21(b) conducting a directed fishery for Atlantic 
bluefin tuna with nets, other than a trap net, must use a purse seine 
net with a mesh size equal to or smaller than 4.5 inches in the main 
body (stretched when wet) and which has at least 24-count thread 
throughout the net.
    (b) Exemption. The Director may exempt any person from the mesh 
restrictions in paragraph (a) of this section if it is determined that 
the net sought to be exempted will not result in significant injury or 
mortality to Atlantic bluefin tuna which are encircled by the net but 
manage to escape.
    (c) Inspection. Any owner of a purse seine vessel with a permit 
issued under Sec. 285.21(b) must request an inspection of the vessel and 
fishing gear by an enforcement agent of NMFS before commencing any 
fishing trip that may result in the harvest of any regulated species and 
before offloading any Atlantic bluefin tuna. The vessel owner must 
request such inspection at least 24 hours before commencement of a 
fishing trip and offloading by calling 508-563-5721 or 508-281-9261. 
Purse seine vessel owners must have each large medium and giant bluefin 
tuna in their catch weighed, measured, and the information recorded on 
the landing card required under Sec. 285.28(a) at the time of offloading 
and prior to transporting said tuna from the area of offloading.
    (d) Vessel allocations. (1) Owners or operators of vessels for which 
a Purse seine permit has been issued under Sec. 285.21(b) must apply for 
an allocation of Atlantic bluefin tuna from the quotas specified in 
Sec. 285.22. The owner or operator must apply for this allocation in 
writing to the Regional Director by April 15 and must specify the 
particular size class or classes of Atlantic bluefin tuna for which the 
vessel will fish. The owner or operator must supply documentation of the 
vessel's stockholders, owners, partners, or association structure.
    (2) The Regional Director will review applications for allocations 
of Atlantic bluefin tuna on or about May 1, and will make equal 
allocations of the available size classes of Atlantic bluefin tuna among 
vessel owners so requesting. Such allocations are freely transferable, 
in whole or in part, among purse seine vessel permit holders. Any purse 
seine vessel permit holder intending to land bluefin tuna under an 
allocation transferred from another purse seine vessel permit holder 
must provide written notice of such intent to the Regional Director 3 
days before landing any such bluefin tuna. Such notification must 
include the transfer date, amount (mt) transferred, and the permit 
numbers of vessels involved in the transfer. Trip or seasonal catch 
limits otherwise applicable under Sec. 285.24(c) are not altered by 
transfers of bluefin tuna allocation. Purse seine vessel permit holders 
who, through landing and/or transfer, have no remaining bluefin tuna 
allocation may not use their permitted vessels in any fishery in which 
Atlantic bluefin tuna might be caught.
    (3) Purse seine vessel owners may apply to the Regional Director to 
permanently consolidate vessel permits issued under Sec. 285.21(b). Upon 
approval of consolidation by the Regional Director, the Atlantic tuna 
permit(s) of the transferring vessel(s) will be cancelled,

[[Page 289]]

and the holder of the consolidated permit is authorized to apply for 
allocations of Atlantic bluefin tuna commensurate with the number of 
consolidated permits. Purse seine vessel owners who cancel their permit 
by means of consolidation must not fish their vessel in any fishery in 
which Atlantic bluefin tuna might be caught.
    (e) Transfer at sea. Purse seine vessel owners or operators may 
transfer large medium and giant Atlantic bluefin tuna at sea from the 
net of the catching vessel to another permitted purse seine vessel 
provided the amount transferred does not cause the receiving vessel to 
exceed its annual vessel allocation as modified by authorized transfers. 
Such at-sea transfers are authorized only between purse seine vessels 
permitted under Sec. 285.21 and not to buy boats permitted under 
Sec. 285.28.

[50 FR 43400, Oct. 25, 1985, as amended at 57 FR 32923, July 24, 1992; 
58 FR 45292, Aug. 27, 1993; 60 FR 38514, July 27, 1995; 61 FR 30187, 
June 14, 1996]



Sec. 285.26  Size classes.

    Total curved fork length will be the sole criterion for determining 
the size class of whole (head on) Atlantic bluefin tuna. For this 
purpose, all measurements must be taken in a line tracing the contour of 
the body from the tip of the upper jaw to the fork of the tail, which 
abuts the ventral side of the pectoral fin and the ventral side of the 
caudal keel. For any Atlantic bluefin tuna found with the head removed, 
it is deemed, for purposes of this subpart, that the tuna, when caught, 
fell into a size class in accordance with the following formula: Total 
curved fork length equals pectoral fin curved fork length multiplied by 
a factor of 1.35. The pectoral fin curved fork length will be the sole 
criterion for determining the size class of a beheaded Atlantic bluefin 
tuna. For this purpose, all measurements must be taken in a line tracing 
the contour of the body from the ventral side of the pectoral fin to the 
fork of the tail, which abuts the ventral side of the caudal keel.

[[Page 290]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
          Size category                   Total curved fork length             Pectoral fin curved fork length              Approx. round weight
--------------------------------------------------------------------------------------------------------------------------------------------------------
Young School.....................  Less than 27 inches...................  Less than 20 inches...................  Less than 14 lb.
                                   Less than 69 cm.......................  Less than 51 cm.......................  less than 6.4 kg.
School...........................  27 to <47 inches......................  20 to <35 inches......................  14 to <66 lb.
                                   69 to <119 cm.........................  51 to <89 cm..........................  6.4 to <30 kg.
Large School.....................  47 to <59 inches......................  35 to <44 inches......................  66 to <135 lb.
                                   119 to <150 cm........................  89 to <112 cm.........................  30 to <61 kg.
Small Medium.....................  59 to <73 inches......................  44 to <54 inches......................  135 to <235 lb.
                                   150 to <185 cm........................  112 to <137 cm........................  61 to <107 kg.
Large Medium.....................  73 to <81 inches......................  54 to <60 inches......................  235 to <310 lb.
                                   185 to <206 cm........................  137 to <152 cm........................  107 to <141 kg.
Giant............................  81 inches or greater..................  60 inches or greater..................  310 lb or greater.
                                   206 cm or greater.....................  152 cm or greater.....................  141 kg or greater.
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 291]]


[60 FR 14387, Mar. 17, 1995, as amended at 60 FR 38514, July 27, 1995; 
61 FR 30187, June 14, 1996]



Sec. 285.27  Tag and release program.

    (a) Notwithstanding other provisions of this part, a person aboard a 
vessel permitted under this part, other than a person aboard a vessel 
permitted in the General category on a designated restricted-fishing 
day, may fish for Atlantic bluefin tuna under a tag and release program, 
provided the person tags all Atlantic bluefin tuna so caught with tags 
issued or approved by NMFS under this section, and releases and returns 
such fish to the sea immediately after tagging and with a minimum of 
injury. To participate in this program, an angler must obtain tags, 
reporting cards, and detailed instructions for their use from the 
Cooperative Tagging Center, Southeast Fisheries Center, NMFS, 75 
Virginia Beach Drive, Miami, FL 33149-1099 or by calling (800)437-3936.
    (b) Tags obtained from sources other than NMFS may be used to fish 
for Atlantic bluefin tuna provided the angler has registered each year 
with the Cooperative Tagging Center and the NMFS program manager has 
approved the use of tags from that source. Anglers using an alternative 
source of tags wishing to tag bluefin tuna can call (800) 437-3936 or 
write NMFS at the address given above.
    (c) Anglers registering for the Atlantic bluefin tagging program are 
required to provide their name, address, phone number, and, if 
applicable, identify the alternate source of tags.
    (d) If NMFS-issued or NMFS-approved tags are not on board a vessel, 
all anglers on board that vessel are deemed to be ineligible to fish 
under this section.

[60 FR 38514, July 27, 1995, as amended at 62 FR 30745, June 5, 1997]



Sec. 285.28  Dealer permits.

    (a) General. A dealer purchasing, receiving, possessing, importing 
or exporting Atlantic bluefin tuna must have a valid permit required 
under this section. If such purchase or receipt is made from a buy-boat, 
the buy-boat must have a valid permit under paragraph (l) of this 
section.
    (b) Application. Applications for a dealer permit must be in writing 
on an appropriate form obtained from the Regional Director. The 
application must be signed by the applicant, and be submitted to the 
Regional Director at least 30 days before the date upon which the 
applicant desires the permit to be effective. The application must 
contain the following information: Company name; principal place of 
business; owner or owners' names; applicant's name (if different from 
owner or owners) and mailing address and telephone number; and any other 
information required by the Regional Director.
    (c) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Director will issue a permit within 30 days of receipt 
of a completed application.
    (2) The Regional Director will notify the applicant of any 
deficiency in the application. If the applicant fails to correct the 
deficiency within 15 days following the date of notification, the 
application will be considered abandoned.
    (d) Duration. Any permit issued under this section remains valid 
until December 31 of the year for which it is issued, unless suspended 
or revoked.
    (e) Alteration. Any permit which is substantially altered, erased, 
or mutilated is invalid.
    (f) Replacement. The Regional Director may issue replacement 
permits. An application for a replacement permit is not considered a new 
application.
    (g) Transfer. A permit issued under this section is not transferable 
or assignable; it is valid only for the dealer to whom it is issued.
    (h) Inspection. The dealer must keep the permit issued under this 
section at his/her principal place of business. The permit must be 
displayed for inspection upon request of any authorized officer, or any 
employee of NMFS designated by the Regional Director for such purpose.
    (i) Sanctions. The Administrator may suspend, revoke, modify, or 
deny a permit issued or sought under this section. Procedures governing 
permit sanctions and denials are found at subpart D of 15 CFR part 904.

[[Page 292]]

    (j) Fees. The Regional Director may charge a fee to recover the 
administrative expenses of permit issuance. The amount of the fee is 
calculated, at least annually, in accordance with the procedures of the 
NOAA Finance Handbook for determining administrative costs of each 
special product or service. The fee may not exceed such costs and is 
specified on each application form. The appropriate fee must accompany 
each application. Failure to pay the fee will preclude issuance of the 
permit. Payment by a commercial instrument later determined to be 
insufficiently funded shall invalidate any permit.
    (k) Change in application information. Within 15 days after any 
change in the information contained in an application submitted under 
this section, the dealer issued a permit will report the change in 
writing to the Regional Director.
    (l) Buy-boats. Each buy-boat must have a dealer permit issued under 
this section. The Regional Director will not issue a dealer permit under 
this section for a buy-boat operation to any vessel which has a valid 
fishing permit issued under Sec. 285.21. The Regional Director will not 
issue a dealer permit to a buy-boat unless the owner or operator of the 
buy-boat agrees in writing to allow an individual authorized by the 
Regional Director to accompany the buy-boat on any trip to observe 
operations. The Regional Director will provide reasonable notice to the 
owner or operator of any buy-boat that an individual will be placed 
aboard. Failure to allow an authorized individual to be placed aboard 
following reasonable notice voids the permit. The Regional Director will 
reimburse the owner of any buy-boat for any expenses which the Regional 
Director determines to be reasonable and which are related directly to 
the placement of an individual aboard that buy-boat.

[50 FR 43400, Oct. 25, 1985, as amended at 53 FR 24645, June 29, 1988; 
57 FR 373, Jan. 6, 1992; 58 FR 45293, Aug. 27, 1993]



Sec. 285.29  Recordkeeping and reporting.

    (a) Any person issued a dealer permit under Sec. 285.28 must report 
via electronic facsimile (fax) or an Interactive Voice Response System 
(IVRS) as instructed by the Regional Director within 24 hours of the 
purchase or receipt of each Atlantic bluefin tuna from the person or 
vessel that harvested the fish. Said report via fax or the IVRS must 
include the tag number affixed to the fish by the dealer, the date 
landed, the round and/or dressed weight (indicating which weight(s) 
measured), the total or pectoral fin curved fork length (indicating 
which length(s) measured), and the permit category of the landing 
vessel. In addition, dealers must submit to the Regional Director a 
daily report on a reporting card provided by NMFS. Said card must be 
postmarked and mailed at the dealer's expense within 24 hours of the 
purchase or receipt of each Atlantic bluefin tuna. Each vessel permit 
holder or vessel operator must sign each reporting card immediately upon 
transfer of the fish to verify the name of the vessel that landed the 
fish and the vessel permit number, and each card must indicate the tag 
number affixed to the fish by the dealer or assigned by an authorized 
officer, the date landed, the port where landed, the round and/or 
dressed weight (indicating which weight(s) measured), the total and/or 
pectoral fin curved fork length (indicating which length(s) measured), 
gear used, and area where the fish was caught. The dealer purchasing or 
receiving the Atlantic bluefin tuna must inspect the vessel permit and 
verify that the required vessel name and vessel permit information is 
correctly recorded on the reporting card.
    (b) Any person issued a dealer permit under Sec. 285.28 must submit 
to the Regional Director a bi-weekly report on forms supplied by NMFS.
    (1) Said report must be postmarked and mailed, at the dealer's 
expense, within 10 days after the end of each 2-week reporting period in 
which Atlantic bluefin tuna were purchased, received, or imported. The 
biweekly reporting periods are defined as the first day through the 14th 
day of each month and the 15th day through the last day of the month. 
Each report must specify accurately and completely for each tuna 
purchased or received: Date of landing or import, vessel Atlantic 
Bluefin Tuna permit number (if applicable), tail tag number, weight in 
pounds or kilograms (specify

[[Page 293]]

if round or dressed), nature of the sale (dockside or consignment), 
price per pound or kilogram (round or dressed weight), and destination 
of the fish (domestic or export). In addition, dealers may indicate the 
quality rating of their bluefin tuna: (A, B, or C) for four attributes 
(freshness, fat, color, and shape).
    (2) At the top of each form, the dealer must indicate the company 
name, license number, and the name of the person filling out the report. 
In addition, the beginning and ending dates of the 2-week reporting week 
period must be specified by the dealer and noted at the top of the form.
    (c) Any person issued a dealer permit under Sec. 285.28 must allow 
an authorized officer, or any employee of NMFS designated by the 
Regional Director for this purpose, to inspect and copy any records of 
transfers, purchases, or receipts of Atlantic bluefin tuna;
    (d) Any person issued a dealer permit under Sec. 285.28 must retain 
at his/her place of business a copy of each landing card (including 
proof of fax or IVRS transmission) and a copy of each bi-weekly report 
for a period of 2 years from the date on which each was required to be 
submitted to the Regional Director.
    (e) Each operator of a buy-boat, in addition to the above, must 
notify the Regional Director of any intended offloading, and must 
request a vessel inspection at least 6 hours before such offloading, by 
calling 508-281-9261 between the hours of 8 a.m. and 4:30 p.m., Monday 
through Friday, local time, or at all other times during the day and 
weekends, by calling 508-992-7711. In making the request for inspection, 
the owner or operator of the buy-boat or a designated representative 
must provide his/her name, the buy-boat's name and permit number, the 
number of tuna received, and the location and anticipated time of 
landing in port.
    (f) Beginning July 1, 1997 anglers are required to report directly 
to NMFS all ABT landed under the Angling category quota. Permittees will 
be notified by the Director of the applicable reporting requirements and 
procedures. Alternative reporting procedures may be established by the 
Director in cooperation with the states and may include telephone, 
dockside or mail surveys, mail-in or phone-in reports, tagging programs, 
or mandatory ABT check-in stations. A statistically-based sample of the 
Angling category permittees may be selected for these alternative 
reporting programs.

(Approved by the Office of Management and Budget under OMB control 
number 0648-0239)

[50 FR 43400, Oct. 25, 1985, as amended at 53 FR 24645, June 29, 1988; 
57 FR 373, Jan. 6, 1992; 58 FR 45293, Aug. 27, 1993; 60 FR 14387, Mar. 
17, 1995; 60 FR 38515, July 27, 1995; 62 FR 30745, June 5, 1997]



Sec. 285.30  Tags.

    (a) Issuance of tags. The Regional Director will issue numbered tail 
tags to each person receiving a dealer's permit under Sec. 285.28.
    (b) Transfer of tags. Tail tags issued under this section are not 
transferable and are usable only by the permitted dealer to whom they 
are issued.
    (c) Affixing tags. (1) A dealer or agent must affix a tail tag to 
each Atlantic bluefin tuna purchased or received, immediately upon its 
offloading from a vessel. The tail tag must be affixed to the tuna 
between the fifth dorsal finlet and the keel.
    (2) Any person who catches a large medium or giant Atlantic bluefin 
tuna and does not transfer it to a permitted dealer must contact the 
nearest NMFS enforcement office at the time of landing said Atlantic 
bluefin tuna and make the tuna available so that a NMFS enforcement 
agent may inspect the fish and attach a tail tag to it. A list of local 
NMFS enforcement offices can be obtained by contacting regional offices 
in Gloucester, MA (508-281-9261) and St. Petersburg, FL (813-570-5344). 
The Regional Director may designate a person other than a NMFS agent to 
inspect and tag the fish. Such designation will be made in writing.
    (d) Removal of tags. A tag affixed to any Atlantic bluefin tuna 
under paragraph (c)(1) of this section or under Sec. 285.202(a)(6)(v) 
must remain on the tuna until the tuna is cut into portions. If the tuna 
or tuna parts subsequently are packaged for transport for domestic 
commercial use or for export, the tag number must be written legibly and 
indelibly on the outside of any

[[Page 294]]

package or container. Tag numbers must be recorded on any document 
accompanying shipment of bluefin tuna for commercial use or export.
    (e) Reuse of tags. Tags issued under this section are separately 
numbered and may be used only once, one tail tag per fish, to 
distinguish the purchase of one Atlantic bluefin tuna. Once affixed to a 
tuna or recorded on any package, container or report, a tail tag and 
associated number may not be reused.

[60 FR 14387, Mar. 17, 1995]



Sec. 285.31  Prohibitions.

    (a) It is unlawful for any person or vessel subject to the 
jurisdiction of the United States to do any of the following:
    (1) Fish for, catch, possess, or land Atlantic bluefin tuna without 
a valid permit required under Sec. 285.21 and carried onboard the 
vessel;
    (2) Fish for, catch, possess, or land Atlantic bluefin tuna after 
fishing has been closed or before fishing has commenced under 
Sec. 285.20, except under the provisions of Sec. 285.27;
    (3) Fish for, catch, possess or retain Atlantic bluefin tuna in 
excess of the quotas specified in Sec. 285.22 except that fish may be 
caught and released under the provisions of Sec. 285.27.
    (4) Fish for, catch, or possess or retain Atlantic bluefin tuna in 
excess of the catch limits specified in Sec. 285.24, except that fish 
may be caught and released under the provisions of Sec. 285.27.
    (5) Fish for, catch, possess, or land Atlantic bluefin tuna in 
excess of any allocation made under Sec. 285.25(d);
    (6) Fish for or catch Atlantic bluefin tuna in a directed fishery 
with purse seine nets without an allocation made under Sec. 285.25(d);
    (7) Fish for or catch Atlantic bluefin tuna in a directed fishery 
with nets other than those specified in Sec. 285.25;
    (8) For any vessel other than a vessel holding a purse seine permit 
issued under Sec. 285.21(b), to approach to within 100 yd (91.5 meters) 
of the cork line of any purse seine net used by any vessel fishing for 
Atlantic bluefin tuna, or for any such purse seine vessel to approach to 
within 100 yd (91.5 meters) of any vessel, other than a purse seine 
vessel, actively fishing for Atlantic bluefin tuna;
    (9) Retain or land Atlantic bluefin tuna in excess of the incidental 
catch provisions under Sec. 285.23;
    (10) Land any Atlantic bluefin tuna in forms other than round (fins 
intact), or other than eviscerated with the head and fins removed, 
except that one pectoral fin and the tail must remain attached;
    (11) Retain any Atlantic bluefin tuna caught under the tag and 
release program allowed under Sec. 285.27;
    (12) Purchase, receive, or transfer Atlantic bluefin tuna from any 
person or vessel without a valid dealer permit issued under 
Sec. 285.28(a);
    (13) Purchase, receive, or transfer any Atlantic bluefin tuna at sea 
from a person or vessel engaged in fishing for such tuna without a valid 
dealer permit for buy-boat operations issued under Sec. 285.28 unless 
between permitted purse seine vessels as authorized under 
Sec. 285.25(e);
    (14) Sell, offer for sale, or transfer any Atlantic bluefin tuna to 
any person or vessel other than to a person or vessel with a permit 
issued under Sec. 285.28;
    (15) Sell, offer for sale, or transfer to any person for a 
commercial purpose any large medium or giant Atlantic bluefin tuna 
caught with rod and reel gear under Sec. 285.24(d)(2) or 
Sec. 285.24(e)(2);
    (16) Engage in fishing with a vessel issued a permit under 
Sec. 285.21 unless the vessel travels to and from the area where it will 
be fishing under its own power and the person operating that vessel 
brings any Atlantic bluefin tuna under control (secured to the catching 
vessel or aboard) with no assistance from other vessels, except in 
circumstances where the safety of the vessel or its crew is jeopardized 
or due to other circumstances beyond the control of the operator;
    (17) Fail to release immediately with a minimum of injury any 
Atlantic bluefin tuna that will not be retained;
    (18) Fail to inspect any vessel's permit or fail to affix 
immediately to any large medium or giant Atlantic bluefin tuna, between 
the fifth dorsal finlet and the keel, an individually numbered tail tag 
when the tuna has been received for a commercial purpose or purchased by 
that dealer from any person or vessel having caught such tuna;

[[Page 295]]

    (19) Remove any tag affixed to an Atlantic bluefin tuna under 
Sec. 285.30(c)(1) or under Sec. 285.202(a)(6)(v), before removal is 
allowed under Sec. 285.30(d), or fail to write the tag number on the 
shipping package or container as prescribed by that section;
    (20) Purchase or transport with a buy-boat any Atlantic bluefin tuna 
captured incidentally by longlines;
    (21) Begin fishing or offloading from any purse seine vessel to 
which a permit has been issued under Sec. 285.21 any Atlantic bluefin 
tuna without first requesting an inspection of the vessel in accordance 
with Sec. 285.25;
    (22) Fail to report the catching of any Atlantic bluefin tuna to 
which a plastic tag has been affixed under a tag and release program 
conducted by NMFS or any other scientific organization or in which an 
archival tag has been affixed or implanted;
    (23) Falsify or fail to make, keep, maintain, or submit any reports, 
or other record required by this subpart;
    (24) Refuse to allow an authorized officer to make inspections for 
the purpose of checking any records relating to the catching, 
harvesting, landing, purchase, or sale of any Atlantic bluefin tuna 
required by this subpart;
    (25) Make any false statement, oral or writtten, to an authorized 
officer concerning the catching, harvesting, landing, purchase, sale, or 
transfer of any Atlantic bluefin tuna;
    (26) Fish for, catch, retain, possess or land Atlantic bluefin tuna 
with longline gear except as provided in Sec. 285.23(c);
    (27) Fish for or catch Atlantic bluefin tuna with longline gear, or 
while having longline gear on board, if the vessel is permitted in the 
General or Harpoon Boat category under Sec. 285.21;
    (28) Fish for or catch school, large school or small medium Atlantic 
bluefin tuna with gear other than hook and line, which is held by hand 
or rod and reel made for this purpose, or to possess such fish taken 
with unauthorized gear;
    (29) Use or possess handline or harpoon flotation gear which is not 
marked in accordance with Sec. 285.33, or is marked with the Atlantic 
bluefin tuna permit number of another vessel;
    (30) Fish for, catch, possess, or retain Atlantic bluefin tuna from 
the Gulf of Mexico except as specified under Sec. 285.23(c) or 
Sec. 285.24(e)(2), or if taken incidental to recreational fishing for 
other species and retained in accordance with Sec. 285.24(d)(2);
    (31) Fish for, catch, possess or retain Atlantic bluefin tuna with a 
gear type or in a manner other than specified in Secs. 285.21, 285.22, 
285.23, 285.24 and 285.25, or other than authorized under an 
experimental fishing exemption issued pursuant to the requirements of 
Sec. 285.7;
    (32) Interfere with, delay, or prevent by any means, the 
apprehension of another person, knowing that such person has committed 
any act prohibited by this part;
    (33) Retain young school Atlantic bluefin tuna for any purpose;
    (34) Sell, offer for sale, purchase, receive for a commercial 
purpose, trade, or barter, or if a seafood dealer or processor, retain 
or possess, any Atlantic bluefin tuna other than a large medium or 
giant, except with documentation as specified in Sec. 285.34;
    (35) Refuse to permit access of NMFS personnel to inspect any 
records relating to, or area of custody of, Atlantic bluefin tuna;
    (36) Reuse any tail tag previously affixed to an Atlantic bluefin 
tuna under Sec. 285.30 or reuse any tail tag number previously written 
on a shipping package or container as prescribed by that section; or
    (37) Fish for, catch, possess, or retain any Atlantic bluefin tuna 
less than the large medium size class from a vessel other than one 
issued a permit for the Angling or Charter/Headboat categories under 
Sec. 285.21, or a permit for the Purse Seine category under Sec. 285.21 
as authorized under Sec. 285.23(d), or, for calendar year 1997, a permit 
for the General category under Sec. 285.21.
    (38) Fail to cease fishing and return to port once the catch limit 
for large medium and giant bluefin is retained or possessed on board 
vessels permitted in the General and Charter/Headboat categories.
    (39) For owners or operators of General category permitted vessels, 
and persons aboard vessels permitted in the General category under 
Sec. 285.21, to fish

[[Page 296]]

for, catch, possess, or retain, or to attempt to fish for, catch, 
possess, or retain Atlantic bluefin tuna on designated restricted-
fishing days.
    (b) It is unlawful for any person subject to the jurisdiction of the 
United States to violate any other provision of this subpart, the Act, 
or any other rules promulgated under the Act.

[50 FR 43400, Oct. 25, 1985, as amended at 52 FR 25012, July 2, 1987; 53 
FR 24645, June 29, 1988; 57 FR 374, Jan. 6, 1992; 57 FR 32922, July 24, 
1992; 58 FR 45293, Aug. 27, 1993; 59 FR 17726, Apr. 14, 1994; 60 FR 
14388, Mar. 17, 1995; 60 FR 38515, July 27, 1995; 62 FR 30745, June 5, 
1997; 62 FR 38487, July 18, 1997; 62 FR 38487, July 18, 1997; 63 FR 669, 
Jan. 7, 1998; 63 FR 36612, July 7, 1998]



Sec. 285.32  Civil penalties.

    (a) Any person who violates Sec. 285.31(a)(1) through (a)(21) 
inclusive, or (a)(25) through (a)(31) inclusive, or (a)(33) and (a)(34) 
or (a)(36) through (a)(38) inclusive, will be assessed a civil penalty 
of not more than $25,000 for a first violation and a civil penalty of 
not more than $50,000 for a subsequent violation.
    (b) Any person who violates Sec. 285.31(a)(22) through (24) 
inclusive, or (a)(32), or (a)(35) will be assessed a civil penalty of 
not more than $1,000, and a civil penalty of not more than $5,000 for a 
subsequent violation.
    (c) Any person who violates Sec. 285.31(b) will be assessed a civil 
penalty in accordance with the criteria set forth in 16 U.S.C. 971e.

[50 FR 43400, Oct. 25, 1985, as amended at 60 FR 38515, July 27, 1995]



Sec. 285.33  Gear restrictions.

    (a) Any flotation device attached to handline or harpoon gear must 
be marked with the Atlantic bluefin tuna permit number of the vessel 
from which it is used. The required markings must be permanently affixed 
and at least one inch in height in block Arabic numerals of a color that 
contrasts with the background color of the flotation device.
    (b) [Reserved]

[50 FR 43400, Oct. 25, 1985, as amended at 62 FR 38487, July 18, 1997; 
63 FR 36612, July 7, 1998]



Sec. 285.34  Restrictions on sale.

    (a) Any Atlantic bluefin tuna less than the large medium size class 
may not be, or attempted to be, purchased, bartered, traded, sold, or 
offered for sale, or retained or possessed by a dealer or seafood 
processor in any state unless it is lawfully imported and is accompanied 
by the Commission's Bluefin Tuna Statistical Document.
    (b) Except for a bluefin tuna landed in a Pacific state and 
remaining in the state of landing, a bluefin tuna that is possessed by a 
dealer or seafood processor is deemed to be a bluefin tuna harvested 
from the Atlantic Ocean by a United States vessel unless it is 
accompanied by the Commission's Bluefin Tuna Statistical Document.

[60 FR 38515, July 27, 1995]



            Subpart C--Atlantic Tunas Other Than Bluefin Tuna

    Source: 60 FR 38516, July 27, 1995, unless otherwise noted.



Sec. 285.50  Species subject to regulation.

    Regulations contained in this subpart pertain to yellowfin tuna, 
bigeye tuna, albacore tuna, skipjack tuna and Atlantic bonito.



Sec. 285.51  Authorized fishing gear.

    Fishing for, catching, retention or possession of Atlantic 
yellowfin, bigeye, albacore, and skipjack tunas and Atlantic bonito in 
the regulatory area by persons on board fishing vessels subject to the 
jurisdiction of the United States is authorized only for handline, rod 
and reel (including downriggers), harpoon, purse seine, longline, drift 
gillnet and bandit gear unless the gear is authorized under an 
experimental fishing exemption issued pursuant to the requirements of 
Sec. 285.7.



Sec. 285.52  Size limits.

    (a) Fishing for, catching, retaining, or possessing of Atlantic 
yellowfin and bigeye tunas in the regulatory area by persons aboard 
fishing vessels subject to the jurisdiction of the United States is 
authorized only for yellowfin or bigeye tuna measuring 27 inches (69 cm) 
or more in total curved fork length.

[[Page 297]]

    (b) Total curved fork length is the sole criterion for determining 
the size class of whole (head on) Atlantic yellowfin and bigeye tuna. 
For this purpose, all measurements must be taken in a line tracing the 
contour of the body from the tip of the upper jaw to the fork of the 
tail, which abuts the ventral side of the pectoral fin and the ventral 
side of the caudal keel.

[61 FR 30187, June 14, 1996]



Sec. 285.53  Vessel permits.

    (a) Permit requirements. The operator of each vessel that fishes 
for, or takes, Atlantic yellowfin, bigeye, albacore, and skipjack tunas 
and Atlantic bonito must have on board a valid permit issued under this 
section.
    (b) Commercial vessel permits. As a prerequisite to selling Atlantic 
yellowfin, bigeye, albacore, and skipjack tunas and Atlantic bonito and 
to be eligible for exemption from applicable bag limits, if any, 
specified in this subpart, an owner or operator of a vessel that fishes 
for or takes Atlantic yellowfin, bigeye, albacore, and skipjack tunas 
and Atlantic bonito must be issued a vessel permit in the commercial 
category appropriate for the gear type or method of fishing.
    (c) Charter/Headboat vessel permits. Owners or operators of charter 
vessels and headboats must be issued a charter/headboat vessel permit to 
lawfully fish for, catch, retain or land Atlantic yellowfin, bigeye, 
albacore, and skipjack tunas and Atlantic bonito. Anglers on board 
charter vessels and headboats must adhere to applicable catch limits for 
the recreational fisheries.
    (d) Recreational vessel permits. Owners or operators of private 
recreational vessels must be issued vessel permits in order to fish for, 
catch, retain, or land Atlantic yellowfin, bigeye, albacore, and 
skipjack tunas. Anglers aboard private recreational vessels must adhere 
to applicable daily catch limits. Atlantic tunas taken on board private 
recreational vessels may not be sold.
    (e) Purse seine. Directed purse seine fishing for Atlantic 
yellowfin, bigeye, albacore, and skipjack tunas and Atlantic bonito is 
restricted to owners of those purse seine vessels that have current 
Atlantic bluefin tuna purse seine permits under Sec. 285.21(b) and that 
have reported, or replaced vessels that have reported, Atlantic 
yellowfin, skipjack, albacore or bigeye tuna landings to NMFS over the 
period 1989 through 1993. The owner or operator of such purse seine 
vessel must apply for authorization to fish for Atlantic yellowfin, 
bigeye, albacore, and skipjack tunas and Atlantic bonito in writing to 
the Regional Director by April 15. The owner must supply documentation 
of the vessel's stockholders, owners, partners, or association structure 
and records of landings to verify that the vessel meets the qualifying 
criteria. The Regional Director will review these applications for 
authorization on or about May 1 and issue authorizations as appropriate.
    (f) Exemptions. In lieu of a permit issued under this section, 
persons on board a vessel for which a valid permit for the Atlantic 
bluefin tuna fishery has been issued under Sec. 285.21 of this part are 
eligible to fish for and take Atlantic yellowfin, bigeye, albacore, and 
skipjack tunas and Atlantic bonito using the authorized gear and subject 
to the commercial fishing restrictions applicable to the category of 
permit issued for the vessel. In lieu of a permit issued under this 
section, owners or operators of vessels for which valid permits for the 
Atlantic shark fishery (50 CFR part 678) or the Atlantic swordfish 
fishery (50 CFR part 630) have been issued are eligible to fish for and 
take Atlantic yellowfin, bigeye, albacore, and skipjack tunas and 
Atlantic bonito using the authorized gear and subject to fishing 
restrictions applicable to the permit issued to the vessel. Owners or 
operators of vessels fishing for Atlantic yellowfin, bigeye, albacore, 
and skipjack tunas and Atlantic bonito shoreward of the outer boundary 
of the EEZ around Puerto Rico and the Virgin Islands with only handgear 
on board are exempt from the permit requirements of this section.

[60 FR 38516, July 27, 1995, as amended at 60 FR 57685, Nov. 17, 1995; 
62 FR 332, Jan. 3, 1997]



Sec. 285.54  Vessel recordkeeping and reporting.

    (a)(1) Logbooks. If selected and so notified in writing by the 
Director, the owner and/or operator of a vessel for

[[Page 298]]

which a permit has been issued under Sec. 285.21 or Sec. 285.53, must 
ensure that a daily logbook form is maintained of the vessel's fishing 
effort, catch, and disposition on forms available from the Science and 
Research Director. Such forms must be submitted to the Science and 
Research Director postmarked not later than the seventh day after sale 
of the fish offloaded from a trip. If no fishing occurred during a 
month, a report so stating must be submitted in accordance with 
instructions provided with the forms.
    (2) Tally sheets. The owner and/or operator of a vessel for which a 
permit has been issued under Sec. 285.21 or Sec. 285.53, and who is 
required to submit a logbook under paragraph (a)(1) of this section, 
must ensure that copies of tally sheets are submitted for all fish 
offloaded and sold after a fishing trip. Each tally sheet must show the 
dealer to whom the fish were transferred, the date they were 
transferred, and the carcass weight of each fish for which individual 
carcass weights are normally recorded. For species not individually 
weighed, tally sheets must record total weights by market category. 
Copies of tally sheets must be submitted with the logbook forms required 
under paragraph (a)(1) of this section.
    (b) The master or other person in charge of a fishing vessel, 
subject to the jurisdiction of the United States, except vessels 
proceeding directly to Puerto Rico or to any other U.S. port for 
unloading, must report to the Regional Director not less than 48 hours 
prior to entering the regulatory area via the Panama Canal. In addition, 
the master or other person in charge of a vessel, subject to the 
jurisdiction of the United States except a vessel without fish on board, 
must notify the Regional Director not less than 48 hours prior to 
leaving the regulatory area via the Panama Canal. Each report must 
include the name of the reporting vessel, the tonnage by species on 
board, and whether the fish were caught in Pacific or Atlantic waters.
    (c) All such fishing vessels entering or leaving the regulatory area 
via the Panama Canal are subject to inspection. Official seals will be 
affixed to wells containing fish taken within or outside the regulatory 
area, as appropriate and the same will be noted on the vessel log. The 
official seals may be removed only by a designated agent of NMFS upon 
arrival at point of sale or delivery.
    (d) The master or other person in charge of a fishing vessel subject 
to the jurisdiction of the United States, must notify the Regional 
Director not less than 48 hours prior to any transfer of Atlantic tuna 
taken in the regulatory area to another vessel for the purpose of 
transshipment. Such reports must include the date and place of 
unloading, name and destination of the oncarrying vessel, and the 
tonnage by species of tuna transferred.
    (e) The failure to file the reports or to follow the procedures 
required by this section, the tampering with or the removal of an 
official seal, or the alteration of a fishing vessel's log by any person 
or fishing vessel subject to the jurisdiction of the United States is a 
prohibited act within the meaning of Sec. 285.3.
    (f) Any person authorized to carry out enforcement activities under 
the Act or these regulations has power, without warrant or other 
process, to inspect, at any reasonable time, catch on board the vessel, 
log books, catch reports, statistical records, or other reports as 
required by the regulations in this part to be made, kept or furnished.
    (g) Owners and operators of vessels fishing for Atlantic yellowfin, 
bigeye, albacore, and skipjack tunas and Atlantic bonito shoreward of 
the outer boundary of the EEZ around Puerto Rico and the Virgin Islands 
with only handgear on board are exempt from the reporting requirements 
of this section.

[60 FR 38516, July 27, 1995, as amended at 62 FR 30746, June 5, 1997]



Sec. 285.55  Dealer permits.

    (a) General. Effective November 15, 1995, a dealer purchasing or 
attempting to purchase, receiving, possessing, importing or exporting 
Atlantic yellowfin, bigeye, albacore, and skipjack tunas and Atlantic 
bonito must have a valid permit required under this section.
    (b) Application. Applications for a dealer permit must be in writing 
on an

[[Page 299]]

appropriate form obtained from the Regional Director. The application 
must be signed by the applicant, and be submitted to the Regional 
Director at least 30 days before the date upon which the applicant 
desires the permit to be effective. The application must contain the 
following information: Company name; principal place of business; owner 
or owners' names; applicant's name (if different from owner or owners) 
and mailing address and telephone number; and any other information 
required by the Regional Director.
    (c) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Director will issue a permit within 30 days of receipt 
of a completed application.
    (2) The Regional Director will notify the applicant of any 
deficiency in the application. If the applicant fails to correct the 
deficiency within 15 days following the date of notification, the 
application will be considered abandoned.
    (d) Duration. Any permit issued under this section remains valid 
until December 31 of the year for which it is issued, unless suspended 
or revoked.
    (e) Alteration. Any permit which is substantially altered, erased, 
or mutilated is invalid.
    (f) Replacement. The Regional Director may issue replacement 
permits. An application for a replacement permit is not considered a new 
application.
    (g) Transfer. A permit issued under this section is not transferable 
or assignable; it is valid only for the dealer to whom it is issued.
    (h) Inspection. The dealer must keep the permit issued under this 
section at his/her principal place of business. The permit must be 
displayed for inspection upon request of any authorized officer, or any 
employee of NMFS designated by the Regional Director for such purpose.
    (i) Sanctions. The Administrator may suspend, revoke, modify, or 
deny a permit issued or sought under this section. Procedures governing 
permit sanctions and denials are found at subpart D of 15 CFR part 904.
    (j) Fees. The Regional Director may charge a fee to recover the 
administrative expenses of permit issuance. The amount of the fee is 
calculated, at least annually, in accordance with the procedures of the 
NOAA Finance Handbook for determining administrative costs of each 
special product or service. The fee may not exceed such costs and is 
specified on each application form. The appropriate fee must accompany 
each application. Failure to pay the fee will preclude issuance of the 
permit. Payment by a commercial instrument later determined to be 
insufficiently funded shall invalidate any permit.
    (k) Change in application information. Within 15 days after any 
change in the information contained in an application submitted under 
this section, the dealer issued a permit will report the change in 
writing to the Regional Director.
    (l) Exemptions. Dealers issued valid permits for the Atlantic 
bluefin tuna fishery under Sec. 285.28 of this part, dealers issued 
valid permits for the Atlantic shark fishery (50 CFR part 678) or the 
Atlantic swordfish fishery (50 CFR part 630), and dealers located in 
Puerto Rico and the Virgin Islands who purchase, sell, or re-sell only 
Atlantic yellowfin, bigeye, albacore, and skipjack tunas and Atlantic 
bonito taken shoreward of the outer boundary of the EEZ around Puerto 
Rico and the Virgin Islands by handgear are exempt from the permit 
requirements of this section.



Sec. 285.56  Dealer recordkeeping and reporting.

    (a) A dealer who has been issued a dealer permit pursuant to 
Sec. 285.55 must submit reports to the Fisheries Science Center Director 
as specified in paragraph (b) of this section. A report form is 
available from the Science and Research Director. The following 
information must be included in each report:
    (1) Name, address, and permit number of the dealer.
    (2) Names and official numbers of fishing vessels from which 
Atlantic yellowfin, bigeye, albacore, and skipjack tunas and Atlantic 
bonito were received.
    (3) Dates of receipt of Atlantic yellowfin, bigeye, albacore, and 
skipjack tunas and Atlantic bonito.
    (4) Listed by each port and county where Atlantic yellowfin, bigeye, 
albacore, and skipjack tunas and Atlantic

[[Page 300]]

bonito were offloaded from fishing vessels:
    (i) Total weight (pounds) for Atlantic yellowfin, bigeye, albacore, 
and skipjack tunas and Atlantic bonito by market category, if 
applicable, and for other species received with the tuna, including, but 
not limited to, shark, swordfish, dolphin, and wahoo; and
    (ii) Price per pound or total value paid by market category for tuna 
and other species, to the extent that such price information is known at 
the time of reporting.
    (b) A report of tuna and other applicable species received by a 
dealer on the first through the 15th days of each month must be 
submitted to the Science and Research Director postmarked not later than 
the 20th day of that month. A report of tuna and other applicable 
species received by the dealer on the 16th through the last day of each 
month must be submitted to the Science and Research Director postmarked 
not later than the 5th day of the following month. If no tuna was 
received during the reporting period, a report so stating must be 
submitted postmarked as specified for that respective reporting period.
    (c) The reporting requirement of paragraph (a) of this section may 
be satisfied by providing a copy of each appropriate weigh-out sheet 
and/or sales record, provided such weigh-out sheet and/or sales record, 
by itself or combined with the form available from the Science and 
Research Director, includes all of the required information.
    (d) In lieu of providing a required report to the Science and 
Research Director by mail, as specified in paragraph (a) of this 
section, a dealer may provide a report to a state or Federal fishery 
port agent designated by the Science and Research Director. Reports so 
provided must be delivered to such port agent not later than the 
prescribed postmark date for submitting each such report.
    (e) Additional data and inspection. Additional data may be collected 
by authorized statistical reporting agents, as designees of the Science 
and Research Director, and by authorized officers. Dealers are required 
to make tuna available for inspection by the Science and Research 
Director or an authorized officer and must allow an authorized officer, 
or any employee of NMFS designated by the Regional Director for this 
purpose, to inspect and copy any records of transfers, purchases, or 
receipts of Atlantic yellowfin, bigeye, albacore, and skipjack tunas and 
Atlantic bonito;
    (f) Recordkeeping. Dealers must retain at their place of business a 
copy of each bi-weekly report for a period of 2 years from the date on 
which each was required to be submitted to the Regional Director.
    (g) Exemptions. Dealers located in Puerto Rico and the Virgin 
Islands who purchase, sell, or re-sell only Atlantic yellowfin, bigeye, 
albacore, and skipjack tunas and Atlantic bonito taken shoreward of the 
outer boundary of the EEZ around Puerto Rico and the Virgin Islands by 
handgear are exempt from the reporting and recordkeeping requirements of 
this section.



Sec. 285.57  Purse seine vessel requirements.

    (a) Mesh size. Any owner or operator of a purse seine vessel 
conducting a directed fishery for Atlantic yellowfin, bigeye, albacore, 
and skipjack tunas and Atlantic bonito must use a purse seine net with a 
mesh size as specified under Sec. 285.25(a).
    (b) Inspection. The owner or operator of a purse seine vessel 
conducting a directed fishery for Atlantic yellowfin, bigeye, albacore, 
and skipjack tunas and Atlantic bonito must request an inspection of the 
vessel and fishing gear by an enforcement agent of NMFS prior to 
commencing fishing for the season in any fishery that may result in the 
harvest of any regulated species. The owner or operator must request 
such inspection at least 48 hours before commencement of the first 
fishing trip of the season. In addition, at least 48 hours before 
commencement of offloading any Atlantic yellowfin, bigeye, albacore, and 
skipjack tunas and Atlantic bonito after a fishing trip, the owner or 
operator must request an inspection of vessel and catch by calling 508-
563-5721 or 508-281-9261. The inability to provide for an inspection 
within 48 hours of notification shall constitute a waiver of this 
requirement. The

[[Page 301]]

owner or operator of a purse seine vessel must have the vessel's catch 
information recorded on the appropriate forms at the time of offloading 
and prior to transporting said tuna from the area of offloading.



Sec. 285.58  Incidental catch.

    Persons or fishing vessels subject to the jurisdiction of the United 
States must release, in a manner to promote survival, any yellowfin tuna 
or bigeye tuna less than the minimum size specified in Sec. 285.52 taken 
incidental to authorized fishing in the regulatory area.



Sec. 285.59  Prohibitions.

    (a) It is unlawful for any person or vessel subject to the 
jurisdiction of the United States to do any of the following:
    (1) Fish for, catch, possess, retain or land Atlantic yellowfin, 
bigeye, albacore, and skipjack tunas and Atlantic bonito without a valid 
permit required under Sec. 285.53 and carried on board the vessel;
    (2) Fish for, catch, land, retain or possess, Atlantic yellowfin or 
bigeye tuna below the minimum size specified in Sec. 285.52;
    (3) Fail to release immediately with a minimum of injury any 
Atlantic yellowfin or bigeye tuna that will not be retained;
    (4) Fish for or catch Atlantic yellowfin, bigeye, albacore, and 
skipjack tunas and Atlantic bonito in a directed fishery with purse 
seine nets if without any remaining bluefin tuna allocation made under 
Sec. 285.25(d);
    (5) For any vessel other than a vessel holding a purse seine permit 
issued under Sec. 285.53(d), to approach to within 100 yds (91.5 meters) 
of the cork line of any purse seine net used by any vessel fishing for 
Atlantic yellowfin, bigeye, albacore, and skipjack tunas and Atlantic 
bonito, or for any such purse seine vessel to approach to within 100 yds 
(91.5 meters) of any vessel, other than a purse seine vessel, actively 
fishing for Atlantic yellowfin, bigeye, albacore, and skipjack tunas and 
Atlantic bonito;
    (6) Begin fishing or offloading from any purse seine vessel to which 
a permit has been issued under Sec. 285.21 any Atlantic tuna without 
first requesting an inspection of the vessel in accordance with 
Sec. 285.57(b);
    (7) Fail to report the catching of any Atlantic tuna to which a 
plastic tag has been affixed under a tag and release program conducted 
by NMFS or any other scientific organization;
    (8) Falsify or fail to make, keep, maintain, or submit any reports, 
or other record required by this subpart;
    (9) Refuse to allow an authorized officer to make inspections for 
the purpose of checking any records relating to the catching, 
harvesting, landing, purchase, or sale of any Atlantic tuna required by 
this subpart;
    (10) Make any false statement, oral or written, to an authorized 
officer concerning the catching, harvesting, landing, purchase, sale, or 
transfer of any Atlantic tuna;
    (11) Interfere with, delay, or prevent by any means, the 
apprehension of another person, knowing that such person has committed 
any act prohibited by this part;
    (12) Refuse to permit access of NMFS personnel to inspect any 
records relating to, or area of custody of, Atlantic yellowfin, bigeye, 
albacore, and skipjack tunas and Atlantic bonito;
    (b) It is unlawful for any person subject to the jurisdiction of the 
United States to violate any other provision of this subpart, the Act, 
or any other rules implemented under the Act.



                 Subpart D--Restrictions on Tuna Imports



Sec. 285.80  Basis and purpose.

    (a) The stocks of Atlantic tunas under investigation and regulation 
by the Commission represent the concern of a number of countries 
interested in the conservation of such stocks. In order to assure that 
the achievement of the conservation objectives of the Commission are 
fulfilled the Act provides for certain restrictions on the importation 
of Atlantic tunas. Pursuant to section 6(c) of the Act, the Secretary, 
with the concurrence of the Secretary of State, is directed to 
promulgate regulations to prohibit:
    (1) The entry into the United States of fish in any form of those 
species

[[Page 302]]

which are subject to regulation pursuant to a recommendation of the 
Commission and which were taken from the regulatory area in such manner 
or in such circumstances as would tend to diminish the effectiveness of 
the conservation recommendations of the Commission; and
    (2) The entry into the United States, from any country when vessels 
of such country are being used in the conduct of fishing operations in 
the regulatory area in such manner or in such circumstances as would 
tend to diminish the effectiveness of the conservation recommendations 
of the Commission, of fish in any form of those species which are 
subject to regulation pursuant to a recommendation of the Commission and 
which were taken from the regulatory area;
    (3) The entry into the United States, from any country when vessels 
of such country engage in repeated and flagrant fishery operations in 
the regulatory area which seriously threaten the achievement of the 
objectives of the Commission's recommendations, of fish in any form of 
these species which are under investigation by the Commission and which 
were taken from the regulatory area.
    (b) By letter of February 18, 1976, the Secretary of State concurred 
in the promulgation of the regulations in this part. Such regulations 
are designed to implement the provisions of section 6(c) of the Act with 
respect to import controls and to proscribe procedures for the 
establishment of restrictions on imports of tuna and tuna-like fish 
whenever such action shall be deemed warranted.

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978]



Sec. 285.81  Species subject to regulation.

    The species of tuna currently subject to regulation by 
recommendation of the Commission within the meaning of section 6(c) are 
yellowfin tuna, bigeye tuna, and Atlantic bluefin tuna.

[46 FR 3026, Jan. 13, 1981]



Sec. 285.82  Species under investigation by the Commission.

    Those species of tuna currently under investigation by the 
Commission within the meaning of section 6(c) of the Act are yellowfin, 
Atlantic bluefin, skipjack, albacore, bigeye and Atlantic bonito, and 
billfishes.

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978]



Sec. 285.83  Investigations authorized.

    (a) The Assistant Administrator will make, from time to time, such 
inquiries and investigations as may be necessary to keep himself and 
other interested persons currently informed regarding the nature and 
effectiveness of the measures for the implementation of the Commission's 
recommendations concerning those activities which are being carried out 
by foreign countries whose vessels engage in fishing within the 
regulatory area. In making a finding, as to:
    (1) Whether or not fish in any form of those species which are 
subject to regulation by the Commission are being taken from the 
regulatory area in a manner or under such circumstances as would tend to 
diminish effectiveness of the conservation recommendations of the 
Commission; or
    (2) Whether or not a country is condoning the use of vessels in the 
conduct of fishing operations in the regulatory area in such a manner or 
under such circumstances that would tend to diminish the effectiveness 
of the conservation recommendations of the Commission; or
    (3) Whether or not a country is condoning the use of vessels in 
repeated and flagrant fishing operations which seriously threaten the 
achievement of the objectives of the commissions recommendations, the 
Assistant Administrator will take into account, among such other 
considerations as may appear to be pertinent in a particular case, the 
following factors:
    (i) Whether or not the country provides or causes to be provided to 
the Commission pertinent statistics on a timely basis;
    (ii) Whether or not the country has in force conservation measures 
applicable to its own fishermen adequate for the implementation of the 
Commission's recommendations;
    (iii) Whether or not the country has in force measures for the 
control of landings in its ports of species subject

[[Page 303]]

to regulations which are taken in the regulatory area by fishermen of 
other countries contrary to the Commission's conservation 
recommendations;
    (iv) Whether or not the country, having put conservation measures 
into effect, takes reasonable action to enforce such measures;
    (v) The number of vessels of the country which conduct fishing 
operations in the regulatory area;
    (vi) The quantity of species subject to regulation taken from the 
regulatory area by the Country's vessels contrary to the Commission's 
conservation recommendations and its relationship to (A) the total 
quantity permitted to be taken by the vessels of all countries 
participating in the fishery and (B) the quantity of such species sought 
to be restored to the stocks of fish pursuant to the Commission's 
conservation recommendations.
    (b) Any person who has reason to believe that the vessels of any 
country are being used in the conduct of fishing operations in the 
regulatory area in such manner or in such circumstances as would tend to 
diminish the effectiveness of the conservation recommendations of the 
Commission or that other acts within the purview of the import control 
provisions of section 6(c) of the Act, are occurring or are likely to 
occur, may communicate his belief to the Assistant Administrator. Every 
such communication must contain or be accompanied by a full statement of 
the reasons for the belief, including a detailed description of such 
specific acts or events as may indicate a need for instituting an 
investigation as authorized in this part.
    (c) Upon receipt by the Assistant Administrator of any communication 
submitted pursuant to paragraph (b) of this section and upon a finding 
that the communication complies with the requirements of that paragraph, 
the Assistant Administrator will promptly conduct an investigation to be 
made as appears to be warranted by the circumstances of the case. In 
conducting such investigations the Assistant Administrator or his 
designated representative will consider any representations offered by 
foreign interests, importers, brokers, domestic producers, or other 
interested persons. Unless good cause to the contrary exists every such 
investigation will be completed within 60 days following receipt of the 
communication.

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978, 
and amended at 44 FR 36045, June 20, 1979; 53 FR 24645, June 29, 1988]



Sec. 285.84  Publication of findings.

    If it is determined on the basis of Sec. 285.83 that species of fish 
subject to regulation or under investigation by the Commission, as the 
case may be, are ineligible for entry into the United States under 
section 6(c) of the Act, the Assistant Administrator with the approval 
of the Secretary of the Commerce and with the concurrence of the 
Secretary of State, will publish a finding to that effect in the Federal 
Register. Effective upon the date of publication of such finding in the 
Federal Register every shipment of fish in any form of the species found 
to be ineligible will be denied entry unless it is established by 
satisfactory proof pursuant to Sec. 285.85 that a particular shipment of 
such fish is not ineligible for entry: Provided, That entry will not be 
denied and no such proof will be required for any such shipment which, 
on the date of such publication, was in transit to the United States on 
board a vessel operating as a common carrier.

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978, 
and amended at 44 FR 36045, June 20, 1979; 53 FR 24645, June 29, 1988; 
53 FR 27798, July 22, 1988]



Sec. 285.85  Proof of admissibility.

    (a) For the purposes of Sec. 285.83 of this part and section 6(c) of 
the Act a shipment of fish in any form of the species under regulation 
or under investigation by the Commission offered for entry, directly or 
indirectly, from a country named in a finding published under 
Sec. 285.84 is eligible for entry if the shipment is accompanied by a 
certificate of eligibility certifying as may be appropriate, that the 
fish in the shipment:
    (1) Are not of the species specified in the published finding;
    (2) Are of the species named in the published finding but were not 
taken in the regulatory area; or
    (3) Are of the species named in the published finding but are 
products of

[[Page 304]]

an American fishery lawfully taken in conformity with applicable 
conservation laws and regulations and landed in the country named in the 
published finding solely for transshipment. The certificate shall be 
attached to the invoice and be in the following form:

                       Certificate of Eligibility

    I, __________, an authorized officer of the Government of 
__________, certify that the shipment of tuna accompanied by this 
certificate, consisting of __________ (quantity) of __________ (Species) 
in ________________________ (Number and kind of packages or containers 
bearing the following marks and numbers.)
    {time}  (a) Contains no tuna of the species prohibited entry into 
the United States by virtue of a finding of ineligibility published 
under regulations issued pursuant to section 6(c) of the Atlantic Tunas 
Convention Act of 1975. (A certificate of authentication executed by a 
consular officer or a consular agent of the United States must be 
attached.)
{time}  (b) Contains tuna of the species prohibited entry into the 
United States by virtue of a finding of ineligibility published under 
regulations issued pursuant to section 6(c) of the Atlantic Tunas 
Convention Act of 1975, but that such tuna were caught in the waters 
of__________________________________(Identify area or areas in which 
tuna were taken) by vessels subject to the jurisdiction of 
__________________________________ and that none of the tuna were taken 
in the Atlantic Ocean or its adjacent seas. (A certificate of 
authentication executed by a consular officer or consular agent of the 
United States must be attached.)________________________________________
    {time}  (c) Contains tuna of the species prohibited entry into the 
United States by virtue of a finding of ineligibility published under 
regulations issued pursuant to section 6(c) of the Atlantic Tunas 
Convention Act of 1975, but that such tuna, as shown in the attached 
declaration, were taken in strict conformity with applicable 
conservation laws and regulations in a fishing enterprise conducted 
under the American flag by vessels of the United States, are products of 
an American fishery within the meaning of Schedule 1, Part 15A, Tariff 
Schedules of the United States, were landed in a foreign country solely 
for transshipment without change in condition and are eligible for free 
entry under such Schedule and 19 CFR 10.78-10.79. (Where an entry is to 
be made pursuant to this paragraph, this certificate must be executed by 
a consular officer or consular agent of the United States and the 
declaration(s) required by 19 CFR 10.79 and must be attached.)

              __________________________________________________________
                                                               Signature
              __________________________________________________________
                                                                   Title
              __________________________________________________________
                                                                 Address

    (b) If the tuna are offered for entry under paragraph (a) or (b) of 
the Certificate of Eligibility, the certificate must be executed by a 
duly authorized official of the country named in the published finding 
and the certificate must be authenticated with respect to the signature 
and official position of the person executing the same by a consular 
officer or consular agent of the United States. Such certificate of 
authentication shall be attached to the Certificate of Eligibility and 
be substantially in the following form:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

    I, ________________________________ (Name of the consular officer or 
consular agent) ____________________ (Title) of the United States of 
America at ____________________ (Place), duly commissioned and 
qualified, do hereby certify that ____________________ (Name of foreign 
official), whose true signature and official seal are, respectively 
subscribed and affixed to the annexed certificate, was, on the ______ 
day of ______, 19__, the date thereof, ____________________ (Title of 
foreign official), duly commissioned and qualified, to whose official 
acts faith and credit are due.
    In witness whereof I have hereunto set my hand and affixed the seal 
of the ____________________________ this day of ______________19__,
              __________________________________________________________
                                                               Signature
_______________________________________________________________________
 (Name and full title of officer)

    (c) If the tuna are offered for entry under paragraph (c) of the 
Certificate of Eligibility, the certificate must be executed by a 
consular officer or consular agent of the United States and be 
accompanied by the declaration(s) required by 19 CFR 10.79. The 
``Declaration of Master and Two Members of Crew on Entry of Products of 
American Fisheries'', required by 19 CFR 10.79 must contain a further 
statement as follows: ``We further declare that the said tuna were 
caught by us in full compliance with part 285, title 50, Code of Federal 
Regulations, and such other conservation laws and regulations as

[[Page 305]]

were applicable at the time the fishing operation was in progress.''

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978; 
and amended at 53 FR 24645, June 29, 1988]



Sec. 285.86  Removal of import restrictions.

    Upon a determination by the Assistant Administrator that the 
conditions no longer exist which warranted the imposition of import 
restrictions in the finding published pursuant to Sec. 285.84 the 
Assistant Administrator, with the approval of the Secretary and the 
concurrence of the Secretary of State, will publish a finding to such 
effect in the Federal Register. Effective upon the date of publication 
of such finding, the prior existing import restrictions against the 
country designated therein will terminate: Provided, That for a period 
of 1 year from such date of publication every shipment of fish in any 
form that was subject to the finding published pursuant to Sec. 285.84 
will continue to be denied entry unless the shipment is accompanied by a 
certification executed by an authorized official of the country of 
export and authenticated by a consular officer or consular agent of the 
United States, certifying that no portion of the shipment is comprised 
of fish taken prior to or during the import restriction.

[41 FR 8352, Feb. 26, 1976. Redesignated at 43 FR 8554, Mar. 2, 1978, 
and amended at 44 FR 36045, June 20, 1979; 53 FR 24645, June 29, 1988]



Sec. 285.87  Import restrictions for Belize, Honduras, and Panama.

    (a) Effective August 20, 1997 all shipments of Atlantic bluefin tuna 
or Atlantic bluefin tuna products in any form harvested by a vessel of 
Honduras or Belize will be denied entry into the United States, unless a 
validated Bluefin Statistical Document required under subpart F of this 
part, Secs. 285.200 through 285.205, shows that a particular shipment of 
such bluefin tuna was exported prior to August 20, 1997.
    (b) Effective January 1, 1998, all shipments of Atlantic bluefin 
tuna or Atlantic bluefin tuna products in any form harvested by a vessel 
of Panama will be denied entry into the United States, unless a 
validated Bluefin Statistical Document required under subpart F of this 
part, Secs. 285.200 through 285.205, shows that a particular shipment of 
such bluefin tuna was exported prior to January 1, 1998.

[62 FR 44423, Aug. 21, 1997]



                Subpart E--International Port Inspection

    Source: 48 FR 53564, Nov. 28, 1983, unless otherwise noted.



Sec. 285.100  Basis and purpose.

    At its sixth regular meeting, the International Commission for the 
Conservation of Atlantic Tunas (Commission) adopted an international 
port inspection scheme to assist in the enforcement of the Commission's 
recommendations. The following regulations have been adopted by the 
United States to implement the port inspection scheme.



Sec. 285.101  Authorized officer.

    For the purposes of this subpart, an authorized officer is a person 
appointed by a contracting party (the United States and the countries 
listed in Sec. 285.102(a)) as an authorized inspector for the 
Commission, who possesses an identification card so stating.



Sec. 285.102  Vessels subject to inspection.

    (a) All United States tuna vessels or vessels carrying tuna and 
their catch, gear, and records are subject to inspection under this 
subpart by an authorized officer when landing or transshipping tuna or 
when making a port call at a port of the following countries, which are 
defined as the contracting parties. The names of any subsequent 
additional contracting parties may be added to the list by Federal 
Register notice. United States tuna vessels or vessels carrying tuna are 
also subject to the requirements of subparts A through C as appropriate.
    (1) Brazil
    (2) Cuba
    (3) France
    (4) Gabon
    (5) Ivory Coast
    (6) Portugal
    (7) Senegal
    (8) South Africa
    (9) Spain

[[Page 306]]

    (b) All tuna vessels or vessels carrying tuna, and registered by any 
of the above countries, and their catch, gear and records are subject to 
inspection under this subpart when landing or transshipping tuna or when 
making a port call in the United States.
    (c) A vessel entering a port of the above countries because of force 
majeure shall be exempt from inspection by an authorized officer.



Sec. 285.103  Reports.

    (a) Inspections must be reported on a standardized Commission form 
and signed by the authorized officer. The master is entitled to add or 
have added to the report, any observation which the master thinks 
suitable. If the master adds information to the report, he also must 
sign the report. The authorized officer will note in the vessel's log 
that the inspection has been made. A copy of the report will be given to 
the vessel master and a copy sent to the authorized officer's national 
authority.
    (b) The master must allow the authorized officer to examine any 
portion of the catch and gear and provide any relevant documents as the 
authorized officer deems necessary to verify compliance with these 
regulations.

[48 FR 53564, Nov. 28, 1983, as amended at 53 FR 24645, June 29, 1988]



            Subpart F--Bluefin Tuna Statistical Documentation

    Source: 60 FR 14388, Mar. 17, 1995, unless otherwise noted.



Sec. 285.200  Species subject to documentation requirements.

    Imports into the United States and exports or re-exports from the 
United States of all bluefin tuna or bluefin tuna products regardless of 
ocean area of catch are subject to the documentation requirements of 
this subpart.
    (a) Documentation is required for bluefin tuna identified by the 
following item numbers from the Harmonized Tariff Schedule:
    (1) Fresh or chilled bluefin tuna, excluding fillets and other fish 
meat, No. 0302.39.00.20.
    (2) Frozen bluefin tuna, excluding fillets, No. 0303.49.00.20.
    (b) In addition, bluefin tuna products in other forms (e.g., chunks, 
fillets, canned) listed under any other item numbers from the Harmonized 
Tariff Schedule are subject to the documentation requirements of this 
subpart, except that fish parts other than meat (i.e., heads, eyes, roe, 
guts, tails) may be allowed entry without said statistical 
documentation.



Sec. 285.201  Documentation requirements.

    (a) Bluefin imports. (1) Imports of all bluefin tuna products into 
the United States must be accompanied at the time of entry by an 
original completed approved Bluefin Tuna Statistical Document with the 
information and exporter's certification specified in Sec. 285.202(a)(1) 
through (7). Such information must be validated as specified in 
Sec. 285.202(a)(8) by a responsible government official of the country 
whose flag vessel caught the tuna (regardless of where the fish are 
first landed), unless the Assistant Administrator has waived validation 
requirements for the country pursuant to Sec. 285.203.
    (2) Bluefin tuna imported into the United States from a country 
requiring a tag on all such tuna available for sale must be accompanied 
by the appropriate tag issued by that country, and said tag must remain 
on any tuna until it reaches its final import destination. If the final 
import destination is the United States, the tag must remain on the tuna 
until it is cut into portions. If the tuna portions are subsequently 
packaged for domestic commercial use or export, the tag number and the 
issuing country must be written legibly and indelibly on the outside of 
the package.
    (3) Dealers selling bluefin tuna that was previously imported into 
the United States for domestic commercial use must provide on the 
original Bluefin Tuna Statistical Document that accompanied the import 
shipment the correct information and importer's certification specified 
in Sec. 285.202(a)(9). The original of the completed Bluefin Tuna 
Statistical Document must be postmarked and mailed by said dealer to the 
Regional Director within 24 hours of the time the tuna was imported into 
the United States.

[[Page 307]]

    (b) Bluefin exports. (1) Dealers exporting bluefin tuna that was 
harvested by U.S. vessels and first landed in the United States must 
complete an original numbered Bluefin Tuna Statistical Document issued 
to that dealer by the Regional Director. Such an individually numbered 
document is not transferable or reusable and may be used only once by 
the dealer to which it was issued to report on a specific export 
shipment. Dealers must provide on the Bluefin Tuna Statistical Document 
the correct information and exporter certification specified in 
Sec. 285.202(a)(1) through (7). As required under Sec. 285.203, the 
Bluefin Tuna Statistical Document must be validated as specified in 
Sec. 285.202(a)(8) by an official of the U.S. Government or, if 
authorized by NMFS, an official of an accredited institution. A list of 
such officials may be obtained by contacting the Office of Fisheries 
Conservation and Management, NMFS, Silver Spring, MD (301-713-2347), or 
the nearest NMFS Enforcement Office. A list of local NMFS enforcement 
offices can be obtained by contacting regional offices in Gloucester, MA 
(508-281-9261), St. Petersburg, FL (813-570-5344) and Long Beach, CA 
(310-980-4050). Dealers requesting government validation for exports 
should notify NMFS as soon as possible after arrival of the vessel to 
avoid delays in inspection and validation of the export shipment.
    (2) Dealers re-exporting bluefin tuna that was previously imported 
into the United States must provide on the original Bluefin Tuna 
Statistical Document that accompanied the import shipment the correct 
information and intermediate importer's certification specified in 
Sec. 285.202(a)(9).
    (3) Dealers must submit the original of the completed Bluefin Tuna 
Statistical Document to accompany the shipment of bluefin tuna to its 
export or re-export destination. A copy of the Bluefin Tuna Statistical 
Document completed as specified under paragraph (b)(1) or (2) of this 
section must be postmarked and mailed by said dealer to the Regional 
Director within 24 hours of the time the tuna was exported or re-
exported from the United States.
    (c) Recordkeeping. Dealers must retain at their principal place of 
business a copy of each Bluefin Tuna Statistical Document required to be 
submitted to the Regional Director pursuant to this section for a period 
of 2 years from the date on which it was submitted to the Regional 
Director.



Sec. 285.202  Contents of documentation.

    (a) A Bluefin Tuna Statistical Document, to be deemed complete, 
must:
    (1) Have a document number assigned as prescribed by the country 
issuing the document;
    (2) State the name of the country issuing the document, which is the 
country whose flag vessel harvested the bluefin tuna, regardless of 
where the tuna is first landed;
    (3) State the name of the vessel that caught the fish and the 
vessel's registration number, if applicable;
    (4) State the name of the owner of the trap that caught the fish, if 
applicable;
    (5) State the point of export, which is the city, state or province, 
and country from which the bluefin tuna is first exported;
    (6) State the following specified information about the shipment:
    (i) The product type (fresh or frozen) and product form (round, 
gilled and gutted, dressed, fillet or other);
    (ii) The method of fishing used to harvest the fish (purse seine, 
trap, rod and reel, etc.);
    (iii) The ocean area from which the fish was harvested (western 
Atlantic, eastern Atlantic, Mediterranean, or Pacific);
    (iv) The weight of each fish (in kilograms for the same product form 
previously specified);
    (v) The identifying tag number, if landed by vessels from countries 
with tagging programs;
    (7) State the name and license number of, and be signed and dated in 
the exporter's certification block by, the exporter;
    (8) If applicable, state the name and title of, and be signed and 
dated in the validation block by, a responsible government official of 
the country whose flag vessel caught the tuna (regardless of where the 
tuna are first landed) or

[[Page 308]]

by an official of an institution accredited by said government, with 
official government or accredited institution seal affixed, thus 
validating the information on the Bluefin Tuna Statistical Document; and
    (9) As applicable, state the name(s) and address(es), including the 
name of the city and state or province of import, and the name(s) of the 
intermediate country(ies) or the name of the country of final 
destination, and license number(s) of, and be signed and dated in the 
importer's certification block by, each intermediate and the final 
importer.
    (b) An approved Bluefin Tuna Statistical Document may be obtained 
from the Regional Director to accompany exports of bluefin tuna from the 
United States. Bluefin tuna dealers in countries that do not provide an 
approved Bluefin Tuna Statistical Document to exporters may obtain an 
approved Bluefin Tuna Statistical Document from the Regional Director to 
accompany exports to the United States.
    (c) Dealers from a country exporting bluefin tuna to the United 
States may use the approved Bluefin Tuna Statistical Document obtainable 
from the Regional Director or documents developed by the dealer's 
country, if that country submits a copy, through the ICCAT Executive 
Secretariat, to the Assistant Administrator, and the Assistant 
Administrator concurs with the ICCAT Secretariat's determination that 
the document meets the information requirements of the ICCAT 
recommendation. In such case, the Assistant Administrator shall provide 
a list of countries for which Bluefin Tuna Statistical Documents are 
approved, together with examples of such documents to the appropriate 
official of the U.S. Customs Service. Effective upon the date indicated 
in such notice to the U.S. Customs Service, shipments of bluefin tuna or 
bluefin tuna products offered for importation from said country(ies) may 
be accompanied by either that country's approved Bluefin Tuna 
Statistical Document or by the Bluefin Tuna Statistical Document 
provided to the foreign country exporter by the Regional Director.



Sec. 285.203  Validation requirements.

    (a) Imports. The approved Bluefin Tuna Statistical Document 
accompanying any import of bluefin tuna, whether or not the issuing 
country is a member of ICCAT, must be validated by a government official 
from the issuing country, unless the Assistant Administrator waives the 
government validation requirement for that country following a 
recommendation to do so by the Executive Secretary of ICCAT. The 
Assistant Administrator shall furnish a list of countries for which 
government validation requirements are waived to the appropriate 
official of the U.S. Customs Service. Said list shall indicate the 
circumstances of exemption for each issuing country and the non-
government institutions, if any, accredited to validate Bluefin 
Statistical Documents for that country.
    (b) Exports. The approved Bluefin Tuna Statistical Document 
accompanying any export of bluefin tuna from the United States must be 
validated by a U.S. government official, except under circumstances of 
waiver, if any, specified on the form and accompanying instructions, or 
in a letter to permitted dealers from the Regional Director. Such 
circumstances of waiver of government validation shall be consistent 
with ICCAT recommendations concerning validation of Bluefin Tuna 
Statistical Documents. If authorized, such waiver of government 
validation may include:
    (1) Exemptions from government validation for fish with individual 
tags affixed pursuant to Sec. 280.52 or Sec. 285.30 of this chapter, or;
    (2) Validation by non-government officials authorized to do so by 
the Regional Director under paragraph (c) of this section.
    (c) Authorization for non-government validation. Institutions, or 
associations seeking authorization to validate Bluefin Tuna Statistical 
Documents accompanying exports from the United States, must apply in 
writing to the Regional Director. A letter of application must indicate 
the procedures to be used for verification of information to be 
validated, must list the names, addresses, and telephone/fax numbers of 
individuals to perform validation, and must provide an example of the 
stamp

[[Page 309]]

or seal to be applied to the Bluefin Tuna Statistical Document. Upon 
finding the institution or association capable of verifying the 
information required on the Bluefin Tuna Statistical Document, the 
Regional Director will issue, within 30 days, a letter specifying the 
duration of effectiveness and conditions of authority to validate 
Bluefin Tuna Statistical Documents accompanying exports from the United 
States. The effectiveness of such authorization will be delayed as 
necessary for the Assistant Administrator to notify the ICCAT 
Secretariat of non-government institutions and associations authorized 
to validate Bluefin Tuna Statistical Documents.



Sec. 285.204  Ports of entry.

    The Assistant Administrator shall monitor the importation of bluefin 
tuna into the United States. If the Assistant Administrator determines 
that the diversity of handling practices at certain ports at which 
bluefin tuna is being imported into the United States allow for 
circumvention of the Bluefin Tuna Statistical Document requirement, he/
she may designate, after consultation with the U.S. Customs Service, 
those ports at which Pacific or Atlantic bluefin tuna may be imported 
into the United States. The Assistant Administrator shall announce in 
the Federal Register the names of ports so designated and the effective 
dates of entry restrictions.



Sec. 285.205  Prohibitions.

    It is unlawful for any person to do any of the following:
    (a) Import or attempt to import any bluefin tuna into the United 
States without an accompanying original form of an approved Bluefin Tuna 
Statistical Document correctly completed with the appropriate 
certification and government validation.
    (b) Import any bluefin tuna into the United States from a country 
that requires all such tuna to be tagged, without said tag accompanying 
the bluefin tuna.
    (c) Remove a tag from any bluefin tuna imported into the United 
States accompanied by a tag, prior to its being cut into portions for a 
destination in the United States or for export.
    (d) Fail to write legibly and indelibly the tag number and the 
issuing country on the outside of any package containing a part or parts 
of a bluefin tuna that was imported into the United States accompanied 
by said tag.
    (e) Export or re-export from the United States any bluefin tuna 
without an accompanying original approved Bluefin Tuna Statistical 
Document correctly completed with the appropriate certification and, if 
applicable, validated by a designated official of the United States 
government or an official of an institution authorized by the Regional 
Director pursuant to Sec. 285.203(c) to validate such documents.
    (f) Fail to provide in a timely manner any originals or copies of 
Bluefin Tuna Statistical Documents required to be submitted to the 
Regional Director pursuant to Sec. 285.201.
    (g) Write false information on or modify any information previously 
written on any Bluefin Tuna Statistical Document required by this 
subpart or to validate such document if not authorized to do so by the 
Regional Director.
    (h) Fail to maintain copies of completed Bluefin Tuna Statistical 
Documents as required under Sec. 285.201.
    (i) Import any bluefin tuna in a manner inconsistent with any ports 
of entry designated by the Assistant Administrator pursuant to 
Sec. 285.204.
    (j) Reuse, or transfer to another dealer, any numbered Bluefin Tuna 
Statistical Document issued to a dealer under this subpart.
    (k) Import any Atlantic bluefin tuna or Atlantic bluefin tuna 
products into the United States from Belize or Honduras after August 20, 
1997 unless a validated Bluefin Statistical Document required under this 
subpart F, Secs. 285.200 through 285.205, shows that a particular 
shipment of such bluefin tuna was exported prior to August 20, 1997.
    (l) Import any Atlantic bluefin tuna or Atlantic bluefin tuna 
products into the United States from Panama after January 1, 1998, 
unless a validated Bluefin Statistical Document required under this 
subpart F, Secs. 285.200 through

[[Page 310]]

285.205, shows that a particular shipment of such bluefin tuna was 
exported prior to January 1, 1998.

[60 FR 14388, Mar. 17, 1995, as amended at 62 FR 44423, Aug. 21, 1997]
[GRAPHIC] [TIFF OMITTED] TC01JY91.071



[57 FR 374, Jan. 6, 1992]

[[Page 311]]



                        SUBCHAPTER J  [RESERVED]





                     SUBCHAPTER K--CONTINENTAL SHELF





PART 296--FISHERMEN'S CONTINGENCY FUND--Table of Contents




Sec.
296.1  Purpose.
296.2  Definitions.
296.3  Fishermen's contingency fund.
296.4  Claims eligible for compensation.
296.5  Instructions for filing claims.
296.6  NMFS processing of claims.
296.7  Burden of proof and presumption of causation.
296.8  Amount of award.
296.9  Initial determination.
296.10  Agency review.
296.11  Final determination.
296.12  Payment of costs.
296.13  Payment of award for claim.
296.14  Subrogation.
296.15  Judicial review.

    Authority: Pub. L. 97-212 (43 U.S.C. 1841 et seq.).

    Source: 47 FR 49600, Nov. 1, 1982, unless otherwise noted.



Sec. 296.1  Purpose.

    These regulations implement title IV of the Outer Continental Shelf 
Lands Act Amendments of 1978, as amended (title IV). Title IV 
establishes a Fishermen's Contingency Fund to compensate commercial 
fishermen for damage or loss caused by obstructions associated with oil 
and gas activities on the Outer Continental Shelf.



Sec. 296.2  Definitions.

    Area affected by Outer Continental Shelf activities means the area 
within a 3-mile radius of any casualty site which:
    (1) Includes any portion of a leased block, pipeline, easement, 
right of way, or other OCS oil and gas exploration, development, or 
production activity; or
    (2) Is otherwise associated (as determined by the Chief, Financial 
Services Division) with OCS oil and gas activities, such as, for 
example, expired lease areas, relinquished rights-of-way or easements, 
and areas used extensively by surface vessels supporting OCS oil and gas 
activities (areas landward of the OCS are included when such areas meet 
this criterion).
    Chief, FSD means Chief, Financial Services Division, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; 
telephone: (301) 713-2396.
    Citizen of the United States means any person who is a United States 
citizen, any State, or any corporation, partnership, or association 
organized under the laws of any state which meets the requirements for 
documenting vessels in the U.S. coastwise trade.
    Commercial fisherman means any citizen of the United States who 
owns, operates, or is employed on a commercial fishing vessel.
    Commercial fishing vessel means any marine craft which is documented 
under the laws of the United States or, if under five net tons, 
registered under the laws of any State, and used for commercial fishing 
or activities directly related to commercial fishing.
    Easement means a right of use or easement granted under 30 CFR 
250.18.
    Fish means all forms of marine animal and plant life other than 
marine mammals, birds, and highly migratory species.
    Fishing gear means any commercial fishing vessel, and any equipment 
of such vessel.
    Fund means the Fishermen's Contingency Fund established by title IV 
of the Outer Continental Shelf Lands Act Amendments of 1978.
    Holder means the owner of record of each lease, prelease exploratory 
drilling permit, easement, or right-of-way or any agent or assignee of 
an owner.
    Lease means any authority under section 8 or section 6 of the OCS 
Lands Act to develop and produce or explore for oil or gas.
    Negligence or fault includes, but is not limited to, failure to:
    (1) Remain outside of any navigation safety zone established around 
oil and gas rigs and platforms by any responsible Federal agency;
    (2) Avoid obstructions recorded on nautical charts or in the Notice 
to Mariners or marked by a buoy or other surface marker (casualties 
occurring

[[Page 312]]

within a one-quarter mile radius of obstructions so recorded or marked 
are presumed to involve negligence or fault of the claimant);
    (3) Abide by established rules of the road;
    (4) Use proper care; or
    (5) Use due care and diligence to mitigate the damage or loss.
    Outer Continental Shelf means all submerged lands lying seaward and 
outside of the area of lands beneath navigable waters as defined in 43 
U.S.C. section 1301, and of which the subsoil and seabed appertain to 
the United States and are subject to its jurisdiction and control. 
Generally, but not in all cases, this includes all submerged lands lying 
seaward of the territorial sea (3 miles from a State's coastline, or 9 
miles from the coast of Texas or Florida).
    Person means an individual, partnership, corporation, association, 
public or private organization, government, or other entity.
    Resulting Economic Loss means the gross income, as estimated by the 
Chief, FSD, that a claimant will lose because of not being able to fish, 
or having to reduce fishing effort, during the period before the damaged 
or lost fishing gear concerned is repaired or replaced and available for 
use. This period must be reasonable. This period begins on the date of 
the casualty and stops on the date the damage could reasonably have been 
remedied by repair or replacement.
    Right-of-way means any right-of-way granted under section 5(e) of 
the OCS Lands Act or under 43 CFR 3340.0-5.
    Secretary means the Secretary of Commerce or his designee.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996]



Sec. 296.3  Fishermen's contingency fund.

    (a) General. There is established in the Treasury of the United 
States the Fishermen's Contingency Fund. The Fund is available without 
fiscal year limitation as a revolving fund to carry out the purposes of 
title IV of the Outer Continental Shelf Lands Act Amendments of 1978, as 
amended.
    (b) Payments into the fund. Each Holder of an exploration permit, 
lease, easement, or rights-of-way for the construction of a pipeline, or 
a prelease exploration drilling permit issued or maintained under the 
Outer Continental Shelf Lands Act, in effect on or after June 30, 1982, 
shall pay assessments to the Fund. All pipeline right-of-way and 
easements are to be included for assessment except those constructed and 
operated lines within the confines of a single lease or group of 
contiguous leases under unitized operation or single operator. Payments 
will not be required for geological or geophysical permits, other than 
prelease exploratory drilling permits issued under section 11 of the 
Outer Continental Shelf Lands Act (43 U.S.C. 1340).
    (1) Assessments to maintain the fund. When the total amount in the 
Fund is less than the Chief, FSD, determines is needed to pay Fund 
claims and expenses, the Chief, FSD, will notify the Secretary of the 
Interior that additional assessments are needed.
    (2) Billing and collections. The Secretary of the Interior will 
calculate the amounts to be paid by each Holder and shall notify each 
Holder of the dollar amount and the time and place for all payments. 
Each assessment shall be paid to the Secretary of the Interior no later 
than 45 days after the Secretary of the Interior sends notice of the 
assessment.
    (3) Annual assessment limits. No Holder shall be required to pay in 
excess of $5,000 for any lease, permit, easement or right-of-way in any 
calendar year.
    (c) Moneys recovered through subrogation. Any moneys recovered by 
the Secretary through the subrogation of a claimant's rights shall be 
deposited into the Fund.
    (d) Investments of the fund. Excess sums in the Fund will be 
invested in obligations of, or guaranteed by, the United States. Revenue 
from such investments shall be deposited in the Fund.
    (e) Litigation. The Fund may sue and be sued in its own name.



Sec. 296.4  Claims eligible for compensation.

    (a) Claimants. Damage or loss eligible for Fund compensation must be 
suffered by a commercial fisherman.
    (b) Damage or loss of fishing gear. Damage or loss is eligible for 
Fund

[[Page 313]]

compensation if it was caused by materials, equipment, tools, 
containers, or other items associated with OCS oil and gas exploration, 
development, or production activities. Damage or loss may be eligible 
for compensation even though it did not occur in OCS waters if the item 
causing the damage or loss was associated with oil and gas exploration, 
development, or production activities in OCS waters.
    (c) Exceptions. Damage or loss is not eligible for Fund 
compensation:
    (1) If the damage or loss was caused by the negligence or fault of 
the claimant;
    (2) If the damage or loss occurred prior to September 18, 1978;
    (3) To the extent that damage or loss exceeds the replacement value 
of the fishing gear involved;
    (4) For any portion of the damage or loss which can be compensated 
by insurance;
    (5) If the claim is not filed within 90 calendar days of the date 
the claimant or the claimant's agent first became aware of the damage or 
loss (or such longer period as the Secretary may allow under unusual and 
extenuating circumstances); or
    (6) If the damage or loss was caused by an obstruction unrelated to 
OCS oil and gas exploration, development, or production activities.

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 61 
FR 6322, Feb. 20, 1996]



Sec. 296.5  Instructions for filing claims.

    (a) Fifteen-day report required to gain presumption of causation--
(1) General. Damages or losses are presumed to be qualified for 
compensation if certain requirements are satisfied. One requirement is 
that a report must be made to NMFS within fifteen (15) days after the 
date on which the vessel first returns to a port after discovering the 
damage or loss. Filing of a fifteen-day report must be followed up by 
filing a detailed claim.
    (2) When and how to file a fifteen-day report. To qualify for the 
presumption of causation, a fifteen-day report must be made to NMFS 
within fifteen days after the date on which the vessel first returns to 
a port after discovering the damage or loss. Satisfaction of the 
fifteen-day requirement is determined by the postmark, if the report is 
mailed; by the date of a call, if the report is telephoned or 
radiotelephoned; or, by the date of appearance, if the report is made in 
person. The fifteen-day report must be made to the Chief, Financial 
Services Division, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910; telephone: (301) 713-2396.
    (3) Contents of fifteen-day report. Each fifteen-day report must 
include the following information:
    (i) The claimant's name and address;
    (ii) The name of the commercial fishing vessel involved;
    (iii) The location of the obstruction which caused the damage or 
loss;
    (iv) A description of the nature of the damage or loss;
    (v) The date such damage or loss was discovered;
    (vi) If the fifteen-day report is made after the vessel returns to 
port, the date on which the vessel first returned to port after 
discovering the damage.
    (b) Form of claim. Claims must be in writing. Claims may be 
submitted on NOAA form 88-164. This form may be obtained from any NMFS 
regional office or from the Chief, FSD. Although claimants are not 
required to use this claim form, it will probably be to their benefit to 
do so.
    (c) Who must file and when and where to file claims. All claimants 
(including those who filed 15-day reports to gain the presumption of 
causation) must submit a claim application to the Chief, Financial 
Services Division, within 90 calendar days of the date the claimant or 
the claimant's agent first became aware of the damage or loss. The 
Chief, FSD, may allow a longer period for filing claims if, in his 
discretion, unusual and extenuating circumstances justify a longer 
period. The term ``filed'' means delivered in person, or mailed (as 
determined by the date of the postmark) to the Chief, Financial Services 
Division, National Marine Fisheries Service, 1825 Connecticut Avenue, 
NW., Washington, DC 20235. The Chief, FSD, suggests that mailed claims 
be sent by registered or certified mail, return receipt requested, so 
the claimant will have a record that

[[Page 314]]

the claim was received by the Chief, FSD.
    (d) Aggregating claims. If more than one commercial fisherman 
suffers loss or damage from the same incident (for example, when several 
members of the crew lost income due to loss of fishing time), all claims 
should be submitted on their behalf by the owner or operator of the 
commercial fishing vessel involved.
    (e) Contents of claim. Each claim must be signed by the claimant and 
must accurately and completely provide the following information:
    (1) The name, mailing address, telephone number, citizenship, and 
occupational status (for example, vessel owner, operator, or crew 
member) of each claimant;
    (2) The name and Coast Guard documentation number or State 
registration number of the commercial fishing vessel involved in the 
damage or loss;
    (3) The home port, type, and size of the vessel involved in the 
casualty;
    (4) A full statement of the circumstances of the damage or loss 
including:
    (i) The date when the casualty was first discovered by the claimant,
    (ii) The water depth (if known) and visibility at the time and 
location where the casualty occurred,
    (iii) The direction, speed, and activities of the claimant's vessel 
immediately before, during, and after the casualty (including a full 
description of both the deployment of any fishing gear which is the 
subject of the claim and all attempts at retrieval of the gear),
    (iv) The names and addresses of all witnesses to the casualty,
    (v) The location where the casualty occurred in Loran C coordinates 
or the next most accurate method of position fixing available to the 
claimant,
    (vi) A description of the item or obstruction (if sighted or 
recovered) which caused the casualty, and whether or not any surface 
markers were attached to or near the obstruction. Submit any available 
photographs of the item or obstruction. State reasons for believing the 
obstruction is associated with OCS oil and gas activities.
    (5) The amount claimed for property damage or loss and a full 
statement of the type and extent of damage or loss including:
    (i) An inventory of all components of fishing gear damaged or lost,
    (ii) The date, place, and cost of acquisition of all fishing gear 
damaged or lost and proof of its purchase (sales receipts, affidavits, 
or other evidence),
    (iii) One estimate from a commercial fishing gear repair or supply 
company of the present replacement or repair (whichever applies) cost of 
the damaged or lost fishing gear. If the gear will be repaired by the 
claimant himself, a detailed estimate by the claimant identifying the 
repair cost.
    (6) The amount claimed for economic loss and the basis for that 
amount with supporting documentation, as follows:
    (i) Trip tickets for the three vessel trips immediately before the 
trip during which the casualty was discovered and for the vessel trip 
immediately following the trip during which the casualty occurred.
    (ii) A statement of the amount of time involved on each of the 
vessel trips above (or if the casualty involves fixed gear, a statement 
of the number of gear units deployed on each of these trips).
    (iii) A statement of the amount of time lost from fishing because of 
the damage or loss and a full explanation of why this time period is 
reasonable.
    (iv) Documentation of the date replacement gear was ordered and 
received or the date gear repair began and ended. This documentation may 
consist of purchase orders, bills of lading, or statements from sellers 
or repairers.
    (7) The amount claimed for other consequential loss or costs 
(including fees for claim preparation, etc.) with suitable documentation 
of the amounts claimed (such as invoices, receipts, etc.).

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985; 53 
FR 24645, June 29, 1988; 61 FR 6322, Feb. 20, 1996]



Sec. 296.6  NMFS processing of claims.

    (a) Action by NMFS. Upon receipt of a claim, the Chief, FSD, will:
    (1) Send an abstract of the claim to the Secretary of the Interior;
    (2) Send the reported location of any obstruction which was not 
recovered

[[Page 315]]

and retained to the National Ocean Survey, which will inform the Defense 
Mapping Agency Hydrographic/Topographic Center.
    (b) Actions by the Interior Department. Upon receipt of an abstract 
of a claim, the Interior Department will immediately:
    (1) Plot the casualty site, and advise NMFS whether the site is in 
an area affected by OCS activities;
    (2) make reasonable efforts to notify all persons known to have 
engaged in activities associated with OCS energy activity in the 
vicinity where the damage or loss occurred.
    (c) Responses to notice of claim. (1) Each person notified by the 
Interior Department will, within thirty days after receipt of the 
notice, advise the Chief, FSD, and the Interior Department whether he 
admits or denies responsibility for the damages claimed.
    (2) Each person notified by the Interior Department who fails to 
give timely and proper advice of admission or denial of responsibility 
shall be presumed to deny responsibility for the damages claimed.
    (3) If any person admits responsibility, the Chief, FSD, will 
initiate action to recover from that party any sums paid or to be paid 
for the claimed damages.
    (4) Any person referred to in this section, including lessees or 
permittees or their contractors or subcontractors, may submit evidence 
about any claim to the Chief, FSD.
    (d) Failure to meet filing requirements. The Chief, FSD, may reject 
any claim that does not meet the filing requirements. The Chief, FSD, 
will give a claimant whose claim is rejected written notice of the 
reasons for rejection within 30 days after the date on which the claim 
was filed. If the claimant does not refile an acceptable claim within 30 
days after the date of this written notice, the claimant is not eligible 
for Fund compensation unless there are extenuating circumstances.
    (e) Proceedings--(1) Location. Any required proceeding will be 
conducted within such United States judicial district as may be mutually 
agreeable to the claimant and the Assistant Administrator, NMFS, or his 
designee, or if no agreement can be reached, within the United States 
judicial district in which the claimant's home port is located.
    (2) Powers. For purposes of any proceeding, the Assistant 
Administrator, NMFS, or his designee, shall have the power to administer 
oaths and subpoena witnesses and the production of books, records, and 
other evidence relative to the issues involved.
    (3) Amendments to claims. A claimant may amend the claim at any time 
before the Chief, FSD, issues an initial determination.
    (4) Criminal penalty for fraudulent claims. Any person who files a 
fraudulent claim is subject to prosecution under 18 U.S.C. sections 287 
and 1001, each of which, upon conviction, imposes a penalty of not more 
than a $10,000 fine and 5 years' imprisonment, or both.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996]



Sec. 296.7  Burden of proof and presumption of causation.

    (a) Burden of proof. The claimant has the burden to establish, by a 
preponderance of the evidence, all facts necessary to qualify his claim, 
including:
    (1) The identity or nature of the item which caused the damage or 
loss; and
    (2) That the item is associated with oil and gas exploration, 
development, or production activities on the Outer Continental Shelf.
    (b) Presumption of causation. Notwithstanding the above, damages or 
losses are presumed to be caused by items associated with oil and gas 
exploration, development, or production activities on the OCS if the 
claimant establishes that:
    (1) The claimant's commercial fishing vessel was being used for 
commercial fishing and was located in an area affected by OCS oil and 
gas exploration, development, or production activities;
    (2) A report on the location of the obstruction which caused such 
damage or loss, and the nature of such damage or loss, was made within 
fifteen days after the date on which the vessel first returned to a port 
after discovering such damage;
    (3) There was no record on the most recent nautical charts issued by 
the

[[Page 316]]

National Ocean Survey, NOAA, or in any weekly Notice to Mariners issued 
by the Defense Mapping Agency Hydrographic/Topographic Center, in effect 
at least 15 days before the date the damage or loss occurred, then an 
obstruction existed in the immediate vicinity where the damage or loss 
occurred. In the case of damages caused by a pipeline, the presumption 
will be available regardless of whether the pipeline was recorded on 
charts or in the Notice to Mariners; and
    (4) There was no proper surface marker or lighted buoy attached, or 
closely anchored, to such obstruction.
    (c) Geographic exclusion from presumption of causation. Damage or 
loss occurring within a one-quarter mile radius of obstructions recorded 
on charts or in a Notice to Mariners, or properly marked, is presumed to 
involve the recorded or marked obstruction.



Sec. 296.8  Amount of award.

    (a) Actual damages. The award for damaged fishing gear will be the 
lesser of the gear's repair cost or replacement cost. The award for lost 
fishing gear will be the gear's replacement cost.
    (b) Consequential damages. An award may also include compensation 
for any damage or loss (except personal injury) that is incurred as a 
consequence of the fishing gear damage or loss.
    (c) Resulting economic loss. An award may also include 50 percent of 
the resulting economic loss from damage to or loss of fishing vessels 
and gear.
    (d) Attorney, CPA, consultant fees. An award may also include 
compensation for reasonable fees paid by the claimant to an attorney, 
CPA, or other consultant for the preparation or prosecution of a claim.
    (e) Negligence of claimant. (1) An award will be reduced to the 
extent that the loss or damage was caused by the negligence or fault of 
the claimant. (For example, a claimant who sustained $10,000 in damages 
and whose negligence or fault was found to be responsible for 40% of the 
damage would receive $6,000 in compensation. If the same claimant were 
responsible for 99% of the negligence or fault that caused the damage, 
the claimant would receive $100 in compensation).
    (2) Negligence of the owner or operator of the fishing vessel or 
gear will reduce crewmember awards to the same extent that it reduces an 
award to the vessel's owner or operator.
    (f) Insurance proceeds. An award will be reduced by the amount the 
claimant has, or reasonably would have, received under a commercial 
policy of full hull and machinery and protection and indemnity 
insurance, whether or not such insurance was in effect at the time the 
casualty occurred.

[47 FR 49600, Nov. 1, 1982, as amended at 50 FR 13796, Apr. 8, 1985]



Sec. 296.9  Initial determination.

    The Chief, FSD will make an initial determination on a claim within 
60 days after the day on which the claim is accepted for filing. The 
initial determination will state:
    (a) If the claim is disapproved, the reason for disapproval, or
    (b) If the claim is approved, the amount of compensation and the 
basis on which the amount was determined.



Sec. 296.10  Agency review.

    (a) Within 30 days after the Chief, FDS, issues an initial 
determination, the claimant, or any other interested person who 
submitted evidence relating to the initial determination, may ask the 
Assistant Administrator, NMFS, or his designee, for a review of the 
initial determination.
    (b) The petitioner may submit written or oral evidence within 30 
days of filing the petition for review.



Sec. 296.11  Final determination.

    (a) If a petition for review of an initial determination is filed 
within 30 days after the date the Chief, FSD, issues an initial 
determination, the Assistant Administrator, NMFS, or his designee will 
conduct a review of the initial determination, and will issue a final 
determination no later than 60 days after receipt of the request for 
review of the initial determination.
    (b) If a petition for review of an initial determination is not 
filed within 30 days after the day on which the Chief, FSD, issues an 
initial determination, the initial determination will become a final 
determination.

[[Page 317]]



Sec. 296.12  Payment of costs.

    (a) By person denying responsibility for damage. Any person who is 
notified by the Interior Department and fails to respond or denies 
responsibility for the damages claimed will pay the costs of the 
proceedings if such person is subsequently found to be responsible for 
the damage claimed.
    (b) By the claimant. Any claimant who files a claim will pay the 
cost of the proceedings if such person is subsequently found to be 
responsible for the damage claimed.
    (c) By person denying responsibility for damage and the claimant. If 
more than one party is found to have responsibility for the damage 
claimed, then the cost of the proceedings will be apportioned between 
them.



Sec. 296.13  Payment of award for claim.

    (a) Upon an initial determination, the Chief, Financial Services 
Division, shall immediately disburse the claim awarded if the claimant 
signed as part of his/her application a statement agreeing to repay all 
or any part of the award if the award should for any reason be 
subsequently reduced.
    (b) [Reserved]

[61 FR 6322, Feb. 20, 1996]



Sec. 296.14  Subrogation.

    (a) The claim application will contain a subrogation statement 
signed by the claimant as a condition of payment of the claim which:
    (1) Assigns to the Fund the claimant's rights against third parties; 
and
    (2) Provides that the claimant will assist the Fund in any 
reasonable way to pursue those rights.
    (b) Collection of subrogated rights. If a reasonable chance of 
successful collection exists, NMFS will refer any subrogated rights to 
the Justice Department for collection.
    (c) Any moneys recovered through subrogation shall be deposited into 
the Fund.

[47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6323, Feb. 20, 1996]



Sec. 296.15  Judicial review.

    Any claimant or other person who is aggrieved by a final 
determination may, no later than 30 days after the determination, seek 
judicial review of the determination in the United States District Court 
for such judicial district as may be mutually agreeable to the parties 
concerned or, if no agreement can be reached, in the United States 
District Court for the judicial district in which the claimant's home 
port is located.

[[Page 319]]



        CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES




  --------------------------------------------------------------------
Part                                                                Page
300             International fisheries regulations.........         321

[[Page 321]]



PART 300--INTERNATIONAL FISHERIES REGULATIONS--Table of Contents




                           Subpart A--General

Sec.
300.1  Purpose and scope.
300.2  Definitions.
300.3  Relation to other laws.
300.4  General prohibitions.
300.5  Facilitation of enforcement.

                     Subpart B--High Seas Fisheries

300.10  Purpose.
300.11  Definitions.
300.12  Issuing offices.
300.13  Vessel permits.
300.14  Vessel and gear identification. [Reserved]
300.15  Prohibitions.
300.16  Penalties.
300.17  Reporting and recordkeeping. [Reserved]

                    Subpart C--Pacific Tuna Fisheries

300.20  Purpose and scope.
300.21  Definitions.
300.22  Yellowfin tuna--Recordkeeping and written reports.
300.23  Yellowfin tuna--Persons and vessels exempted.
300.24  Pacific bluefin tuna--Dealer permits.
300.25  Pacific bluefin tuna--Dealer recordkeeping and reporting.
300.26  Pacific bluefin tuna--Tags.
300.27  Pacific bluefin tuna--Documentation requirements.
300.28  Pacific bluefin tuna--Prohibitions.

                 Subpart D--South Pacific Tuna Fisheries

300.30  Purpose and scope.
300.31  Definitions.
300.32  Vessel licenses.
300.33  Compliance with applicable national laws.
300.34  Reporting requirements.
300.35  Vessel and gear identification.
300.36  Closed area stowage requirements.
300.37  Radio monitoring.
300.38  Prohibitions.
300.39  Exceptions.
300.40  Civil penalties.
300.41  Investigation notification.
300.42  Findings leading to removal from fishing area.
300.43  Observers.
300.44  Other inspections.

                  Subpart E--Pacific Halibut Fisheries

300.60  Purpose and scope.
300.61  Definitions.
300.62  Annual management measures.
300.63  Catch sharing plans and domestic management measures.
300.64  Fishing by U.S. treaty Indian tribes.
300.65  Prohibitions.

        Subpart F--Fraser River Sockeye and Pink Salmon Fisheries

300.90  Purpose and scope.
300.91  Definitions.
300.92  Relation to other laws.
300.93  Reporting requirements.
300.94  Prohibitions and restrictions.
300.95  Treaty Indian fisheries.
300.96  Penalties.
300.97  Inseason orders.

              Subpart G--Antarctic Marine Living Resources

300.100  Purpose and scope.
300.101  Definitio