[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1999 Edition]
[From the U.S. Government Printing Office]


          50



          Wildlife and Fisheries



[[Page i]]

          PARTS 200 TO 599

                         Revised as of October 1, 1999

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF OCTOBER 1, 1999
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1999



               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                                               275
          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      331
          Chapter V--Marine Mammal Commission                      373
  Finding Aids:
      Material Approved for Incorporation by Reference........     399
      Table of CFR Titles and Chapters........................     401
      Alphabetical List of Agencies Appearing in the CFR......     419
      List of CFR Sections Affected...........................     429



[[Page iv]]


      


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

                     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, 1999), 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. 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.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


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 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
a day. For payment by check, write to the Superintendent of Documents, 
Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO 
Customer Service call 202-512-1803.

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 
more information, contact Electronic Information Dissemination Services, 
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, 1999.



[[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, 1999.

    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
217-221

[Reserved]

222             General endangered and threatened marine 
                    species.................................          80
223             Threatened marine and anadromous species....         101
224             Endangered marine and anadromous species....         162
225

[Reserved]

226             Designated critical habitat.................         164
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         184
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         212
     SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE  
                               [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         215
259             Capital construction fund...................         224
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         236

[[Page 4]]

261             United States Standards for Grades..........         266
                       SUBCHAPTERS H-J  [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         268

[[Page 5]]



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

[[Page 6]]

     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]

Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and Test 
                            Flight Activities

216.120  Specified activity and specified geographical region.
216.121  Effective dates.
216.122  Permissible methods of taking.
216.123  Prohibitions.
216.124  Mitigation.
216.125  Requirements for monitoring and reporting.
216.126  Applications for Letters of Authorization.
216.127  Renewal of Letters of Authorization.
216.128  Modifications of Letters of Authorization.

Subpart L--Taking of Marine Mammals Incidental to Power Plant Operations

216.130  Specified activity, specified geographical region, and 
          incidental take levels.
216.131  Effective dates.
216.132  Permissible methods of taking.
216.133  Prohibitions.
216.134  Mitigation requirements.
216.135  Monitoring and reporting.
216.136  Renewal of the Letter of Authorization.
216.137  Modifications to the Letter of Authorization.
216.138-216.140  [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.

Subpart O--Taking of Marine Mammals Incidental to Shock Testing the USS 
SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters 
                       of the U.S. Atlantic Coast

216.161  Specified activity, geographical region and incidental take 
          levels.
216.162  Effective dates.
216.163  Permissible methods of taking; mitigation.
216.164  Prohibitions.
216.165  Requirements for monitoring and reporting.
216.166  Modifications to the Letter of Authorization.
216.167-216.169  [Reserved]

Subparts P-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

[[Page 7]]

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.
    Administrator, Southeast Region means Administrator, Southeast 
Region, National Marine Fisheries Service, 9721 Executive Center Drive, 
St. Petersburg, FL 33702-2432.
    Administrator, Northeast Region means Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298.
    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 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

[[Page 8]]

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 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.

[[Page 9]]

    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.
    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

[[Page 10]]

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 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

[[Page 11]]

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, 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

[[Page 12]]

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.

    Effective Date Notes: 1. At 63 FR 66076, Dec. 1, 1998, in 
Sec. 216.3, the definition Administrator, Southeast Region was added, 
effective Jan. 1, 1999 through Sept. 30, 2004.
    2. At 64 FR 28120, May 25, 1999, in Sec. 216.3, the definition 
Administrator, Northeast Region was added, effective July 1, 1999 
through June 30, 2004.



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 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

[[Page 13]]

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 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.

[[Page 14]]

    (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]



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

[[Page 15]]

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 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

[[Page 16]]

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;
    (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

[[Page 17]]

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 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:

[[Page 18]]

    (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, 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.
    (e) Marking and reporting of Cook Inlet Beluga Whales. (1) 
Definitions. In addition to definitions contained in the MMPA and the 
regulations in this part:
    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.
    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other crew on the boat) and who is the whaling captain; or 
the individual operating the boat at the time the whale is harvested or 
transported to the place of processing.
    (iii) Cook Inlet means all waters of Cook Inlet north of 59 deg. 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, 
Alaska, must remove the lower left jawbone, leaving the teeth intact and 
in place. When multiple whales are harvested during one hunting trip, 
the jawbones will be

[[Page 19]]

marked for identification in the field to ensure correct reporting of 
harvest information by placing a label marked with the date, time, and 
location of harvest within the container in which the jawbone is placed. 
The jawbone(s) must be retained by the whaling captain or vessel 
operator and delivered to NMFS at the Anchorage Field Office, 222 West 
7th Avenue, Anchorage, Alaska 99513 within 72 hours of 
returning from the hunt.
    (3) Reporting. Upon delivery to NMFS of a jawbone, the whaling 
captain or vessel operator must complete and mail a reporting form, 
available from NMFS, to the NMFS Anchorage Field Office within 30 days. 
A separate form is required for each whale harvested.
    (i) To be complete, the form must contain the following information: 
the date and location of kill, the method of harvest, and the coloration 
of the whale. The respondent will also be invited to report on any other 
observations concerning the animal or circumstance of the harvest.
    (ii) Data collected pursuant to paragraph (e) of this section will 
be reported on forms obtained from the Anchorage Field Office. These 
data will be maintained in the NMFS Alaska Regional Office in Juneau, 
Alaska, where such data will be available for public review.
    (4) No person may falsify any information required to be set forth 
on the reporting form as required by paragraph (e) of this section.
    (5) The Anchorage Field Office of NMFS is located in room 517 of the 
Federal Office Building, 222 West 7th Avenue; its mailing 
address is: NMFS, Box 43, Anchorage, AK. 99513.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 
FR 27927, May 24, 1999]



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

[[Page 20]]

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 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

[[Page 21]]

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.
    (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

[[Page 22]]

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 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

[[Page 23]]

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 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

[[Page 24]]

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 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.

[[Page 25]]

    (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 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;

[[Page 26]]

    (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.
    (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

[[Page 27]]

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 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

[[Page 28]]

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 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

[[Page 29]]

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 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

[[Page 30]]

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 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

[[Page 31]]

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.
    (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

[[Page 32]]

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 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:

[[Page 33]]

    (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 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:

[[Page 34]]

    (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.
    (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

[[Page 35]]

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 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

[[Page 36]]

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 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

[[Page 37]]

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;
    (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

[[Page 38]]

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 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,

[[Page 39]]

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 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

[[Page 40]]

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 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

[[Page 41]]

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.
    (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

[[Page 42]]

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 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

[[Page 43]]

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 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;

[[Page 44]]

    (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.
    (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

[[Page 45]]

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 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

[[Page 46]]

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.
    (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

[[Page 47]]

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
    (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

[[Page 48]]

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 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

[[Page 49]]

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;
    (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

[[Page 50]]

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]



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]

[[Page 51]]



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 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

[[Page 52]]

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 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

[[Page 53]]

    (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 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

[[Page 54]]

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 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.

[[Page 55]]

    (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:
    (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,

[[Page 56]]

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
    (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

[[Page 57]]

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, 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

[[Page 58]]

    (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 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.

[[Page 59]]

    (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.
    (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.

[[Page 60]]



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 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

[[Page 61]]

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.
    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

[[Page 62]]

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 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

[[Page 63]]

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.



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

[[Page 64]]

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 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.

[[Page 65]]

    (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 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.

[[Page 66]]



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:
    (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,

[[Page 67]]

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:
    (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]



Subpart K--Taking of Marine Mammals Incidental to Space Vehicle and Test 
                            Flight Activities

    Source: 64 FR 9930, Mar. 1, 1999, unless otherwise noted.

    Effective Date Note: At 64 FR 9930, Mar. 1, 1999, subpart K was 
added, effective Mar. 1, 1999, to Dec. 31, 2003.



Sec. 216.120  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (b) of this section by 
U.S. citizens engaged in:
    (1) Launching up to 10 Minuteman and Peacekeeper missiles each year 
from Vandenberg Air Force Base, for a total of up to 50 missiles over 
the 5-year authorization period,
    (2) Launching up to 20 rockets each year from Vandenberg Air Force 
Base, for a total of up to 100 rocket launches over the 5-year 
authorization period,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (b) The incidental take of marine mammals on Vandenberg Air Force 
Base and in waters off southern California, under the activity 
identified in paragraph (a) of this section, is limited to the following 
species: Harbor seals (Phoca vitulina), California sea lions (Zalophus 
californianus), northern elephant seals (Mirounga angustirostris), 
northern fur seals (Callorhinus ursinus),

[[Page 68]]

Guadalupe fur seals (Arctocephalus townsendi), and Steller sea lions 
(Eumetopias jubatus).



Sec. 216.121  Effective dates.

    Regulations in this subpart are effective from March 1, 1999, 
through December 31, 2003.



Sec. 216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 216.106, 
the 30th Space Wing, U.S. Air Force, its contractors, and clients, may 
incidentally, but not intentionally, take marine mammals by harassment, 
within the area described in Sec. 216.120, provided all terms, 
conditions, and requirements of these regulations and such Letter(s) of 
Authorization are complied with.
    (b) [Reserved]



Sec. 216.123  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.120 and by a Letter 
of Authorization issued under Sec. 216.106, no person in connection with 
the activities described in Sec. 216.120 shall:
    (a) Take any marine mammal not specified in Sec. 216.120(b);
    (b) Take any marine mammal specified in Sec. 216.120(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec. 216.120(b) if such take 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. 216.106.



Sec. 216.124  Mitigation.

    (a) The activity identified in Sec. 216.120(a) must be conducted in 
a manner that minimizes, to the greatest extent possible, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.120, the following mitigation measures must be 
utilized:
    (1) All aircraft and helicopter flight paths must maintain a minimum 
distance of 1,000 ft (305 m) from recognized seal haulouts and rookeries 
(e.g., Point Sal, Purisima Point, Rocky Point), except in emergencies or 
for real-time security incidents (e.g., search-and-rescue, fire-
fighting) which may require approaching pinniped rookeries closer than 
1,000 ft (305 m).
    (2) For missile and rocket launches, unless constrained by other 
factors including, but not limited to, human safety, national security 
or launch trajectories, in order to ensure minimum negligible impacts of 
launches on harbor seals and other pinnipeds, holders of Letters of 
Authorization must avoid, whenever possible, launches during the harbor 
seal pupping season of February through May.
    (3) For Titan IV launches only, the holder of that Letter of 
Authorization must avoid launches, whenever possible, which predict a 
sonic boom on the Northern Channel Islands during harbor seal, elephant 
seal, and California sea lion pupping seasons.
    (4) If post-launch surveys determine that an injurious or lethal 
take of a marine mammal has occurred, the launch procedure and the 
monitoring methods must be reviewed, in cooperation with NMFS, and 
appropriate changes must be made through modification to a Letter of 
Authorization, prior to conducting the next launch under that Letter of 
Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec. 216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. 216.106 for activities described in Sec. 216.120(a) are 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. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify the 
Administrator, Southwest Region, National Marine Fisheries Service, by 
letter or telephone, at least 2 weeks prior to activities possibly 
involving the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified on-
site individuals, as specified in the Letter of Authorization, to:

[[Page 69]]

    (1) Conduct observations on harbor seal, elephant seal, and sea lion 
activity in the vicinity of the rookery nearest the launch platform or, 
in the absence of pinnipeds at that location, at another nearby haulout, 
for at least 72 hours prior to any planned launch and continue for a 
period of time not less than 48 hours subsequent to launching,
    (2) Monitor haulout sites on the Northern Channel Islands if it is 
determined that a sonic boom could impact those areas (this 
determination will be made in consultation with the National Marine 
Fisheries Service),
    (3) As required under a Letter of Authorization, investigate the 
potential for spontaneous abortion, disruption of effective female-
neonate bonding, and other reproductive dysfunction,
    (4) Supplement observations on Vandenberg and on the Northern 
Channel Islands, if indicated, with video-recording of mother-pup seal 
responses for daylight launches during the pupping season, and
    (5) Conduct acoustic measurements of those launch vehicles not 
having sound pressure level measurements made previously.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) The Holder of the Letter of Authorization must submit a report 
to the Southwest Administrator, National Marine Fisheries Service within 
90 days after each launch. This report must contain the following 
information:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring programs, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haulout prior to 
commencement of the launch,
    (ii) Numbers of pinnipeds that may have been harassed as noted by 
the number of pinnipeds estimated to have entered the water as a result 
of launch noise,
    (iii) The length of time(s) pinnipeds remained off the haulout or 
rookery,
    (iv) The numbers of pinniped adults or pups that may have been 
injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds noted that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted that describes any incidental 
takings not reported under paragraph (d) of this section.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported all 
previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impact on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s) location(s) and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.



Sec. 216.126  Applications for Letters of Authorization.

    (a) To incidentally take harbor seals and other marine mammals 
pursuant to these regulations, either the U.S. citizen (see definition 
at Sec. 216.103) conducting the activity or the 30th Space Wing on 
behalf of the U.S. citizen conducting the activity, 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 30 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 the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may

[[Page 70]]

involve incidental takings of seals and sea lions.



Sec. 216.127  Renewal of Letters of Authorization.

    A Letter of Authorization issued under Sec. 216.126 for the activity 
identified in Sec. 216.120(a) will be renewed annually upon:
    (a) Timely receipt of the reports required under Sec. 216.125(d), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable;
    (b) A determination that the mitigation measures required under 
Sec. 216.124 and the Letter of Authorization have been undertaken; and
    (c) A notice of issuance of a Letter of Authorization or a renewal 
of a Letter of Authorization will be published in the Federal Register 
within 30 days of issuance.



Sec. 216.128  Modifications of 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.
    (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. 216.120(b) or that 
significantly and detrimentally alters the scheduling of launches, a 
Letter of Authorization issued pursuant to Sec. 216.106 may be 
substantively modified without a prior notice and an opportunity for 
public comment. A notice will be published in the Federal Register 
subsequent to the action.



Subpart L--Taking of Marine Mammals Incidental to Power Plant Operations

    Source: 64 FR 28120, May 25, 1999, unless otherwise noted.

    Effective Date Note: At 64 FR 28120, May 25, 1999, subpart L was 
added, effective July 1, 1999 through June 30, 2004.



Sec. 216.130  Specified activity, specified geographical region, and incidental take levels.

    (a) Regulations in this subpart apply only to the incidental taking 
of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), harp 
seals (Phoca groenlandica), and hooded seals (Cystophora cristata) by 
U.S. citizens engaged in power plant operations at the Seabrook Station 
nuclear power plant, Seabrook, NH.
    (b) The incidental take of harbor, gray, harp, and hooded seals 
under the activity identified in this section is limited to 20 harbor 
seals and 4 of any combination of gray, harp, and hooded seals for each 
year of the authorization.



Sec. 216.131  Effective dates.

    Regulations in this subpart are effective from July 1, 1999 through 
June 30, 2004.



Sec. 216.132  Permissible methods of taking.

    Under a Letter of Authorization issued to North Atlantic Energy 
Services Corporation for Seabrook Station, the North Atlantic Energy 
Services Corporation may incidentally, but not intentionally, take 
marine mammals specified in Sec. 216.130 in the course of operating the 
station's intake cooling water system.



Sec. 216.133  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.130(a) and by the 
Letter of Authorization, issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of harbor seals, gray seals, harp seals, and hooded 
seals that is other than incidental.
    (b) The taking of any marine mammal not authorized in this 
applicable subpart or by any other law or regulation.
    (c) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec. 216.106.



Sec. 216.134  Mitigation requirements.

    The holder of the Letter of Authorization is required to report, 
within 6 months from the issuance of a final

[[Page 71]]

rule, to the Administrator, Northeast Region, NMFS, on possible 
mitigation measures effecting the least practicable adverse impact on 
the seals specified in Sec. 216.130. The report shall also include a 
recommendation of which measures, if any, the holder could feasibly 
implement. A description of any mitigation measures that Seabrook 
Station has considered, but determined would not be feasible, must be 
included as well. After submission of such report, NMFS shall determine 
whether the holder of the Letter of Authorization must implement 
measures to effect the least practicable adverse impact on the seals. If 
NMFS determines that such measures must be implemented then NMFS shall 
specify, after consultation with the holder of the Letter of 
Authorization, the schedule and other conditions for implementation of 
the measures. Implementation of such measures must be completed no later 
than 42 months after the date of issuance of the final rule. Failure of 
the holder of the Letter of Authorization to implement such measures in 
accordance with the NMFS specifications may be grounds to invalidate the 
Letter of Authorization.



Sec. 216.135  Monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with NMFS and any other Federal, state, or local agency 
monitoring the impacts of the activity on harbor, gray, harp, or hooded 
seals.
    (b) The holder of the Letter of Authorization must designate a 
qualified individual or individuals capable of identifying any seal or 
seal parts or marine mammal or marine mammal parts, that occur in the 
intake circulating system, including the intake transition structure, 
both forebays, and any marine mammal or marine mammal parts observed as 
a result of screen washings conducted.
    (c) The holder of the Letter of Authorization must conduct at least 
two daily visual inspections of the circulating water and service water 
forebays during the period specified in the Letter of Authorization.
    (d) The holder of the Letter of Authorization must conduct at least 
daily inspections of the intake transition structure from April 1 
through December, unless weather conditions prevent safe access to the 
structure.
    (e) The holder of the Letter of Authorization must conduct screen 
washings at least daily during the months of higher incidents of 
observed takes and this period will be specified in the Letter of 
Authorization. During the months not specified in the LOA, screen 
washings will be conducted twice a week. Examination of the debris must 
be conducted to determine if any seal remains are present.
    (f) The holder of the Letter of Authorization must report orally to 
the Northeast Regional Administrator, NMFS, by telephone or other 
acceptable means, any marine mammals or marine mammal parts found in the 
locations specified in Sec. 216.135(b) through (e). Such oral reports 
must be made by the close of the next business day following the finding 
of any marine mammal or marine mammal parts.
    (g) The holder of the Letter of Authorization must arrange to have a 
necropsy examination performed by qualified individuals on any marine 
mammal or marine mammal parts recovered through monitoring as specified 
under Sec. 216.135(b) through (e).
    (h) The holder of the Letter of Authorization must also provide 
written notification to the Administrator, Northeast Region, NMFS, of 
such marine mammal or marine mammal parts found within 30 days from the 
time of the discovery. This report must contain the results of any 
examinations or necropsies of the marine mammals in addition to any 
other information relating to the circumstances of the take.
    (i) An annual report, identifying mitigation measures implemented to 
effect the least practicable adverse impact on the seals and/or are 
being considered for implementation pursuant to the requirements 
specified at Sec. 216.134, must be submitted to the Administrator, 
Northeast Region, NMFS, within 30 days prior to the expiration date of 
the issuance of the Letter of Authorization.

[[Page 72]]



Sec. 216.136  Renewal of the Letter of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.130(a) may be renewed annually provided 
the following conditions and requirements are satisfied:
    (1) Timely receipt of the reports required under Sec. 216.135, which 
have been reviewed by the Administrator, Northeast Region, NMFS, and 
determined to be acceptable;
    (2) A determination that the maximum incidental take authorizations 
in Sec. 216.130(b) will not be exceeded; and
    (3) A determination that research on mitigation measures required 
under Sec. 216.134(a) and the Letter of Authorization have been 
undertaken.
    (b) If a species' annual incidental take authorization is exceeded, 
NMFS will review the documentation submitted under Sec. 216.135, to 
determine whether or not the taking is having more than a negligible 
impact on the species or stock involved. The Letter of Authorization may 
be renewed provided a negligible impact determination is made and other 
conditions and requirements specified in Sec. 216.136(a) are satisfied, 
and provided that any modifications of the Letter of Authorization that 
may be required are done pursuant to Sec. 216.137.
    (c) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register within 30 days of issuance.



Sec. 216.137  Modifications to the 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. 216.136, without modification, 
is not considered a substantive modification.
    (b) If NMFS 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. 216.130, the Letter of Authorization issued 
pursuant to this section may be substantively modified without prior 
notice and an opportunity for public comment. Notification will be 
published in the Federal Register subsequent to the action.



Secs. 216.138-216.140  [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.

[[Page 73]]



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 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

[[Page 74]]

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.
    (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

[[Page 75]]

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.



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:

[[Page 76]]

    (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]



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;

[[Page 77]]

    (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 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]



Subpart O--Taking of Marine Mammals Incidental to Shock Testing the USS 
SEAWOLF by Detonation of Conventional Explosives in the Offshore Waters 
                       of the U.S. Atlantic Coast

    Source: 63 FR 66076, Dec. 1, 1998, unless otherwise noted.

    Effective Date Note: At 63 FR 66076, Dec. 1, 1998, subpart O was 
added, effective Jan. 1, 1999 through Sept. 30, 2004.



Sec. 216.161  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 U.S. Atlantic Coast offshore

[[Page 78]]

Mayport, FL for the purpose of shock testing the USS SEAWOLF.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: Blue whale (Balaenoptera musculus); fin whale (B. physalus); 
sei whale (B. borealis); Bryde's whale (B. edeni); minke whale (B. 
acutorostrata); humpback whale (Megaptera novaeangliae); northern right 
whale (Eubalaena glacialis); sperm whale (Physeter macrocephalus); dwarf 
sperm whale (Kogia simus); pygmy sperm whale (K. breviceps); pilot 
whales (Globicephala melas, G. macrorhynchus); Atlantic spotted dolphin 
(Stenella frontalis); Pantropical spotted dolphin (S. attenuata); 
striped dolphin (Stenella coeruleoalba); spinner dolphin (S. 
longirostris); Clymene dolphin (S. clymene); bottlenose dolphin 
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed 
dolphin (Steno bredanensis); killer whale (Orcinus orca); false killer 
whale (Pseudorca crassidens); pygmy killer whale (Feresa attenuata); 
Fraser's dolphin (Lagenodelphis hosei); harbor porpoise (Phocoena 
phocoena); melon-headed whale (Peponocephala electra); northern 
bottlenose whale (Hyperoodon ampullatus); Cuvier's beaked whale (Ziphius 
cavirostris), Blainville's beaked whale (Mesoplodon densirostris); 
Gervais' beaked whale (M. europaeus); Sowerby's beaked whale (M. 
bidens); True's beaked whale (M. mirus); common dolphin (Delphinus 
delphis); and Atlantic white-sided dolphin (Lagenorhynchus acutus).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total of 1 mortality, 5 injuries and 
1,788 harassment takes for detonations in the area described in 
paragraph (a) of this section, except that the taking by serious injury 
or mortality for species listed in paragraph (b) of this section that 
are also listed as threatened or endangered under Sec. 17.11 of this 
title, is prohibited.



Sec. 216.162  Effective dates.

    Regulations in this subpart are effective May 1 through September 30 
of any single year between the years 2000 and 2004, inclusive.



Sec. 216.163  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec. 216.106, 
the U.S. Navy may incidentally, but not intentionally, take marine 
mammals by harassment, injury or mortality in the course detonating five 
4,536 kg (10,000 lb) conventional explosive charges within the area 
described in Sec. 216.161(a), 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 within the buffer zone 
prescribed in the Letter of Authorization and on a course that will put 
them within the safety zone prior to detonation, detonation must be 
delayed until marine mammals are either no longer within the safety zone 
or are on a course within the buffer zone that is taking them away from 
the safety zone, except that no detonation will occur if a marine mammal 
listed as threatened or endangered under Sec. 17.11 of this title is 
detected within the buffer zone and subsequently cannot be detected 
until such time as sighting and acoustic teams have searched the area 
for 2.5 hours (approximately 3 times the typical large whale dive 
duration). If a northern right whale is seen within the safety or buffer 
zone, detonation must not occur until the animal is positively 
reacquired outside the buffer zone and at least one additional aerial 
monitoring of the safety range and buffer zone shows that no other right 
whales are present.
    (2) If weather and/or sea conditions as described in the Letter of 
Authorization preclude adequate aerial surveillance, detonation must be 
delayed until conditions improve sufficiently for aerial surveillance to 
be undertaken.

[[Page 79]]

    (3) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, or if any marine mammals are observed 
in the safety range immediately after a detonation, the test procedure 
and the monitoring methods must be reviewed by NMFS in consultation with 
the Navy and appropriate changes made prior to conducting the next 
detonation.



Sec. 216.164  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.161(b) and 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 under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified in this subpart.



Sec. 216.165  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 Administrator, Southeast 
Region at least 2 weeks prior to activities involving the detonation of 
explosives in order to satisfy paragraph (g) of this section.
    (b) The holder of the Letter of Authorization must designate 
qualified on-site individuals, as specified in the Letter of 
Authorization, to record the effects of explosives detonation on marine 
mammals that inhabit the Atlantic Ocean test area.
    (c) The Atlantic Ocean test area must be surveyed by marine mammal 
biologists and other trained individuals, and the marine mammal 
populations monitored, approximately 3 weeks prior to detonation, 48-72 
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 
detonation. Monitoring shall include, but not necessarily be limited to, 
aerial, shipboard, and acoustic surveillance sufficient to ensure that 
no marine mammals are within the designated safety zone nor are likely 
to enter the designated safety zone immediately prior to, or at the time 
of, detonation.
    (d) 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.
    (e) The holder of the Letter of Authorization is required to measure 
during the first detonation, and provide a report on, prior to the 
second detonation, the attenuation of the sound pressure levels of the 
HBX1 explosive charge. Measurements must be made at a number of 
distances from the detonation sufficient to verify the model predictions 
for the 3.7 km (2 nm) safety zone. Based upon the results of this test, 
the monitoring and safety zones described in the Letter of 
Authorization, may be modified accordingly.
    (f) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, or in the Letter of Authorization issued under 
Sec. 216.106, including the retention of marine mammals, may be 
conducted without the need for a separate scientific research permit. 
The use of retained marine mammals for scientific research other than 
shoreside examination must be authorized pursuant to subpart D of this 
part.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place observer(s) 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.
    (h) A final report must be submitted to the Administrator, Southeast 
Region, no later than 120 days after completion of shock testing the USS

[[Page 80]]

SEAWOLF. This report must contain the following information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A description of all pre-detonation and post-detonation 
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) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.
    (i) A final report on results of necropsies of stranded marine 
mammals funded by the U.S. Navy must be submitted to the Director, 
Office of Protected Resources, no later than 18 months after completion 
of shock testing the USS SEAWOLF.



Sec. 216.166  Modifications to the 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.
    (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. 216.161(b), or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec. 216.161(a), the Letter of 
Authorization issued pursuant to Sec. 216.106 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.



Secs. 216.167-216.169  [Reserved]

Subparts P-Q  [Reserved]

                         PARTS 217-221[RESERVED]



PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES--Table of Contents




             Subpart A--Introduction and General Provisions

Sec.
222.101  Purpose and scope of regulations.
222.102  Definitions.
222.103  Federal/state cooperation in the conservation of endangered and 
          threatened species.

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

222.201  General requirements.
222.202  Certificate renewal.
222.203  Modification, amendment, suspension, and revocation of 
          certificates.
222.204  Administration of certificates.
222.205  Import and export requirements.

                  Subpart C--General Permit Procedures

222.301  General requirements.
222.302  Procedure for obtaining permits.
222.303  Issuance of permits.
222.304  Renewal of permits.
222.305  Rights of succession and transfer of permits.
222.306  Modification, amendment, suspension, cancellation, and 
          revocation of permits.
222.307  Permits for incidental taking of species.
222.308  Permits for scientific purposes or for the enhancement of 
          propagation or survival of species.
222.309  Permits for listed species of sea turtles involving the Fish 
          and Wildlife Service.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 U.S.C. 
9701.
    Section 222.403 also issued under 16 U.S.C. 1361 et seq.

    Source: 64 FR 14054, Mar. 23, 1999, unless otherwise noted.



             Subpart A--Introduction and General Provisions



Sec. 222.101  Purpose and scope of regulations.

    (a) The regulations of parts 222, 223, and 224 of this chapter 
implement the Endangered Species Act (Act), and govern the taking, 
possession, transportation, sale, purchase, barter, exportation, 
importation of, and other requirements pertaining to wildlife and

[[Page 81]]

plants under the jurisdiction of the Secretary of Commerce and 
determined to be threatened or endangered pursuant to section 4(a) of 
the Act. These regulations are implemented by the National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, U.S. 
Department of Commerce, This part pertains to general provisions and 
definitions. Specifically, parts 223 and 224 pertain to provisions to 
threatened species and endangered species, respectively. Part 226 
enumerates designated critical habitat for endangered and threatened 
species. Certain of the endangered and threatened marine species 
enumerated in Secs. 224.102 and 223.102 are included in Appendix I or II 
to the Convention on International Trade of Endangered Species of Wild 
Fauna and Flora. The importation, exportation, and re-exportation of 
such species are subject to additional regulations set forth at 50 CFR 
part 23, chapter I.
    (b) For rules and procedures relating to species determined to be 
threatened or endangered under the jurisdiction of the Secretary of the 
Interior, see 50 CFR parts 10 through 17. For rules and procedures 
relating to the general implementation of the Act jointly by the 
Departments of the Interior and Commerce and for certain species under 
the joint jurisdiction of both the Secretaries of the Interior and 
Commerce, see 50 CFR Chapter IV. Marine mammals listed as endangered or 
threatened and subject to these regulations may also be subject to 
additional requirements pursuant to the Marine Mammal Protection Act 
(for regulations implementing that act, see 50 CFR part 216).
    (c) No statute or regulation of any state shall be construed to 
relieve a person from the restrictions, conditions, and requirements 
contained in parts 222, 223, and 224 of this chapter. In addition, 
nothing in parts 222, 223, and 224 of this chapter, including any permit 
issued pursuant thereto, 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 any other National 
Marine Fisheries Service enforced statutes or regulations.



Sec. 222.102  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, 16 U.S.C. 
1531 et seq.
    Adequately covered means, with respect to species listed pursuant to 
section 4 of the Act, that a proposed conservation plan has satisfied 
the permit issuance criteria under section 10(a)(2)(B) of the Act 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 Act 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.
    Alaska Regional Administrator means the Regional Administrator for 
the Alaska Region of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, U.S. Department of Commerce, or 
their authorized representative. Mail sent to the Alaska Regional 
Administrator should be addressed: Alaska Regional Administrator, F/AK, 
Alaska Regional Office, National Marine Fisheries Service, NOAA, P.O. 
Box 21668 Juneau, AK 99802-1668.
    Approved turtle excluder device (TED) means a device designed to be 
installed in a trawl net forward of the cod end for the purpose of 
excluding sea turtles from the net, as described in 50 CFR 223.207.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, U.S. Department of Commerce, or his 
authorized representative. Mail sent to the Assistant Administrator 
should be addressed: Assistant Administrator for Fisheries, National 
Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring, 
MD 20910.
    Atlantic Area means all waters of the Atlantic Ocean south of 
36 deg.33'00.8" N.

[[Page 82]]

lat. (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 30 deg.42'45.6" N. lat.) to the North Carolina-South Carolina 
border (defined as the line extending in a direction of 135 deg.34'55" 
from true north from the North Carolina-South Carolina land boundary, as 
marked by the border station on Bird Island at 33 deg.51'07.9" N. lat., 
078 deg.32'32.6" 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.
    Beam trawl means a trawl with a rigid frame surrounding the mouth 
that is towed from a vessel by means of one or more cables or ropes.
    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 certificate of exemption.
    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).
    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.
    Conservation plan means the plan required by section 10(a)(2)(A) of 
the Act that an applicant must submit when applying for an incidental 
take permit. Conservation plans also are known as ``habitat conservation 
plans'' or ``HCPs.''
    Conserved habitat areas means areas explicitly designated for 
habitat restoration, acquisition, protection, or other conservation 
purposes under a conservation plan.
    Cooperative Agreement means an agreement between a state(s) and the 
National Marine Fisheries Service, NOAA, Department of Commerce, which 
establishes and maintains an active and adequate program for the 
conservation of resident species listed as endangered or threatened 
pursuant to section 6(c)(1) of the Endangered Species Act.
    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 forward most 
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 
forward-most webbing.
    Foreign commerce includes, among other things, any transaction 
between persons within one foreign country, or

[[Page 83]]

between persons in two or more foreign countries, or between a person 
within the United States and a person in one or more foreign countries, 
or 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. 
long. (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 89 deg.08.5' W. long.) to the U.S.-
Mexican border.
    Habitat restoration activity means an activity that has the sole 
objective of restoring natural aquatic or riparian habitat conditions or 
processes.
    Headrope means a rope that is attached to the upper lip (top edge) 
of the mouth of a trawl net along the forward-most 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 
forward-most 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 that portion of the Atlantic 
Area lying north of a line along 28 deg.24.6' N. lat. (Cape Canaveral, 
FL).
    Northeast Regional Administrator means the Regional Administrator 
for the Northeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northeast 
Regional Administrator should be addressed: Northeast Regional 
Administrator, F/NE, Northeast Regional Office, National Marine 
Fisheries Service, NOAA, One Blackburn Drive, Gloucester, MA 01930-2298.
    Northwest Regional Administrator means the Regional Administrator 
for the Northwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northwest 
Regional Administrator should be addressed: Northwest Regional 
Administrator, F/NW, Northwest Regional Office, National Marine 
Fisheries Service, NOAA, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
    Office of Enforcement means the national fisheries enforcement 
office of the National Marine Fisheries Service. Mail sent to the Office 
of Enforcement should be addressed: Office of Enforcement, F/EN, 
National Marine Fisheries Service, NOAA, 8484 Suite 415, Georgia Ave., 
Silver Spring, MD 20910.
    Office of Protected Resources means the national program office of 
the endangered species and marine mammal programs of the National Marine 
Fisheries Service. Mail sent to the Office of Protected Resources should 
be addressed: Office of Protected Resources, F/PR, National Marine 
Fisheries Service, NOAA, 1315 East West Highway, Silver Spring, MD 
20910.

[[Page 84]]

    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.
    Operating conservation program means those conservation management 
activities which are expressly agreed upon and described in a 
Conservation Plan or its Implementing Agreement. These activities are to 
be undertaken for the affected species when implementing an approved 
Conservation Plan, including measures to respond to changed 
circumstances.
    Permit 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.
    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 that 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 persons can exercise their power 
over a corporeal thing at their pleasure to the exclusion of all other 
persons. Possession includes constructive possession that which means 
not an actual but an assumed existence 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.
    Properly implemented conservation plan means any conservation plan, 
implementing agreement, or permit whose commitments and provisions have 
been or are being fully implemented by the permittee.
    Pusher-head trawl (chopsticks) means a trawl that is spread by two 
poles suspended from the bow of the trawler in an inverted ``V'' 
configuration.
    Resident species means, for purposes of entering into cooperative 
agreements with any state pursuant to section 6(c) of the Act, a species 
that exists in the wild in that state during any part of its life.
    Right whale means, as used in part 224 of this chapter, any whale 
that is a member of the western North Atlantic population of the 
northern right whale species (Eubalaena glacialis).
    Roller trawl means a variety of beam trawl that is used, usually by 
small vessels, for fishing over uneven or vegetated sea bottoms.
    Scrimshaw product means any art form which involves the substantial 
etching or engraving of designs upon, 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 an 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 (Penaeus setiferus).
    (3) Pink shrimp (Penaeus duorarum).
    (4) Rock shrimp (Sicyonia brevirostris).
    (5) Royal red shrimp (Hymenopenaeus robustus).
    (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

[[Page 85]]

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 is fished along the side of the 
vessel and is held open by a rigid frame and a lead weight. On its 
outboard side, the trawl is held open by one side of the frame extending 
downward and, on its inboard side, by a lead weight attached by cable or 
rope to the bow of the vessel.
    Southeast Regional Administrator means the Regional Administrator 
for the Southeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southeast 
Regional Administrator should be addressed: Southeast Regional 
Administrator, F/SE, Southeast Regional Office, National Marine 
Fisheries Service, NOAA, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702-2432.
    Southwest Regional Administrator means the Regional Administrator 
for the Southwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southwest 
Regional Administrator should be addressed: Southwest Regional 
Administrator, F/SW, Southwest Regional Office, National Marine 
Fisheries Service, NOAA, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 
90802-4213.
    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 all 
offshore waters, bounded on the north by a line along 37 deg.05' N. lat. 
(Cape Charles, VA) and bounded on the south by a line extending in a 
direction of 135 deg.34'55" from true north from the North Carolina-
South Carolina land boundary, as marked by the border station on Bird 
Island at 33 deg.51'07.9" N. lat., 078 deg.32'32.6" W. long.(the North 
Carolina-South Carolina border).
    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 lb (45.4 kg).
    Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to 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.
    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 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.

[[Page 86]]

    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 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.
    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.
    Vessel means a vehicle used, or capable of being used, as a means of 
transportation on water which includes every description of watercraft, 
including nondisplacement craft and seaplanes.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
    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.
    Wing net (butterfly trawl) means a trawl that is fished along the 
side of the vessel and that is held open by a four-sided, rigid frame 
attached to the outrigger of the vessel.



Sec. 222.103  Federal/state cooperation in the conservation of endangered and threatened species.

    (a) Application for and renewal of cooperative agreements. (1) The 
Assistant Administrator may enter into a Cooperative Agreement with any 
state that establishes and maintains an active and adequate program for 
the conservation of resident species listed as endangered or threatened. 
In order for a state program to be deemed an adequate and active 
program, the Assistant Administrator must find, and annually reconfirm 
that the criteria of either sections 6(c)(1) (A) through (E) or sections 
6(c)(1) (i) and (ii) of the Act have been satisfied.
    (2) Following receipt of an application by a state for a Cooperative 
Agreement with a copy of a proposed state program, and a determination 
by the Assistant Administrator that the state program is adequate and 
active, the Assistant Administrator shall enter into an Agreement with 
the state.
    (3) The Cooperative Agreement, as well as the Assistant 
Administrator's finding upon which it is based, must be reconfirmed 
annually to ensure that it reflects new laws, species lists, rules or 
regulations, and programs and to demonstrate that it is still adequate 
and active.
    (b) Allocation and availability of funds. (1) The Assistant 
Administrator 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 the determination:
    (i) The international commitments of the United States to protect 
endangered or threatened species;
    (ii) The readiness of a state to proceed with a conservation program 
consistent with the objectives and purposes of the Act;
    (iii) The number of federally listed endangered and threatened 
species within a state;
    (iv) The potential for restoring endangered and threatened species 
within a state; and
    (v) The relative urgency to initiate a program to restore and 
protect an endangered or threatened species in terms of survival of the 
species.
    (2) 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. Obligation of allocated funds occurs when an 
award or contract is signed by the Assistant Administrator.

[[Page 87]]

    (c) Financial assistance and payments. (1) A state must enter into a 
Cooperative Agreement before financial assistance is approved by the 
Assistant Administrator for endangered or threatened species projects. 
Specifically, the Agreement must contain the actions that are to be 
taken by the Assistant Administrator and/or by the state, the benefits 
to listed species expected to be derived from these actions, and the 
estimated cost of these actions.
    (2) Subsequent to such Agreement, the Assistant Administrator may 
further agree with a state 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 an award or a contract. The availability of Federal funds 
shall be contingent upon the continued existence of the Cooperative 
Agreement and compliance with all applicable Federal regulations for 
grant administration and cost accounting principles.
    (3)(i) The payment of the Federal share of costs incurred when 
conducting activities included under a contract or award shall not 
exceed 75 percent of the program costs as stated in the agreement. 
However, 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 
Assistant Administrator.
    (ii) The state share of program costs may be in the form of cash or 
in-kind contributions, including real property, subject to applicable 
Federal regulations.
    (4) 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 necessary or required documents are first submitted 
to and approved by the Assistant Administrator. Payments shall only 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.



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



Sec. 222.201  General requirements.

    (a) The Assistant Administrator may exempt any pre-Act endangered 
species part from the prohibitions of sections 9(a)(1)(A), 9(a)(1)(E), 
or 9(a)(1)(F) of the Act.
    (1) No person shall engage in any activities identified in such 
sections of the Act that involve any pre-Act endangered species part 
without a valid Certificate of Exemption issued pursuant to this subpart 
B.
    (2) 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.
    (3) Any person engaged in activities otherwise prohibited under the 
Act or regulations shall bear the burden of proving that the exemption 
or certificate is applicable, was granted, and was valid and in force at 
the time of the otherwise prohibited activity.
    (b) Certificates of Exemption issued under this subpart are no 
longer available to new applicants. However, the Assistant Administrator 
may renew or modify existing Certificates of Exemptions as authorized by 
the provisions set forth in this subpart.
    (c) 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 under 
paragraph (b) of this section, including the address given in the 
certificate to which the purchaser's report is to be sent.

[[Page 88]]

    (d) Any purchaser of pre-Act endangered species parts included in a 
valid Certificate of Exemption, unless an ultimate user, within 30 days 
after the receipt of such parts, must submit a written report to the 
address given in the certificate. The report must specify 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. The term ``ultimate user'', for purposes of this 
paragraph, means any person who acquired such endangered species part or 
product for his or her own consumption or for other personal use 
(including gifts) and not for resale.



Sec. 222.202  Certificate renewal.

    (a) Any person to whom a Certificate of Exemption has been issued by 
the National Marine Fisheries Service may apply to the Assistant 
Administrator for renewal of such certificate. Any person holding a 
valid Certificate of Exemption which was renewed after October 13, 1982, 
and was in effect on March 31, 1988, may apply to the Secretary for one 
renewal for a period not to exceed 5 years.
    (b) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of paragraph 
(c) of this section. At least 15 days should be allowed for processing. 
When an application for a renewal has been received and deemed 
sufficient, the Assistant Administrator shall issue a Certificate of 
Renewal to the applicant as soon as practicable.
    (c) 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.
    (2) The date of application.
    (3) The identity of the applicant, including complete name, original 
Certificate of Exemption number, current address, and telephone number. 
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 
5-year period beginning on the date of the expiration of the previous 
renewal of the certificate of exemption.
    (5)(i) A complete and detailed updated 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 to the nearest whole gram; 
and a detailed description 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 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. 
The number must remain affixed to the item until the item is sold to an 
ultimate user, as defined in Sec. 222.201(d).
    (iii) No renewals will be issued for scrimshaw products in excess of 
any

[[Page 89]]

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, as amended, 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 Act.
    (7) Signature of the applicant.
    (d) Upon receipt of an incomplete or improperly executed application 
for renewal, the applicant shall be notified 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 abandoned.



Sec. 222.203  Modification, amendment, suspension, and revocation of certificates.

    (a) When circumstances have changed so that an applicant or 
certificate holder desires to have any material, term, or condition of 
the application or certificate modified, the applicant or certificate 
holder must submit in writing full justification and supporting 
information in conformance with the provisions of this part.
    (b) 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.
    (c) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a condition of the certificate 
may subject the certificate holder to penalties provided in the Act and 
to suspension, revocation, or modification of the Certificate of 
Exemption, as provided in subpart D of 15 CFR part 904.



Sec. 222.204  Administration of certificates.

    (a) 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 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 served by the warehouse or storage facility.
    (b) Certificates of Exemption issued under this subpart are not 
transferable. However, 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 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. 222.201(d).
    (c) The Certificate of Exemption holder must notify the Assistant 
Administrator, in writing, of any change in address, in trade name of 
the business, or in activity specified in the certificate. The Assistant 
Administrator must be notified within 10 days of a change of address, 
and within 30 days of a change in trade name. The certificate with the 
change of address or in trade name must be endorsed by the Assistant 
Administrator, who shall provide an amended certificate to the person to 
whom it was issued. A certificate holder who seeks amendment of a 
certificate may continue all authorized activities while awaiting action 
by the Assistant Administrator.
    (d) 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.
    (e) Any person authorized to enforce the Act may enter the premises 
of any Certificate of Exemption holder or of any purchaser during 
business hours,

[[Page 90]]

including places of storage, for the purpose of inspecting or of 
examining any records or documents and any endangered species parts.
    (f) 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.
    (g)(1) 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, as defined in Sec. 222.201(d), 
must similarly maintain records of all such parts or products they 
receive.
    (2) Such records referred to in paragraph (g)(1) 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 show the name and 
address of the purchaser, seller, or other transferor; show the type, 
quantity, and identity of the part or product; show the date of such 
sale or transfer; and be retained, in accordance with the requirements 
of this subpart, for a period of not less than 3 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.
    (i) Each Certificate of Exemption holder must submit a quarterly 
report (to the address given in the certificate) containing all record 
information required by paragraph (g)(2) of this section, 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.
    (ii) Quarterly reports are due on January 15, April 15, July 15, and 
October 15.
    (3) The Assistant Administrator may authorize the record information 
to be submitted in a manner other than that prescribed in paragraph 
(g)(2) of this section when the record holder demonstrates that an 
alternate method of reporting is reasonably necessary and will not 
hinder the effective administration or enforcement of this subpart.



Sec. 222.205  Import and export requirements.

    (a) Any fish and wildlife subject to the jurisdiction of the 
National Marine Fisheries Service and is intended for importation into 
or exportation from the United States, shall not be imported or exported 
except at a port(s) designated by the Secretary of the Interior. 
Shellfish and fishery products that are neither endangered nor 
threatened species and that 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 are excluded from 
this requirement. The Secretary of the Interior may permit the 
importation or exportation at nondesignated ports in the interest of the 
health or safety of the species for other reasons if the Secretary deems 
it appropriate and consistent with the purpose of facilitating 
enforcement of the Act and reducing the costs thereof. Importers and 
exporters are advised to see 50 CFR part 14 for importation and 
exportation requirements and information.
    (b) No pre-Act endangered species part shall be imported into the 
United States. 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.
    (c)(1) Any person exporting from the United States any pre-Act 
endangered species part must possess a valid Certificate of Exemption 
issued in accordance with the provisions of this subpart. In addition, 
the exporter must provide to the Assistant Administrator, in writing, 
not less than 10 days prior to shipment, the following information: The 
name and address of the foreign consignee, the intended port of 
exportation, and a complete description of the parts to be exported. No 
shipment may be made until these requirements are met by the exporter.

[[Page 91]]

    (2) The exporter must send a copy of the Certificate of Exemption, 
and any endorsements thereto, to the District Director of Customs at the 
port of exportation, which must precede or accompany the shipment in 
order to permit the appropriate inspection prior to lading. Upon 
receipt, the District Director may order such inspection, as deemed 
necessary; the District will clear the merchandise for export, prior to 
the lading of the merchandise. If they are satisfied that the shipment 
is proper and complies with the information contained in the certificate 
and any endorsement thereto. The certificate, and any endorsements, will 
be forwarded to the Chief of the Office of Enforcement for NMFS.
    (3) No pre-Act endangered species part in compliance with the 
requirements of this subpart may be exported except at a port or ports 
designated by the Secretary of the Interior, pursuant to Sec. 222.103.
    (4) Notwithstanding any provision of this subpart, it shall not be 
required that the Assistant Administrator authorizes the transportation 
in interstate or foreign commerce of pre-Act endangered species parts.

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised effective Mar. 23, 1999, with the exception of Sec. 222.205 
paragraphs (c)(1) and (c)(2) which contain information collection 
requirements and will not be effective until approval has been given by 
the Office of Management and Budget.



                  Subpart C--General Permit Procedures



Sec. 222.301  General requirements.

    (a)(1) The regulations in this subpart C provide uniform rules and 
procedures for application, issuance, renewal, conditions, and general 
administration of permits issuable pursuant to parts 222, 223, and 224 
of this chapter. While this section provides generic rules and 
procedures applicable to all permits, other sections may provide more 
specific rules and procedures with respect to certain types of permits. 
In such cases, the requirements in all applicable sections must be 
satisfied.
    (2) Notwithstanding paragraph (a)(1) of this section, the Assistant 
Administrator may approve variations from the requirements of parts 222, 
223, and 224 of this chapter when the Assistant Administrator finds that 
an emergency exists and that the proposed variations will not hinder 
effective administration of those parts and will not be unlawful. Other 
sections within parts 222, 223, and 224 of this chapter may allow for a 
waiver or variation of specific requirements for emergency situations, 
upon certain conditions. In such cases, those conditions must be 
satisfied in order for the waiver or variation to be lawful.
    (b) No person shall take, import, export or engage in any other 
prohibited activity involving any species of fish or wildlife under the 
jurisdiction of the Secretary of Commerce that has been determined to be 
endangered under the Act, or that has been determined to be threatened 
and for which the prohibitions of section 9(a)(1) of the Act have been 
applied by regulation, without a valid permit issued pursuant to these 
regulations. The permit shall entitle the person to whom it is issued to 
engage in the activity specified in the permit, subject to the 
limitations of the Act and the regulations in parts 222, 223, and 224 of 
this chapter, for the period stated on the permit, unless sooner 
modified, suspended or revoked.
    (c) Each person intending to engage in an activity for which a 
permit is required by parts 222, 223, and 224 of this chapter or by the 
Act shall, before commencing such activity, obtain a valid permit 
authorizing such activity. Any person who desires to obtain permit 
privileges authorized by parts 222, 223, and 224 of this chapter must 
apply for such permit in accordance with the requirements of these 
sections. 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.
    (d)(1) Any permit issued under these regulations must be in the 
possession of the person to whom it is issued (or of an agent of such 
person) while any animal subject to the permit is in the possession of 
such person or agent. Specifically, a person or his/her agent must be in 
possession of a permit during the time of the authorized taking, 
importation, exportation, or of any

[[Page 92]]

other act and during the period of any transit incident to such taking, 
importation, exportation, or to any other act.
    (2) 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.
    (e) The authorizations on the face of a permit setting 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.
    (f) Permits shall not be altered, erased, or mutilated, and any 
permit which has been altered, erased, or mutilated shall immediately 
become invalid.
    (g) Any permit issued under parts 222, 223, and 224 of this chapter 
shall be displayed for inspection, upon request, to an authorized 
officer, or to any other person relying upon its existence.
    (h) 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 222, 223, or 224 of this chapter or the provisions 
of the permit set forth other reporting requirements.
    (i) 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 the 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.
    (j) Any person holding a permit pursuant to parts 222, 223, and 224 
of this chapter shall allow the Assistant Administrator to enter the 
permit holder's 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 these regulations or by the Act. Such 
person shall display any permit issued pursuant to these regulations or 
to the Act upon request by an authorized officer or by any other person 
relying on its existence.



Sec. 222.302  Procedure for obtaining permits.

    (a) Applications must be submitted to the Assistant Administrator, 
by letter containing all necessary information, attachments, 
certification, and signature, as specified by the regulations in parts 
222, 223, and 224 of this chapter, or by the Act. In no case, other than 
for emergencies pursuant to Sec. 222.301(a)(2), will applications be 
accepted either orally or by telephone.
    (b) Applications must be received by the Assistant Administrator at 
least 90 calendar days prior to the date on which the applicant desires 
to have the permit made effective, unless otherwise specified in the 
regulations or guidelines pertaining to a particular permit. The 
National Marine Fisheries Service will attempt to process applications 
deemed sufficient in the shortest possible time, but does not guarantee 
that the permit will be issued 90 days after notice of receipt of the 
application is published in the Federal Register.
    (c)(1) Upon receipt of an insufficiently or improperly executed 
application, the 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.
    (2) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of this 
part. The Assistant Administrator, however, may

[[Page 93]]

waive any requirement for information or require any elaboration or 
further information deemed necessary.



Sec. 222.303  Issuance of permits.

    (a)(1) No permit may be issued prior to the receipt of a written 
application unless an emergency pursuant to Sec. 222.301(a)(2) exists, 
and a written variation from the requirements is recorded by the 
National Marine Fisheries Service.
    (2) No representation of an employee or agent of the United States 
shall be construed as a permit unless it meets the requirements of a 
permit defined in Sec. 222.102.
    (3) Each permit shall bear a serial number. Upon renewal, such a 
number may be reassigned to the permittee to whom issued so long as the 
permittee maintains continuity of renewal.
    (b) When an application for a permit received by the Assistant 
Administrator is deemed sufficient, the Assistant Administrator shall, 
as soon as practicable, publish a notice in the Federal Register. 
Information received by the Assistant Administrator 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, within 30 
days after the date of publication of such notice, may submit to the 
Assistant Administrator written data, views, or arguments with respect 
to the taking, importation, or to other action proposed in the 
application, and may request a hearing in connection with the action to 
be taken thereon.
    (c) If a request for a hearing is made within the 30-day period 
referred to in paragraph (b) of this section, or if the Assistant 
Administrator determines that a hearing would otherwise be advisable, 
the Assistant Administrator may, within 60 days after the date of 
publication of the notice referred to in paragraph (b) 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 at the 
hearing in person or through a representative and may submit any 
relevant material, data, views, comments, arguments, or exhibits. A 
summary record of the hearing shall be kept.
    (d) Except as provided in subpart D to 15 CFR part 904, as soon as 
practicable but not later than 30 days after the close of the hearing. 
If no hearing is held, as soon as practicable but not later than 30 days 
from the publication of the notice in the Federal Register, the 
Assistant Administrator shall issue or deny issuance of the permit. 
Notice of the decision of the Assistant Administrator 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.
    (e)(1) The Assistant Administrator shall issue the permit unless:
    (i) Denial of the permit has been made pursuant to subpart D to 15 
CFR part 904;
    (ii) The applicant has failed to disclose material or information 
required, or has made false statements as to any material fact, in 
connection with the application;
    (iii) The applicant has failed to demonstrate a valid justification 
for the permit or a showing of responsibility;
    (iv) The authorization requested potentially threatens a fish or 
wildlife population; or
    (v) The Assistant Administrator finds through further inquiry or 
investigation, or otherwise, that the applicant is not qualified.
    (2) The applicant shall be notified in writing of the denial of any 
permit request, and the reasons thereof. If authorized in the notice of 
denial, the applicant may submit further information or reasons why the 
permit should not be denied. Such further information shall not be 
considered a new application. The final action by the Assistant 
Administrator shall be considered the final administrative decision of 
the Department of Commerce.
    (f) If a permit is issued under Sec. 222.308, the Assistant 
Administrator shall publish notice thereof in the Federal Register, 
including the Assistant Administrator's finding that such permit--
    (1) Was applied for in good faith;

[[Page 94]]

    (2) 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 Act.
    (g) The Assistant Administrator may waive the 30-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. 
Notice of any such waiver shall be published by the Assistant 
Administrator in the Federal Register within 10 days following the 
issuance of the permit.



Sec. 222.304  Renewal of permits.

    When 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, the permittee shall, unless otherwise notified in 
writing by the Assistant Administrator, file a request for permit 
renewal, together with a certified statement, verifying that the 
information in the original application is still currently correct. If 
the information is incorrect the permittee shall file a statement of all 
changes in the original application, accompanied by any required fee at 
least 30 days prior to the expiration of the 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 the 
expired permit until the renewal application is acted upon.



Sec. 222.305  Rights of succession and transfer of permits.

    (a)(1) Permits issued pursuant to parts 222, 223, and 224 of this 
chapter are not transferable or assignable. In the event that a permit 
authorizes certain activities in connection with a business or 
commercial enterprise, which is then subject to any subsequent lease, 
sale or transfer, the successor to that enterprise must obtain a permit 
prior to continuing the permitted activity, with the exceptions provided 
in paragraph (a)(2) of this section.
    (2) 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 that they furnish the permit to the issuing 
officer for endorsement within 90 days from the date the successor 
begins to carry on the activity. Such persons are the following:
    (i) The surviving spouse, child, executor, administrator, or other 
legal representative of a deceased permittee, and
    (ii) The receiver or trustee in bankruptcy or a court designated 
assignee for the benefit of creditors.
    (b) Except as otherwise stated on the face of the permit, any person 
who is under the direct control of the permittee, or who is employed by 
or under contract to the permittee for purposes authorized by the 
permit, may carry out the activity authorized by the permit.

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised effective Mar. 23, 1999, with the exception of Sec. 222.305 
paragraph (a) which contains information collection requirements and 
will not be effective until approval has been given by the Office of 
Management and Budget.



Sec. 222.306  Modification, amendment, suspension, cancellation, and revocation of permits.

    (a) When circumstances have changed so that an applicant or a 
permittee desires to have any term or condition of the application or 
permit modified, the applicant or permittee 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 original applications.
    (b) Notwithstanding the requirements of paragraph (a) of this 
section, a permittee may change the mailing address or trade name under 
which business is conducted without obtaining a new permit or being 
subject to the same issuance criteria as original permits. The permittee 
must notify the Assistant Administrator, in writing within 30 days, of 
any change in address or of any change in the trade name for the 
business or activity specified in the permit. The permit with the change 
of address or in trade name must be endorsed by the Assistant 
Administrator, who shall provide an

[[Page 95]]

amended permit to the person to whom it was issued.
    (c) 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.
    (d) When any permittee discontinues the permitted activity, the 
permittee shall, within 30 days thereof, mail the permit and a request 
for cancellation to the issuing officer, and the permit shall be deemed 
void upon receipt. No refund of any part of an amount paid as a permit 
fee shall be made when the operations of the permittee are, for any 
reason, discontinued during the tenure of an issued permit.
    (e) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a term or condition of the 
permit may subject the permittee to both the penalties provided in the 
Act and suspension, revocation, or amendment of the permit, as provided 
in subpart D to 15 CFR part 904.



Sec. 222.307  Permits for incidental taking of species.

    (a) Scope. (1) The Assistant Administrator may issue permits to take 
endangered and threatened species incidentally to an otherwise lawful 
activity under section 10(a)(1)(B) of the Act. The regulations in this 
section apply to all endangered species, and those threatened species 
for which the prohibitions of section 9(a)(1) of the Act, under the 
jurisdiction of the Secretary of Commerce, apply.
    (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 listed species for 
which a permit is required, 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. The Assistant Administrator shall determine 
the sufficiency of the application 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 must include the 
following:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Act; or
    (ii) Application for a General Incidental Take Permit under the Act;
    (2) The name, address, and telephone number of the applicant. If the 
applicant is a partnership or a corporate entity or is representing a 
group or an 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 the following:
    (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;
    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used; and
    (v) A list of all sources of data used in preparation of the plan, 
including

[[Page 96]]

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 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 this part, 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 an adequate fee to the National Marine Fisheries 
Service to process 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 on listed species associated with issuing a permit of the 
proposed duration, including the extent to which the conservation plan 
is likely to enhance the habitat of the endangered species or to 
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 must 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:

[[Page 97]]

    (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 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. However, such additional measures are 
limited to modifications within any conserved habitat areas or to the 
conservation plan's operating conservation program for the affected 
species. The original terms of the conservation plan will be maintained 
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 has 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 his or 
her own expense to protect or conserve a species included in a 
conservation plan.

[[Page 98]]



Sec. 222.308  Permits for scientific purposes or for the enhancement of propagation or survival of species.

    (a) Scope. The Assistant Administrator may issue permits for 
scientific purposes or for the enhancement of the propagation or 
survival of the affected endangered or threatened species in accordance 
with the regulations in parts 222, 223, and 224 of this chapter and 
under such terms and conditions as the Assistant Administrator may 
prescribe, authorizing the taking, importation, or other acts otherwise 
prohibited by section 9 of the Act. Within the jurisdication 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. Any person desiring to obtain such a 
permit may make application therefor to the Assistant Administrator. 
Permits for marine mammals shall be issued in accordance with the 
provisions of part 216, subpart D of this chapter. Permits relating to 
sea turtles may involve the Fish and Wildlife Service, in which case the 
applicant shall follow the procedures set out in Sec. 222.309. The 
following information will be used as the basis for determining whether 
an application is complete and whether a permit for scientific purposes 
or for enhancement of propagation or survival of the affected species 
should be issued by the Assistant Administrator. An application for a 
permit shall provide the following information and such other 
information that the Assistant Administrator may require:
    (1) Title, as applicable, either--
    (i) Application for permit for scientific purposes under the Act; or
    (ii) Application for permit for the enhancement of the propagation 
or survival of the endangered species Under the Act.
    (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 the 
following:
    (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 the following:
    (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. For 
example, 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? 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 in a museum or 
other institutional collection for the continued benefit to science.
    (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

[[Page 99]]

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; and
    (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. Accompanying such statement shall be a copy of the 
proposed contract or a letter from the contractor indicating agreement 
to capture or otherwise take the animals, should a permit be granted.
    (7) A description of the manner of transportation for any live 
animal taken, imported, exported, or shipped in interstate commerce, 
including the following:
    (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 planned future move or 
transfer of the animals;
    (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 to hold the animal at both the capture site and 
during transportation;
    (vii) Special care before and during transportation, such as salves, 
antibiotics, moisture; and
    (viii) A statement as to whether the animals will be accompanied by 
a veterinarian or by another 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;
    (vi) A written certification from a licensed veterinarian or from a 
recognized expert who are knowledgeable on the species (or related 
species) or group covered in the application. The certificate shall 
verify that the veterinarian has personally reviewed the amendments for 
transporting and maintaining the animal(s) and that, in the 
veterinarian's 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 requirements of (b)(8)(vi) in 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 application, the 
applicant shall provide a detailed description of all mortalities 
involving species 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 related species that are 
the subject of this application that have been captured, transported, 
maintained, or utilized by the applicant for scientific purposes or for 
the enhancement of propagation or survival of the affected species, and/
or of related species that are captured, transported, maintained, or 
utilized by the applicant for scientific purposes or for enhancement of 
propagation or survival of the affected species;
    (ii) The numbers of mortalities among such animals by species, by 
date, by location of capture, i.e., from which population, and the 
location of such mortalities;

[[Page 100]]

    (iii) The cause(s) of any such mortality; and
    (iv) The steps which have been taken by applicant to avoid or 
decrease any such mortality.
    (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, as amended, 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 Act.
    (13) The applicant and/or an officer thereof must sign the 
application.
    (14) Assistance in completing this application may be obtained by 
writing Chief, Endangered Species Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or 
calling the Office of Protected Resources at 301-713-1401. Allow at 
least 90 days for processing.
    (c) Issuance criteria. In determining whether to issue a permit for 
scientific purposes or to enhance the propagation or survival of the 
affected endangered species, the Assistant Administrator shall 
specifically consider, among other application criteria, the following:
    (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;
    (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 the applicant's 
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; and
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable about the species which is the subject of 
the application or of other matters germane to the application.
    (d) Terms and conditions. Permits applied for under this section 
shall contain terms and conditions as the Assistant Administrator may 
deem appropriate, including but not limited to the following:
    (1) The number and kind of species 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; and
    (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.

[[Page 101]]



Sec. 222.309  Permits for listed species of sea turtles involving the Fish and Wildlife Service.

    (a) This section establishes specific procedures for issuance of the 
following permits: scientific purposes or to enhance the propagation or 
survival of endangered or threatened species of sea turtles; zoological 
exhibition or educational purposes for threatened species of sea 
turtles; and permits that requires coordination with the Fish and 
Wildlife Service. The National Marine Fisheries Service maintains 
jurisdiction for such species in the marine environment. The Fish and 
Wildlife Service maintains jurisdiction for such species of sea turtles 
in the land environment.
    (b) For permits relating to any activity in the marine environment 
exclusively, permit applicants and permittees must comply with the 
regulations in parts 222, 223, and 224 of this chapter.
    (c) For permits relating to any activity in the land environment 
exclusively, permit applicants must submit applications to the Wildlife 
Permit Office (WPO) of the U.S. Fish and Wildlife Service in accordance 
with either 50 CFR 17.22(a), if the species is endangered, or 50 CFR 
17.32(a), if the species is threatened.
    (d) For permits relating to any activity in both the land and marine 
environments, applicants must submit applications to the WPO. WPO will 
forward the application to NMFS for review and processing of those 
activities under its jurisdiction. Based on this review and processing, 
WPO will issue either a permit or a letter of denial in accordance with 
its own regulations.
    (e) For permits relating to any activity in a marine environment and 
that also requires a permit under the Convention on International Trade 
in Endangered Species of Wild Fauna and Flora (CITES) (TIAS 8249, July 
1, 1975) (50 CFR part 23), applicants must submit applications to the 
WPO. WPO will forward the application to NMFS for review and processing, 
after which WPO will issue a combination ESA/CITES permit or a letter of 
denial.



PART 223--THREATENED MARINE AND ANADROMOUS SPECIES--Table of Contents




                      Subpart A--General Provisions

Sec.
223.101  Purpose and scope.
223.102  Enumeration of threatened marine and anadromous species.

 Subpart B--Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species

223.201  Guadalupe fur seal.
223.202  Steller sea lion.
223.203  Anadromous fish.
223.204  Exceptions to prohibitions relating to anadromous fish.
223.205  Sea turtles.
223.206  Exceptions to prohibitions relating to sea turtles.
223.207  Approved TEDs.

Figure 1 to Part 223--NMFS TED
Figure 2 to Part 223--Cameron TED
Figure 3 to Part 223--Matagorda TED
Figure 4 to Part 223--Georgia TED
Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
          Soft TED
Figures 6--9b to Part 223  [Reserved]
Figure 10 to Part 223--Flounder TED
Figure 11 to Part 223--Jones TED
Figure 12a to Part 223--Attachment of the Exit Hole Cover
Figure 12b to Part 223--Grid TED Leatherback Modification
Figure 13 to Part 223--Single Grid Hard TED Escape Opening
Figure 14a to Part 223--Maximum Angle of Deflector Bars with Straight 
          Bars Attached to the Bottom of the Frame
Figure 14b to Part 223--Maximum Angle of Deflector Bars with Bent Bars 
          Attached to the Bottom of the Frame
Figure 15 to Part 223--Maximum Angle of Deflector Bars with Bars 
          Unattached to the Bottom of the Frame

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 U.S.C. 
9701.

    Source: 43 FR 32809, July 28, 1978, unless otherwise noted. 
Redesignated at 64 FR 14068, Mar. 23, 1999.

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

[[Page 102]]



                      Subpart A--General Provisions



Sec. 223.101  Purpose and scope.

    (a) The regulations contained in this part identify the species 
under the jurisdiction of the Secretary of Commerce that have been 
determined to be threatened species pursuant to section 4(a) of the Act, 
and provide for the conservation of such species by establishing rules 
and procedures to governing activities involving the species.
    (b) The regulations contained in this part apply only to the 
threatened species enumerated in Sec. 223.102.
    (c) The provisions of this part are in addition to, and not in lieu 
of, other regulations of parts 222 through 226 of this chapter which 
prescribe additional restrictions or conditions governing threatened 
species.

[64 FR 14068, Mar. 23, 1999]



Sec. 223.102  Enumeration of threatened marine and anadromous species.

    The species determined by the Secretary of Commerce to be threatened 
pursuant to section 4(a) of the Act, as well as species listed under the 
Endangered Species Conservation of Act of 1969 by the Secretary of the 
Interior and currently under the jurisdiction of the Secretary of 
Commerce, are the following:
    (a) Marine and anadromous fish. (1) Snake River spring/summer 
chinook salmon (Oncorhynchus tshawytscha). Includes all natural 
population(s) of spring/summer chinook salmon in the mainstem Snake 
River and any of the following subbasins: Tucannon River, Grande Ronde 
River, Imnaha River, and Salmon River.
    (2) 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.
    (3) Central California Coast Coho Salmon (Oncorhynchus kisutch). 
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.
    (4) 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.
    (5) 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.
    (6) 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.
    (7) 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.
    (8) 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;
    (9) 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.
    (10) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all 
naturally spawned populations of coho

[[Page 103]]

salmon in streams south of the Columbia River and north of Cape Blanco 
in Curry County, OR.
    (11) Gulf sturgeon (Acipenser oxyrinchus desotoi).
    (12) Hood Canal summer-run chum salmon (Oncorhynchus keta). Includes 
all naturally spawned populations of summer-run chum salmon in Hood 
Canal and its tributaries as well as populations in Olympic Peninsula 
rivers between Hood Canal and Dungeness Bay, Washington;
    (13) Columbia River chum salmon (Oncorhynchus keta). Includes all 
naturally spawned populations of chum salmon in the Columbia River and 
its tributaries in Washington and Oregon.
    (14) Upper Willamette River steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of winter-run steelhead in 
the Willamette River, Oregon, and its tributaries upstream from 
Willamette Falls to the Calapooia River, inclusive;
    (15) Middle Columbia River steelhead (Oncorhynchus mykiss). Includes 
all naturally spawned populations of steelhead in streams from above the 
Wind River, Washington, and the Hood River, Oregon (exclusive), upstream 
to, and including, the Yakima River, Washington. Excluded are steelhead 
from the Snake River Basin.
    (16) Puget sound chinook salmon (Oncorhynchus tshawytscha). Includes 
all naturally spawned populations of chinook salmon from rivers and 
streams flowing into Puget Sound including the Straits of Juan De Fuca 
from the Elwha River eastward, including rivers and streams flowing into 
Hood Canal, South Sound, North Sound and the Strait of Georgia in 
Washington.
    (17) Lower Columbia River chinook salmon (Oncorhynchus tshawytscha). 
Includes all naturally spawned populations of chinook salmon from the 
Columbia River and its tributaries from its mouth at the Pacific Ocean 
upstream to a transitional point between Washington and Oregon east of 
the Hood River and the White Salmon River, and includes the Willamette 
River to Willamette Falls, Oregon, exclusive of spring-run chinook 
salmon in the Clackamas River.
    (18) Upper Willamette River chinook salmon (Oncorhynchus 
tshawytscha). Includes all naturally spawned populations of spring-run 
chinook salmon in the Clackamas River and in the Willamette River, and 
its tributaries, above Willamette Falls, Oregon.
    (19) Ozette Lake sockeye salmon (Oncorhynchus nerka). Includes all 
naturally spawned populations of sockeye salmon in Ozette Lake and 
streams and tributaries flowing into Ozette Lake, Washington.
    (20) Central Valley spring-run chinook salmon (Oncorhynchus 
tshawytscha). Includes all naturally spawned populations of spring-run 
chinook salmon in the Sacramento River Basin, and its tributaries, 
California.
    (21) California coastal chinook salmon (Oncorhynchus tshawytscha). 
Includes all naturally spawned populations of chinook salmon from 
Redwood Creek (Humboldt County, California) through the Russian River 
(Sonoma County, California).
    (b) Marine plants. Johnson's seagrass (Halophila johnsonii).
    (c) Marine mammals. Guadalupe fur seal (Arctocephalus townsendi); 
Steller sea lion, eastern population (Eumetopias jubatus), which 
consists of all Stellar sea lions from breeding colonies located east of 
114 deg. W. longitude.
    (d) Sea turtles. Green turtle (Chelonia mydas) except for those 
populations listed under Sec. 224.101(c) of this chapter; Loggerhead 
turtle (Caretta caretta); Olive ridley turtle (Lepidochelys olivacea) 
except for those populations listed under Sec. 224.101(c) of this 
chapter.
    Note to Sec. 223.201(d): Jurisdiction for sea turtles by the 
Department of Commerce, National Oceanic and Atmospheric Administration, 
National Marine Fisheries Service, is limited to turtles while in the 
water.

[64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999; 
64 FR 14517, 14528, 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999]

    Effective Date Note: At 64 FR 50415, Sept. 16, 1999, Sec. 223.102 
was amended by adding paragraphs (a)(20) and (a)(21), effective Nov. 15, 
1999.

[[Page 104]]



 Subpart B--Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species



Sec. 223.201  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--General Permit Procedures.
    (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 Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802.
    (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. Redesignated and amended at 64 FR 14068, 
Mar. 23, 1999]



Sec. 223.202  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 and the Gulf of 
Alaska listed in Table 1.

                                           Table 1 to Sec.  223.202--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.

[[Page 105]]

 
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.
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.


[[Page 106]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.016


[[Page 107]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.017


[[Page 108]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.018


[[Page 109]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.019


[[Page 110]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.020


[[Page 111]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.021


[[Page 112]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.022


[[Page 113]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.023


[[Page 114]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.024


[[Page 115]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.025


[[Page 116]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.026


[[Page 117]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.027


[[Page 118]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.028


[[Page 119]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.029


[[Page 120]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.030


[[Page 121]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.031


[[Page 122]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.032


[[Page 123]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.033


[[Page 124]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.034


[[Page 125]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.035


[[Page 126]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.036


[[Page 127]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.037


[[Page 128]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.038


[[Page 129]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.039


[[Page 130]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.040


[[Page 131]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.041


[[Page 132]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.042


[[Page 133]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.043


[[Page 134]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.044


[[Page 135]]

    (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 part 222, subpart C--General Permit Procedures.
    (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. Redesignated and amended at 64 FR 14068-14069, Mar. 23, 1999]



Sec. 223.203  Anadromous fish.

    (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. 223.102(a)(1) through (a)(4), except as 
provided in paragraph (b) of this section.
    (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 regulations in part 222 of this chapter II 
implementing such exceptions, also apply to the threatened species of 
salmon listed in Sec. 223.102(a)(1) through (a)(4).

[[Page 136]]

    (2) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmon listed in Sec. 223.102(a)(4) 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. 223.102(a)(4) 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. Redesignated and amended at 64 FR 14068-
14069, Mar. 23, 1999]



Sec. 223.204  Exceptions to prohibitions relating to anadromous fish.

    (a) The following exceptions to the prohibitions of Sec. 223.203(a) 
of this part apply to the Southern Oregon/Northern California Coast 
(SONCC) coho salmon.
    (1) Take of SONCC coho salmon within 3 miles (approximately 5 km) of 
the coast, and in the 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). NMFS must have issued a 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.
    (2) 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.
    (3) 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. NMFS must have issued a written 
concurrence stating 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.
    (4) Take of SONCC coho salmon in fisheries research and monitoring 
activities conducted in California and Oregon is not prohibited provided 
that:
    (i) Research and monitoring involving directed take of coho salmon 
is conducted by CDFG personnel (in California) and ODFW personnel (in 
Oregon);
    (ii) 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. This 
report shall include an estimate of the total directed take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the techniques 
to be used, and a point of contact;
    (iii) The CDFG and ODFW, respectively, provide NMFS annually with 
the results of research and monitoring

[[Page 137]]

studies directed at SONCC coho salmon, including a report of the 
directed take resulting from the studies;
    (iv) The CDFG and ODFW, provide NMFS annually with a list of all 
research and monitoring studies permitted that may allow incidental take 
of 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.
    (v) The research and monitoring activities do not include the use of 
electrofishing in any body of water known or suspected to contain coho 
salmon.
    (5) Incidental take of the SONCC coho salmon in Oregon resulting 
from a habitat restoration activity is not prohibited, provided that:
    (i) The activity is conducted pursuant to a watershed action or 
restoration plan that has been affirmed by the state in writing as 
consistent with NMFS' approved state watershed plan guidelines set forth 
in Sec. 222.307(c) of this chapter. NMFS shall also concur in writing 
that the plan is consistent with the state watershed plan guidelines; or
    (ii) Until a watershed action or restoration plan is approved by 
both Oregon and NMFS as described in paragraph (a)(5)(i) 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 Sec. 222.307(c) of this chapter.
    (6) Incidental take of the SONCC coho salmon in California resulting 
from a habitat restoration activity, as defined in paragraph (a)(6)(iii) 
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:
    (i) The activity is conducted pursuant to a watershed protection 
plan that CDFG has affirmed, in writing, is consistent with NMFS' 
approved state watershed plan guidelines set forth in Sec. 222.307(c) of 
this chapter for California's Watershed Protection Program. NMFS must 
concur, in writing, that the plan is consistent with those guidelines; 
or
    (ii) Until a watershed protection or restoration plan is certified 
by the State of California and NMFS as described in paragraph (a)(6)(i) 
of this section, or until August 18, 1999, whichever occurs first, when 
NMFS has made a written finding that the activity is consistent with 
State of California conservation guidelines previously found to meet the 
standards set forth in Sec. 222.307(c) of this chapter by NMFS.

[64 FR 14069, Mar. 23, 1999]



Sec. 223.205  Sea turtles.

    (a) The prohibitions of section 9 of the Act (16 U.S.C. 1538) 
relating to endangered species apply to threatened species of sea 
turtle, except as provided in Sec. 223.206.
    (b) Except as provided in Sec. 223.206, it is unlawful for any 
person subject to the jurisdiction of the United States to do any of the 
following:
    (1) Own, operate, or be on board a vessel, except if that vessel is 
in compliance with all applicable provisions of Sec. 223.206(d);
    (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. 223.206(d);
    (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. 223.206(d)(3) or (d)(4);
    (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. 223.206(d)(1);
    (6) Possess a sea turtle in any manner contrary to the handling and 
resuscitation requirements of Sec. 223.206(d)(1);
    (7) Fail to comply immediately, in the manner specified at 
Sec. 600.730 (b) through (d) of this Title, with instructions and 
signals specified therein issued by an authorized officer, including 
instructions and signals to haul back a net for inspection;

[[Page 138]]

    (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 223;
    (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 B 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. 223.207 (c) or (d) 
has the burden of proving such claim.

[64 FR 14069, Mar. 23, 1999]



Sec. 223.206  Exceptions to prohibitions relating to sea turtles.

    (a) Permits--(1) Scientific research, education, zoological 
exhibition, or species enhancement permits. The Assistant Administrator 
may issue permits authorizing activities which would otherwise be 
prohibited under Sec. 223.205(a) for scientific or educational purposes, 
for zoological exhibition, or to enhance the propagation or survival of 
threatened species of sea turtles, in accordance with and subject to the 
conditions of part 222, subpart C--General Permit Procedures.
    (2) Incidental-take permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
Sec. 223.205(a) 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 
implementing regulations in part 222 of this chapter. Such permits may 
be issued for the incidental taking of threatened and endangered species 
of sea turtles.
    (b) Exception for injured, dead, or stranded specimens. If any 
member of any threatened species of sea turtle 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. Whenever 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

[[Page 139]]

environment or disposed of. Reports shall be mailed by registered or 
certified mail, return receipt requested, to the Assistant Administrator 
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.
    (c) 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 the Assistant Administrator's 
discretion.
    (d) Exception for incidental taking. The prohibitions against taking 
in Sec. 223.205(a) do not apply to the incidental take of any member of 
a threatened species of sea turtle (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 all applicable 
requirements of paragraphs (d)(1) through (d)(5) of this section, or in 
compliance with the terms and conditions of an incidental take permit 
issued pursuant to paragraph (a)(2) of this section.
    (1) Handling and resuscitation requirements. (i) Any specimen taken 
incidentally during the course of fishing or scientific research 
activities 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:
    (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 taken incidentally during the course of fishing or 
scientific research activities must not be consumed, sold, landed, 
offloaded, transshipped, or kept below deck.
    (2) Gear requirements--(i) TED requirement for shrimp trawlers. Any 
shrimp trawler that is in the Atlantic Area or Gulf Area must have an 
approved TED 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. Exceptions to the TED requirement for shrimp 
trawlers are provided in paragraph (d)(2)(ii) of this section.

[[Page 140]]

    (ii) Exemptions from the TED requirement--(A) Alternative tow-time 
restrictions. A shrimp trawler is exempt from the TED requirements of 
paragraph (d)(2)(i) of this section if it complies with the alternative 
tow-time restrictions in paragraph (d)(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; and
    (4) Is in an area during a period for which tow-time restrictions 
apply under paragraphs (d)(3) (ii) or (iii) of this section, if it 
complies with all applicable provisions imposed under those paragraphs.
    (B) Exempted gear or activities. The following fishing gear or 
activities are exempted from the TED requirements of paragraph (d)(2)(i) 
of this section:
    (1) 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;
    (2) A beam or roller trawl, if the frame is outfitted with rigid 
vertical bars, and if none of the spaces between the bars, or between 
the bars and the frame, exceeds 4 inches (10.2 cm); and
    (3) A shrimp trawler fishing for, or possessing, royal red shrimp, 
if royal red shrimp constitutes at least 90 percent (by weight) of all 
shrimp either found on board, or offloaded from that shrimp trawler.
    (iii) Gear requirement--summer flounder trawlers--(A) TED 
requirement. Any summer flounder trawler in the summer flounder fishery-
sea turtle protection area must have an approved TED 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. Exceptions to the TED requirement for summer flounder trawlers 
are provided in paragraph (d)(2)(iii)(B) of this section.
    (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 
(d)(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 (d)(4) of this 
section.
    (C) Monitoring. Summer flounder trawlers must carry onboard a NMFS-
approved observer if requested by the Southeast Regional Administrator 
or the Northeast Regional Administrator. A written notification will be 
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. Information collected by 
observers 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 the Assistant Administrator deems necessary or appropriate 
to protect sea turtles and ensure compliance, pursuant to the procedures 
of paragraph (d)(4) 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.

[[Page 141]]

    (iv) Gear requirement--leatherback conservation zone--(A) 
Leatherback surveys. From January 1 through June 30 of each year, weekly 
aerial surveys will be conducted in the leatherback conservation zone by 
NMFS or state agents, contingent upon weather conditions. 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 
paragraph (d)(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 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. 
This closure will be for a 2-week period. 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 Sec. 223.207(a)(7)(ii)(B) or, prior to 
October 13, 1999, Sec. 223.207(c)(1)(iv)(B), and the owner or operator 
of the shrimp trawler has notified the Southeast Regional Administrator 
of his or her intention to fish in that area, in accordance with the 
procedure provided in paragraph (d)(5) of this section. If requested in 
writing from the Southeast Regional Administrator, 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 paragraph (d)(2)(ii), (d)(3)(ii), 
or (d)(3)(iii) of this section, a shrimp trawler must limit tow times. 
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. Tow times may not 
exceed:
    (A) 55 minutes from April 1 through October 31; and
    (B) 75 minutes from November 1 through March 31.
    (ii) Alternative--special environmental conditions. The Assistant 
Administrator may allow compliance with tow-time restrictions, as an 
alternative to the TED requirement of paragraph (d)(2)(i) of this 
section, if the Assistant Administrator determines that the presence of 
algae, seaweed, debris or other special environmental conditions in a 
particular area makes trawling with TED-equipped nets impracticable.
    (iii) Substitute--ineffectiveness of TEDs. The Assistant 
Administrator may require compliance with tow-time restrictions, as a 
substitute for the TED requirement of paragraph (d)(2)(i) of this 
section, if the Assistant Administrator 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 paragraph (d)(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 
substitute for, the TED requirements. The notification will specify the 
effective dates, the geographic area where

[[Page 142]]

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, to register 
vessels in accordance with procedures at paragraph (d)(5) of this 
section, 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) 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 
necessitating 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) Limitations on incidental takings during fishing activities--(i) 
Limitations. The exemption for incidental takings of sea turtles in 
paragraph (d) 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 
(d)(2) of this section. The Assistant Administrator will take such 
action if the Assistant Administrator 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

[[Page 143]]

use TEDs, registration of vessels in accordance with procedures at 
paragraph (d)(5) of this section, and requirements to provide observers. 
Notification of withdrawal or modification will include findings in 
support of that action.
    (iv) 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.
    (5) Registration. If the Assistant Administrator imposes 
restrictions under paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), or 
(d)(4)(ii) of this section, the Assistant Administrator 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:
    (i) The name and official number (or registration number) of the 
vessel;
    (ii) The names, mailing and street addresses, and telephone numbers 
of the vessel owner and operator;
    (iii) The permit number or other identification of relevant state or 
Federal fishing permit(s);
    (iv) Where and when the vessel intends to fish;
    (v) Where and when the vessel will depart on any fishing trip, with 
sufficient specificity to allow for an observer to embark on the trip; 
and
    (vi) Any changes in the information submitted under paragraphs 
(d)(5)(i) through (d)(5)(v) of this section. Failure to do so 
immediately will void the registration, rendering unlawful any 
subsequent entry of the fishing vessel into the area where and during 
the time when the restrictions apply.

[64 FR 14070, Mar. 23, 1999]

    Effective Date Note: At 64 FR 14070, Mar. 23, 1999, newly 
redesignated Sec. 223.206 was revised. Paragraph (d)(5) contains 
information collection requirements and will not become effective until 
approval has been given by the Office of Management and Budget.



Sec. 223.207  Approved TEDs.

    Any netting, webbing, or mesh that may be measured to determine 
compliance with this section is subject to measurement, regardless of 
whether it is wet or dry. Any such measurement will be of the stretched 
mesh size.
    (a) 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 to this part), or ``single-grid hard TEDs,'' such as the 
Matagorda and Georgia TEDs (Figures 3 & 4 to this part). Hard TEDs 
complying with the following generic design criteria are approved TEDs:
    (1) Construction materials. A hard TED must be constructed of one or 
a combination of the following materials, with minimum dimensions as 
follows:
    (i) Solid steel rod with a minimum outside diameter of \1/4\ inch 
(0.64 cm);
    (ii) Fiberglass or aluminum rod with a minimum outside diameter of 
\1/2\ inch (1.27 cm); or
    (iii) 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).
    (2) Method of attachment. A hard TED must be sewn into the trawl 
around the entire circumference of the TED with heavy twine.
    (3) Angle of deflector bars. (i) The angle of the deflector bars 
must be between 30 deg. and 55 deg. from the normal, horizontal flow 
through the interior of the trawl, except as provided in paragraph 
(a)(3)(ii) of this section.
    (ii) 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 the net when the net is in its deployed position, the 
angle of the deflector bars from the normal, horizontal flow

[[Page 144]]

through the interior of the trawl, at any point, must not exceed 
55 deg., and:
    (A) 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 45 deg. (Figures 14a and 14b to this part);
    (B) 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 45 deg. 
(Figure 15 to this part).
    (4) Space between bars. The space between deflector bars and between 
the deflector bars and the frame must not exceed 4 inches (10.2 cm).
    (5) 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.
    (6) 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.
    (7) Size of escape opening--(i) Hooped hard TED. 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.
    (ii) Single-grid hard TED--(A) Escape opening for standard single-
grid hard TED. 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 to 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.
    (B) 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 to 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).
    (8) Size of hoop or grid--(i) Hooped hard TED. (A) An oval front 
hoop on a hard TED must have an inside horizontal measurement of at 
least 32

[[Page 145]]

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.
    (B) 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.
    (ii) 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.
    (9) 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 of the TED. 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 (a)(9)(i) of this section, or the buoyancy requirements of 
paragraph (a)(9)(ii) of this section, or the buoyancy-dimension 
requirements of paragraph (a)(9)(iii) of this section. If roller gear is 
used pursuant to paragraph (d)(5) of this section, the roller gear must 
be included in the circumference measurement of the TED or the total 
weight of the TED.
    (i) Float dimension requirements. (A) 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.
    (B) 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.
    (ii) 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:
    (A) Float buoyancy markings. Markings on floats 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.
    (B) TED weight markings. The marking must be made by the original 
TED manufacturer and must be permanent and clearly legible. 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 the original 
manufacturer. Where a TED is comprised of multiple detachable 
components, the weight of each component must be separately marked.
    (iii) Buoyancy-dimension requirements. Floats of any size and in any 
combination, provided that they are marked pursuant to paragraph 
(a)(9)(ii)(A) of this section, must be attached such that the combined 
buoyancy of the floats equals or exceeds the following values:
    (A) For floats constructed of aluminum or hard plastic, regardless 
of the size of the TED grid, the combined

[[Page 146]]

buoyancy must equal or exceed 14 lb (6.4 kg);
    (B) 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
    (C) 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).
    (b) Special Hard TEDs. Special hard TEDs are hard TEDs which do not 
meet all of the design and construction criteria of the generic 
standards specified in paragraph (a) of this section. The following 
special hard TEDs are approved TEDs:
    (1) Flounder TED (Figure 10 to this part). The Flounder TED is 
approved for use only in the Atlantic summer flounder bottom trawl 
fishery. The Flounder TED is not an approved TED for use by shrimp 
trawlers. 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. 
One or more additional vertical bars running from the bottom bar to the 
horizontal bar must divide the opening at the bottom into two or more 
rectangles, each with a maximum height of 10 inches (25.4 cm) and a 
maximum width of 14\1/2\ inches (36.8 cm). This TED must comply with 
paragraphs (a)(2), (a)(3), (a)(6), and (a)(7)(ii) 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.
    (2) Jones TED (Figure 11 to 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 (a)(2), (a)(3), (a)(6), (a)(7)(ii), (a)(8)(ii), and (a)(9) 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.
    (c) 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:
    (1) 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.
    (i) Excluder Panel. (Figure 5 to this part) The excluder panel of 
the Parker TED must be constructed of a single triangular piece of 8-
inch (20.3 cm)

[[Page 147]]

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.
    (ii) 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.
    (iii) Panel installation--(A) 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:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 152-168 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 161-178 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 182-202 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 196-216 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 228-252 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 249-275 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 274-302 meshes.
    (B) 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, depending 
on the stretched mesh size used in the trawl:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 78-83 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 83-88 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 93-99 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 100-106 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 107-114 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 114-124 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 127-135 meshes; and

[[Page 148]]

    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 137-146 meshes.
    (C) 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, the 
crossings must be distributed evenly over the length of the side 
attachment.
    (iv) Escape opening. The escape opening for the Parker soft TED must 
match one of the following specifications:
    (A) 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.
    (B) 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 Sec. 223.206(d)(2)(iv)(B).
    (2) [Reserved]
    (d) Allowable modifications to hard TEDs and special hard TEDs. 
Unless otherwise prohibited in paragraph (b) of this section, only the 
following modifications may be made to an approved hard TED or an 
approved special hard TED:
    (1) Floats. In addition to floats required pursuant to paragraph 
(a)(9) 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.
    (2) 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 inside 
horizontal 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 bottom-
opening TED, only the top \1/3\ of the circumference of the funnel may 
be attached to the TED. In a top-opening TED, only the bottom \1/3\ of 
the circumference of the funnel may be attached to the TED.
    (3) Webbing flap. A webbing flap may be used to cover the escape 
opening under the following conditions: No device holds it closed or 
otherwise 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

[[Page 149]]

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.
    (4) 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.
    (5) 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:
    (i) 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.
    (ii) 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.
    (e) Revision of generic design criteria, and approval of TEDs, of 
allowable modifications of hard TEDs, and of special hard TEDs. (1) The 
Assistant Administrator may revise the generic design criteria for hard 
TEDs set forth in paragraph (a) of this section, may approve special 
hard TEDs in addition to those listed in paragraph (b) of this section, 
may approve allowable modifications to hard TEDs in addition to those 
authorized in paragraph (d) 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, 75 
Virginia Beach Dr., Miami, FL 33149-1003.
    (2) 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 Sec. 223.206(d)(2). 
Applications should be made to the Southeast Regional Administrator (see 
Sec. 222.102

[[Page 150]]

definition of ``Southeast Regional Administrator'').

[64 FR 14073, Mar. 23, 1999]

    Effective Date Note: At 64 FR 14073, Mar. 23, 1999, Sec. 223.207 was 
added. Paragraphs (a)(9)(ii)(A) and (B) contain information and 
collection requirements and will not become effective until approved by 
the Office of Management and Budget.

[[Page 151]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.045

                     Figure 1 to Part 223--NMFS TED

[60 FR 15519, Mar. 24, 1995]

[[Page 152]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.046

                    Figure 2 to Part 223--Cameron TED

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

[[Page 153]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.047

                   Figure 3 to Part 223--Matagorda TED

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

[[Page 154]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.048

                    Figure 4 to Part 223--Georgia TED

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

[[Page 155]]

[GRAPHIC] [TIFF OMITTED] TR13AP98.001

 Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
                                Soft TED

[63 FR 17958, Apr. 13, 1998]

[[Page 156]]

                  Figures 6-9b to Part 223  [Reserved]
[GRAPHIC] [TIFF OMITTED] TC01JY91.056

                   Figure 10 to Part 223--Flounder TED

[58 FR 54069, Oct. 20, 1993]

[[Page 157]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.057

                    Figure 11 to Part 223--Jones TED

[58 FR 54070, Oct. 20, 1993]

[[Page 158]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.058

        Figure 12A to Part 223--Attachment of the Exit Hole Cover

[59 FR 25830, May 18, 1994]

[[Page 159]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.059

        Figure 12B to Part 223--Grid TED Leatherback Modification

[59 FR 25831, May 18, 1994]

[[Page 160]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.060

       Figure 13 to Part 223--Single Grid Hard TED Escape Opening

[60 FR 15520, Mar. 24, 1995]

[[Page 161]]

 Figure 14A to Part 223--Maximum Angle of Deflector Bars With Straight 
                Bars Attached to the Bottom of the Frame
[GRAPHIC] [TIFF OMITTED] TR19DE96.002

 Figure 14B to Part 223--Maximum Angle of Deflector Bars With Bent Bars 
                   Attached to the Bottom of the Frame

[61 FR 66946, Dec. 19, 1996]

[[Page 162]]

[GRAPHIC] [TIFF OMITTED] TR19DE96.003

    Figure 15 to Part 223--Maximum Angle of Deflector Bars With Bars 
                  Unattached to the Bottom of the Frame

[61 FR 66947, Dec. 19, 1996]



PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES--Table of Contents




Sec.
224.101  Enumeration of endangered marine and anadromous species.
224.102  Permits for endangered marine and anadromous species.
224.103  Special prohibitions for endangered marine mammals.
224.104  Incidental capture of endangered sea turtles.

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

    Source: 64 FR 14066, Mar. 23, 1999, unless otherwise noted.



Sec. 224.101  Enumeration of endangered marine and anadromous species.

    The marine and anadromous species determined by the Secretary of 
Commerce to be endangered pursuant to section 4(a) of the Act, as well 
as species listed under the Endangered Species Conservation Act of 1969 
by the Secretary of the Interior and currently under the jurisdiction of 
the Secretary of Commerce, are the following:
    (a) Marine and anadromous fish. Shortnose sturgeon (Acipenser 
brevirostrum); Totoaba (Cynoscian macdonaldi), Snake River sockeye 
salmon (Oncorhynchus nerka), Umpqua River cutthroat trout (Oncorhynchus 
clarki clarki); Southern California steelhead (Oncorhynchus mykiss), 
including 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), 
including the Wells Hatchery stock and all naturally spawned populations 
of steelhead (and

[[Page 163]]

their progeny) in streams in the Columbia River Basin upstream from the 
Yakima River, Washington, to the United States--Canada Border; Upper 
Columbia River spring-run chinook salmon (Oncorhynchus tshawytscha), 
including all naturally spawned populations of chinook salmon in 
Columbia River tributaries upstream of the Rock Island Dam and 
downstream of Chief Joseph Dam in Washington (excluding the Okanogan 
River), 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) upstream to Chief Joseph 
Dam in Washington, and the Chiwawa River (spring run), Methow River 
(spring run), Twisp River (spring run), Chewuch River (spring run), 
White River (spring run), and Nason Creek (spring run) hatchery stocks 
(and their progeny); Sacramento River winter-run chinook salmon 
(Oncorhynchus tshawytscha).
    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); Indus 
River dolphin (Platanista minor); Mediterranean monk seal (Monachus 
monachus); Right whales (Eubalaena spp.); Saimaa seal (Phoca hispida 
saimensis); Sei whale (Balaenoptera borealis); Sperm whale (Physeter 
catodon); Western North Pacific (Korean) gray whale (Eschrichtius 
robustus); Steller sea lion, western population, (Eumetopias jubatus), 
which consists of Stellar sea lions from breeding colonies located west 
of 144 deg. W. longitude.
    (c) Sea turtles. Green turtle (Chelonia mydas) breeding colony 
populations in Florida and on the Pacific coast of Mexico; Hawksbill 
turtle (Eretmochelys imbricata); Kemp's ridley turtle (Lepidochelys 
kempii); Leatherback turtle (Dermochelys coriacea); Olive ridley turtle 
(Lepidochelys olivacea) breeding colony population on the Pacific coast 
of Mexico.

    Note to Sec. 224.101(c):  Jurisdiction for sea turtles by the 
Department of Commerce, National Oceanic and Atmospheric Administration, 
National Marine Fisheries Service, is limited to turtles while in the 
water.

[64 FR 14066, Mar. 23, 1999, as amended 64 FR 14328, Mar. 24, 1999]



Sec. 224.102  Permits for endangered marine and anadromous species.

    No person shall take, import, export, or engage in any activity 
prohibited by section 9 of the Act involving any marine species that has 
been determined to be endangered under the Endangered Species 
Conservation Act of 1969 or the Act, and that is under the jurisdiction 
of the Secretary, without a valid permit issued pursuant to part 222, 
subpart C of this chapter.



Sec. 224.103  Special prohibitions for endangered marine mammals.

    (a) Approaching humpback whales in Hawaii. Except as provided in 
part 222, subpart C, of this chapter (General Permit Procedures), 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):
    (1) Operate any aircraft within 1,000 feet (300 m) of any humpback 
whale;
    (2) Approach, by any means, within 100 yard (90 m) of any humpback 
whale;
    (3) Cause a vessel or other object to approach within 100 yd (90 m) 
of a humpback whale; or
    (4) 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.

[[Page 164]]

    (b) Approaching North Atlantic right whales--(1) Prohibitions. 
Except as provided under paragraph (b)(3) 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:
    (i) Approach (including by interception) within 500 yards (460 m) of 
a right whale by vessel, aircraft, or any other means;
    (ii) Fail to undertake required right whale avoidance measures 
specified under paragraph (b)(2) of this section.
    (2) Right whale avoidance measures. Except as provided under 
paragraph (b)(3) of this section, the following avoidance measures must 
be taken if within 500 yards (460 m) of a right whale:
    (i) If underway, a vessel must steer a course away from the right 
whale and immediately leave the area at a slow safe speed.
    (ii) An aircraft must take a course away from the right whale and 
immediately leave the area at a constant airspeed.
    (3) 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 applies:
    (i) Paragraphs (b)(1) and (b)(2) of this section do not apply if a 
right whale approach is authorized by the National Marine Fisheries 
Service through a permit issued under part 222, subpart C, of this 
chapter (General Permit Procedures) or through a similar authorization.
    (ii) Paragraphs (b)(1) and (b)(2) of this section do not apply where 
compliance would create an imminent and serious threat to a person, 
vessel, or aircraft.
    (iii) Paragraphs (b)(1) and (b)(2) 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 the National Marine Fisheries Service or 
designee prior to the approach.
    (iv) Paragraphs (b)(1) and (b)(2) of this section do not apply to an 
aircraft unless the aircraft is conducting whale watch activities.
    (v) Paragraph (b)(2) 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)(2) of this section.
    (c) Special prohibitions relating to endangered Steller sea lion 
protection. The regulatory provisions set forth in part 223 of this 
chapter, 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.



Sec. 224.104  Incidental capture of endangered sea turtles.

    (a) Shrimp fishermen in the southeastern United States and the Gulf 
of Mexico who comply with rules for threatened sea turtles specified in 
Sec. 223.206 of this chapter will not be subject to civil penalties 
under the Act for incidental captures of endangered sea turtles by 
shrimp trawl gear.
    (b) Summer flounder fishermen in the Summer flounder fishery-sea 
turtle protection area who comply with rules for threatened sea turtles 
specified in Sec. 223.206 of this chapter will not be subject to civil 
penalties under the Act for incidental captures of endangered sea 
turtles by summer flounder gear.
    (c) Special prohibitions relating to leatherback sea turtles are 
provided at Sec. 223.206(d)(2)(iv) of this chapter.

                          PART 225  [RESERVED]



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




Sec.
226.101  Purpose and scope.
226.201  Critical habitat for Hawaiian monk seals.
226.202  Critical habitat for Steller sea lions.
226.203  Critical habitat for Northern right whales.
226.204  Critical habitat for Sacramento winter-run chinook salmon.
226.205  Critical habitat for Snake River sockeye salmon, Snake River 
          fall chinook salmon, and Snake River spring/summer chinook 
          salmon.
226.206  Critical habitat for Umpqua River cutthroat trout.

[[Page 165]]

226.207  Critical habitat for leatherback turtle.
226.208  Critical habitat for green turtle.
226.209  Critical habitat for hawksbill turtle.
226.210  Central California Coast Coho Salmon (Oncorhynchus kisutch), 
          Southern Oregon/Northern California Coasts Coho Salmon 
          (Oncorhynchus kisutch).

Table 1 to Part 226--Major Steller Sea Lion Rookery Sites
Table 2 to Part 226--Major Steller Sea Lion Haulout Sites in Alaska
Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for 
          Snake River Sockeye Salmon and Snake River Spring/Summer and 
          Fall Chinook Salmon
Table 4 to Part 226--Hydrologic Units Containing Critical Habitat for 
          Endangered Umpqua River Cutthroat Trout and Counties Contained 
          in Each Hydrologic Unit
Table 5 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Central California Coast Coho Salmon, Tribal Lands 
          within the Range of the ESU, and Dams/Reservoirs Representing 
          the Upstream Extent of Critical Habitat
Table 6 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Southern Oregon/Northern California Coasts Coho 
          Salmon, Tribal Lands Within the Range of the ESU, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat

    Authority: 16 U.S.C. 1533.



Sec. 226.101  Purpose and scope.

    The regulations contained in this part identify those habitats 
designated by the Secretary of Commerce as critical under section 4 of 
the Act, for endangered and threatened species under the jurisdiction of 
the Secretary of Commerce. Those species are enumerated at Sec. 223.102 
of this chapter, if threatened and at Sec. 224.101 of this chapter, if 
endangered. For regulations pertaining to the designation of critical 
habitat, see part 424 of this title, and for regulations pertaining to 
prohibitions against the adverse modification or destruction of critical 
habitat, see part 402 of this title. Maps and charts identifying 
designated critical habitat that are not provided in this section may be 
obtained upon request to the Office of Protected Resources (see 
Sec. 222.102, definition of ``Office of Protected Resources'').

[64 FR 14067, Mar. 23, 1999]



Sec. 226.201  Critical habitat for Hawaiian monk seals.

                           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).

[[Page 166]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.000


[[Page 167]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.001


[[Page 168]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.002


[[Page 169]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.003


[[Page 170]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.004


[[Page 171]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.005


[[Page 172]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.006


[[Page 173]]


[GRAPHIC] [TIFF OMITTED] TC01JY91.007

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

[[Page 174]]



Sec. 226.202  Critical habitat for Stellar sea lions.

                  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 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 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 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. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.203  Critical habitat for Northern right whales.

               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.
    (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.
    (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

[[Page 175]]

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. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.204  Critical habitat for Sacramento winter-run chinook salmon.

    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.

[58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. 
Mar. 23, 1999]



Sec. 226.205  Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon, and Snake River spring/summer chinook salmon.

    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. 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, 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,

[[Page 176]]

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. 
Redesignated and amended at 64 FR 14067, Mar. 23, 1999]



Sec. 226.206  Critical habitat for Umpqua River cutthroat trout.

    (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, when both sides of the stream 
channel are included) or from the shoreline of a standing body of water. 
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, 1987, and the following DOI, USGS, 
1:500,000 scale hydrologic unit map:

[[Page 177]]

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. Redesignated and amended at 64 FR 14067, 
14068, Mar. 23, 1999, as amended at 64 FR 24061, May 5, 1999]



Sec. 226.207  Critical habitat for leatherback turtle.

[44 FR 17711, Mar. 23, 1979. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]

              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. 226.208  Critical habitat for green turtle.

    (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. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.209  Critical habitat for hawksbill turtle.

    (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. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.210  Central California Coast Coho Salmon (Oncorhynchus kisutch), Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).

    Critical habitat is designated to include all river reaches 
accessible to listed coho within the range of the ESUs listed, except 
for reaches on Indian lands defined in Tables 5 and 6 to this part. 
Critical habitat consists of the water, substrate, and adjacent riparian 
zone of estuarine and riverine reaches in hydrologic units and counties 
identified in Tables 5 and 6 to this part for all of the coho ESUs 
listed in

[[Page 178]]

this section. Accessible reaches are those within the historical range 
of the ESUs that can still be occupied by any life stage of coho salmon. 
Inaccessible reaches are those above longstanding, naturally impassable 
barriers (i.e., natural waterfalls in existence for at least several 
hundred years) and specific dams within the historical range of each ESU 
identified in Tables 5 and 6 to this part. 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, 
1987, and the following DOI, USGS, 1:500,000 scale hydrologic unit maps: 
State of Oregon, 1974 and State of California, 1978 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, Protected Resources Division, 525 NE Oregon 
Street--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.
    (a) Central California Coast Coho Salmon (Oncorhynchus kisutch). 
Critical habitat is designated to include all river reaches accessible 
to listed coho salmon from Punta Gorda in northern California south to 
the San Lorenzo River in central California, including Arroyo Corte 
Madera Del Presidio and Corte Madera Creek, tributaries to San Francisco 
Bay. Critical habitat consists of the water, substrate, and adjacent 
riparian zone of estuarine and riverine reaches (including off-channel 
habitats) in hydrologic units and counties identified in Table 5 of this 
part. Accessible reaches are those within the historical range of the 
ESU that can still be occupied by any life stage of coho salmon. 
Inaccessible reaches are those above specific dams identified in Table 5 
of this part or above longstanding, naturally impassable barriers (i.e., 
natural waterfalls in existence for at least several hundred years).
    (b) Southern Oregon/Northern California Coasts Coho Salmon 
(Oncorhynchus kisutch). Critical habitat is designated to include all 
river reaches accessible to listed coho salmon between Cape Blanco, 
Oregon, and Punta Gorda, California. Critical habitat consists of the 
water, substrate, and adjacent riparian zone of estuarine and riverine 
reaches (including off-channel habitats) in hydrologic units and 
counties identified in Table 6 of this part. Accessible reaches are 
those within the historical range of the ESU that can still be occupied 
by any life stage of coho salmon. Inaccessible reaches are those above 
specific dams identified in Table 6 of this part or above longstanding, 
naturally impassable barriers (i.e., natural waterfalls in existence for 
at least several hundred years).

[64 FR 24061, May 5, 1999]

        Table 1 to Part 226--Major Stellar Sea Lion Rookery Sites

    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.

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

[[Page 179]]

 
        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     52 21.0N..........  172 35.0W.........  52 21.0N..........  172 33.0W
         \1\.
        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     54 18.0N..........  165 32.5W.........  54 18.0N..........  165 31.5W
         \1\.
        Akutan I./Cape Morgan     54 03.5N..........  166 00.0W.........  54 05.5N..........  166 05.0W
         \1\.
        Bogoslof I.\1\ \2\......  53 56.0N..........  168 02.0W.........
        Ogchul I.\1\............  53 00.0N..........  168 24.0W.........
        Sea Lion Rocks. (Amak)    55 28.0N..........  163 12.0W.........
         \1\.
        Ugamak I.\1\............  54 14.0N..........  164 48.0W.........  54 13.0N..........  164 48.0W
    Bering Sea:
        Walrus I.\1\............  57 11.0N..........  169 56.0W.........
    Western Gulf of Alaska:
        Atkins I.\1\............  55 03.5N..........  159 18.5W.........
        Chernabura I.\1\........  54 47.5N..........  159 31.0W.........  54 45.5N..........  159 33.5W
        Clubbing Rocks (N) \1\..  54 43.0N..........  162 26.5W.........
        Clubbing Rocks (S) \1\..  54 42.0N..........  162 26.5W.........
        Pinnacle Rock \1\.......  54 46.0N..........  161 46.0W.........
    Central Gulf of Alaska:
        Chirikof I.\1\..........  55 46.5N..........  155 39.5W.........  55 46.5N..........  155 43.0W
        Chowiet I.\1\...........  56 00.5N..........  156 41.5W.........  56 00.5N..........  156 42.0W
        Marmot I.\1\............  58 14.5N..........  151 47.5W.........  58 10.0N..........  151 51.0W
        Outer I.\1\.............  59 20.5N..........  150 23.0W.........  59 21.0N..........  150 24.5W
        Sugarloaf I.\1\.........  58 53.0N..........  152 02.0W.........
    Eastern Gulf of Alaska:
        Seal Rocks \1\..........  60 10.0N..........  146 50.0W.........
        Fish I.\1\..............  59 53.0N..........  147 20.5W.........
    Southeast Alaska:
        Forrester I.............  54 51.0N..........  133 32.0W.........  54 52.5N..........  133 35.5W
        Hazy I..................  55 52.0N..........  134 34.0W.........  55 51.5N..........  134 35.0W
        White Sisters...........  57 38.0N..........  136 15.5W.........
Oregon:
    Rogue Reef: Pyramid Rock....  42 26.4N..........  124 28.1W.........
    Orford Reef:
        Long Brown Rock.........  42 47.3N..........  124 36.2W.........
        Seal Rock...............  42 47.1N..........  124 35.4W.........
California:
    Ano Nuevo I.................  37 06.3N..........  122 20.3W.........
    Southeast Farallon I........  37 41.3N..........  123 00.1W.........
    Sugarloaf I. & Cape           40 26.0N..........  124 24.0W ........
     Mendocino.
----------------------------------------------------------------------------------------------------------------
\1\ Includes an associated 20 NM aquatic zone.
\2\ Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.

[58 FR 45278, Aug. 27, 1993]

   Table 2 to Part 226--Major Stellar Sea Lion Haulout Sites in Alaska

    Major Steller sea lion haulout sites in 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 180]]



----------------------------------------------------------------------------------------------------------------
                                                                  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    51 50.0N..........  177 20.0E.........  51 48.5N..........  177 20.5E
         \1\.
        Little Sitkin I.\1\.....  51 59.5N..........  178 30.0E.........  ..................  ..................
        Little Tanaga I.\1\.....  51 50.5N..........  176 13.0W.........  51 49.0N..........  176 13.0W
        Sagigik I.\1\...........  52 00.5N..........  173 08.0W.........  ..................  ..................
        Seguam I:
            South \1\...........  52 19.5N..........  172 18.0W.........  52 15.0N..........  172 37.0W
            Finch Pt.\1\........  52 23.5N..........  172 25.5W.........  52 23.5N..........  172 24.0W
        Segula I.\1\............  52 00.0N..........  178 06.5E.........  52 03.5N..........  178 09.0E
        Tanaga I.\1\............  51 55.0N..........  177 58.5W.........  51 55.0N..........  177 57.0W
        Tanadak I. (Amlia) \1\..  52 04.5N..........  172 57.0W.........  ..................  ..................
        Tanadak I. (Kiska) \1\..  51 57.0N..........  177 47.0E.........  ..................  ..................
        Ugidak I.\1\............  51 35.0N..........  178 30.5W.........  ..................  ..................
        Uliaga I.\1\............  53 04.0N..........  169 47.0W.........  53 05.0N..........  169 46.0W
        Unalga & Dinkum Rocks     51 34.0N..........  179 04.0W.........  51 34.5N..........  179 03.0W
         \1\.
    Eastern Aleutians:
        Akutan I./Reef-Lava \1\.  54 10.5N..........  166 04.5W.........  54 07.5N..........  166 06.5W
        Amak I.\1\..............  55 24.0N..........  163 07.0W.........  55 26.0N..........  163 10.0W
        Cape Sedanka & Island     53 50.5N..........  166 05.0W.........  ..................  ..................
         \1\.
        Emerald I.\1\...........  53 17.5N..........  167 51.5W.........  ..................  ..................
        Old Man Rocks \1\.......  53 52.0N..........  166 05.0W.........  ..................  ..................
        Polivnoi Rock \1\.......  53 16.0N..........  167 58.0W.........  ..................  ..................
        Tanginak I.\1\..........  54 13.0N..........  165 19.5W.........  ..................  ..................
        Tigalda I.\1\...........  54 08.5N..........  164 58.5W.........  ..................  ..................
        Umnak I./Cape Aslik \1\.  53 25.0N..........  168 24.5W.........  ..................  ..................
    Bering Sea:
        Cape Newenham \1\.......  58 39.0N..........  162 10.5W.........  ..................  ..................
        Hall I.\1\..............  60 37.0N..........  173 00.0W.........  ..................  ..................
        Round I.\1\.............  58 36.0N..........  159 58.0W.........  ..................  ..................
        St. Paul I:
            Northeast Point \1\.  57 15.0N..........  170 06.5W.........  ..................  ..................
            Sea Lion Rock \1\...  57 06.0N..........  170 17.5W.........  ..................  ..................
        St. George I:
            S Rookery \1\.......  56 33.5N..........  169 40.0W.........  ..................  ..................
            Dalnoi Point \1\....  56 36.0N..........  169 46.0W.........  ..................  ..................
        St. Lawrence I:
            S Punuk I.\1\.......  64 04.0N..........  168 51.0W.........  ..................  ..................
            SW Cape \1\.........  63 18.0N..........  171 26.0W.........  ..................  ..................
    Western Gulf of Alaska:
        Bird I. \1\.............  54 40.5N..........  163 18.0W.........    ................
        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)     55 04.5N..........  160 31.0W.........  ..................  ..................
         \1\.
        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.........  ..................  ..................

[[Page 181]]

 
    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)   58 21.0N..........  151 48.5W.........  ..................  ..................
         \1\.
        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.........    ................
        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]

  Table 3.--Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and 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

[[Page 182]]

 
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 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]

 Table 5 to Part 226--Hydrologic Units and Counties Containing Critical 
 Habitat for Central California Coast Coho Salmon, Tribal Lands within 
  the Range of the ESU, and Dams/Reservoirs Representing the Upstream 
                       Extent of Critical Habitat

----------------------------------------------------------------------------------------------------------------
                                                      Counties and tribal lands
                                        Hydrologic   contained in hydrologic unit
        Hydrologic  unit name            unit No.    and within the range of ESU1        Dams (reservoirs)
                                                                  2
----------------------------------------------------------------------------------------------------------------
San Lorenzo-Soquel...................     18060001  Santa Cruz (CA), San Mateo     Newell Dam (Loch Lomond).
                                                     (CA).
San Francisco Coastal South..........     18050006  San Mateo (CA)...............
San Pablo Bay........................     18050002  Marin (CA), Napa (CA)........  Phoenix Dam (Phoenix Lake).
Tomales-Drake Bays...................     18050005  Marin (CA), Sonoma (CA)......  Peters Dam (Kent Lake);
                                                                                    Seeger Dam (Nicasio
                                                                                    Reservoir).
Bodega Bay...........................     18010111  Marin (CA), Sonoma (CA)......
Russian..............................     18010110  Sonoma (CA), Mendocino (CA)--  Warm Springs Dam (Lake
                                                     Cloverdale Rancheria; Coyote   Sonoma); Coyote Dam (Lake
                                                     Valley Rancheria; Dry Creek    Mendocino).
                                                     Rancheria; Guidiville
                                                     Rancheria; Hopland
                                                     Rancheria; Lytton Rancheria;
                                                     Pinoleville Rancheria;
                                                     Stewarts Point Rancheria.
Gualala-Salmon.......................     18010109  Sonoma (CA), Mendocino (CA)..

[[Page 183]]

 
Big-Navarro-Garcia...................     18010108  Mendocino (CA)--Manchester/
                                                     Point Arena Rancheria;.
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
  habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
  basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.

[64 FR 24061, May 5, 1999]

 Table 6 to Part 226--Hydrologic Units and Counties Containing Critical 
  Habitat for Southern Oregon/Northern California Coasts Coho Salmon, 
     Tribal Lands within the Range of the ESU, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat

----------------------------------------------------------------------------------------------------------------
                                                      Counties and tribal lands
                                        Hydrologic   contained in hydrologic unit
         Hydrologic unit name            unit No.    and within the range of ESU1        Dams (reservoirs)
                                                                  2
----------------------------------------------------------------------------------------------------------------
Mattole..............................     18010107  Humboldt (CA), Mendocino (CA)
South Fork Eel.......................     18010106  Mendocino (CA), Humboldt
                                                     (CA)--Laytonville Rancheria;
                                                     Sherwood Valley Rancheria.
Lower Eel............................     18010105  Mendocino (CA), Humboldt
                                                     (CA), Trinity (CA).
Middle Fork Eel......................     18010104  Mendocino (CA), Trinity (CA),
                                                     Glenn (CA), Lake (CA)--Round
                                                     Valley Reservation.
Upper Eel............................     18010103  Mendocino (CA), Glenn (CA),    Scott Dam (Lake Pillsbury).
                                                     Lake (CA).
Mad-Redwood..........................     18010102  Humboldt (CA), Trinity (CA)--
                                                     Big Lagoon Rancheria; Blue
                                                     Lake Rancheria.
Smith................................     18010101  Del Norte (CA), Curry (OR)--
                                                     Elk Valley Rancheria; Smith
                                                     River Rancheria.
South Fork Trinity...................     18010212  Humboldt (CA), Trinity (CA)..
Trinity..............................     18010211  Humboldt (CA), Trinity (CA)--  Lewiston Dam (Lewiston
                                                     Hoopa Valley Reservation.      Reservoir).
Salmon...............................     18010210  Siskiyou (CA)................
Lower Klamath........................     18010209  Del Norte (CA), Humboldt
                                                     (CA), Siskiyou (CA)--Karuk
                                                     Reservation; Resighini
                                                     Rancheria; Yurok Reservation.
Scott................................     18010208  Siskiyou (CA)--Quartz Valley
                                                     Reservation.
Shasta...............................     18010207  Siskiyou (CA)................  Dwinnell Dam (Dwinnell
                                                                                    Reservoir).
Upper Klamath........................     18010206  Siskiyou (CA), Jackson (OR)..  Irongate Dam (Irongate
                                                                                    Reservoir).
Chetco...............................     17100312  Curry (OR), Del Norte (CA)...
Illinois.............................     17100311  Curry (OR), Josephine (OR),    Selmac Lake Dam (Lake
                                                     Del Norte (CA).                Selmac).
Lower Rogue..........................     17100310  Curry (OR), Josephine (OR),
                                                     Jackson (OR).
Applegate............................     17100309  Josephine (OR), Jackson (OR),  Applegate Dam (Applegate
                                                     Siskiyou (CA).                 Reservoir).
Middle Rogue.........................     17100308  Josephine (OR), Jackson (OR).  Emigrant Lake Dam (Emigrant
                                                                                    Lake).
Upper Rogue..........................     17100307  Jackson (OR), Klamath (OR),    Agate Lake Dam (Agate Lake);
                                                     Douglas (OR).                  Fish Lake Dam (Fish Lake);
                                                                                    Willow Lake Dam (Willow
                                                                                    Lake); Lost Creek Dam (Lost
                                                                                    Creek Reservoir).
Sixes................................     17100306  Curry (OR)...................
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
  habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
  basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.

[64 FR 24061, May 5, 1999]

[[Page 184]]



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

229.30  Basis.
229.31  Pacific Offshore Cetacean Take Reduction Plan.
229.32  Atlantic large whale take reduction plan regulations.
229.33  Harbor Porpoise Take Reduction Plan Implementing Regulations--
          Gulf of Maine.
229.34  Harbor Porpoise Take Reduction Plan--Mid-Atlantic.

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 except as provided for under Secs. 229.4(k) and 229.5(f).
    (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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9086, Feb. 24, 1999]

[[Page 185]]



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.).
    American lobster or lobster means Homarus americanus.
    Anchored gillnet means any gillnet gear, including a sink gillnet or 
stab net, that is set anywhere in the water column and which is 
anchored, secured or weighted to the bottom of the sea. Also called a 
set gillnet.
    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 incidental serious injury or 
mortality 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 incidental serious injury or mortality 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 Assistant Administrator.

[[Page 186]]

    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.
    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 a gillnet 
or gillnets that is/are unattached to the ocean bottom and not anchored, 
secured or weighted to the bottom, regardless of whether attached to a 
vessel.
    Fisher or fisherman means the vessel owner or operator, or the 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 (meshes) 
or nets, designed or configured so that the webbing (meshes) or nets are 
placed in the water column, usually held approximately vertically, and 
are designed to capture fish by entanglement, gilling, or wedging. The 
term ``gillnet'' includes gillnets of all types, including but not 
limited to sink gillnets, other anchored gillnets (e.g. stab and set 
nets), and drift gillnets. Gillnets may or may not be attached to a 
vessel.
    Groundline, with reference to lobster trap gear, means a line 
connecting lobster traps in a lobster trap trawl, and, with reference to 
gillnet gear, means a line connecting a gillnet or gillnet bridle to an 
anchor or buoy line.
    Incidental means, with respect to an act, a non-intentional or 
accidental act 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.''
    Integrated fishery means a fishery for which the granting and the 
administration of Authorization Certificates have been integrated and 
coordinated with existing fishery license, registration, or permit 
systems and related programs.
    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.
    Large mesh gillnet means a gillnet constructed with a mesh size of 7 
inches (17.78 cm) to 18 inches (45.72 cm).
    Lead-line means the rope, weighted or otherwise, to which the bottom 
edge of a gillnet is attached.

[[Page 187]]

    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 trap means any trap, pot or other similar type of enclosure 
that is placed on the ocean bottom and is designed to or is capable of 
catching lobsters. This definition includes but is not limited to 
lobster pots, black sea bass pots and scup pots.
    Lobster trap trawl means two or more lobster traps attached to a 
single groundline.
    Mesh size means the distance between inside knot to inside knot. 
Mesh size is measured as described in Sec. 648.80(f)(1) of this title.
    Mid-Atlantic coastal waters means waters bounded by the line defined 
by the 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.
    Mudhole means waters off New Jersey bounded as follows: From the 
point 40 deg.30' N. latitude where it intersects with the shoreline of 
New Jersey east to its intersection with 73 deg.20' W. longitude, then 
south to its intersection with 40 deg.05' N. latitude, then west to its 
intersection with the shoreline of New Jersey.
    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.
    Night means any time between one half hour before sunset and one 
half hour after sunrise.
    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 comprises entirely federal waters as defined 
by the area bounded by straight lines connecting the following points, 
in the order stated, except for waters in the Great South Channel 
critical right whale habitat:

------------------------------------------------------------------------
                                                          Longitude (
              Point                 Latitude ( deg.N)        deg.W)
------------------------------------------------------------------------
A................................  43 deg. 58'         67 deg. 22'
B................................  43 deg. 41'         68 deg. 00'
C................................  43 deg. 12.5'       69 deg. 00'
D................................  42 deg. 49'         69 deg. 40'
E................................  42 deg. 15.5'       69 deg. 40'
F................................  42 deg. 10'         69 deg. 56'
K................................  41 deg. 10'         69 deg. 06.5'
N................................  40 deg. 45.5'       71 deg. 34'
M................................  40 deg. 27.5'       72 deg. 14'
U................................  40 deg. 12.5'       72 deg. 48.5'
V................................  39 deg. 50'         73 deg. 01'
X................................  38 deg. 39.5'       73 deg. 40'
Y................................  38 deg. 12'         73 deg. 55'
Z................................  37 deg. 12'         74 deg. 44'
ZA...............................  36 deg. 33'         74 deg. 47'
------------------------------------------------------------------------


From point ``ZA'' east to the EEZ boundary and thence along the seaward 
EEZ boundary to point ``A''.
    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;

[[Page 188]]

    (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.
    Shark gillnetting means to fish a gillnet in waters south of the 
South Carolina/Georgia border with webbing of 5 inches or greater 
stretched mesh.
    Sink gillnet or stab net means any gillnet, anchored or otherwise, 
that is designed to be, or is fished on or near the bottom in the lower 
third of the water column.
    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.
    Small mesh gillnet means a gillnet constructed with a mesh size of 
greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).
    Southeast waters means waters south of a line extending due eastward 
from 33 deg.51'N lat. (the North Carolina/South Carolina border).
    Southern Mid-Atlantic waters means all state and Federal waters off 
the States of Delaware, Maryland, Virginia, and North Carolina, bounded 
on the north by a line extending eastward from the northern shoreline of 
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with 
Cape Henlopen, DE), east to its intersection with 72 deg.30' W. 
longitude, south to the 33 deg.51' N. latitude (the latitude that 
corresponds with the North Carolina/South Carolina border), and then 
west to its intersection with the shoreline of 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.
    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.
    Stowed means nets that are unavailable for use and that are stored 
in accordance with the regulations found in Sec. 648.81(e) of this 
title.
    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 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 fishing gear that is physically attached 
to a vessel in a way that is capable of harvesting fish, or to fish with 
gear attached to the vessel.
    Tie-down refers to twine used between the floatline and the lead 
line as a way to create a pocket or bag of netting to trap fish alive.
    To strikenet for sharks means to fish with strikenet gear in waters 
south of the South Carolina/Georgia border with webbing of 5 inches or 
greater stretched mesh.

[[Page 189]]

    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).
    Waters off New Jersey means all state and Federal waters off New 
Jersey, bounded on the north by a line extending eastward from the 
southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the 
south by a line extending eastward from the northern shoreline of 
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with 
Cape Henlopen, DE), and on the east by the 72 deg.30' W. longitude. This 
area includes the Mudhole.
    Weak link means a breakable component of gear 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; 
63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. 
24, 1999]



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 injury or mortality 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 retain any marine mammal incidentally taken 
in commercial fishing operations unless authorized by NMFS personnel, by 
designated contractors or an official observer, or by a scientific 
research permit that is in the possession of the vessel operator.
    (f) 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.
    (g) It is prohibited to violate any regulation in this part or any 
provision of section 118 of the Act.
    (h) It is prohibited to fish with lobster trap gear in the areas and 
for the times specified in Sec. 229.32(c)(3) through (c)(9) unless the 
lobster trap gear complies with the closures, marking requirements, 
modifications, and restrictions specified in Sec. 229.32(c)(1) through 
(c)(10).
    (i) It is prohibited to fish with anchored gillnet gear in the areas 
and for the times specified in Sec. 229.32(d)(2) through (d)(7) unless 
that gillnet gear complies with the closures, marking requirements, 
modifications, and restrictions specified in Sec. 229.32(d)(1) through 
(d)(8).
    (j) It is prohibited to fish with drift gillnets in the areas and 
for the times specified in Sec. 229.32(e)(1) unless the drift gillnet 
gear complies with the restrictions specified in Sec. 229.32(e)(1).
    (k) It is prohibited to fish with shark gillnet gear in the areas 
and for the times specified in Sec. 229.32(f)(1) and (3) unless the gear 
meets the marking requirements specified in Sec. 229.32(f)(2) and 
complies with the restrictions and requirements specified in 
229.32(f)(1) and (f)(3).
    (l) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove sink gillnet gear or gillnet 
gear capable of catching multispecies, from the areas and for the times 
specified in Sec. 229.33

[[Page 190]]

(a)(1) through (a)(6), except with the use of pingers as provided in 
Sec. 229.33 (d)(1) through (d)(4). This prohibition does not apply to 
the use of a single pelagic gillnet (as described and used as set forth 
in Sec. 648.81(f)(2)(ii) of this title).
    (m) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any gillnet gear from the 
areas and for the times as specified in Sec. 229.34 (b)(1) (ii) or (iii) 
or (b)(2)(ii).
    (n) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any large mesh or small mesh 
gillnet gear from the areas and for the times specified in Sec. 229.34 
(c)(1) through (c)(4) unless the gear complies with the specified gear 
restrictions set forth in those provisions.
    (o) Beginning on January 1, 1999, it is prohibited to fish with, 
set, or haul back sink gillnets or gillnet gear, or leave such gear in 
closed areas where pingers are required, as specified under Sec. 229.33 
(c)(1) through (c)(4), unless a person on board the vessel during 
fishing operations possesses a valid pinger certification training 
certificate issued by NMFS.
    (p) Beginning on January 1, 2000, it is prohibited to fish with, 
set, haul back, or possess any large mesh or small mesh gillnet gear in 
Mid-Atlantic waters in the areas and during the times specified under 
Sec. 229.34(d), unless the gear is properly tagged in compliance with 
that provision and unless a net tag certificate is on board the vessel. 
It is prohibited to refuse to produce a net tag certificate or net tags 
upon the request of an authorized officer.
    (q) Net tag requirement. Beginning on January 1, 2000, all gillnets 
fished, hauled, possessed, or deployed during the times and areas 
specified below must have one tag per net, with one tag secured to every 
other bridle of every net and with one tag secured to every other bridle 
of every net within a string of nets. This applies to small mesh and 
large mesh gillnet gear in New Jersey waters from January 1 through 
April 30 or in southern Mid-Atlantic waters from February 1 through 
April 30. The owner or operator of fishing vessels must indicate to NMFS 
the number of gillnet tags that they are requesting up to the maximum 
number of nets allowed in those paragraphs and must include a check for 
the cost of the tags. Vessel owners and operators will be given notice 
with instructions informing them of the costs associated with this 
tagging requirement and directions for obtaining tags. Tag numbers will 
be unique for each vessel and recorded on a certificate. The vessel 
operator must produce the certificate and all net tags upon request by 
an authorized officer.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997; 
63 FR 66487, Dec. 2, 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. 
24, 1999]



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

[[Page 191]]

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) 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.''
    (vi) 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.
    (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 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) Address. Unless the granting and administration of 
authorizations under this 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 and renewal forms should be sent to the NMFS 
Regional Offices as follows:
    (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: 562-980-4001;
    (4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; 
telephone: 978-281-9254; or
    (5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; telephone: 727-570-5312.
    (d) Issuance. (1) For integrated fisheries, an Authorization 
Certificate or other proof of registration will be issued annually to 
each fisher registered for that fishery.
    (2) For all other fisheries (i.e., non-integrated fisheries), 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

[[Page 192]]

any marine mammals were killed or injured during the current or previous 
calender year.
    (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.
    (e) Authorization Certificate and decal requirements. (1) If a decal 
has been issued under the conditions specified in paragraph (e)(2) of 
this section, the 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 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.
    (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.
    (f) Reporting. Any Authorization Certificate holders must comply 
with the reporting requirements specified under Sec. 229.6.
    (g) 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 observer, or authorized otherwise by a 
scientific research permit that is in the possession of the operator.
    (h) Monitoring. Authorization Certificate holders must comply with 
the observer or other monitoring requirements specified under 
Sec. 229.7.
    (i) 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.
    (j) 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.
    (k) Take reduction plans and emergency regulations. Authorization 
Certificate holders must comply with any applicable take reduction plans 
and emergency regulations.
    (l) Expiration. Authorization Certificates expire at the end of each 
calendar year.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR 
9086, Feb. 24, 1999]



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

[[Page 193]]

an official 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(d).
    (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 
commercial fishing operations 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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]



Sec. 229.6  Reporting requirements.

    (a) Vessel owners or operators engaged in any commercial 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 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 (a)(4) of this section except, 
instead of providing the vessel name and vessel registration number, 
participants in nonvessel fisheries must provide the gear permit number.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]



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 observe 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 participants in Category I and II 
fisheries. (1) If requested by NMFS or by a designated contractor 
providing observer services to NMFS, a vessel owner/operator must

[[Page 194]]

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 vessel owner/operator 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 vessel owner/operator and crew must cooperate with the 
observer in the performance of the observer's duties including:
    (i) Providing, at no cost to the observer, the United States 
government, or the designated observer provider, food, toilet, bathing, 
sleeping accommodations, and other amenities that are equivalent to 
those provided to the crew, unless other arrangements are approved in 
advance by the Regional Administrator;
    (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;
    (v) Providing true vessel locations by latitude and longitude, 
accurate to the minute, or by loran coordinates, upon request by the 
observer;
    (vi) Sampling, retaining, and storing of marine mammal specimens, 
other protected species specimens, or target or non-target catch 
specimens, upon request by NMFS personnel, designated contractors, or 
the observer, if adequate facilities are available and if feasible;
    (vii) Notifying the observer in a timely fashion of when all 
commercial fishing operations are to begin and end;
    (viii) Not impairing or in any way interfering with the research or 
observations being carried out; and
    (ix) Complying with other guidelines or regulations that NMFS may 
develop to ensure the effective deployment and use of observers.
    (5) Marine mammals or other specimens identified in paragraph 
(c)(4)(vi) of this section, which are readily accessible to crew 
members, must be brought on board the vessel and retained for the 
purposes of scientific research if feasible and requested by NMFS 
personnel, designated contractors, or the observer. Specimens so 
collected and retained must, upon request by NMFS personnel, designated 
contractors, or the observer, be retained in cold storage on board the 
vessel, if feasible, until removed at the request of NMFS personnel, 
designated contractors, or the observer, retrieved by authorized 
personnel of NMFS, or released by the observer for return to the ocean. 
These biological specimens may be transported on board the vessel during 
the fishing trip and back to port under this authorization.
    (d) Observer requirements for participants in 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).

[[Page 195]]

    (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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]



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 have been incidentally injured or 
killed by 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.
    (d) The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]



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 
if recategorization of the fishery is warranted; 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,

[[Page 196]]

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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]



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.
    (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 or emergency regulation 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 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

[[Page 197]]

apply or corrective actions have been taken.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]



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. 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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]



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 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

[[Page 198]]

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, after notification and opportunity 
for public comment, the list of fisheries published in accordance with 
paragraph (b) of this section 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.

[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]



  Subpart C--Take Reduction Plan Regulations and Emergency Regulations



Sec. 229.30  Basis.

    Section 118(f)(9) of the Act authorizes the Director, NMFS, to 
impose regulations governing commercial fishing operations, when 
necessary, to implement a take reduction plan in order to protect or 
restore a marine mammal stock or species covered by such a plan.

[64 FR 9088, Feb. 24, 1999]



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).

[[Page 199]]

    (2) While at sea, operators of drift gillnet vessels with gillnets 
onboard must carry enough pingers on the vessel to meet the requirements 
set forth under paragraphs (c)(3) through(6) of this section.
    (3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of 
the floatline and spaced no more than 300 ft (91.44 m) apart.
    (4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of 
the leadline and spaced no more than 300 ft (91.44 m) apart.
    (5) Staggered Configuration. Pingers attached within 30 ft (9.14 m) 
of the floatline and within 36 ft (10.97 m) of the leadline shall be 
staggered such that the horizontal distance between them is no more than 
150 ft (45.5 m).
    (6) Any materials used to weight pingers must not change its 
specifications set forth under paragraph (c)(1) of this section.
    (7) The pingers must be operational and functioning at all times 
during deployment.
    (8) 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; 64 
FR 3432, Jan. 22, 1999]



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 in the Atlantic 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 first bridge over any embayment, harbor, or inlet 
and to waters landward of the following lines:

                              Rhode Island

41 deg. 27.99' N 71 deg. 11.75' W TO 41 deg. 28.49' N 71 deg. 14.63' W
    (Sakonnet River)
41 deg. 26.96' N 71 deg. 21.34' W TO 41 deg. 26.96' 71 deg. 25.92" W
    (Narragansett Bay)
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' 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)
41 deg. 19.66' N 71 deg. 45.75' W TO 41 deg. 19.66' N 71 deg. 45.78' W
    (Weekapaug 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;min; 
W
    (Gardiners Bay)
40 deg. 50.30' 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. 37.32' 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)

[[Page 200]]

                            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)(i) Specified gear. Specified 
fishing gear consists of lobster trap gear and gillnet gear set in 
specified areas.
    (ii) Specified areas. Specified areas are: Southeast U.S. Observer 
Area, Great South Channel Restricted Areas (including the Great South 
Channel Sliver Restricted Area), Cape Cod Bay Restricted Area, and the 
Stellwagen Bank/Jeffreys Ledge Restricted Area.
    (iii) Requirement. From January 1, 1999, and as otherwise required 
in paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), 
(d)(3)(ii), (d)(4)(ii), (d)(5)(ii), and (f)(2) of this section, any 
person who owns or fishes with specified fishing gear in specified areas 
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. Specified gear must be marked with the appropriate 
colors to designate gear-types and areas as follows:

Lobster trap gear--red
Gillnet gear--green
Southeast U.S. Observer Area--blue
Great South Channel Restricted Areas--yellow
Cape Cod Bay Restricted Area--orange
Stellwagen Bank/Jeffreys Ledge Area--black

    (3) Markings. All specified gear in specified areas must be marked 
with two color codes, one designating the gear type, the other 
indicating the area where the gear is set. Each color of the color codes 
must be permanently marked on or along the line or lines specified under 
paragraphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), (d)(3)(ii), 
(d)(4)(ii), (d)(5)(ii), and (f)(2) 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 within 6 inches (15.2 cm) of 
each other. If the color of the rope is the same as or similar to a 
color code, a white mark may be substituted for that color code. (For 
example, buoy lines of gillnet gear set in the Great South Channel 
Sliver Restricted Area must have a yellow mark and a green mark, each at 
least 4 inches (10.2 cm) long, with the yellow and green marks placed 
within 6 inches (15.2 cm) of each other. If the buoy line is yellow, the 
gear must have white and green marks.) In marking or affixing the color 
code, the line may be dyed, painted, or marked with thin colored 
whipping line, thin colored plastic or heat shrink tubing, or other 
material, or a thin line may be woven into or through the line, or the 
line may be marked as approved in writing by the Assistant 
Administrator.
    (4) Changes to requirements. 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 trap gear in regulated 
waters--(1) No line floating at the surface. No person may fish with 
lobster trap gear that has any portion of the buoy line floating at the 
surface at any time, except that, if more than one buoy is attached to a 
single buoy line or if a high flyer and a buoy are used together on a 
single buoy line, floating line may be used between these objects.
    (2) No wet storage of gear. Lobster traps must be hauled out of the 
water at least once in 30 days.

[[Page 201]]

    (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 
changes that area in accordance with paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with lobster trap 
gear in the Cape Cod Bay Restricted Area unless that gear is marked 
according to the gear marking code specified under paragraph (b) of this 
section. All buoy lines used in connection with lobster trap gear must 
be marked within 2 ft (0.6 m) of the top of the buoy line (or 2 ft (0.6 
m) below a weak link) and midway along the length of the buoy line.
    (iii) Winter restricted period. The winter restricted period for 
this area is from January 1 through May 15 of each year. During the 
winter restricted period, no person may fish with lobster trap 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 500 
lb (226.7 kg).
    (B) Multiple trap trawls--All traps are set in either a two-trap 
string or in a trawl of four or more traps. Single traps and three trap 
trawls are not allowed. A two-trap string must have only one buoy line.
    (C) Sinking buoy lines--All buoy lines are comprised of sinking line 
except the bottom portion of the line, which may be a section of 
floating line not to exceed one-third the overall length of the buoy 
line.
    (D) Sinking ground line--All ground lines are made entirely of 
sinking line.
    (iv) Other restricted period. From May 16 through December 31 of 
each year, no person may fish with lobster trap 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)(10) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (4) 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) Gear marking requirements. No person may fish with lobster trap 
gear in the Great South Channel Restricted Area unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. All buoy lines used in connection with lobster trap 
gear must be marked within 2 ft (0.6 m) of the top of the buoy line (or 
2 ft (0.6 m) below a weak link) and midway along the length of the buoy 
line.
    (iii) 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 fish 
with or set lobster trap 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.
    (iv) Other restricted period. From July 1 through March 31 no person 
may fish with lobster trap 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)(10) of this section. The Assistant Administrator may 
revise this restricted period in accordance with paragraph (g) of this 
section.
    (5) 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.

[[Page 202]]

    (ii) Gear marking requirements. No person may fish with lobster trap 
gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area unless that 
gear is marked according to the gear marking code specified under 
paragraph (b) of this section. All buoy lines used in connection with 
lobster trap gear must be marked within 2 ft (0.6 m) of the top of the 
buoy line (or 2 ft (0.6 m) below a weak link) and midway along the 
length of the buoy line.
    (iii) Gear requirements. No person may fish with lobster trap 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)(10) of this 
section. The Assistant Administrator may revise this requirement in 
accordance with paragraph (g) of this section.
    (6) Northern offshore lobster waters--(i) Area. The northern 
offshore lobster waters area includes all offshore lobster waters (as 
defined in Sec. 229.2) 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 trap 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)(10) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (7) Southern offshore lobster waters--(i) Area. The southern 
offshore lobster waters area includes all offshore lobster waters (as 
defined in Sec. 229.2) 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 trap 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)(10) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (8) Northern inshore lobster waters--(i) Area. Northern inshore 
lobster waters consist of all inshore lobster waters (as defined in 
Sec. 229.2) 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 trap 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)(10) of this section. The 
Assistant Administrator may revise this requirement in accordance with 
paragraph (g) of this section.
    (9) Southern inshore lobster waters--(i) Area. The southern inshore 
lobster waters consist of all inshore lobster waters (as defined in 
Sec. 229.2) 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 trap 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)(10) of this section. The Assistant Administrator may 
revise this requirement in accordance with paragraph (g) of this 
section.
    (10) Lobster Take Reduction Technology List. The following gear 
characteristics comprise the Lobster Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches (1.11 cm) 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 (498.8 kg). 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 (1714.3 kg).
    (iv) For gear set in offshore lobster areas only, all buoys are 
attached to the buoy line by a section of rope no

[[Page 203]]

more than three fourths 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--(1) 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 more than one buoy is attached to a single buoy 
line or if a high flyer and a buoy are used together on a single buoy 
line, floating line may be used between these objects.
    (2) 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 
changes that area under paragraph (g) of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Cape Cod Bay Restricted Area unless that gear is 
marked according to the gear marking code specified under paragraph (b) 
of this section. 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 2 ft (0.6 m) below a weak link) and midway along the length of the 
buoy line.
    (iii) 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.
    (iv) 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)(8) of this section. The Assistant Administrator may revise 
this restricted period in accordance with paragraph (g) of this section.
    (3) 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 in paragraph (d)(4) 
of this section.
    (ii) Gear marking requirements. No person may fish with anchored 
gillnet gear in the Great South Channel Restricted Gillnet Area unless 
that gear is marked according to the gear marking code specified under 
paragraph (b) of this section. 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 2 ft (0.6 m) below a weak link) and midway along the 
length of the buoy line.
    (iii) 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.
    (iv) Other restricted period. From July 1 through March 31 no person 
may fish with anchored gillnet gear in the Great South Channel 
Restricted Gillnet Area unless that person's gear complies with

[[Page 204]]

at least two of the characteristics of the Gillnet Take Reduction 
Technology List in paragraph (d)(8) of this section. The Assistant 
Administrator may revise this restricted period in accordance with 
paragraph (g) of this section.
    (4) 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 marking requirements. No person may fish with anchored 
gillnet gear in the Great South Channel Sliver Restricted Area unless 
that gear is marked according to the gear marking code specified under 
paragraph (b) of this section. 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 2 ft below a weak link) and midway along the length of the 
buoy line.
    (iii) 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)(8) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (5) 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 marking requirements. No person may fish with anchored 
gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area 
unless that gear is marked according to the gear marking code specified 
under paragraph (b) of this section. 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 2 ft below a weak link) and midway along the length of 
the buoy line.
    (iii) 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)(8) of this 
section. The Assistant Administrator may revise these requirements in 
accordance with paragraph (g) of this section.
    (6) Other Northeast Waters Area--(i) Area. The ``Other Northeast 
Waters Area'' consists of all northeast waters (as defined in 
Sec. 229.2) except for the Cape Cod Bay Restricted Area, the Great South 
Channel Restricted Gillnet Area, Great South Channel Sliver Restricted 
Area 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)(8) of this section. The 
Assistant Administrator may revise these requirements in accordance with 
paragraph (g) of this section.
    (7) 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 the 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)(8) of this section. The Assistant Administrator may revise 
these requirements in accordance with paragraph (g) of this section.
    (8) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches (1.11 cm) 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

[[Page 205]]

1100 lb (498.8 kg). 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) Weak links with a breaking strength of up to 1100 lb (498.8 
kg) are installed in the float rope between net panels.
    (iv) All buoy lines are composed entirely of sinking line.
    (e) Restrictions applicable to mid-Atlantic driftnet gear--(1) 
Restrictions. From December 1 through March 31 of the following year, no 
person may fish with driftnet gear at night in the mid-Atlantic coastal 
waters area unless that gear is tended. During that time, 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 before a vessel 
returns to port. The Assistant Administrator may revise these 
requirements in accordance with paragraph (g) of this section.
    (f) Restrictions applicable to shark gillnet gear--(1) Management 
areas--(i) Southeast U.S. 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) Southeast U.S. observer area. The southeast U.S. observer area 
consists of the southeast U.S. 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.
    (2) Gear marking requirements. From November 15 through March 31 of 
the following year, no person may fish with gillnet gear in the 
southeast U.S. observer area unless that gear is marked according to the 
gear marking code specified under paragraph (b) of this section. 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 15, 
1999, each net panel must be marked along both the float line and the 
lead line at least once every 100 yards (92.4 m).
    (3) Restrictions--(i) Observer requirement. No person may fish with 
shark gillnet gear in the southeast U.S. observer area from November 15 
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 
15 through March 31 of the following year, no person may fish with shark 
gillnet gear aboard that vessel in the southeast U.S. observer area 
unless an observer is on board that vessel during the trip.
    (ii) Closure. Except as provided under paragraph (f)(3)(iii) of this 
section, no person may fish with shark gillnet gear in the southeast 
U.S. restricted area during the closed period. The closed period for 
this area is from November 15 through March 31 of the following year, 
unless the Assistant Administrator changes that closed period in 
accordance with paragraph (g) of this section.
    (iii) Special provision for strikenets. Fishing for sharks with 
strikenet gear is exempt from the restriction under paragraph (f)(3)(ii) 
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, fin 
or minke whale.
    (D) If a right, humpback, fin or minke 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

[[Page 206]]

whale occurs in the Cape Cod Bay critical habitat from January 1 through 
May 15, in the Great South Channel Restricted Area from April 1 through 
June 30, or in the Southeast U.S. Restricted Area from November 15 
through March 31 as a result of an entanglement by lobster or gillnet 
gear 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).
    (2) Other special measures. The Assistant Administrator may revise 
the requirements of this section through a publication 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.

[64 FR 7552, Feb. 16, 1999]

    Effective Date Note: At 64 FR 17292, Apr. 9, 1999, in Sec. 229.32, 
paragraphs (b), (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), 
(d)(3)(ii), (d)(4)(ii), (d)(5)(ii) and (f)(2) were stayed until Nov. 1, 
1999.



Sec. 229.33  Harbor Porpoise Take Reduction Plan Implementing Regulations--Gulf of Maine.

    (a) Restrictions--(1) Northeast Closure Area. From August 15 through 
September 13 of each fishing year, it is prohibited to fish with, set, 
haul back, possess on board a vessel unless stowed, or fail to remove 
sink gillnet gear or gillnet gear capable of catching multispecies, from 
Northeast Closure Area. This prohibition does not apply to a single 
pelagic gillnet (as described and used as set forth in 
Sec. 648.81(f)(2)(ii) of this title). The Northeast Closure Area is the 
area bounded by straight lines connecting the following points in the 
order stated:

                         Northeast Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
NE1                    (\1\)                  68 deg.55.0'
NE2                    43 deg.29.6'           68 deg.55.0'
NE3                    44 deg.04.4'           67 deg.48.7'
NE4                    44 deg.06.9'           67 deg.52.8'
NE5                    44 deg.31.2'           67 deg.02.7'
NE6                    (\1\)                  67 deg.02.7'
------------------------------------------------------------------------
\1\ Maine shoreline.

    (2) Mid-coast Closure Area. From September 15 through May 31, it is 
prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies. This prohibition does not apply to a 
single pelagic gillnet (as described and used as set forth in 
Sec. 648.81(f)(2)(ii) of this title). The Mid-Coast Closure Area is the 
area bounded by straight lines connecting the following points in the 
order stated:

                         Mid-Coast Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
MC1                    42 deg.30'             (\1\)
MC2                    42 deg.30'             70 deg.15'
MC3                    42 deg.40'             70 deg.15'
MC4                    42 deg.40'             70 deg.00'
MC5                    43 deg.00'             70 deg.00'
MC6                    43 deg.00'             69 deg.30'
MC7                    43 deg.30'             69 deg.30'
MC8                    43 deg.30'             69 deg.00'
MC9                    (\2\)                  69 deg.00'
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Maine shoreline.

    (3) Massachusetts Bay Closure Area. From December 1 through May 31, 
it is prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies from the Massachusetts Bay Closure 
Area, except with the use of pingers as provided in paragraph (d)(2) of 
this section. This prohibition does not apply to a single pelagic 
gillnet (as described in Sec. 648.81(f)(2)(ii) of this title). The 
Massachusetts Bay

[[Page 207]]

Closure Area is the area bounded by straight lines connecting the 
following points in the order stated:

                     Massachusetts Bay Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
MB1                    42 deg.30'             (\1\)
MB2                    42 deg.30'             70 deg.30'
MB3                    42 deg.12'             70 deg.30'
MB4                    42 deg.12'             70 deg.00'
MB5                    (\2\)                  70 deg.00'
MB6                    42 deg.00'             (\2\)
MC7                    42 deg.00'             (\1\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline.

    (4) Cape Cod South Closure Area. From December 1 through May 31, it 
is prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies from Cape Cod South Closure Area, 
except with the use of pingers as provided in paragraph (d)(3) of this 
section. This prohibition does not apply to a single pelagic gillnet (as 
described in Sec. 648.81(f)(2)(ii) of this title). The Cape Cod South 
Closure Area is the area bounded by straight lines connecting the 
following points in the order stated:

                       Cape Cod South Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
CCS1                   (\1\)                  71 deg.45'
CCS2                   40 deg.40'             71 deg.45'
CCS3                   40 deg.40'             70 deg.30'
CCS4                   (\2\)                  70 deg.30'
------------------------------------------------------------------------
\1\ Rhode Island shoreline.
\2\ Massachusetts shoreline.

    (5) Offshore Closure Area. From November 1 through May 31, it is 
prohibited to fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove sink gillnet gear or gillnet gear 
capable of catching multispecies from Offshore Closure Area, except for 
the use of pingers as provided in Sec. 229.33(d)(4). This prohibition 
does not apply to a single pelagic gillnet (as described in 
Sec. 648.81(f)(2)(ii) of this title). The Offshore Closure Area is the 
area bounded by straight lines connecting the following points in the 
order stated:

                          Offshore Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
OFS1                   42 deg.50'             69 deg.30'
OFS2                   43 deg.10'             69 deg.10'
OFS3                   43 deg.10'             67 deg.40'
OFS4                   42 deg.10'             67 deg.40'
OFS5                   42 deg.10'             69 deg.30'
OFS6                   42 deg.50'             69 deg.30'
------------------------------------------------------------------------

    (6) Cashes Ledge Closure Area. For the month of February of each 
fishing year, it is prohibited to fish with, set, haul back, possess on 
board a vessel unless stowed, or fail to remove sink gillnet gear or 
gillnet gear capable of catching multispecies from the Cashes Ledge 
Closure Area. This prohibition does not apply to a single pelagic 
gillnet (as described in Sec. 648.81(f)(2)(ii) of this title). The 
Cashes Ledge Closure Area is the area bounded by straight lines 
connecting the following points in the order stated:

                        Cashes Ledge Closure Area
------------------------------------------------------------------------
        Point                 N. Lat.                  W. Long.
------------------------------------------------------------------------
CL1                    42 deg.30'             69 deg.00'
CL2                    42 deg.30'             68 deg.30'
CL3                    43 deg.00'             68 deg.30'
CL4                    43 deg.00'             69 deg.00'
CL5                    42 deg.30'             69 deg.00'
------------------------------------------------------------------------

    (b) Pingers--(1) Pinger specifications. For the purposes of this 
subpart, 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).
    (2) Pinger attachment. An operating and functional pinger must be 
attached at the end of each string of the gillnets and at the bridle of 
every net within a string of nets.
    (c) Pinger training and certification. Beginning on January 1, 1999, 
the operator of a vessel may not fish with, set or haul back sink 
gillnets or gillnet gear, or allow such gear to be in closed areas where 
pingers are required as specified under paragraph (b) of this section, 
unless the operator has satisfactorily completed the pinger 
certification training program and possesses on board the vessel a valid 
pinger training certificate issued by NMFS. Notice will be given 
announcing the times and locations of pinger certification training 
programs.

[[Page 208]]

    (d) Use of pingers in closed areas--(1) Vessels, subject to the 
restrictions and regulations specified in paragraph (a)(2) of this 
section, may fish in the Mid-coast Closure Area from September 15 
through May 31 of each fishing year, provided that pingers are used in 
accordance with the requirements of paragraphs (b) (1) and (2) of this 
section.
    (2) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(3) of this section, may fish in the Massachusetts Bay 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (3) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(4) of this section, may fish in the Cape Cod South 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (4) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(5) of this section, may fish in the Offshore Closure 
Area from November 1 through May 31 of each fishing year, with the 
exception of the Cashes Ledge Closure Area. From February 1 through the 
end of February, the area within the Offshore Closure Area defined as 
``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels 
subject to the restrictions and regulation specified in paragraph (a)(5) 
of this section may fish in the Offshore Closure Area outside the Cashes 
Ledge Area from February 1 through the end of February provided that 
pingers are used in accordance with the requirements of paragraphs (b) 
(1) and (2) of this section.
    (e) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger operating 
effectiveness in the commercial fishery is inadequate to reduce bycatch 
to the PBR level with the current plan.
    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.

[63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, 1998]



Sec. 229.34  Harbor Porpoise Take Reduction Plan--Mid-Atlantic.

    (a)(1) Regulated waters. The regulations in this section apply to 
all waters in the Mid-Atlantic bounded on the east by 72 deg.30' W. 
longitude and on the south by the North Carolina/South Carolina border 
(33 deg.51' N. latitude), except for the areas exempted in paragraph 
(a)(2) of this section.
    (2) Exempted waters. All waters landward of the first bridge over 
any embayment, harbor, or inlet will be exempted. The regulations in 
this section do not apply to waters landward of the following lines:

                                New York

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. 37.32' 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.' 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.' W 
          (Smith Island Inlet)

                             North Carolina

    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 NOAA (Coast

[[Page 209]]

Charts 1:80,000 scale), and as described in 33 CFR part 80.

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

[[Page 210]]

complies with the specified gear characteristics. During this period, no 
person who owns or operates the vessel may allow the vessel to enter or 
remain in Southern Mid-Atlantic waters with large mesh sink gillnet gear 
on board, unless the gear complies with the specified gear 
characteristics or unless the gear is stowed. In order to comply with 
these specified gear characteristics, the gear must have all the 
following characteristics:
    (i) Floatline length. The floatline is no longer than 3,900 ft 
(1,188.7 m).
    (ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) Number of nets. The total number of individual nets or net 
panels for a vessel, including all nets on board the vessel, hauled by 
the vessel or deployed by the vessel, does not exceed 80.
    (v) Tie-down system. The gillnet is equipped with tie-downs spaced 
not more than 15 ft (4.6 m) apart along the floatline, and each tie-down 
is not more than 48 inches (18.90 cm) in length from the point where it 
connects to the floatline to the point where it connects to the lead 
line.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet is 
equipped with one tag per net, with one tag secured to each bridle of 
every net within a string of nets.
    (4) Southern Mid-Atlantic waters--small mesh gillnet gear 
requirements and limitations. From February 1 through April 30 of each 
year, no person may fish with, set, haul back, possess on board a vessel 
unless stowed, or fail to remove any small mesh gillnet gear in waters 
off New Jersey, unless the gear complies with the specified gear 
characteristics. During this period, no person who owns or operates the 
vessel may allow the vessel to enter or remain in Southern Mid-Atlantic 
waters with small mesh gillnet gear on board, unless the gear complies 
with the specified gear characteristics or unless the gear is stowed. In 
order to comply with these specified gear characteristics, the gear must 
have all the following characteristics:
    (i) Floatline length. The floatline is no longer than 2118 ft (645.6 
m).
    (ii) Twine size. The twine is at least 0.03 inches (0.080 cm) in 
diameter.
    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) Number of nets. The total number of individual nets or net 
panels for a vessel, including all nets on board the vessel, hauled by 
the vessel or deployed by the vessel, does not exceed 45.
    (v) Tie-down system. Tie-downs are prohibited.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet is 
equipped with one tag per net, with one tag secured to each bridle of 
every net within a string of nets.
    (d) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger operating 
effectiveness in the commercial fishery is inadequate to reduce bycatch 
to the PBR level with the current plan.
    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.

[63 FR 66489, Dec. 2, 1998]

[[Page 211]]

[GRAPHIC] [TIFF OMITTED] TR22JA99.001

[64 FR 3434, Jan. 22, 1999]

[[Page 212]]



                          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 213]]

    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 214]]

    (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 215]]



     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 216]]

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 217]]

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 218]]

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 219]]

    (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 220]]

    (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 221]]



                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 222]]

    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 223]]

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 224]]

    (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 225]]

    (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 226]]

    (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 227]]

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 228]]

    (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 229]]

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 230]]

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 231]]



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 232]]

    (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 233]]

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 234]]

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 235]]

    (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 236]]



 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 237]]

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 238]]

    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 239]]

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 240]]

    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 241]]



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 242]]

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

[[Page 243]]

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.



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

[[Page 244]]

another inspector or licensed sampler is not available in the area where 
the product is located.



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 245]]



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 246]]

    (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 247]]



                                 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   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
 that of a No. 300 size can (300 x 407)..
 
                 group 2
 
Any type of container of a volume equal     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
 to or exceeding that of a No. 300 size
 can, but not exceeding that of a No. 3
 cylinder size can (404 x 700)...........
 
                 group 3
 
Any type of container of a volume           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
 exceeding that of a No. 3 cylinder size
 can, but not exceeding that of a No. 12
 size can (603 x 812)....................
 
                 group 4
 
Any type of container of a volume             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
 exceeding that of a No. 12 size can, but
 not exceeding that of a 5-gallon
 container...............................
 
                 group 5
 
Any type of container of a volume              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
 exceeding that of a 5-gallon container..
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


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


[[Page 248]]


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    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
 net weight..............................
 
                 group 2
 
Any type of container over 1 pound but      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
 not over 4 pounds net weight............
 
                 group 3
 
Any type of container over 4 pounds but       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
 not over 10 pounds net weight...........
 
                 group 4
 
Any type of container over 10 pounds but      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
 not over 100 pounds net weight..........
 
                 group 5
 
Any type of container over 100 pounds net      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
 weight..................................
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    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 249]]

 
\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  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
                                                       less
 
                   group 2
 
Any type of container over 12 ounces but not       3,600 or  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
 over 60 ounces..............................          less
 
                   group 3
 
Any type of container over 60 ounces but not       1,800 or   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
 over 160 ounces.............................          less
 
                   group 4
 
Any type of container over 160 ounces but not   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
 over 10 gallons or 100 pounds whichever is
 applicable..................................
 
                   group 5
 
Any type of container over 10 gallons or 100     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
 pounds whichever is applicable..............
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    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 250]]


                                                                        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   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
 net weight.............................
 
                 group 2
 
Any type of container over 1 pound but       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
 not over 6 pounds net weight...........
 
                 group 3
 
Any type of container over 6 pounds but      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
 not over 20 pounds net weight..........
 
                 group 4
 
Any type of container over 20 pounds but      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
 not over 100 pounds net weight.........
 
                 group 5
 
Any type of container over 100 pounds         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
 net weight.............................
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    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 251]]


                                                               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   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r   nc    c    r
 acceptance numbers, c,
    and rejection numbers, r,       4    0    2    8    0    3   10    0    3   12    0    4   14    0    4   16    0    4   18    0    5   22    0    5
     for multiple sampling.
                                    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 252]]



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 253]]



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.

[[Page 254]]

The policies and procedures are available 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 255]]

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.
    (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.

[[Page 256]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.070

                               Figure 10.
    (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.

[[Page 257]]

    (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 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

[[Page 258]]

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.
    (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

[[Page 259]]

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.
    (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

[[Page 260]]

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]

   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

[[Page 261]]

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 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;

[[Page 262]]

    (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;
    (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

[[Page 263]]

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 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

[[Page 264]]

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 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

[[Page 265]]

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 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

[[Page 266]]

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]



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

[[Page 267]]

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 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 268]]



                       SUBCHAPTER H-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 269]]

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 270]]

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 271]]

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 272]]

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 273]]

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 274]]



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 275]]



        CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES




  --------------------------------------------------------------------
Part                                                                Page
300             International fisheries regulations.........         277

[[Page 277]]



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 identification.
300.15  Prohibitions.
300.16  Penalties.
300.17  Reporting.

                    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  Prohibitions.
300.29  Eastern Pacific fisheries management.

                 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, local area management plans, and domestic 
          management measures.
300.64  Fishing by U.S. treaty Indian tribes.
300.65  Prohibitions.

Figure 1 to Subpart E--Sitka Local Area Management Plan

        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  Definitions.
300.102  Relationship to other treaties, conventions, laws, and 
          regulations.
300.103  Procedure for according protection to CCAMLR Ecosystem 
          Monitoring Program Sites.
300.104  Scientific research.
300.105  Initiating a new fishery.
300.106  Exploratory fisheries.
300.107  Reporting and recordkeeping requirements.
300.108  Vessel and gear identification.
300.109  Gear disposal.
300.110  Mesh size.
300.111  Framework for annual management measures.
300.112  Harvesting permits.
300.113  Import permits.
300.114  Appointment of a designated representative.
300.115  Prohibitions.
300.116  Facilitation of enforcement and inspection.
300.117  Penalties.

Figure 1 to Subpart G--Boundaries of the Statistical Reporting Area in 
          the Southern Ocean
Figure 2 to Subpart G--The Use of Streamer Lines to Minimize the 
          Incidental Mortality of Seabirds in the Course of Longline 
          Fishing or Longline Fishing Research Operations in the 
          Convention Area

  Subpart H--Vessels of the United States Fishing in Colombian Treaty 
                                 Waters

300.120  Purpose.
300.121  Definitions.
300.122  Relation to other laws.
300.123  Certificates and permits.
300.124  Recordkeeping and reporting.
300.125  Vessel identification.

[[Page 278]]

300.126  Prohibitions.
300.127  Facilitation of enforcement.
300.128  Penalties.
300.129  Fishing year.
300.130  Vessel and gear restrictions.
300.131  Conch harvest limitations.
300.132  Lobster harvest limitations.

          Subpart I--United States-Canada Fisheries Enforcement

300.140  Purpose and scope.
300.141  Definitions.
300.142  Prohibitions.
300.143  Facilitation of enforcement.
300.144  Penalties and sanctions.

         Subpart J--U.S. Nationals Fishing in Russian Fisheries

300.150  Purpose.
300.151  Definitions.
300.152  Procedures.
300.153  Permit issuance.
300.154  Recordkeeping and reporting.
300.155  Requirements.
300.156  Prohibited acts.
300.157  Penalties.

       Subpart K--Transportation and Labeling of Fish or Wildlife

300.160  Requirement for marking of containers or packages.
300.161  Alternatives and exceptions.

    Source: 61 FR 35550, July 5, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 300 appear at 64 FR 
44431, Aug. 16, 1999.



                           Subpart A--General

    Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 951-961 and 971 et seq.; 
16 U.S.C. 973-973r; 16 U.S.C. 2431 et seq.; 16 U.S.C. 3371-3378; 16 
U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 U.S.C. 1801 et seq.



Sec. 300.1  Purpose and scope.

    The purpose of this part is to implement the fishery conservation 
and management measures provided for in the international treaties, 
conventions, or agreements specified in each subpart, as well as certain 
provisions of the Lacey Act Amendments of 1981. The regulations in this 
part apply, except where otherwise specified in this part, to all 
persons and all places subject to the jurisdiction of the United States 
under the acts implemented under each subpart.



Sec. 300.2  Definitions.

    In addition to the definitions in each act, agreement, convention, 
or treaty specified in subparts B through K of this part, the terms used 
in this part have the following meanings:
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Oceanic and Atmospheric Administration, Department 
of Commerce, or a designee. Address: Room 14555, 1315 East-West Highway, 
Silver Spring, MD 20910.
    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 of Commerce or the 
Commandant of the U.S. Coast Guard to enforce the provisions of any 
statute administered by the Secretary.
    CCAMLR inspector means a person designated by a member of the 
Commission for the Conservation of Antarctic Marine Living Resources as 
an inspector under Article XXIV of the Convention on the Conservation of 
Antarctic Marine Living Resources to verify compliance with measures in 
effect under the Convention.
    Director, Alaska Region, means Director, Alaska Region, NMFS, 709 
West Ninth Street, Suite 401, P.O. Box 21668, Juneau, AK 99802, or a 
designee.
    Director, Northeast Region, means Director, Northeast Region, NMFS, 
One Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
    Director, Northwest Region, means Director, Northwest Region, NMFS, 
7600 Sand Point Way, N.E., BIN C15700, Bldg. 1, Seattle, WA 98115, or a 
designee.
    Director, Southeast Fisheries Science Center, means Director, 
Science and Research, Southeast Fisheries Science Center, NMFS, 75 
Virginia Beach Drive, Miami, FL 33149, or a designee.
    Director, Southeast Region, means Director, Southeast Region, NMFS, 
9721

[[Page 279]]

Executive Center Drive, N., St. Petersburg, FL 33702, or a designee.
    Director, Southwest Region, means Director, Southwest Region, NMFS, 
501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or a 
designee.
    Exclusive Economic Zone or EEZ means the zone established by 
Presidential Proclamation 5030, dated March 10, 1983, as defined in 16 
U.S.C. 1802(6).
    Fishing or to fish means:
    (1) The catching or taking of fish;
    (2) The attempted catching or taking of fish;
    (3) Any other activity that can reasonably be expected to result in 
the catching or taking of fish; or
    (4) Any operations at sea in support of, or in preparation for, any 
activity described in paragraphs (1) through (3) of this definition.
    Fishing 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.
    IATTC means the Inter-American Tropical Tuna Commission, established 
pursuant to the Convention for the Establishment of an Inter-American 
Tropical Tuna Commission.
    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 customs laws of the United States.
    IRCS means International Radio Call Sign.
    Magnuson Act means the Magnuson Fishery Conservation and Management 
Act, 16 U.S.C. 1801 et seq.
    National of the United States or U.S. national means any person 
subject to the jurisdiction of the United States, including, but not 
limited to, a citizen or resident of the United States, or a person 
employed on a vessel of the United States. In the case of a corporation, 
partnership or other non- natural person, this includes, but is not 
limited to, any entity that is the owner of a vessel of the United 
States.
    NMFS means the National Marine Fisheries Service, NOAA, Department 
of Commerce.
    NMFS Headquarters means NMFS, 1315 East-West Highway, Silver Spring, 
MD 20910. Attention: Office of Fisheries Conservation and Management.
    Official number means the documentation number issued by the USCG or 
the certificate number issued by a state or the USCG for an undocumented 
vessel, or any equivalent number if the vessel is registered in a 
foreign nation.
    Operator means, with respect to any vessel, the master or other 
individual aboard and in charge of that vessel.
    Owner means, with respect to any vessel:
    (1) Any person who owns that vessel in whole or part (whether or not 
the vessel is leased or chartered);
    (2) Any charterer of the vessel, whether bareboat, time, or voyage;
    (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; or
    (4) Any agent designated as such by a person described in this 
definition.
    Person means any individual (whether or not a citizen or national of 
the United States), any corporation, partnership, association, or other 
entity (whether or not organized, or existing under the laws of any 
state), and any Federal, state, local, or foreign government or any 
entity of any such government.
    Secretary means the Secretary of Commerce or a designee.
    USCG means the United States Coast Guard.
    Yellowfin tuna means any fish of the species Thunnus albacares 
(synonomy: Neothunnus macropterus).



Sec. 300.3  Relation to other laws.

    Other laws that may apply to fishing activities addressed herein are 
set forth in Sec. 600.705 of chapter VI of this title.



Sec. 300.4  General prohibitions.

    It is unlawful for any person subject to the jurisdiction of the 
United States to:

[[Page 280]]

    (a) Violate the conditions or restrictions of a permit issued under 
this part.
    (b) Fail to submit information, fail to submit information in a 
timely manner, or submit false or inaccurate information, with respect 
to any information required to be submitted, reported, communicated, or 
recorded pursuant to this part.
    (c) Make any false statement, oral or written, to an authorized 
officer concerning the catching, taking, harvesting, possession, 
landing, purchase, sale, or transfer of fish, or concerning any other 
matter subject to investigation by that officer under this part.
    (d) Conceal any material fact (including by omission), concerning 
any matter subject to investigation by an authorized officer under this 
part.
    (e) Refuse to allow an authorized officer to inspect any report or 
record required to be made or kept under this part.
    (f) Falsify, cover, or otherwise obscure, the name, home port, 
official number (if any), or any other similar marking or identification 
of any fishing vessel subject to this part such that the vessel cannot 
be readily identified from an enforcement vessel or aircraft.
    (g) Fail to comply immediately with any of the enforcement and 
boarding procedures specified in this part.
    (h) Refuse to allow an authorized officer to board a fishing vessel, 
or enter any other area of custody (i.e., any vessel, building, vehicle, 
live car, pound, pier, or dock facility where fish might be found) 
subject to such person's control, for the purpose of conducting any 
inspection, search, seizure, investigation, or arrest in connection with 
the enforcement of this part or any other applicable law.
    (i) Destroy, stave, or dispose of in any manner, any fish, gear, 
cargo, or other matter, upon any communication or signal from an 
authorized officer of the United States, or upon the approach of such an 
officer, enforcement vessel, or aircraft, before the officer has had the 
opportunity to inspect same, or in contravention of directions from such 
an officer.
    (j) Intentionally destroy evidence that could be used to determine 
if a violation of this part has occurred.
    (k) Assault, resist, oppose, impede, intimidate, threaten, obstruct, 
delay, prevent, or interfere, in any manner, with an authorized officer 
in the conduct of any boarding, inspection, search, seizure, 
investigation, or arrest in connection with enforcement of this part.
    (l) Resist a lawful arrest or detention for any act prohibited by 
this part.
    (m) Interfere with, delay, or prevent, by any means, the 
apprehension, arrest, or detection of another person, knowing that such 
person has committed any act prohibited by this part.
    (n) Interfere with, obstruct, delay, or prevent, by any means, an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of this part.
    (o) Ship, transport, offer for sale, sell, purchase, import, export, 
or have custody, control, or possession of, any living marine resource 
taken or retained in violation of this part.
    (p) Violate any provision of any statute implemented by this part.
    (q) Attempt to do any of the foregoing.



Sec. 300.5  Facilitation of enforcement.

    (a) Compliance. 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 or CCAMLR 
inspector 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 this 
part.
    (b) Communications. (1) Upon being approached by a USCG vessel or 
aircraft, or other vessel or aircraft with an authorized officer or 
CCAMLR inspector 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

[[Page 281]]

instead of the radio. Hand signals, placards, high frequency 
radiotelephone, voice, flags, whistle or horn may be employed by an 
authorized officer or CCAMLR inspector, 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. USCG 
units will normally use the flashing light signal ``L'' which, in the 
International Code of Signals, means ``you should stop your vessel 
instantly.''
    (4) Failure of a vessel's operator promptly to stop the vessel when 
directed to do so by an authorized officer or CCAMLR inspector, or by an 
enforcement vessel or aircraft, using loudhailer, radiotelephone, 
flashing light, flags, whistle, horn or other means constitutes prima 
facie evidence of the offense of refusal to allow an authorized officer 
or CCAMLR inspector to board.
    (5) A person aboard 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 immediately.
    (c) Boarding. The operator of a vessel directed to stop must:
    (1) Monitor Channel 16, VHF-FM, if so equipped.
    (2) Stop immediately and lay to or, if appropriate and/or directed 
to do so by the authorized officer or CCAMLR inspector, maneuver in such 
a way as to allow the safe boarding of the vessel by the authorized 
officer or CCAMLR inspector and the boarding party.
    (3) Except for those vessels with a freeboard of 4 ft (1.25 m) or 
less, provide a safe ladder, if needed, for the authorized officer or 
CCAMLR inspector and boarding party to come aboard.
    (4) When necessary to facilitate the boarding or when requested by 
an authorized officer or CCAMLR inspector, provide a manrope or safety 
line, and illumination for the ladder.
    (5) Take such other actions as necessary to facilitate boarding and 
to ensure the safety of the authorized officer or CCAMLR inspector and 
the boarding party.
    (d) 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 that may be in the water.
    (3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I 
am going to board you.''



                     Subpart B--High Seas Fisheries

    Authority: 16 U.S.C. 5501 et seq.



Sec. 300.10  Purpose.

    This subpart implements the High Seas Fishing Compliance Act of 1995 
(Act), which requires the Secretary to license U.S. vessels fishing on 
the high seas.



Sec. 300.11  Definitions.

    In addition to the terms defined in section 300.2 and those in the 
Act and the Agreement to Promote Compliance with International 
Conservation and Management Measures by Fishing Vessels on the High 
Seas, adopted by the Conference of the Food and Agriculture Organization 
of the United Nations on November 24, 1993 (Agreement), the terms used 
in this subpart have the following meanings. If a term is defined 
differently in Sec. 300.2, the Act, or the Agreement, the definition in 
this section shall apply.

[[Page 282]]

    High seas means the waters beyond the territorial sea or exclusive 
economic zone (or the equivalent) of any Nation, to the extent that such 
territorial sea or exclusive economic zone (or the equivalent) is 
recognized by the United States.
    High seas fishing vessel means any vessel of the United States used 
or intended for use on the high seas for the purpose of the commercial 
exploitation of living marine resources as a harvesting vessel, 
mothership, or any other support vessel directly engaged in a fishing 
operation.
    International conservation and management measures means measures to 
conserve or manage one or more species of living marine resources that 
are adopted and applied in accordance with the relevant rules of 
international law, as reflected in the 1982 United Nations Convention on 
the Law of the Sea, and that are recognized by the United States.
    Regional Administrator means any one of the Directors of the five 
NMFS regional offices, defined under Sec. 300.2, serving as the issuing 
office.



Sec. 300.12  Issuing offices.

    Any Regional Administrator may issue permits required under this 
subpart. While applicants for permits may submit an application to any 
Regional Administrator, applicants are encouraged to submit their 
applications (with envelopes marked ``Attn: HSFCA Permits'') to the 
Regional Administrator with whom they normally interact on fisheries 
matters.



Sec. 300.13  Vessel permits.

    (a) Eligibility. (1) Any high seas fishing vessel of the United 
States is eligible to receive a permit under this subpart, unless the 
vessel was previously authorized to be used for fishing on the high seas 
by a foreign nation, and --
    (i) The foreign nation suspended such authorization, because the 
vessel undermined the effectiveness of international conservation and 
management measures, and the suspension has not expired; or
    (ii) The foreign nation, within the 3 years preceding application 
for a permit under this section, withdrew such authorization, because 
the vessel undermined the effectiveness of international conservation 
and management measures.
    (2) The restrictions in paragraphs (a)(1) (i) and (ii) of this 
section do not apply if ownership of the vessel has changed since the 
vessel undermined the effectiveness of international conservation and 
management measures, and the new owner has provided sufficient evidence 
to the Regional Administrator demonstrating that the owner and operator 
at the time the vessel undermined the effectiveness of such measures has 
no further legal, beneficial, or financial interest in, or control of, 
the vessel.
    (3) The restrictions in paragraphs (a)(1) (i) and (ii) of this 
section do not apply if it is determined by the Regional Administrator 
that issuing a permit would not subvert the purposes of the Agreement.
    (b) Application forms. The owner or operator of a high seas fishing 
vessel may apply for a permit under this subpart by completing an 
application form. Applicants may obtain an application form from a 
Regional Administrator.
    (c) Application information. An applicant must submit a complete and 
accurate permit application, signed by the owner or operator, to the 
appropriate Regional Administrator.
    (d) Fees. NMFS will charge a fee to recover the administrative 
expenses of permit issuance. The amount of the fee will be determined in 
accordance with the procedures of the NOAA Finance Handbook, available 
from a Regional Administrator, for determining administrative costs of 
each special product or service. The fee is specified with the 
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 
will invalidate any permit.
    (e) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Administrator will issue a permit, which will include 
appropriate conditions or restrictions, within 30 days of receipt of a 
completed application and payment of the appropriate fee.

[[Page 283]]

    (2) The Regional Administrator will notify the applicant of any 
deficiency in the application.
    (f) Validity. Permits issued under this subpart are valid for 5 
years from the date of issuance. Renewal of a permit prior to its 
expiration is the responsibility of the permit holder. For a permit to 
remain valid to its expiration date, the vessel's USCG documentation or 
state registration must be kept current. A permit issued under this 
subpart is void when the name of the owner or vessel changes, or in the 
event the vessel is no longer eligible for U.S. documentation, such 
documentation is revoked or denied, or the vessel is removed from such 
documentation.
    (g) Change in application information. Any changes in vessel 
documentation status or other permit application information must be 
reported to the Regional Administrator in writing within 15 days of such 
changes.
    (h) Transfer. A permit issued under this subpart 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 valid permit, or a copy thereof, issued under this 
subpart must be on board the vessel while operating on the high seas and 
available for inspection by an authorized officer. Faxed copies of 
permits are acceptable.

[61 FR 35550, July 5, 1996, as amended at 64 FR 15, Jan. 4, 1999]



Sec. 300.14  Vessel identification.

    (a) General. A vessel permitted under this subpart must be marked 
for identification purposes in accordance with this section.
    (b) Marking. Vessels must be marked either:
    (1) In accordance with vessel identification requirements specified 
in Federal fishery regulations issued under the Magnuson-Stevens Act or 
under other Federal fishery management statutes; or
    (2) In accordance with the following identification requirements:
    (i) A vessel must be marked with its IRCS, or, if not assigned an 
IRCS, must be marked (in order of priority) with its Federal, state, or 
other documentation number appearing on its high seas fishing permit;
    (ii) The markings must be displayed at all times on the vessel's 
side or superstructure, port and starboard, as well as on a deck;
    (iii) The markings must be placed so that they do not extend below 
the waterline, are not obscured by fishing gear, whether stowed or in 
use, and are clear of flow from scuppers or overboard discharges that 
might damage or discolor the markings;
    (iv) Block lettering and numbering must be used;
    (v) The height of the letters and numbers must be in proportion to 
the size of the vessel as follows: for vessels 25 meters (m) and over in 
length, the height of letters and numbers must be no less than 1.0 m; 
for vessels 20 m but less than 25 m in length, the height of letters and 
numbers must be no less than 0.8 m; for vessels 15 m but less than 20 m 
in length, the height of letters and numbers must be no less than 0.6 m; 
for vessels 12 m but less than 15 m in length, the height of letters and 
numbers must be no less than 0.4 m; for vessels 5 m but less than 12 m 
in length, the height of letters and numbers must be no less than 0.3 m; 
and for vessels under 5 m in length, the height of letters and numbers 
must be no less than 0.1 m;
    (vi) The height of the letters and numbers to be placed on decks 
must be no less than 0.3 m;
    (vii) The length of the hyphen(s), if any, must be half the height 
(h) of the letters and numbers;
    (viii) The width of the stroke for all letters, numbers, and hyphens 
must be h/6;
    (ix) The space between letters and/or numbers must not exceed h/4 
nor be less than h/6;
    (x) The space between adjacent letters having sloping sides must not 
exceed h/8 nor be less than h/10;
    (xi) The marks must be white on a black background, or black on a 
white background;
    (xii) The background must extend to provide a border around the mark 
of no less than h/6; and

[[Page 284]]

    (xiii) The marks and the background must be maintained in good 
condition at all times.

[64 FR 15, Jan. 4, 1999]



Sec. 300.15  Prohibitions.

    In addition to the prohibitions in section 300.4, it is unlawful for 
any person to:
    (a) Use a high seas fishing vessel on the high seas in contravention 
of international conservation and management measures.
    (b) Use a high seas fishing vessel on the high seas, unless the 
vessel has on board a valid permit issued under section 300.13.
    (c) Use a high seas fishing vessel on the high seas that is not 
marked in accordance with Sec. 300.14.

[61 FR 35550, July 5, 1996, as amended at 64 FR 15, Jan. 4, 1999]



Sec. 300.16  Penalties.

    (a) Any person, any high seas fishing vessel, the owner or operator 
of such vessel, or any person who has been issued or has applied for a 
permit, found to be in violation of the Act, this subpart, or any permit 
issued under this subpart will be subject to the civil and criminal 
penalty provisions, permit sanctions, and forfeiture provisions 
prescribed by the Act, 15 CFR part 904 (Civil Procedures), and other 
applicable laws.
    (b) Permits under this subpart may be subject to permit sanctions 
prescribed by the Act, 15 CFR part 904 (Civil Procedures), and other 
applicable laws if any amount in settlement of a civil forfeiture 
imposed on a high seas fishing vessel or other property, or any civil 
penalty or criminal fine imposed on a high seas fishing vessel or on an 
owner or operator of such a vessel or on any other person who has been 
issued or has applied for a permit under any fishery resource statute 
enforced by the Secretary, has not been paid and is overdue.

[64 FR 15, Jan. 4, 1999]



Sec. 300.17  Reporting.

    (a) General. The operator of any vessel permitted under this subpart 
must report high seas catch and effort information to NMFS in a manner 
set by this section. Reports must include: identification information 
for vessel and operator; operator signature; crew size; whether an 
observer is aboard; target species; gear used; dates, times, locations, 
and conditions under which fishing was conducted; species and amounts of 
fish retained and discarded; and details of any interactions with sea 
turtles or birds.
    (b) Reporting options. (1) For the following fisheries, a permit 
holder must maintain and submit the listed reporting forms to the 
appropriate address and in accordance with the time limits required by 
the relevant regulations:
    (i) Antarctic--CCAMLR Logbook (50 CFR 300.107);
    (ii) Atlantic--Fishing Vessel Log Reports (50 CFR 648.7(b));
    (iii) Atlantic Pelagic Longline--Longline Logbook (50 CFR 630.5);
    (iv) Atlantic Purse Seine--Purse Seine Logbook (50 CFR 285.54);
    (v) Pacific Pelagic Longline--Longline Logbook (50 CFR 660.14(a));
    (vi) Eastern Pacific Purse Seine--IATTC Logbook (50 CFR 300.22); or
    (vii) Western Pacific Purse Seine--South Pacific Tuna Treaty Logbook 
(50 CFR 300.34).
    (2) For the albacore troll fisheries in the North and South Pacific, 
a permit holder must report high seas catch and effort by maintaining 
and submitting the log provided by the Regional Administrator, Southwest 
Region, NMFS.
    (3) For other fisheries, a permit holder must report high seas catch 
and effort by maintaining and submitting records, specific to the 
fishing gear being used, on forms provided by the Regional Administrator 
of the NMFS Region which issued the permit holder's HSFCA permit.
    (c) Confidentiality of statistics. Information submitted pursuant to 
this subpart will be treated in accordance with the provisions of 50 CFR 
part 600 of this title.

[64 FR 15, Jan. 4, 1999]



                    Subpart C--Pacific Tuna Fisheries

    Authority: 16 U.S.C. 951-961 and 971 et seq.

[[Page 285]]



Sec. 300.20  Purpose and scope.

    The regulations in this subpart implement the Tuna Conventions Act 
of 1950 (Act) and the Atlantic Tunas Convention Act of 1975. The 
regulations provide a mechanism to carry out the recommendations of the 
Inter-American Tropical Tuna Commission (IATTC) for the conservation and 
management of highly migratory fish resources in the Eastern Tropical 
Pacific Ocean so far as they affect vessels and persons subject to the 
jurisdiction of the United States. They also carry out the 
recommendations of the International Commission for the Conservation of 
Atlantic Tunas for the conservation of bluefin tuna, so far as they 
affect vessels and persons subject to the jurisdiction of the United 
States.

[64 FR 44430, Aug. 16, 1999]



Sec. 300.21  Definitions.

    In addition to the terms defined in Sec. 300.2, in the Act, the 
Convention for the Establishment of an Inter-American Tropical Tuna 
Commission, and the International Convention for the Conservation of 
Atlantic Tunas, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2, the Act, or 
the Conventions, the definition in this section shall apply.
    Bigeye tuna means the species Thunnus obesus.
    Bluefin tuna means the fish species Thunnus thynnus that is found in 
any ocean area.
    Commission's Yellowfin Regulatory Area (CYRA) means the waters 
bounded by a line extending westward from the mainland of North America 
along the 40 deg. N. latitude parallel, and connecting the following 
coordinates:
    40 deg. N. lat., 125 deg. W. long.;
    20 deg. N. lat., 125 deg. W. long.;
    20 deg. N. lat., 120 deg. W. long.;
    5 deg. N. lat., 120 deg. W. long.;
    5 deg. N. lat., 110 deg. W. long.;
    10 deg. S. lat., 110 deg. W. long.;
    10 deg. S. lat., 90 deg. W. long.;
    30 deg. S. lat., 90 deg. W. long.; and then eastward along the 
30 deg. S. latitude parallel to the coast of South America.
    Convention Area means the waters within the area bounded by the 
mainland of the Americas, lines extending westward from the mainland of 
the Americas along the 40 deg. N. lat. and 40 deg. S. lat., and 150 deg. 
W. long.
    Fish aggregating device (FAD) means a manmade raft or other floating 
object used to attract tuna and make them available to fishing vessels.
    Fishing trip means a period of time between landings when fishing is 
conducted.
    Fishing vessel means any vessel, boat, ship, or other craft that is 
used for, equipped to be used for, or of a type that is normally used 
for fishing or for assisting or supporting a vessel engaged in fishing, 
except purse seine skiffs.
    Floating object means any natural object or FAD around which fishing 
vessels may catch tuna.
    Incidental catch or incidental species means species caught while 
fishing with the primary purpose of catching a different species. An 
incidental catch is expressed as a percentage of the weight of the total 
fish on board.
    Land or Landing means to begin transfer of fish from a fishing 
vessel. Once transfer begins, all fish on board the vessel are counted 
as part of the landing.
    Observer means an individual placed aboard a fishing vessel under 
the IATTC observer program or any other international observer program 
in which the United States may participate.
    Pacific bluefin tuna means the subspecies of bluefin tuna Thunnus 
thynnus orientalis that is found in the Pacific Ocean.
    Regional Administrator means the Administrator, Southwest Region, 
NMFS, or his designee.
    Tag means the dealer tag, a flexible self-locking ribbon issued by 
NMFS for the identification of bluefin tuna under Sec. 300.26, or the 
BSD tag specified under Sec. 635.42 (a)(2) of this title.
    Tender vessel means a vessel that does not engage in purse seine 
fishing but tends to FADs in support of tuna fishing operations.
    Transship means to unload fish from a vessel that caught fish to 
another vessel.
    Transshipment receiving vessel means any vessel, boat, ship, or 
other craft

[[Page 286]]

that is used to receive fish from a fishing vessel.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999; 64 
FR 44430, Aug. 16, 1999]



Sec. 300.22  Yellowfin tuna--Recordkeeping and written reports.

    The master or other person in charge of a fishing vessel, or a 
person authorized in writing to serve as the agent for either person, 
must keep an accurate log of all operations conducted from the fishing 
vessel, entering for each day the date, noon position (stated in 
latitude and longitude or in relation to known physical features), and 
the tonnage of fish on board, by species. The record and bridge log 
maintained at the request of the IATTC shall be sufficient to comply 
with this paragraph, provided the items of information specified are 
accurately entered in the log.



Sec. 300.23  Yellowfin tuna--Persons and vessels exempted.

    This subpart does not apply to:
    (a) Any person or vessel authorized by the IATTC, the Assistant 
Administrator, or any state of the United States to engage in fishing 
for research purposes.
    (b) Any person or vessel engaged in sport fishing for personal use.



Sec. 300.24  Pacific bluefin tuna--Dealer permits.

    (a) General. A dealer importing Pacific bluefin tuna, or purchasing 
or receiving for export Pacific bluefin tuna first landed in the United 
States, must have a valid permit issued under this section.
    (b) Application. A dealer must apply for a permit in writing on an 
appropriate form obtained from NMFS. The application must be signed by 
the dealer and be submitted to NMFS at least 30 days before the date 
upon which the dealer desires to have the permit made effective. The 
application must contain the following information: Company name, 
principal place of business, owner's or owners' names, applicant's name 
(if different from owner or owners) and mailing address and telephone 
number, and any other information required by NMFS.
    (c) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, NMFS will issue a permit within 30 days of receipt of a completed 
application.
    (2) NMFS 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 is valid until 
December 31 of the year for which it is issued, unless suspended or 
revoked.
    (e) Alteration. Any permit that is substantially altered, erased, or 
mutilated is invalid.
    (f) Replacement. NMFS 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 NMFS for such purpose.
    (i) Sanctions. The Assistant 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. NMFS 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, available from NMFS, 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

[[Page 287]]

dealer issued a permit must report the change to NMFS in writing. The 
permit is void if any change in information is not reported within 15 
days.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999]



Sec. 300.25  Pacific bluefin tuna--Dealer recordkeeping and reporting.

    Any person issued a dealer permit under Sec. 300.24:
    (a) Must submit to NMFS a biweekly report on bluefin imports and 
exports on forms supplied by NMFS.
    (1) The report required to be submitted under this paragraph (a) 
must be postmarked within 10 days after the end of each 2-week reporting 
period in which Pacific bluefin tuna were exported. The bi-weekly 
reporting periods are defined as the first day to the 15th day of each 
month and the 16th day to the last day of the month.
    (2) Each report must specify accurately and completely for each tuna 
or each shipment of bulk-frozen tuna exported: Date of landing or 
import; any tag number (if so tagged); weight in kilograms (specify if 
round or dressed); and any other information required by NMFS. At the 
top of each form, the company's name, license number, and the name of 
the person filling out the report must be specified. In addition, the 
beginning and ending dates of the 2-week reporting period must be 
specified by the dealer and noted at the top of the form.
    (b) Must allow an authorized officer, or any employee of NMFS 
designated by NMFS for this purpose, to inspect and copy any records of 
transfers, purchases, or receipts of Pacific bluefin tuna.
    (c) Must retain at his/her principal place of business a copy of 
each biweekly report for a period of 2 years from the date on which it 
was submitted to NMFS.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999]



Sec. 300.26  Pacific bluefin tuna--Tags.

    (a) Issuance. NMFS will issue numbered tags to each person receiving 
a dealer's permit under Sec. 300.24.
    (b) Transfer. 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. At the discretion of dealers permitted under 
Sec. 300.24, a tag issued under paragraph (a) of this section may be 
affixed to each Pacific bluefin tuna purchased or received by the 
dealer. If so tagged, the tag must be affixed to the tuna between the 
fifth dorsal finlet and the keel and tag numbers must be recorded on 
NMFS reports required by Sec. 300.25(a) and any documents accompanying 
the shipment of Pacific bluefin tuna for domestic commercial use or 
export.
    (d) Removal. A NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer under paragraph (c) 
of this section or any tag affixed to any Pacific bluefin tuna to meet 
the requirements of Sec. 635.42(a)(2) of this title 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 number on each tag attached to each tuna or its parts 
must be written legibly and indelibly on the outside of any package or 
container.
    (e) Reuse. 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 Pacific 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.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999]



Sec. 300.27  Pacific bluefin tuna--Documentation requirements.

    Bluefin tuna imported into, or exported or re-exported from the 
customs territory of the United States is subject to the documentation 
requirements specified in Secs. 635.41 through 635.44 of this title.

[64 FR 29133, May 28, 1999]



Sec. 300.28  Prohibitions.

    In addition to the prohibitions in Sec. 300.4, it is unlawful for 
any person or vessel subject to the jurisdiction of the United States 
to:

[[Page 288]]

    (a) Land any species of tuna during the closed season for that 
species in excess of the amount allowed by the Regional Administrator.
    (b) Fish on floating objects in the Convention Area using any gear 
type specified by the Regional Administrator's notification of closure 
issued under Sec. 300.29.
    (c) Use tender vessels in the Convention Area.
    (d) Transship purse seine-caught tuna at sea within the Convention 
Area.
    (e) Import Pacific bluefin tuna or purchase or receive for export 
Pacific bluefin tuna first landed in the United States without a valid 
dealer permit issued under Sec. 300.24.
    (f) Remove any NMFS-issued numbered tag affixed to any Pacific 
bluefin tuna at the option of any permitted dealer or any tag affixed to 
a Pacific bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of 
this title, before removal is allowed under Sec. 300.26, or fail to 
write the tag number on the shipping package or container as specified 
in Sec. 300.26.
    (g) Reuse any NMFS-issued numbered tag affixed to a Pacific bluefin 
tuna at the option of a permitted dealer or any tag affixed to a Pacific 
bluefin tuna to meet the requirements of Sec. 635.42(a)(2) of this title 
or reuse any tag number previously written on a shipping package or 
container as prescribed by Sec. 300.26.

[61 FR 35550, July 5, 1996, as amended at 64 FR 29133, May 28, 1999; 64 
FR 44430, Aug. 16, 1999]



Sec. 300.29  Eastern Pacific fisheries management.

    (a) Notification of IATTC recommendations. The Regional 
Administrator will directly notify owners or agents of U.S. tuna vessels 
of any fishery management recommendations made by the IATTC and approved 
by the Department of State that will affect fishing or other activities 
by U.S. parties with fishery interests in the Convention Area. As soon 
as practicable after such notification, the Regional Administrator will 
announce approved IATTC recommendations in the Federal Register.
    (b) Tuna quotas. (1) Fishing seasons for all tuna species begin on 
January 1 and end either on December 31 or when NMFS closes the fishery 
for a specific species.
    (2) The Regional Administrator may close the U.S. fishery for 
yellowfin, bigeye, or skipjack tuna or any other tuna species in the 
Convention Area or portion of the Convention Area when advised by the 
Director of Investigations of the IATTC that the associated quota has 
been or is projected to be reached. Any such closure may include:
    (i) An allowance for an incidental catch that may be landed while 
fishing for other tuna species;
    (ii) A prohibition on the further setting of specified gear types on 
floating objects by U.S. vessels in the Convention Area;
    (iii) Provisions for vessels that are at sea during an announced 
closure to fish unrestricted until the fishing trip is completed;
    (iv) Provisions for vessels at sea with an observer on board during 
any closure to land fish unrestricted if the landing occurs after 
December 31; or
    (v) Other measures to ensure that the conservation and management 
measures of the IATTC are achieved.
    (3) The Regional Administrator will announce any such closures 
directly to the owners or agents of U.S. vessels who are fishing in or 
are eligible to fish in the Convention Area.
    (4) As soon as practicable after being advised of the quota 
attainment or projection under paragraph (b)(2) of this section, the 
Regional Administrator will publish an announcement of the closure in 
the Federal Register.
    (c) Use of tender vessels. No person subject to these regulations 
may use a tender vessel in the Convention Area.
    (d) Transshipments at sea. No person subject to these regulations 
may transship purse seine-caught tuna from one vessel to another vessel 
at sea within the Convention Area.

[64 FR 44431, Aug. 16, 1999]



                 Subpart D--South Pacific Tuna Fisheries

    Authority: 16 U.S.C. 973-973r.



Sec. 300.30  Purpose and scope.

    This subpart implements the South Pacific Tuna Act of 1988 (Act) and 
the

[[Page 289]]

Treaty on Fisheries Between the Governments of Certain Pacific Island 
States and the Government of the United States of America (Treaty) and 
applies to persons and vessels subject to the jurisdiction of the United 
States.



Sec. 300.31  Definitions.

    In addition to the terms defined in Sec. 300.2, in the Act, and in 
the Treaty, and unless the context requires otherwise, the terms used in 
this subpart have the following meanings. If a term is defined 
differently in Sec. 300.2, the Act, or the Treaty, the definition in 
this section shall apply.
    Administrator means the individual or organization designated by the 
Pacific Island Parties to act on their behalf under the Treaty and 
notified to the United States.
    Applicable national law means any provision of law of a Pacific 
Island Party that is described in paragraph 1(a) of Annex I of the 
Treaty.
    Authorized inspector means any individual authorized by a Pacific 
Island Party or the Secretary to conduct inspections, to remove samples 
of fish, and to gather any other information relating to fisheries in 
the Licensing Area.
    Authorized officer means any officer who is authorized by the 
Secretary, or the Secretary of Transportation, or the head of any 
Federal or state agency that has entered into an enforcement agreement 
with the Secretary under section 10(a) of the Act.
    Authorized party officer means any officer authorized by a Pacific 
Island Party to enforce the provisions of the Treaty.
    Closed area means any of the closed areas identified in Schedule 2 
of Annex I of the Treaty.
    Fishing means searching for, catching, taking, or harvesting fish; 
attempting to search for, catch, take, or harvest fish; engaging in any 
other activity that can reasonably be expected to result in the 
locating, catching, taking, or harvesting of fish; placing, searching 
for, or recovering fish aggregating devices or associated electronic 
equipment such as radio beacons; any operations at sea directly in 
support of, or in preparation for, any activity described in this 
paragraph; or aircraft use, relating to the activities described in this 
definition, except for flights in emergencies involving the health or 
safety of crew members or the safety of a vessel.
    Fishing arrangement means an arrangement between a Pacific Island 
Party and the owner of a U.S. fishing vessel that complies with section 
6(b) of the Act.
    Fishing vessel or vessel means any boat, ship, or other craft that 
is used for, equipped to be used for, or of a type normally used for 
commercial fishing, and that is documented under the laws of the United 
States.
    Licensing Area means all waters in the Treaty Area except for:
    (1) Those waters subject to the jurisdiction of the United States in 
accordance with international law.
    (2) Those waters within closed areas.
    (3) Those waters within limited areas closed to fishing.
    Licensing period means the period of validity of licenses issued in 
accordance with the Treaty.
    Limited area(s) means those areas so identified in Schedule 3 of 
Annex I of the Treaty.
    Operator means any person who is in charge of, directs or controls a 
vessel, including the owner, charterer and master.
    Pacific Island Party means a Pacific island nation that is a party 
to the Treaty.
    Regional Administrator means the Director, Southwest Region, or a 
designee.
    Transship means to unload any or all of the fish on board a licensed 
vessel either ashore or onto another vessel.
    Treaty Area means the area described in paragraph 1(k) of Article I 
of the Treaty.



Sec. 300.32  Vessel licenses.

    (a) Each vessel fishing in the Licensing Area must have a license 
issued by the Administrator for the licensing period being fished, 
unless excepted by Sec. 300.39. Each licensing period begins on June 15 
and ends on June 14 of the following year.
    (b) Upon receipt, the license or a duly certified copy, facsimile or 
telex confirmation must be carried on board the

[[Page 290]]

vessel when in the Licensing Area or Closed Areas and must be produced 
at the request of authorized officers, authorized party officers, or 
authorized inspectors. Prior to receipt of the license, but after 
issuance, a vessel may be used to fish, provided the number of the 
issued license is available on board.
    (c) Application forms for licenses to use a vessel to fish in the 
Licensing Area may be requested from, and upon completion, must be 
returned to, the Regional Administrator. All of the information 
requested on the form and the following must be supplied before the 
application will be considered complete:
    (1) The licensing period for which the license is requested.
    (2) The name of an agent, located in Port Moresby, Papua New Guinea, 
who, on behalf of the license holder, will receive and respond to any 
legal process issued in accordance with the Treaty.
    (3) Documentation from an insurance company showing that the vessel 
will be fully insured for the licensing period against all risks and 
liabilities normally covered by maritime liability insurance.
    (4) If the owner or charterer is the subject of proceedings under 
the bankruptcy laws of the United States, reasonable assurances that the 
owner of charterer will be financially able to fulfill any and all 
responsibilities under the Treaty, Act, and regulations, including the 
payment of any penalties or fines.
    (5) A copy of the vessel's USCG Certificate of Documentation.
    (d) The number of available licenses are set forth in Schedule 2 of 
Annex II of the Treaty.
    (e) Applications for vessels may be submitted at any time; complete 
applications will be forwarded to the Secretary of State for transmittal 
to the Administrator.
    (f) The Secretary, in consultation with the Secretary of State, may 
determine that a license application for a vessel should not be 
forwarded to the Administrator if:
    (1) The application is not in accord with the Treaty, Act, or 
regulations;
    (2) The owner or charterer is the subject of proceedings under the 
bankruptcy laws of the United States, and reasonable financial 
assurances have not been provided to the Secretary that the owner or 
charterer will be financially able to fulfill any and all 
responsibilities under the Treaty, Act, and regulations, including the 
payment of any penalties or fines;
    (3) The owner or charterer has not established to the satisfaction 
of the Secretary that the vessel will be fully insured for the licensing 
period against all risks and liabilities normally covered by maritime 
liability insurance; or
    (4) The owner or charterer has not paid any final penalty assessed 
by the Secretary in accordance with the Act.
    (g) An applicant will be promptly notified if that applicant's 
license application will not be forwarded to the Administrator, and of 
the reasons therefor. Within 15 days of notification by the Regional 
Administrator that the application will not be forwarded, an applicant 
may request reconsideration by providing a petition for reconsideration 
accompanied by new or additional information.



Sec. 300.33  Compliance with applicable national laws.

    The operator of the vessel shall comply with each of the applicable 
national laws, and the operator of the vessel shall be responsible for 
the compliance by the vessel and its crew with each of the applicable 
national laws, and the vessel shall be operated in accordance with those 
laws.



Sec. 300.34  Reporting requirements.

    (a) License holders shall comply with the reporting requirements of 
parts 4 and 5 of Annex I to the Treaty.
    (b) Information provided by license holders under Schedule 5 of 
Annex I of the Treaty shall be provided on the designated Forum 
Fisheries Agency form(s) to the Regional Administrator within 2 days of 
reaching port.
    (c) Information provided by license holders under Schedule 6 of 
Annex I of the Treaty shall be provided on the designated Forum 
Fisheries Agency form(s) to the Regional Administrator within 2 days of 
completing unloading.

[[Page 291]]

    (d) Any information required to be recorded, or to be notified, 
communicated or reported pursuant to a requirement of these regulations, 
the Act, or the Treaty shall be true, complete and correct. Any change 
in circumstances that has the effect of rendering any of the information 
provided false, incomplete or misleading shall be communicated 
immediately to the Regional Administrator.



Sec. 300.35  Vessel and gear identification.

    While a vessel is in the Licensing Area, a Limited Area closed to 
fishing, or a Closed Area, a recent and up-to-date copy of the 
International Code of Signals (INTERCO) shall be on board and accessible 
at all times. The operator shall comply with the 1989 Food and 
Agricultural Organization standard specifications for the marking and 
identification of fishing vessels. The international radio call sign of 
the vessel shall be painted in white on a black background, or in black 
on a white background, and be clear, distinct, and uncovered, in the 
following manner:
    (a) On both sides of the vessel's hull or superstructure, with each 
letter and number being at least 1 m high and having a stroke width of 
16.7 cm, with the background extending to provide a border around the 
mark of not less than 16.7 cm.
    (b) On the vessel's deck, on the body of any helicopter and on the 
hull of any skiff, with each letter and number being at least 30 cm 
high, and having a stroke width of 5 cm with the background extending to 
provide a border around the mark of not less than 5 cm.
    (c) On any other equipment being carried by and intended to be 
separated from the vessel during normal fishing operations, with each 
letter and number being at least 10 cm high and having a stroke width of 
1.7 cm, with the background extending to provide a border around the 
mark of not less than 1.7 cm.



Sec. 300.36  Closed area stowage requirements.

    At all times while a vessel is in a Closed Area, the fishing gear of 
the vessel shall be stowed in a manner as not to be readily available 
for fishing. In particular, the boom shall be lowered as far as possible 
so that the vessel cannot be used for fishing, but so that the skiff is 
accessible for use in emergency situations; the helicopter, if any shall 
be tied down; and launches shall be secured.



Sec. 300.37  Radio monitoring.

    The international distress frequency, 2.182 mHz, and 156.8 mHz 
(Channel 16, VHF) shall be monitored continuously from the vessel for 
the purpose of facilitating communication with the fisheries management, 
surveillance and enforcement authorities of the Parties.



Sec. 300.38  Prohibitions.

    (a) Except as provided for in Sec. 300.39, in addition to the 
prohibitions in Sec. 300.4, it is unlawful for any person subject to the 
jurisdiction of the United States to do any of the following:
    (1) To violate the Act or any provision of any regulation or order 
issued pursuant to Act.
    (2) To use a vessel for fishing in violation of an applicable 
national law.
    (3) To violate the terms and conditions of any fishing arrangement 
to which that person is a party.
    (4) To use a vessel for fishing in a Limited Area in violation of 
the requirements set forth in Schedule 3 of Annex I of the Treaty on 
``Limited Areas''.
    (5) To use a vessel for fishing in any Closed Area.
    (6) To refuse to permit any authorized officer or authorized party 
officer to board a fishing vessel for purpose of conducting a search or 
inspection in connection with the enforcement of the Act or the Treaty.
    (7) To refuse to comply with the instructions of an authorized 
officer or authorized party officer relating to fishing activities under 
the Treaty.
    (8) To refuse to permit an authorized inspector full access to any 
place where fish taken in the Licensing Area is unloaded.
    (9) To refuse to allow an authorized inspector to remove samples of 
fish from a vessel that fished in the Licensing Area.
    (10) To forcibly assault, resist, oppose, impede, intimidate, or 
interfere with:

[[Page 292]]

    (i) Any authorized officer, authorized party officer or authorized 
inspector in the conduct of a search or inspection in connection with 
the enforcement of these regulations, the Act or the Treaty; or
    (ii) An observer in the conduct of observer duties under the Treaty.
    (11) To transship fish on board a vessel that fished in the 
Licensing Area, except in accordance with the conditions set out in 
parts 3 and 4 of Annex I to the Treaty.
    (b) Except as provided for in Sec. 300.39, it is unlawful for any 
person subject to the jurisdiction of the United States when in the 
Licensing Area:
    (1) To use a vessel to fish unless validly licensed as required by 
the Administrator.
    (2) To use a vessel for directed fishing for southern bluefin tuna 
or for fishing for any kinds of fish other than tunas, except that fish 
may be caught as a incidental bycatch.
    (3) To use a vessel for fishing by any method, except the purse-
seine method.
    (4) To use any vessel to engage in fishing after the revocation of 
its license, or during the period of suspension of an applicable 
license.
    (5) To operate a vessel in such a way as to disrupt or in any other 
way adversely affect the activities of traditional and locally based 
fishermen and fishing vessels.
    (6) To use a vessel to fish in a manner inconsistent with an order 
issued by the Secretary under Sec. 300.42 (section 11 of the Act).
    (7) Except for circumstances involving force majeure and other 
emergencies involving the health or safety of crew members or the safety 
of the vessel, to use aircraft in association with fishing activities of 
a vessel, unless it is identified on the license application for the 
vessel, or any amendment thereto.



Sec. 300.39  Exceptions.

    (a) The prohibitions of Sec. 300.38 and the licensing requirements 
of Sec. 300.32 do not apply to fishing for albacore tuna by vessels 
using the trolling method outside of the 200 nautical mile fisheries 
zones of the Pacific Island Parties.
    (b) The prohibitions of Sec. 300.38(a)(4), (a)(5), and (b)(3) do not 
apply to fishing under the terms and conditions of a fishing 
arrangement.



Sec. 300.40  Civil penalties.

    The procedures of 15 CFR part 904 apply to the assessment of civil 
penalties, except as modified by the requirements of section 8 of the 
Act.



Sec. 300.41  Investigation notification.

    Upon commencement of an investigation under section 10(b)(1) of the 
Act, the operator of any vessel concerned shall have 30 days after 
receipt of notification of the investigation and the operator's rights 
under section 10(b)(1) to submit comments, information, or evidence 
bearing on the investigation, and to request in writing that the 
Secretary provide the operator an opportunity to present the comments, 
information, or evidence orally to the Secretary or the Secretary's 
representative.



Sec. 300.42  Findings leading to removal from fishing area.

    (a) Following an investigation conducted under section 10(b) of the 
Act, the Secretary, with the concurrence of the Secretary of State, and 
upon the request of the Pacific Island Party concerned, may order a 
fishing vessel that has not submitted to the jurisdiction of that 
Pacific Island Party to leave immediately the Licensing Area, all 
Limited Areas, and all Closed Areas upon making a finding that:
    (1) The fishing vessel--
    (i) While fishing in the Licensing Area did not have a license under 
the Treaty to fish in the Licensing Area, and that under paragraph 2 of 
Article 3 of the Treaty, the fishing is not authorized to be conducted 
in the Licensing Area without a license;
    (ii) Was involved in any incident in which an authorized officer, 
authorized party officer, or observer was allegedly assaulted with 
resultant bodily harm, physically threatened, forcibly resisted, refused 
boarding or subjected to physical intimidation or physical interference 
in the performance of duties as authorized by the Act or the Treaty;
    (iii) Has not made full payment within 60 days of any amount due as 
a result of a final judgement or other final

[[Page 293]]

determination deriving from a violation in waters within the Treaty Area 
of a Pacific Island Party; or
    (iv) Was not represented by an agent for service of process in 
accordance with the Treaty; or
    (2) There is probable cause to believe that the fishing vessel--
    (i) Was used in violation of section 5(a)(4), (a)(5), (b)(2), or 
(b)(3) of the Act;
    (ii) Used an aircraft in violation of section 5(b)(7) of the Act; or
    (iii) Was involved in an incident in which section 5(a)(7) of the 
Act was violated.
    (b) Upon being advised by the Secretary of State that proper 
notification to Parties has been made under paragraph 7 of Article 5 of 
the Treaty that a Pacific Island Party is investigating an alleged 
infringement of the Treaty by a vessel in waters under the jurisdiction 
of that Pacific Island Party, the Secretary shall order the vessel to 
leave those waters until the Secretary of State notifies the Secretary 
that the order is no longer necessary.
    (c) The Secretary shall rescind any order issued on the basis of a 
finding under paragraphs (a)(1) (iii) or (iv) of this section 
(subsections 11(a)(1) (C) or (D) of the Act) as soon as the Secretary 
determines that the facts underlying the finding do not apply.
    (d) An order issued in accordance with this section is not subject 
to judicial review.



Sec. 300.43  Observers.

    (a) The operator and each member of the crew of a vessel shall allow 
and assist any person identified as an observer under the Treaty by the 
Pacific Island Parties:
    (1) To board the vessel for scientific, compliance, monitoring and 
other functions at the point and time notified by the Pacific Island 
Parties to the Secretary.
    (2) Without interfering unduly with the lawful operation of the 
vessel, to have full access to and use of facilities and equipment on 
board the vessel that the observer may determine are necessary to carry 
out observer duties; have full access to the bridge, fish on board, and 
areas that may be used to hold, process, weigh and store fish; remove 
samples; have full access to vessel's records, including its log and 
documentation for the purpose of inspection and copying; have reasonable 
access to navigation equipment, charts, and radios, and gather any other 
information relating to fisheries in the Licensing Area.
    (3) To disembark at the point and time notified by the Pacific 
Island Parties to the Secretary.
    (4) To carry out observer duties safely.
    (b) The operator shall provide the observer, while on board the 
vessel, at no expense to the Pacific Island Parties, with food, 
accommodation and medical facilities of reasonable standard as may be 
acceptable to the Pacific Island Party whose representative is serving 
as the observer.



Sec. 300.44  Other inspections.

    The operator and each member of the crew of any vessel from which 
any fish taken in the Licensing Area is unloaded or transshipped shall 
allow, or arrange for, and assist any authorized inspector, authorized 
party officer, or authorized officer to have full access to any place 
where the fish is unloaded or transshipped, to remove samples, to have 
full access to the vessel's records, including its log and documentation 
for the purpose of inspection and photocopying, and to gather any other 
information relating to fisheries in the Licensing Area without 
interfering unduly with the lawful operation of the vessel.



                  Subpart E--Pacific Halibut Fisheries

    Authority: 16 U.S.C. 773-773k.



Sec. 300.60  Purpose and scope.

    This subpart implements the North Pacific Halibut Act of 1982 (Act) 
and is intended to supplement, not conflict with, the annual fishery 
management measures adopted by the International Pacific Halibut 
Commission (Commission) under the Convention between the United States 
and Canada for the Preservation of the Halibut Fishery of the Northern 
Pacific Ocean and Bering Sea (Convention).

[[Page 294]]



Sec. 300.61  Definitions.

    In addition to the terms defined in Sec. 300.2 and those in the Act 
and the Convention, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2, the Act, or 
the Convention, the definition in this section shall apply.
    Area 2A includes all waters off the States of California, Oregon, 
and Washington.
    Charter vessel means a vessel used for hire in sport fishing for 
halibut, but not including a vessel without a hired operator.
    Commercial fishing means fishing, the resulting catch of which 
either is, or is intended to be, sold or bartered.
    Fishing means the taking, harvesting, or catching of fish, or any 
activity that can reasonably be expected to result in the taking, 
harvesting, or catching of fish, including specifically the deployment 
of any amount or component part of setline gear anywhere in the maritime 
area.
    Individual Fishing Quota (IFQ), for purposes of this subpart, means 
the annual catch limit of halibut that may be harvested by a person who 
is lawfully allocated a harvest privilege for a specific portion of the 
TAC of halibut.
    IFQ fishing trip, for purposes of the subpart, means the period 
beginning when a vessel operator commences harvesting IFQ halibut and 
ending when the vessel operator lands any species.
    IFQ halibut means any halibut that is harvested with fixed gear in 
any IFQ regulatory area.
    Overall length of a vessel means the horizontal distance, rounded to 
the nearest ft/meter, between the foremost part of the stem and the 
aftermost part of the stern (excluding bowsprits, rudders, outboard 
motor brackets, and similar fittings or attachments).
    Person includes an individual, corporation, firm, or association.
    Setline gear means one or more stationary, buoyed, and anchored 
lines with hooks attached.
    Sport fishing means all fishing other than commercial fishing and 
treaty Indian ceremonial and subsistence fishing.
    Subarea 2A-1 includes all U.S. waters off the coast of Washington 
that are north of 46 deg.53'18" N. lat. and east of 125 deg.44'00" W. 
long., and all inland marine waters of Washington.
    Treaty Indian tribes means the Hoh, Jamestown S'Klallam, Lower Elwha 
S'Klallam, Lummi, Makah, Port Gamble S'Klallam, Quileute, Quinault, 
Skokomish, Suquamish, Swinomish, and Tulalip tribes.

[61 FR 35550, July 5, 1996, as amended at 64 FR 52469, Sept. 29, 1999]

    Effective Date Note: At 64 FR 52469, Sept. 29, 1999, Sec. 300.61 was 
amended by adding the definitions for ``Charter vessel'', ``Fishing'', 
``Individual Fishing Quota'', ``IFQ fishing trip'', ``IFQ halibut'', 
``Overall length'', ``Setline gear'', and ``Sport fishing'', effective 
Oct. 29, 1999.



Sec. 300.62  Annual management measures.

    Annual management measures may be added and modified through 
adoption by the Commission and publication in the Federal Register by 
the Assistant Administrator, with immediate regulatory effect. Such 
measures may include, inter alia, provisions governing: Licensing of 
vessels, inseason actions, regulatory areas, fishing periods, closed 
periods, closed areas, catch limits (quotas), fishing period limits, 
size limits, careful release of halibut, vessel clearances, logs, 
receipt and possession of halibut, fishing gear, retention of tagged 
halibut, supervision of unloading and weighing, and sport fishing for 
halibut. The Assistant Administrator will publish the Commission's 
regulations setting forth annual management measures in the Federal 
Register by March 15 each year. Annual management measures may be 
adjusted inseason by the Commission.



Sec. 300.63  Catch sharing plans, local area management plans, and domestic management measures.

    Catch sharing plans (CSP) and local area management plans (LAMP) may 
be developed by the appropriate regional fishery management council, and 
approved by NMFS, for portions of the fishery. Any approved CSP or LAMP 
may be obtained from the Administrator, Northwest Region, or the 
Administrator, Alaska Region.
    (a) The catch sharing plan for area 2A provides a framework that 
shall be

[[Page 295]]

applied to the annual Area 2A total allowable catch (TAC) adopted by the 
Commission, and shall be implemented through domestic and Commission 
regulations, which will be published in the Federal Register each year 
before March 15. The Area 2A CSP allocates halibut among the treaty 
Indian fishery, segments of the non-Indian commercial fishery, and 
segments of the recreational fishery.
    (1) Each year, before January 1, NMFS will publish a proposal to 
govern the recreational fishery under the CSP for the following year and 
will seek public comment. The comment period will extend until after the 
Commission's annual meeting, so the public will have the opportunity to 
consider the final area 2A total allowable catch (TAC) before submitting 
comments. After the Commission's annual meeting and review of public 
comments, NMFS will publish in the Federal Register the final rule 
governing sport fishing in area 2A. Annual management measures may be 
adjusted inseason by NMFS.
    (2) A portion of the commercial TAC is allocated as incidental catch 
in the salmon troll fishery in Area 2A. Each year the landing 
restrictions necessary to keep the fishery within its allocation will be 
recommended by the Pacific Fishery Management Council at its spring 
meetings, and will be published in the Federal Register along with the 
annual salmon management measures.
    (3) The commercial longline fishery in area 2A is governed by the 
annual management measures published pursuant to Secs. 300.62 and 
300.63.
    (4) The treaty Indian fishery is governed by Sec. 300.64 and tribal 
regulations. The annual quota for the fishery will be announced with the 
Commission regulations under Sec. 300.62
    (b) The catch sharing plan for area 4 allocates the annual TAC among 
Areas 4C, 4D, and 4E, and will be implemented by the Commission in 
annual management measures published pursuant to Sec. 300.62.
    (c) (Applicable through December 31, 1999). A person may retain 
halibut taken with setline gear in Area 4E that are smaller than the 
size limit specified in the annual management measures published 
pursuant to Sec. 300.62, provided that no person may sell or barter such 
halibut.
    (d) The LAMP for Sitka Sound provides guidelines for participation 
in the halibut fishery in Sitka Sound.
    (1) For purposes of Sec. 300.63(d), Sitka Sound means (See Figure 1) 
to subpart E of the part:
    (i) With respect to Sec. 300.63(d)(2), that part of the Commission 
regulatory area 2C that is enclosed on the north and east by a line from 
Kruzof Island at 57 deg.20'30'' N. lat., 135 deg.45'10'' W. long. to 
Chichagof Island at 57 deg.22'03'' N. lat., 135 deg.43'00'' W. long., 
and a line from Chichagof Island at 57 deg.22'35'' N. lat., 
135 deg.41'18'' W. long. to Baranof Island at 57 deg.22'17'' N. lat., 
135 deg.40'57'' W. long.; and is enclosed on the south and west by a 
line from Cape Edgecumbe at 57 deg.59'54'' N. lat., 135 deg.51'27'' W. 
long. to Vasilief Rock at 56 deg.48'56'' N. lat., 135 deg.32'30'' W. 
long. to the green day marker in Dorothy Narrows at 56 deg.49'17'' N. 
lat., 135 deg.22'45'' W. long. to Baranof Island at 56 deg.49'17'' N. 
lat., 135 deg.22'36'' W. long.
    (ii) With respect to Sec. 300.63(d)(3) and (4), that part of the 
Commission regulatory area 2C that is enclosed on the north and east by 
a line from Kruzof Island at 57 deg.20'30'' N. lat., 135 deg.45'10'' W. 
long. to Chichagof Island at 57 deg.22'03'' N. lat., 135 deg.43'00'' W. 
long., and a line from Chichagof Island at 57 deg.22'35'' N. lat., 
135 deg.41'18'' W. long. to Baranof Island at 57 deg.22'17'' N. lat., 
135 deg.40'57'' W. lat.; and is enclosed on the south and west by a line 
running from Sitka Point at 56 deg.59'23'' N. lat., 135 deg.49'34'' W. 
long., to Hanus Point at 56 deg.51'55'' N. lat., 135 deg.30'30'' W. 
long., to the green day marker in Dorothy Narrows at 56 deg.49'17'' N. 
lat., 135 deg.22'45'' W. long. to Baranof Island at 56 deg.49'17'' N. 
lat., 135 deg.22'36'' W. long.
    (2) A person using a vessel greater than 35 ft (10.7 m) in overall 
length, as defined in Sec. 300.61, is prohibited from fishing for IFQ 
halibut with setline gear, as defined in Sec. 300.61, within Sitka Sound 
as defined in paragraph (d)(1)(i) of this section.
    (3) A person using a vessel less than or equal to 35 ft (10.7 m) in 
overall length, as defined in Sec. 300.61:
    (i) Is prohibited from fishing for IFQ halibut with setline gear 
within Sitka Sound, as defined in paragraph (d)(1)(ii)

[[Page 296]]

of this section, from June 1 through August 31; and
    (ii) Is prohibited, during the remainder of the designated IFQ 
season, from retaining more than 2,000 lbs. (0.91 mt) of IFQ halibut 
within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, 
per IFQ fishing trip, as defined in 50 CFR 300.61.
    (4) No charter vessel, as defined in Sec. 300.61, shall engage in 
sport fishing, as defined in Sec. 300.61, for halibut within Sitka 
Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 
through August 31.
    (i) No charter vessel shall retain halibut caught while engaged in 
sport fishing, as defined in Sec. 300.61, for other species, within 
Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from 
June 1 through August 31.
    (ii) Notwithstanding paragraphs (d)(4) and (4)(i) of this section, 
halibut harvested outside Sitka Sound, as defined in (d)(1)(ii) of this 
section, may be retained onboard a charter vessel engaged in sport 
fishing, as defined in 50 CFR 300.61, for other species within Sitka 
Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 
through August 31.

[61 FR 35550, July 5, 1996, as amended at 63 FR 13009, Mar. 17, 1998; 63 
FR 24752, May 5, 1998; 64 FR 52469, Sept. 29, 1999]

    Effective Date Note: At 64 FR 52469, Sept. 29, 1999, Sec. 300.63 was 
amended by revising the heading and the introductory text, and by adding 
paragraph (d), effective Oct. 29, 1999. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 300.63  Catch sharing plans and domestic management measures.

    Catch sharing plans (CSP) may be developed by the appropriate 
regional fishery management council, and approved by NMFS, for portions 
of the fishery. Any approved catch sharing plan may be obtained from the 
Director, Northwest Region, or the Director, Alaska Region.

                                * * * * *



Sec. 300.64  Fishing by U.S. treaty Indian tribes.

    (a) Halibut fishing in subarea 2A-1 by members of U.S. treaty Indian 
tribes located in the State of Washington is governed by this section.
    (b) Commercial fishing for halibut by treaty Indians is permitted 
only in subarea 2A-1 with hook-and-line gear in conformance with the 
season and quota established annually by the Commission.
    (c) Commercial fishing periods and management measures to implement 
paragraph (b) of this section will be established by treaty Indian 
tribal regulations.
    (d) Commercial fishing for halibut by treaty Indians shall comply 
with the Commission's management measures governing size limits, careful 
release of halibut, logs, and fishing gear (published pursuant to 
Sec. 300.62), except that the 72-hour fishing restriction preceding the 
opening of a halibut fishing period shall not apply to treaty Indian 
fishing.
    (e) Ceremonial and subsistence fishing for halibut by treaty Indians 
in subarea 2A-1 is permitted with hook-and-line gear from January 1 to 
December 31.
    (f) No size or bag limits shall apply to the ceremonial and 
subsistence fishery, except that when commercial halibut fishing is 
prohibited pursuant to paragraph (b) of this section, treaty Indians may 
take and retain not more than two halibut per person per day.
    (g) Halibut taken for ceremonial and subsistence purposes shall not 
be offered for sale or sold.
    (h) Any member of a U.S. treaty Indian tribe who is engaged in 
commercial or ceremonial and subsistence fishing under this section must 
have on his or her person a valid treaty Indian identification card 
issued pursuant to 25 CFR part 249, subpart A, and must comply with the 
treaty Indian vessel and gear identification requirements of Final 
Decision No. 1 and subsequent orders in United States v. Washington 384 
F. Supp. 312 (W.D. Wash., 1974).
    (i) The following table sets forth the fishing areas of each of the 
12 treaty Indian tribes fishing pursuant to this section. Within subarea 
2A-1, boundaries of a tribe's fishing area may be revised as ordered by 
a Federal Court.

[[Page 297]]



------------------------------------------------------------------------
                   Tribe                             Boundaries
------------------------------------------------------------------------
HOH.......................................  Between 47 deg.54'18" N.
                                             lat. (Quillayute River) and
                                             47 deg.21'00" N. lat.
                                             (Quinault River), and east
                                             of 125 deg.44'00" W. long.
JAMESTOWN S'KLALLAM.......................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             626 F. Supp. 1486, to be
                                             places at which the
                                             Jamestown S'Klallam Tribe
                                             may fish under rights
                                             secured by treaties with
                                             the United States.
LOWER ELWHA S'KLALLAM.....................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             459 F. Supp. 1049 and 1066
                                             and 626 F. Supp. 1443, to
                                             be places at which the
                                             Lower Elwha S'Klallam Tribe
                                             may fish under rights
                                             secured by treaties with
                                             the United States.
LUMMI.....................................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             384 F. Supp. 360, as
                                             modified in Subproceeding
                                             No. 89-08 (W.D. Wash.,
                                             February 13, 1990)
                                             (decision and order re:
                                             cross-motions for summary
                                             judgement), to be places at
                                             which the Lummi Tribe may
                                             fish under rights secured
                                             by treaties with the United
                                             States.
MAKAH.....................................  North of 48 deg.02'15" N.
                                             lat. (Norwegian Memorial),
                                             west of 123 deg.42'30" W.
                                             long., and east of 125
                                             deg.44'00" W. long.
PORT GAMBLE S'KLALLAM.....................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             626 F. Supp. 1442, to be
                                             places at which the Port
                                             Gamble S'Klallam Tribe may
                                             fish under rights secured
                                             by treaties with the United
                                             States.
QUILEUTE..................................  Between 48 deg.07'36" N.
                                             lat. (Sand Point) and 47
                                             deg.31'42" N. lat. (Queets
                                             River), and east of 125
                                             deg.44'00" W. long.
QUINAULT..................................  Between 47 deg.40'06" N.
                                             lat. (Destruction Island)
                                             and 46 deg.53'18" N. lat.
                                             (Point Chehalis), and east
                                             of 125 deg.44'00" W. long.
SKOKOMISH.................................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             384 F. Supp. 377, to be
                                             places at which the
                                             Skokomish Tribe may fish
                                             under rights secured by
                                             treaties with the United
                                             States.
SUQUAMISH.................................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             459 F. Supp. 1049, to be
                                             places at which the
                                             Suquamish Tribe may fish
                                             under rights secured by
                                             treaties with the United
                                             States.
SWINOMISH.................................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             459 F. Supp. 1049, to be
                                             places at which the
                                             Swinomish Tribe may fish
                                             under rights secured by
                                             treaties with the United
                                             States.
TULALIP...................................  Those locations in the
                                             Strait of Juan de Fuca and
                                             Puget Sound as determined
                                             in or in accordance with
                                             Final Decision No. 1 and
                                             subsequent orders in United
                                             States v. Washington, 384
                                             F. Supp. 312 (W.D. Wash.,
                                             1974), and particularly at
                                             626 F. Supp. 1531-1532, to
                                             be places at which the
                                             Tulalip Tribe may fish
                                             under rights secured by
                                             treaties with the United
                                             States.
------------------------------------------------------------------------



Sec. 300.65  Prohibitions.

    In addition to the prohibitions in Sec. 300.4, the following 
prohibitions apply within this subpart. It is unlawful for any person to 
fish for halibut except in accordance with:
    (a) The management measures published under Sec. 300.62.
    (b) The catch sharing plans and management measures implemented 
under Sec. 300.63.

[[Page 298]]

         Figure 1 to Subpart E--Sitka Local Area Management Plan
[GRAPHIC] [TIFF OMITTED] TR29SE99.005


[[Page 299]]


[GRAPHIC] [TIFF OMITTED] TR29SE99.006

[64 FR 52471, Sept. 29, 1999]

    Effective Date Note: At 64 FR 52470, Sept. 29, 1999, subpart E of 
part 300 was amended by adding figure 1, effective Oct. 29, 1999.



        Subpart F--Fraser River Sockeye and Pink Salmon Fisheries

    Authority: Pacific Salmon Treaty Act, 16 U.S.C. 3636(b).



Sec. 300.90  Purpose and scope.

    This subpart implements the Pacific Salmon Treaty Act of 1985 (16 
U.S.C. 3631-3644) (Act) and is intended to supplement, not conflict 
with, the fishery regimes and Fraser River Panel regulations adopted 
under the Treaty between the Government of the United States of America 
and the Government of Canada Concerning Pacific Salmon, signed at 
Ottawa, January 28, 1985 (Treaty).



Sec. 300.91  Definitions.

    In addition to the terms defined in Sec. 300.2 and those in the Act 
and the Treaty, the terms used in this subpart have the following 
meanings. If a term is defined differently in Sec. 300.2, the Act, or 
the Treaty, the definition in this section shall apply.
    All-citizen means any person who is not a treaty Indian fishing in 
that treaty Indian's tribal treaty fishing places pursuant to treaty 
Indian tribal fishing regulations (whether in compliance with such 
regulations or not).
    Authorized officer means, in addition to those individuals 
identified under authorized officer at Sec. 300.2, any state, Federal, 
or other officer as may be authorized by the Secretary in writing, 
including any treaty Indian tribal enforcement officer authorized to 
enforce tribal fishing regulations.
    Commission means the Pacific Salmon Commission established by the 
Pacific Salmon Treaty.
    Consistent regulation or consistent order means any Federal, state, 
or treaty Indian tribal regulation or order that is in addition to and 
not in conflict with (at least as restrictive as)

[[Page 300]]

any regime of the Commission, Fraser River Panel regulation, inseason 
order of the Secretary, or these regulations.
    Fishing gear--
    (1) Gill net means a fishing net of single web construction, not 
anchored, tied, staked, placed, or weighted in such a manner that it 
cannot drift.
    (2) Purse seine means all types of fishing gear consisting of a lead 
line, cork line, auxiliary lines, purse line and purse rings and of mesh 
net webbing fashioned in such a manner that it is used to encircle fish, 
and in addition prevent their escape under the bottom or lead line of 
the net by drawing in the bottom of the net by means of the purse line 
so that it forms a closed bag.
    (3) Reef net means a non-self-fishing open bunt square or 
rectangular section of mesh netting suspended between two anchored boats 
fashioned in such a manner that to impound salmon passing over the net, 
the net must be raised to the surface.
    (4) Troll fishing gear means one or more lines that drag hooks with 
bait or lures behind a moving fishing vessel.
    (5) Treaty Indian fishing gear means fishing gear defined 
authorized, and identified under treaty Indian tribal laws and 
regulations in accordance with the requirements of Final Decision No. 1 
and subsequent orders in United States v. Washington, 384 F. Supp. 312 
(W.D. Wash., 1974).
    Fraser River Panel means the Fraser River Panel established by the 
Pacific Salmon Treaty.
    Fraser River Panel Area (U.S.) means the United States' portion of 
the Fraser River Panel Area specified in Annex II of the Treaty as 
follows:
    (1) The territorial water and the high seas westward from the 
western coast of Canada and the United States of America and from a 
direct line drawn from Bonilla Point, Vancouver Island, to the 
lighthouse of Tatoosh Island, Washington--which line marks the entrance 
of Juan de Fuca Strait--and embraced between 48 deg. and 49 deg. N. 
lat., excepting therefrom, however, all the waters of Barkley Sound, 
eastward of a straight line drawn from Amphitrite Point to Cape Beale 
and all the waters of Nitinat Lake and the entrance thereto.
    (2) The waters included within the following boundaries: Beginning 
at Bonilla Point, Vancouver Island, thence along the aforesaid direct 
line drawn from Bonilla Point to Tatoosh Lighthouse, Washington, 
described in paragraph (1) of this definition, thence to the nearest 
point of Cape Flattery, thence following the southerly shore of Juan de 
Fuca Strait to Point Wilson, on Whidbey Island, thence following the 
western shore of the said Whidbey Island, to the entrance to Deception 
Pass, thence across said entrance to the southern side of Reservation 
Bay, on Fidalgo Island, thence following the western and northern shore 
line of the said Fidalgo Island to Swinomish Slough, crossing the said 
Swinomish Slough, in line with the track of the Great Northern Railway 
(Burlington Northern Railroad), thence northerly following the shoreline 
of the mainland to Atkinson Point at the northerly entrance to Burrard 
Inlet, British Columbia, thence in a straight line to the southern end 
of Bowen Island, then westerly following the southern shore of Bowen 
Island to Cape Roger Curtis, thence in a straight line to Gower Point, 
thence westerly following the shoreline to Welcome Point on Sechelt 
Peninsula, thence in a straight line to Point Young on Lasqueti Island, 
thence in a straight line to Dorcas Point on Vancouver Island, thence 
following the eastern and southern shores of the said Vancouver Island, 
to the starting point at Bonilla Point, as shown on the British 
Admiralty Chart Number 579, and on the U.S. Coast and Geodetic Survey 
Chart Number 6300, as corrected to March 14, 1930, copies of which are 
annexed to the 1930 Convention between Canada and the United States of 
America for Protection, Preservation, and Extension of the Sockeye 
Salmon Fishery in the Fraser River System as amended, signed May 26, 
1930. [Note: U.S. Coast and Geodetic Survey Chart Number 6300 has been 
replaced and updated by NOAA Chart Number 18400.]
    (3) The Fraser River and the streams and lakes tributary thereto.
    (4) The Fraser River Panel Area (U.S.) includes Puget Sound 
Management and Catch Reporting Areas 4B, 5, 6, 6A, 6B, 6C, 6D, 7, 7A, 
7B, 7C, 7D, and

[[Page 301]]

7E as defined in the Washington State Administrative Code at Chapter 
220-22 as of June 27, 1986.
    Fraser River Panel regulations means regulations applicable to the 
Fraser River Panel Area that are recommended by the Commission (on the 
basis of proposals made by the Fraser River Panel) and approved by the 
Secretary of State.
    Mesh size means the distance between the inside of one knot to the 
outside of the opposite (vertical) knot in one mesh of a net.
    Pink salmon means Oncorhynchus gorbuscha.
    Sockeye salmon means the anadromous form of Oncorhynchus nerka.
    Treaty fishing places (of an Indian tribe) means locations within 
the Fraser River Panel Area (U.S.) as determined in or in accordance 
with Final Decision No. 1 and subsequent orders in United States v. 
Washington, 384 F. Supp. 312 (W.D. Wash. 1974), to be places at which 
that treaty Indian tribe may take fish under rights secured by treaty 
with the United States.
    Treaty Indian means any member of a treaty Indian tribe whose treaty 
fishing place is in the Fraser River Panel Area (U.S.) or any assistant 
to a treaty Indian authorized to assist in accordance with 
Sec. 300.95(d).
    Treaty Indian tribe means any of the federally recognized Indian 
tribes of the State of Washington having fishing rights secured by 
treaty with the United States to fish for salmon stocks subject to the 
Pacific Salmon Treaty in treaty fishing places within the Fraser River 
Panel Area (U.S.). Currently these tribes are the Makah, Tribe, Lower 
Elwha Klallam Tribe, Port Gamble Klallam Tribe, Jamestown Klallam Tribe, 
Suquamish Tribe, Lummi Tribe, Nooksack Tribe, the Swinomish Indian 
Tribal Community, and the Tulalip Tribe.



Sec. 300.92  Relation to other laws.

    (a) Insofar as they are consistent with this part, any other 
applicable Federal law or regulation, or any applicable law and 
regulations of the State of Washington or of a treaty Indian tribe with 
treaty fishing rights in the Fraser River Panel Area (U.S.) will 
continue to have force and effect in the Fraser River Panel Area (U.S.) 
with respect to fishing activities addressed herein.
    (b) Any person fishing subject to this subpart is bound by the 
international boundaries now recognized by the United States within the 
Fraser River Panel Area (U.S.) described in Sec. 300.91, notwithstanding 
any dispute or negotiation between the United States and Canada 
regarding their respective jurisdictions, until such time as different 
boundaries are published by the United States.
    (c) Any person fishing in the Fraser River Panel Area (U.S.) who 
also fishes for groundfish in the EEZ should consult Federal regulations 
at part 663 of this title for applicable requirements, including the 
requirement that vessels engaged in commercial fishing for groundfish 
(except commercial passenger vessels) have vessel identification in 
accordance with Sec. 663.6. Federal regulations governing salmon fishing 
in the EEZ, which includes a portion of the Fraser River Panel Area 
(U.S.), are at part 661 of this title. Annual regulatory modifications 
are published in the Federal Register.
    (d) Except as otherwise provided in this subpart, general provisions 
governing off-reservation fishing by treaty Indians are found at 25 CFR 
part 249, subpart A. Additional general and specific provisions 
governing treaty Indian fisheries are found in regulations and laws 
promulgated by each treaty Indian tribe for fishermen fishing pursuant 
to tribal authorization.
    (e) Nothing in this subpart relieves a person from any other 
applicable requirements lawfully imposed by the United States, the State 
of Washington, or a treaty Indian tribe.



Sec. 300.93  Reporting requirements.

    Any person fishing for sockeye or pink salmon within the Fraser 
River Panel Area (U.S.) and any person receiving or purchasing fish 
caught by such persons are subject to State of Washington reporting 
requirements at Washington Administrative Code, Chapter 220-69. Treaty 
Indian fishermen are subject also to tribal reporting requirements. No 
separate Federal reports are required.

[[Page 302]]



Sec. 300.94  Prohibitions and restrictions.

    In addition to the prohibitions in Sec. 300.4, the following 
prohibitions and restrictions apply.
    (a) In addition to the prohibited acts set forth in the Act at 16 
U.S.C. 3637(a), the following restrictions apply to sockeye and pink 
salmon fishing in the Fraser River Panel Area (U.S.):
    (1) The Fraser River Panel Area (U.S.) is closed to sockeye and pink 
salmon fishing, unless opened by Fraser River Panel regulations or by 
inseason orders of the Secretary issued under Sec. 300.97 that give 
effect to orders of the Fraser River Panel, unless such orders are 
determined not to be consistent with domestic legal obligations. Such 
regulations and inseason orders may be further implemented by 
regulations promulgated by the United States, the State of Washington, 
or any treaty Indian tribe, which are also consistent with domestic 
legal obligations.
    (2) It is unlawful for any person or fishing vessel subject to the 
jurisdiction of the United States to fish for, or take and retain, any 
sockeye or pink salmon:
    (i) Except during times or in areas that are opened by Fraser River 
Panel regulations or by inseason order, except that this provision will 
not prohibit the direct transport of legally caught sockeye or pink 
salmon to offloading areas.
    (ii) By means of gear or methods not authorized by Fraser River 
Panel regulations, inseason orders, or other applicable Federal, state, 
or treaty Indian tribal law.
    (iii) In violation of any applicable area, season, species, zone, 
gear, or mesh size restriction.
    (b) It is unlawful for any person or fishing vessel subject to the 
jurisdiction of the United States to--
    (1) Remove the head of any sockeye or pink salmon caught in the 
Fraser River Panel Area (U.S.), or possess a salmon with the head 
removed, if that salmon has been marked by removal of the adipose fin to 
indicate that a coded wire tag has been implanted in the head of the 
fish.
    (2) Fail to permit an authorized officer to inspect a record or 
report required by the State of Washington or treaty Indian tribal 
authority.
    (c) Notwithstanding paragraph (a) of this section, nothing in this 
subpart will be construed to prohibit the retention of sockeye or pink 
salmon caught by any person while lawfully engaged in a fishery for 
subsistence or ceremonial purposes pursuant to treaty Indian tribal 
regulations, for recreational purposes pursuant to recreational fishing 
regulations promulgated by the State of Washington, or as otherwise 
authorized by treaty Indian tribal or State of Washington law or 
regulation, provided that such treaty Indian tribal or State regulation 
is consistent with U.S.-approved Commission fishery regimes, Fraser 
River Panel regulations, or inseason orders of the Secretary applicable 
to fishing in the Fraser River Panel Area (U.S.).
    (d) The following types of fishing gear are authorized, subject to 
the restrictions set forth in this subpart and according to the times 
and areas established by Fraser River Panel regulations or inseason 
orders of the Secretary:
    (1) All citizens: Gill net, purse seine, reef net, and troll fishing 
gear. Specific restrictions on all citizens gear are contained in the 
Washington State Administrative Code of Chapter 220-47.
    (2) Treaty Indians: Treaty Indian fishing gear.
    (e) Geographic descriptions of Puget Sound Salmon Management and 
Catch Reporting Areas, which are referenced in the Commission's regimes, 
Fraser River Panel regulations, and in inseason orders of the Secretary, 
are found in the Washington State Administrative Code at Chapter 220-22.



Sec. 300.95  Treaty Indian fisheries.

    (a) Any treaty Indian must comply with this section when fishing for 
sockeye and pink salmon at the treaty Ind