CODE OF FEDERAL REGULATIONS50 Wildlife and Fisheries 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

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

 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

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. 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. 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.

 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. 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.

CFRORDR.FRM <CFRTITLE> <LRH>50 CFR Ch. II (10-1-99 Edition)</LRH> <RRH>National Marine Fisheries Service/NOAA, Commerce</RRH> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 50—Wildlife and Fisheries</HD> <P>(This book contains parts 200 to 599)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter ii</E>—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce</SUBJECT> <PG>216</PG> <SUBJECT> <E T="04">chapter iii</E>—International Fishing and Related Activities</SUBJECT> <PG>300</PG> <SUBJECT> <E T="04">chapter iv</E>—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</SUBJECT> <PG>401</PG> <SUBJECT> <E T="04">chapter v</E>—Marine Mammal Commission</SUBJECT> <PG>501</PG> </CHAPTI> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Commercial fishing on Red Lake Indian Reservation, Bureau of Indian Affairs, Interior: 25 CFR part 242.</P> <P>Disposal of certain wild animals in national parks, National Park Service, Interior: 36 CFR part 10.</P> <P>Exchanges of land for migratory bird or other wildlife refuges, Bureau of Land Management, Interior: 43 CFR 2200.0-1—2272.1.</P> <P>Fishing, hunting, trapping, and protection of wildlife in national forests and wildlife refuges, Forest Service, USDA: 36 CFR part 241, §§ 261.8, 261.9.</P> <P>Fishing, hunting, trapping, and protection of wildlife in national parks, memorials, recreation areas, etc., National Park Service, Interior: 36 CFR parts 2, 7, 20.</P> <P>Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD: 36 CFR 327.8.</P> <P>Free entry of animals, birds and products of American fisheries under specified conditions, Customs Service, Treasury: 19 CFR 10.70—10.83.</P> <P>Grazing areas for wildlife maintenance, Bureau of Land Management, Interior: 43 CFR part 4110.</P> <P>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.</P> </CROSSREF> </CFRTOC> </CFRTITLE> <CHAPTER> <LRH>50 CFR Ch. II (10-1-99 Edition)</LRH> <RRH>National Marine Fisheries Service/NOAA, Commerce</RRH> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER II—NATIONAL MARINE FISHERIES</HD> <HD SOURCE="HED">SERVICE, NATIONAL OCEANIC AND</HD> <HD SOURCE="HED">ATMOSPHERIC ADMINISTRATION,</HD> <HD SOURCE="HED">DEPARTMENT OF COMMERCE</HD> </TOCHD> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER A—GENERAL PROVISIONS[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—MARINE MAMMALS</HD> </SUBCHAP> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>216</PT> <SUBJECT>Regulations governing the taking and importing of marine mammals</SUBJECT> <PG>5</PG> <PT>217-221</PT> <RESERVED>[Reserved]</RESERVED> <PT>222</PT> <SUBJECT>General endangered and threatened marine species</SUBJECT> <PG>80</PG> <PT>223</PT> <SUBJECT>Threatened marine and anadromous species</SUBJECT> <PG>101</PG> <PT>224</PT> <SUBJECT>Endangered marine and anadromous species</SUBJECT> <PG>162</PG> <PT>225</PT> <RESERVED>[Reserved]</RESERVED> <PT>226</PT> <SUBJECT>Designated critical habitat</SUBJECT> <PG>164</PG> <PT>229</PT> <SUBJECT>Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972</SUBJECT> <PG>184</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER D—WHALING</HD> </SUBCHAP> <CHAPTI> <PT>230</PT> <SUBJECT>Whaling provisions</SUBJECT> <PG>212</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—AID TO FISHERIES</HD> </SUBCHAP> <CHAPTI> <PT>253</PT> <SUBJECT>Fisheries assistance programs</SUBJECT> <PG>215</PG> <PT>259</PT> <SUBJECT>Capital construction fund</SUBJECT> <PG>224</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS</HD> </SUBCHAP> <CHAPTI> <PT>260</PT> <SUBJECT>Inspection and certification</SUBJECT> <PG>236<PRTPAGE P="4"/> </PG> <PT>261</PT> <SUBJECT>United States Standards for Grades</SUBJECT> <PG>266</PG> </CHAPTI> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTERS H-J[RESERVED]</HD> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER K—CONTINENTAL SHELF</HD> </SUBCHAP> <CHAPTI> <PT>296</PT> <SUBJECT>Fishermen's Contingency Fund</SUBJECT> <PG>268</PG> </CHAPTI> </TOC> <SUBCHAP TYPE="N"> <PRTPAGE P="5"/> <RESERVED>SUBCHAPTER A—GENERAL PROVISIONS[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <RESERVED>SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER C—MARINE MAMMALS</HD> <PART> <EAR>Pt. 216</EAR> <HD SOURCE="HED">PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECHD>Sec.</SECHD> <SECTNO>216.1</SECTNO> <SUBJECT>Purpose of regulations.</SUBJECT> <SECTNO>216.2</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <SECTNO>216.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.4</SECTNO> <SUBJECT>Other laws and regulations.</SUBJECT> <SECTNO>216.5</SECTNO> <SUBJECT>Payment of penalty.</SUBJECT> <SECTNO>216.6</SECTNO> <SUBJECT>Forfeiture and return of seized property.</SUBJECT> <SECTNO>216.7</SECTNO> <SUBJECT>Holding and bonding.</SUBJECT> <SECTNO>216.8</SECTNO> <SUBJECT>Enforcement officers.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Prohibitions</HD> <SECTNO>216.11</SECTNO> <SUBJECT>Prohibited taking.</SUBJECT> <SECTNO>216.12</SECTNO> <SUBJECT>Prohibited importation.</SUBJECT> <SECTNO>216.13</SECTNO> <SUBJECT>Prohibited uses, possession, transportation, sales, and permits.</SUBJECT> <SECTNO>216.14</SECTNO> <SUBJECT>Marine mammals taken before the MMPA.</SUBJECT> <SECTNO>216.15</SECTNO> <SUBJECT>Depleted species.</SUBJECT> <SECTNO>216.16</SECTNO> <SUBJECT>Prohibitions under the General Authorization for Level B harassment for scientific research.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Exceptions</HD> <SECTNO>216.21</SECTNO> <SUBJECT>Actions permitted by international treaty, convention, or agreement.</SUBJECT> <SECTNO>216.22</SECTNO> <SUBJECT>Taking by State or local government officials.</SUBJECT> <SECTNO>216.23</SECTNO> <SUBJECT>Native exceptions.</SUBJECT> <SECTNO>216.24</SECTNO> <SUBJECT>Taking and related acts incidental to commercial fishing operations.</SUBJECT> <SECTNO>216.25</SECTNO> <SUBJECT>Exempted marine mammals and marine mammal products.</SUBJECT> <SECTNO>216.26</SECTNO> <SUBJECT>Collection of certain marine mammals parts without prior authorization.</SUBJECT> <SECTNO>216.27</SECTNO> <SUBJECT>Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Special Exceptions</HD> <SECTNO>216.30</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>216.31</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.32</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>216.33</SECTNO> <SUBJECT>Permit application submission, review, and decision procedures.</SUBJECT> <SECTNO>216.34</SECTNO> <SUBJECT>Issuance criteria.</SUBJECT> <SECTNO>216.35</SECTNO> <SUBJECT>Permit restrictions.</SUBJECT> <SECTNO>216.36</SECTNO> <SUBJECT>Permit conditions.</SUBJECT> <SECTNO>216.37</SECTNO> <SUBJECT>Marine mammal parts.</SUBJECT> <SECTNO>216.38</SECTNO> <SUBJECT>Reporting.</SUBJECT> <SECTNO>216.39</SECTNO> <SUBJECT>Permit amendments.</SUBJECT> <SECTNO>216.40</SECTNO> <SUBJECT>Penalties and permit sanctions.</SUBJECT> <SECTNO>216.41</SECTNO> <SUBJECT>Permits for scientific research and enhancement.</SUBJECT> <SECTNO>216.42</SECTNO> <SUBJECT>Photography. [Reserved]</SUBJECT> <SECTNO>216.43</SECTNO> <SUBJECT>Public display. [Reserved]</SUBJECT> <SECTNO>216.44</SECTNO> <SUBJECT>Applicability/transition.</SUBJECT> <SECTNO>216.45</SECTNO> <SUBJECT>General Authorization for Level B harassment for scientific research.</SUBJECT> <SECTNO>216.46-216.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Designated Ports</HD> <SECTNO>216.50</SECTNO> <SUBJECT>Importation at designated ports.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Pribilof Islands, Taking for Subsistence Purposes</HD> <SECTNO>216.71</SECTNO> <SUBJECT>Allowable take of fur seals.</SUBJECT> <SECTNO>216.72</SECTNO> <SUBJECT>Restrictions on taking.</SUBJECT> <SECTNO>216.73</SECTNO> <SUBJECT>Disposition of fur seal parts.</SUBJECT> <SECTNO>216.74</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Pribilof Islands Administration</HD> <SECTNO>216.81</SECTNO> <SUBJECT>Visits to fur seal rookeries.</SUBJECT> <SECTNO>216.82</SECTNO> <SUBJECT>Dogs prohibited.</SUBJECT> <SECTNO>216.83</SECTNO> <SUBJECT>Importation of birds or mammals.</SUBJECT> <SECTNO>216.84</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>216.85</SECTNO> <SUBJECT>Walrus and Otter Islands.</SUBJECT> <SECTNO>216.86</SECTNO> <SUBJECT>Local regulations.</SUBJECT> <SECTNO>216.87</SECTNO> <SUBJECT>Wildlife research.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Dolphin Safe Tuna Labeling</HD> <SECTNO>216.90</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>216.91</SECTNO> <SUBJECT>Labeling requirements.</SUBJECT> <SECTNO>216.92</SECTNO> <SUBJECT>Purse seine vessels greater than 400 short tons (362.8 metric tons).</SUBJECT> <SECTNO>216.93</SECTNO> <SUBJECT>Submission of documentation.</SUBJECT> <SECTNO>216.94</SECTNO> <SUBJECT>Requests to review documents.</SUBJECT> <SECTNO>216.95</SECTNO> <SUBJECT>False statements or endorsements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities</HD> <SECTNO>216.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>216.102</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>216.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>216.104</SECTNO> <SUBJECT>Submission of requests.</SUBJECT> <SECTNO>216.105</SECTNO> <SUBJECT>Specific regulations.</SUBJECT> <SECTNO>216.106</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <SECTNO>216.107</SECTNO> <SUBJECT>Incidental harassment authorization for Arctic waters.</SUBJECT> <SECTNO>216.108</SECTNO> <SUBJECT>Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="6"/> <HD SOURCE="HED">Subpart J—Taking of Ringed Seals Incidental to On-Ice Seismic Activities</HD> <SECTNO>216.111</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.112</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.113</SECTNO> <SUBJECT>Permissible methods.</SUBJECT> <SECTNO>216.114</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.115</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.116</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.117</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.118</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <SECTNO>216.119</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities</HD> <SECTNO>216.120</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.121</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.122</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.123</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.124</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <SECTNO>216.125</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.126</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <SECTNO>216.127</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.128</SECTNO> <SUBJECT>Modifications of Letters of Authorization.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Taking of Marine Mammals Incidental to Power Plant Operations</HD> <SECTNO>216.130</SECTNO> <SUBJECT>Specified activity, specified geographical region, and incidental take levels.</SUBJECT> <SECTNO>216.131</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.132</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <SECTNO>216.133</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.134</SECTNO> <SUBJECT>Mitigation requirements.</SUBJECT> <SECTNO>216.135</SECTNO> <SUBJECT>Monitoring and reporting.</SUBJECT> <SECTNO>216.136</SECTNO> <SUBJECT>Renewal of the Letter of Authorization.</SUBJECT> <SECTNO>216.137</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <SECTNO>216.138-216.140</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Taking of Bottlenose Dolphins and Spotted Dolphins Incidental to Oil and Gas Structure Removal Activities</HD> <SECTNO>216.141</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <SECTNO>216.142</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.143</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <SECTNO>216.144</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.145</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.146</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <SECTNO>216.147</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <SECTNO>216.148</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Taking of Marine Mammals Incidental to Underwater Detonation of Conventional Explosives by the Department of Defense</HD> <SECTNO>216.151</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <SECTNO>216.152</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.153</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <SECTNO>216.154</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.155</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.156</SECTNO> <SUBJECT>Renewal of Letter of Authorization.</SUBJECT> <SECTNO>216.157</SECTNO> <SUBJECT>Modifications to Letter of Authorization.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">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</HD> <SECTNO>216.161</SECTNO> <SUBJECT>Specified activity, geographical region and incidental take levels.</SUBJECT> <SECTNO>216.162</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <SECTNO>216.163</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <SECTNO>216.164</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>216.165</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <SECTNO>216.166</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <SECTNO>216.167-216.169</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subparts P-Q[Reserved]</RESERVED> </SUBPART> </CONTENTS> <NOTE> <HD SOURCE="HED">Note to part</HD> <P>216: See also 50 CFR parts 228 and 229 for regulations governing certain incidental takings of marine mammals.</P> </NOTE> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et seq.</E>, unless otherwise noted.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>39 FR 1852, Jan. 15, 1974, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>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 <E T="04">Federal Register.</E> </P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECTION> <SECTNO>§ 216.1</SECTNO> <SUBJECT>Purpose of regulations.</SUBJECT> <P>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 <PRTPAGE P="7"/>sale, and importing of marine mammals.</P> </SECTION> <SECTION> <SECTNO>§ 216.2</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <P>This part 216 applies solely to marine mammals and marine mammal products as defined in § 216.3. For regulations under the MMPA, with respect to other marine mammals and marine mammal products, see 50 CFR part 18.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to definitions contained in the MMPA, and unless the context otherwise requires, in this part 216:</P> <P> <E T="03">ABI</E> means Automated Broker Interface, the electronic product-entry filing system under the control of the U.S. Customs Service, Department of the Treasury.</P> <P> <E T="03">Acts</E> means, collectively, the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 <E T="03">et seq.,</E> the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.,</E> and the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 <E T="03">et seq.</E> </P> <P> <E T="03">Active sportfishing</E> 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.</P> <P> <E T="03">Administrator, Southeast Region</E> means Administrator, Southeast Region, National Marine Fisheries Service, 9721 Executive Center Drive, St. Petersburg, FL 33702-2432.</P> <P> <E T="03">Administrator, Northeast Region</E> means Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298.</P> <P> <E T="03">Alaskan Native</E> 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.</P> <P> <E T="03">Article of handicraft</E> means items made by an Indian, Aleut or Eskimo from the nonedible byproducts of fur seals taken for personal or family consumption which—</P> <P>(1) Were commonly produced by Alaskan Natives on or before October 14, 1983;</P> <P>(2) Are composed wholly or in some significant respect of natural materials, and;</P> <P>(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 § 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.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Silver Spring, MD 20910, or his/her designee.</P> <P> <E T="03">Authentic native articles of handicrafts and clothing</E> 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 <PRTPAGE P="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 § 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.</P> <P> <E T="03">Bona fide scientific research:</E> (1) Means scientific research on marine mammals conducted by qualified personnel, the results of which:</P> <P>(i) Likely would be accepted for publication in a refereed scientific journal;</P> <P>(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</P> <P>(iii) Are likely to identify, evaluate, or resolve conservation problems.</P> <P>(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).</P> <P> <E T="03">Carrying capacity</E> 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.</P> <P> <E T="03">Certified charter vessel</E> 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.</P> <P> <E T="03">Co-investigator</E> means the on-site representative of a principal investigator.</P> <P> <E T="03">Commercial fishing operation</E> means the lawful harvesting of fish from the marine environment for profit as part of an ongoing business enterprise. -Such terms may include licensed com-mercial passenger fishing vessel (as -defined) activities, but no other sport-fish-ing activities, whether or not -the fish so caught are subsequently sold.</P> <P> <E T="03">Commercial passenger fishing vessel</E> 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.</P> <P> <E T="03">Custody</E> 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.</P> <P> <E T="03">Director, Office of Protected Resources</E> means Director, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.</P> <P> <E T="03">Director, Southwest Region</E> means the Director, Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.</P> <P> <E T="03">Dolphin Mortality Limit (DML)</E> means the maximum allowable number of incidental dolphin mortalities per calendar year assigned to a vessel, unless a shorter time period is specified.</P> <P> <E T="03">Endangered Species</E> 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).</P> <P> <E T="03">ESA</E> means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.</E> </P> <P> <E T="03">ETP</E> means the eastern tropical Pacific Ocean which includes the Pacific Ocean area bounded by 40° N. latitude, 40° S. latitude, 160° W. longitude and the coastlines of North, Central and South America.</P> <P> <E T="03">ETP Fishing Area 1</E> means the northern coastal portion of the ETP east of 117<E T="61">°</E> W. longitude, north of 5<E T="61">°</E> N. latitude, and west of 86<E T="61">°</E> W. longitude.</P> <P> <E T="03">ETP Fishing Area 2</E> means the offshore area south of 14° N. latitude, north of 6° N. latitude, east of 150° W. longitude, and west of 123° W. longitude.<PRTPAGE P="9"/> </P> <P> <E T="03">ETP Fishing Area 3</E> means all other areas within the ETP not included in Fishing Areas 1 and 2.</P> <P> <E T="03">Facility</E> 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</P> <P>(2) A traveling display/exhibit, where the enclosure(s) and associated infrastructure is transported together with the marine mammals.</P> <P> <E T="03">Feeding</E> is offering, giving, or attempt-ing to give food or non-food items -to marine mammals in the wild. It in-cludes 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.</P> <P> <E T="03">First exporter</E> means the person or com-pany 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.</P> <P> <E T="03">Fisheries Certificate of Origin</E> means NOAA Form 370, as described in 50 CFR 216.24(e)(3)(iii).</P> <P> <E T="03">Fishing season</E> means, for the purposes of § 216.24(e), those sets made on trips that are completed between October 1 and September 30 of the following calendar year.</P> <P> <E T="03">FSA</E> means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 <E T="03">et seq.</E> </P> <P> <E T="03">Fur seal</E> means North Pacific fur seal, scientifically known as <E T="03">Cal-lorhi-nus ursinus.</E> </P> <P> <E T="03">Hard part</E> means any bone, tooth, -baleen, treated pelt, or other part of a marine mammal that is relatively -solid or durable.</P> <P> <E T="03">Harvesting nation</E> 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.</P> <P> <E T="03">Humane</E> 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.</P> <P> <E T="03">Import</E> 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 § 216.24(e)(1)(ii) shall apply.</P> <P> <E T="03">Incidental catch</E> 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: <E T="03">Provided,</E> 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.</P> <P> <E T="03">Intentional purse seine set</E> means that a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set.</P> <P> <E T="03">Intrusive research</E> 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 <PRTPAGE P="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:</P> <P>(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</P> <P>(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.</P> <P> <E T="03">Kill-per-set</E> means the number of small, toothed cetaceans (marine mammals) killed per purse seine set made involving marine mammals.</P> <P> <E T="03">Kill-per-ton</E> means the number of small toothed cetacean marine mammals killed per ton of yellowfin tuna caught in sets made on marine mammals.</P> <P> <E T="03">Label</E> means a display of written, printed, or graphic matter on or affixed to the immediate container of any article.</P> <P> <E T="03">Land</E> or <E T="03">landing</E> means to begin offloading any fish, to arrive in port with the intention of offloading fish, or to cause any fish to be offloaded.</P> <P> <E T="03">Large-scale driftnet</E> 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.</P> <P> <E T="03">Level A Harassment</E> means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild.</P> <P> <E T="03">Level B Harassment</E> 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.</P> <P> <E T="03">Marine environment</E> means the oceans and the seas, including estuarine and brackish waters.</P> <P> <E T="03">Marine mammal</E> 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).</P> <P> <E T="03">MMPA</E> means the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 <E T="03">et seq.</E> </P> <P> <E T="03">Native village or town</E> means any community, association, tribe, band, clan or group.</P> <P> <E T="03">Optimum sustainable population</E> 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.</P> <P> <E T="03">Pregnant</E> means pregnant near term.</P> <P> <E T="03">Pribilovians</E> means Indians, Aleuts, and Eskimos who live on the Pribilof Islands.</P> <P> <E T="03">Principal investigator</E> 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.</P> <P> <E T="03">Public display</E> means an activity that provides opportunities for the public to view living marine mammals at a facility holding marine mammals captive.</P> <P> <E T="03">Purse seine set on common dolphins</E> means a purse seine set in which more <PRTPAGE P="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.</P> <P> <E T="03">Regional Director</E> means the Director, Southwest Region, NMFS, 501 W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.</P> <P> <E T="03">Rehabilitation</E> 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.</P> <P> <E T="03">Secretary</E> shall mean the Secretary of Commerce or his authorized representative.</P> <P> <E T="03">Sexual harassment</E> 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.</P> <P> <E T="03">Soft part</E> means any marine mammal part that is not a hard part. Soft parts do not include urine or fecal material.</P> <P> <E T="03">South Pacific Ocean</E> means any waters of the Pacific Ocean that lie south of the equator.</P> <P> <E T="03">Stranded</E> or <E T="03">stranded marine mammal</E> means a marine mammal specimen under the jurisdiction of the Secretary:</P> <P>(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</P> <P>(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 un-able to return to its natural habitat under -its own power.</P> <P> <E T="03">Subsistence</E> 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.</P> <P> <E T="03">Subsistence uses</E> 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—</P> <P>(1) <E T="03">Family</E> means all persons related by blood, marriage, or adoption, or any person living within a household on a permanent basis.</P> <P>(2) <E T="03">Barter</E> means the exchange of fur seals or their parts, taken for subsistence uses—</P> <P>(i) For other wildlife or fish or their parts, or</P> <P>(ii) For other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature.</P> <P> <E T="03">Take</E> 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.</P> <P> <E T="03">Threatened species</E> means a species of marine mammal listed as “threatened” pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205.</P> <P> <E T="03">Trip</E> 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.</P> <P> <E T="03">Tuna product</E> means any food product processed for retail sale and intended for human or animal consumption that contains an item listed in § 216.24(e)(2)(i) or (ii), but does not include perishable items with a shelf life of less than 3 days.</P> <P> <E T="03">Wasteful manner</E> 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 <PRTPAGE P="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.</P> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 216.3, see the List of Sections Affected in the Finding Aids section of this volume.</P> </EDNOTE> <EFFDNOT> <HD SOURCE="HED">Effective Date Notes:</HD> <P>1. At 63 FR 66076, Dec. 1, 1998, in § 216.3, the definition <E T="03">Administrator, Southeast Region</E> was added, effective Jan. 1, 1999 through Sept. 30, 2004.</P> <P>2. At 64 FR 28120, May 25, 1999, in § 216.3, the definition <E T="03">Administrator, Northeast Region</E> was added, effective July 1, 1999 through June 30, 2004.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 216.4</SECTNO> <SUBJECT>Other laws and regulations.</SUBJECT> <P>(a) <E T="03">Federal.</E> 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.</P> <P>(b) <E T="03">State laws or regulations.</E> See part 403 of this chapter.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.5</SECTNO> <SUBJECT>Payment of penalty.</SUBJECT> <P>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.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.6</SECTNO> <SUBJECT>Forfeiture and return of seized property.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 § 216.60, such seized property shall immediately be returned to the respondent.</P> <P>(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.</P> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(f) If any seized property is to be returned to the respondent, the Regional <PRTPAGE P="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: <E T="03">Provided,</E> 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.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.7</SECTNO> <SUBJECT>Holding and bonding.</SUBJECT> <P>(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 § 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.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.8</SECTNO> <SUBJECT>Enforcement officers.</SUBJECT> <P>Enforcement Agents of the National Marine Fisheries Service shall en-force the provisions of the MMPA and may -take any actions authorized by the MMPA -with respect to enforcement. In ad-dition, 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 provi-sions of this MMPA.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Prohibitions</HD> <SECTION> <SECTNO>§ 216.11</SECTNO> <SUBJECT>Prohibited taking.</SUBJECT> <P>Except as otherwise provided in subparts C, D, and I of this part 216 or in part 228 or 229, it is unlawful for:</P> <P>(a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or</P> <P>(b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States, or</P> <P>(c) Any person subject to the jurisdiction of the United States to take any marine mammal during the moratorium.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.12</SECTNO> <SUBJECT>Prohibited importation.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Marine mammal:</P> <P>(i) Taken in violation of the MMPA, or</P> <P>(ii) Taken in another country in violation to the laws of that country;</P> <P>(2) Any marine mammal product if</P> <P>(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</P> <P>(ii) The sale in commerce of such product in the country of origin if the product is illegal.<PRTPAGE P="14"/> </P> <P>(c) Except in accordance with an exception referred to in subpart C and §§ 216.31 (regarding scientific research permits only) and 216.32 of this part 216, it is unlawful to import into the United States any:</P> <P>(1) Marine mammal which was pregnant at the time of taking.</P> <P>(2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever occurs later.</P> <P>(3) Specimen of an endangered or threatened species of marine mammal.</P> <P>(4) Specimen taken from a depleted species or stock of marine mammals, or</P> <P>(5) Marine mammal taken in an inhumane manner.</P> <P>(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.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.13</SECTNO> <SUBJECT>Prohibited uses, possession, transportation, sales, and permits.</SUBJECT> <P>It is unlawful for:</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(d) Any person to violate any term, condition, or restriction of any permit issued by the Secretary.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.14</SECTNO> <SUBJECT>Marine mammals taken before the MMPA.</SUBJECT> <P>(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:</P> <P>(1) The Affiant's name and address;</P> <P>(2) Identification of the Affiant;</P> <P>(3) A description of the marine mammals or marine mammal products which the Affiant desires to import;</P> <P>(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;</P> <P>(5) A statement by the Affiant in the following language: </P> <EXTRACT> <P>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.</P> </EXTRACT> <P>(b) Either one of two exhibits shall be attached to such affidavit, and will contain either:</P> <P>(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 <PRTPAGE P="15"/>were taken, what processing has taken place since taking, and the date and location of such processing; or</P> <P>(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.</P> <P>(c) No pre-Act marine mammal or pre-Act marine mammal product may be imported unless the requirements of this section have been fulfilled.</P> <P>(d) This section has no application to any marine mammal or marine mammal product intended to be imported pursuant to §§ 216.21, 216.31 or § 216.32.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.15</SECTNO> <SUBJECT>Depleted species.</SUBJECT> <P>The following species or population stocks have been designated by the Assistant Administrator as depleted under the provisions of the MMPA.</P> <P>(a) Hawaiian monk seal <E T="03">(Monachus schauinslandi).</E> </P> <P>(b) Bowhead whale <E T="03">(Balaena mystic-e-tus).</E> </P> <P>(c) North Pacific fur seal <E T="03">(Callorhinus ursinus).</E> Pribilof Island population.</P> <P>(d) Bottlenose dolphin (<E T="03">Tursiops trunca-tus</E>), coastal-migratory stock along the U.S. mid-Atlantic coast.</P> <P>(e) Eastern spinner dolphin (<E T="03">Stenella longirostris orientalis</E>).</P> <P>(f) Northeastern offshore spotted dolphin (<E T="03">Stenella attenuata</E>).</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.16</SECTNO> <SUBJECT>Prohibitions under the General Authorization for Level B harassment for scientific research.</SUBJECT> <P>It shall be unlawful for any person to:</P> <P>(a) Provide false information in a letter of intent submitted pursuant to § 216.45(b);</P> <P>(b) Violate any term or condition imposed pursuant to § 216.45(d).</P> <CITA>[59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Exceptions</HD> <SECTION> <SECTNO>§ 216.21</SECTNO> <SUBJECT>Actions permitted by international treaty, convention, or agreement.</SUBJECT> <P>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.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.22</SECTNO> <SUBJECT>Taking by State or local government officials.</SUBJECT> <P>(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:</P> <P>(1) Is accomplished in a humane -manner;</P> <P>(2) Is for the protection or welfare of such mammal or for the protection of the public health or welfare; and</P> <P>(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 <PRTPAGE P="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.</P> <P>(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:</P> <P>(1) The animal involved;</P> <P>(2) The circumstances requiring the taking;</P> <P>(3) The method of taking;</P> <P>(4) The name and official position of the State official or employee involved;</P> <P>(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</P> <P>(6) Such other information as the Secretary may require.</P> <P>(c) Salvage of dead stranded marine mammals or parts therefrom and subsequent transfer.</P> <P>(1) <E T="03">Salvage.</E> 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.</P> <P>(2) <E T="03">Registration.</E> 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:</P> <P>(i) The name, address, and any official position of the individual engaged in the taking and salvage;</P> <P>(ii) A description of the marine mammal specimen salvaged including the scientific and common names of the species;</P> <P>(iii) A description of the parts salvaged;</P> <P>(iv) The date and the location of the taking;</P> <P>(v) Such other information as deemed necessary by the Assistant Administrator.</P> <P>(3) <E T="03">Identification and curation.</E> 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.</P> <P>(4) <E T="03">No sale or commercial trade.</E> No person may sell or trade for commercial purposes any marine mammal specimen salvaged under this section.</P> <P>(5) <E T="03">Transfer without prior authorization.</E> A person who salvages a marine mammal specimen under this section may transfer that specimen to another person if:</P> <P>(i) The person transferring the marine mammal specimen does not receive remuneration for the specimen;</P> <P>(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;</P> <P>(iii) The marine mammal specimen is transferred for the purpose of scientific <PRTPAGE P="17"/>research, for the purpose of maintenance in a properly curated, professionally accredited scientific collection, or for educational purposes;</P> <P>(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</P> <P>(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.</P> <P>(6) <E T="03">Other transfers within the United States.</E> 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.</P> <P>(7) <E T="03">Tranfers outside of the United States.</E> 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.</P> <P>(8) <E T="03">Exceptions to requirements for notification or prior authorization.</E> 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:</P> <P>(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</P> <P>(ii) The transfer is a loan of not more than 1 year to another professionally accredited scientific collection within the United States.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.23</SECTNO> <SUBJECT>Native exceptions.</SUBJECT> <P>(a) <E T="03">Taking.</E> 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:</P> <P>(1) By Alaskan Natives who reside in Alaska for subsistence, or</P> <P>(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and</P> <P>(3) In each case, not accomplished in a wasteful manner.</P> <P>(b) <E T="03">Restrictions.</E> (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:</P> <P>(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</P> <P>(ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or</P> <P>(iii) It is an edible portion and it is sold in an Alaskan Native village or town.</P> <P>(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:<PRTPAGE P="18"/> </P> <P>(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</P> <P>(ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or</P> <P>(iii) It has first been transformed into an authentic native article of handicraft or clothing; or</P> <P>(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.</P> <P>(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:</P> <P>(i) The name and address of the applicant;</P> <P>(ii) A description of the applicant's procedures for receiving, storing, processing, and shipping materials;</P> <P>(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;</P> <P>(iv) Such other information as the Secretary may request;</P> <P>(v) A certification in the following language: </P> <EXTRACT> <P>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.</P> </EXTRACT> <P>(vi) The signature of the applicant.</P> <FP>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.</FP> <P>(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.</P> <P>(e) <E T="03">Marking and reporting of Cook Inlet Beluga Whales</E>. (1) <E T="03">Definitions</E>. In addition to definitions contained in the MMPA and the regulations in this part:</P> <P>(i) <E T="03">Reporting</E> means the collection and delivery of biological data, harvest data, and other information regarding the effect of taking a beluga whale (<E T="03">Delphinapterus</E> <E T="03">leucas</E>) from Cook Inlet, as required by NMFS.</P> <P>(ii) <E T="03">Whaling captain or vessel operator</E> 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.</P> <P>(iii) <E T="03">Cook Inlet</E> means all waters of Cook Inlet north of 59° North latitude, including, but not limited to, waters of Kachemak Bay, Kamishak Bay, Chinitna Bay, and Tuxedni Bay.</P> <P>(2) <E T="03">Marking</E>. Each whaling captain or vessel operator, upon killing and landing a beluga whale (<E T="03">Delphinapterus</E> <E T="03">leucas</E>) 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 <PRTPAGE P="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 7<E T="51">th</E> Avenue, Anchorage, Alaska 99513 within 72 hours of returning from the hunt.</P> <P>(3) <E T="03">Reporting</E>. 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.</P> <P>(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.</P> <P>(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.</P> <P>(4) No person may falsify any information required to be set forth on the reporting form as required by paragraph (e) of this section.</P> <P>(5) The Anchorage Field Office of NMFS is located in room 517 of the Federal Office Building, 222 West 7<E T="51">th</E> Avenue; its mailing address is: NMFS, Box 43, Anchorage, AK. 99513.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.24</SECTNO> <SUBJECT>Taking and related acts incidental to commercial fishing operations.</SUBJECT> <NOTE> <HD SOURCE="HED">Note to § 216.24:</HD> <P>The provisions of 50 CFR part 229, rather than § 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 § 216.24.</P> </NOTE> <P>(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 § 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="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.</P> <P>(b) [Reserved]</P> <P>(c) <E T="03">Certificates of inclusion</E>—(1) <E T="03">Vessel certificates of inclusion.</E> 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.</P> <P>(2) <E T="03">Operator's certificate of inclusion</E>. 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.</P> <P>(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.</P> <P>(4) <E T="03">Applications.</E> 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:</P> <P>(i) The name of the vessel that is to appear on the certificate(s) of inclusion;</P> <P>(ii) The category of the general permit under which the applicant wishes to be included;</P> <P>(iii) The species of fish sought and general area of operations;</P> <P>(iv) The identity of state and local commercial fishing licenses, if applicable, under which vessel operations are conducted, and dates of expiration;</P> <P>(v) The name of the operator and date of training, if applicable; and</P> <P>(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.</P> <P>(5) <E T="03">Fees</E>. (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.</P> <P>(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 <E T="04">Federal Register</E>.</P> <P>(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).</P> <P>(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 <PRTPAGE P="21"/>under the MMPA. Procedures governing permit sanctions and denials are found at subpart D of 15 CFR part 904.</P> <P>(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.</P> <P>(d) Terms and conditions of certificates under general permits shall include, but are not limited to the following:</P> <P>(1) [Reserved]</P> <P>(2) <E T="03">Encircling gear, purse seining involving the intentional taking of marine mammals</E>—(i) <E T="03">Quotas:</E> </P> <P>(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:</P> <P>(<E T="03">1</E>)-(<E T="03">2</E>) [Reserved]</P> <P>(<E T="03">3</E>) No purse seine net may be deployed on or used to encircle any school of dolphins in which any eastern spinner dolphin (<E T="03">Stenella longirostris</E>), coastal spotted dolphin (<E T="03">Stenella attenuata</E>), or, in the area from 40° N. lat. to 5° N. lat. and from 120° W. long. to the coastline of Central and South America, any offshore spotted dolphin (<E T="03">Stenella attenuata</E>), are observed in the school prior to the release of the net skiff.</P> <P>(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 <E T="04">Federal Register</E>. 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 <E T="04">Federal Register</E> not less than seven days prior to the effective date.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> 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 <E T="04">Federal Register</E>, 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 <PRTPAGE P="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.</P> <P>(ii) <E T="03">General conditions:</E> (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.</P> <P>(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 § 216.3 of this part and may not be retained except where a specific permit has been obtained authorizing the retention.</P> <P>(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.</P> <P>(iii) <E T="03">Reporting requirements:</E> In accordance with § 216.24(f) of these regulations, the following specific reporting procedures shall be required:</P> <P>(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:</P> <P>(<E T="03">1</E>) Unloads more than 400 tons of any species of tuna; or</P> <P>(<E T="03">2</E>) Unloads any amount of any species of tuna equivalent to one half of the vessel's carrying capacity; or</P> <P>(<E T="03">3</E>) Unloads its tuna catch after 40 days or more at sea from the date of departure.</P> <FP>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.</FP> <P>(B) [Reserved]</P> <P>(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.</P> <P>(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.</P> <P>(A) <E T="03">Class I and II Vessels:</E> 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 <PRTPAGE P="23"/>panel must consist of small mesh webbing not to exceed 1<FR>1/4</FR> <E T="61">″</E> stretch mesh, extending from the corkline downward to a minimum depth equivalent to one strip of 100 meshes of 4<FR>1/4</FR> <E T="61">″</E> 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.</P> <P>(B) <E T="03">Class III Vessels:</E> 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<FR>1/4</FR> <E T="61">″</E> 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<FR>1/4</FR> <E T="61">″</E> 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.</P> <P>(C) <E T="03">Porpoise safety panel markers:</E> Each end of the porpoise safety panel and porpoise apron shall be identified with an easily distinguishable marker.</P> <P>(D) <E T="03">Porpoise safety panel hand holds:</E> 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<FR>3/8</FR> <E T="61">″</E> diameter cylindrical-shaped object meets resistance.</P> <P>(E) <E T="03">Porpoise safety panel corkline hangings:</E> 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<FR>3/8</FR> <E T="61">″</E> diameter will not meet resistance when inserted between the cork and corkline hangings, must be tightened so that a cylindrical object with a 1<FR>3/8</FR> <E T="61">″</E> diameter cannot be inserted.</P> <P>(F) <E T="03">Speedboats:</E> 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.</P> <P>(G) <E T="03">Raft:</E> A raft suitable to be used as a porpoise observation-and-rescue platform shall be carried on all certificated vessels.</P> <P>(H) <E T="03">Facemask and snorkel, or viewbox:</E> At least two facemasks and snorkels, or viewboxes, must be carried on all certificated vessels.</P> <P>(I) <E T="03">Lights:</E> 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.</P> <P>(v) <E T="03">Vessel inspection:</E> (A) <E T="03">Annual:</E> 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.</P> <P>(B) <E T="03">Reinspection:</E> 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.</P> <P>(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 <PRTPAGE P="24"/>permit is required until the deficiencies in gear or equipment are corrected as required by an authorized National Marine Fisheries Service inspector.</P> <P>(vi) <E T="03">Operator training requirements.</E> 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.</P> <P>(vii) <E T="03">Marine mammal release requirements:</E> 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.</P> <P>(A) <E T="03">Backdown procedure:</E> 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.</P> <P>(B) <E T="03">Prohibited use of sharp or pointed instrument:</E> The use of a sharp or pointed instrument to remove any marine mammal from the net is prohibited.</P> <P>(C) <E T="03">Sundown sets prohibited.</E> 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, <E T="03">sundown</E> 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 <E T="03">sundown set</E> 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.</P> <P>(<E T="03">1</E>) 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.</P> <P>(<E T="03">i</E>) The application must include the following:</P> <P>(<E T="03">A</E>) Name of the operator as it appears on the certificate of inclusion;</P> <P>(<E T="03">B</E>) 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;</P> <P>(<E T="03">C</E>) Names of the vessels operated during those trips;</P> <P>(<E T="03">D</E>) The number of marine mammals killed in sundown sets and the number of sundown sets involving marine mammals;</P> <P>(<E T="03">E</E>) Detailed description of the circumstances that support any request that the mortality associated with a particular sundown set be excluded from consideration; and</P> <P>(<E T="03">F</E>) The operator's signature or the signature of an individual authorized by the operator to make the application in the operator's absence.<PRTPAGE P="25"/> </P> <P>(<E T="03">ii</E>) 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.</P> <P>(<E T="03">iii</E>) 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.</P> <P>(<E T="03">2</E>) 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.</P> <P>(<E T="03">3</E>) 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.</P> <P>(<E T="03">4</E>) 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.</P> <P>(<E T="03">5</E>) 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.</P> <P>(D) <E T="03">Porpoise Safety Panel:</E> 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.</P> <P>(E) <E T="03">Use of explosive devices:</E> The use of explosive devices is prohibited in all tuna purse seine operations that involve marine mammals.</P> <P>(viii) <E T="03">Experimental fishing operations:</E> The Assistant Administrator may authorize experimental fishing operations and may waive, as appropriate, any requirements within § 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.</P> <P>(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:</P> <P>(<E T="03">1</E>) Name(s) of the vessel(s) and the vessel certificate holder(s) to participate;</P> <P>(<E T="03">2</E>) 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;</P> <P>(<E T="03">3</E>) A description of how the proposed modification to the gear or procedures is expected to reduce incidental mortalities or serious injury of marine mammals;</P> <P>(<E T="03">4</E>) A description of the applicability of this modification to other purse seine vessels;<PRTPAGE P="26"/> </P> <P>(<E T="03">5</E>) Planned design, time, duration, and general area of the experimental operation;</P> <P>(<E T="03">6</E>) Name(s) of the certificated op-erator(s) of the vessel(s) during the -experiment;</P> <P>(<E T="03">7</E>) A statement of the qualifications of the individual or company doing the analysis of the research.</P> <P>(B) The Assistant Administrator will acknowledge receipt of the application and, upon determining that it is complete, publish notice in the <E T="04">Federal Register</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(ix) <E T="03">Operator Certificate of Inclusion Holder Performance Requirements.</E> (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.</P> <P>(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.</P> <P>(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:</P> <P>(<E T="03">1</E>) The operator's kill of marine mammals in purse seine sets on marine <PRTPAGE P="27"/>mammals will be determined from observer records.</P> <P>(<E T="03">2</E>) 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.</P> <P>(<E T="03">3</E>) 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.</P> <P>(<E T="03">4</E>) 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 (<E T="03">i.e.</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.</P> <P>(H) The operator certificate of inclusion or an operator whose average marine mammal mortality rate exceeds 3.89 kill-per-set on three <E T="03">consecutive</E> 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 <PRTPAGE P="28"/>more than two are consecutive) within eight consecutively observed trips, is suspended upon notification to the operator from the Director, Southwest Region.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(L) A person obtaining an operator certificate of inclusion for the first time must carry an observer on the operator's first trip.</P> <P>(x) <E T="03">Vessel Certificate of Inclusion Holder Performance Requirements</E>—(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.</P> <P>(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.</P> <P>(C)(<E T="03">1</E>) NMFS will notify vessel owners of the DML assigned for each vessel for <PRTPAGE P="29"/>the following year as determined by the IATTC.</P> <P>(<E T="03">2</E>) 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.</P> <P>(<E T="03">3</E>) 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.</P> <P>(D)(<E T="03">1</E>) 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.</P> <P>(<E T="03">2</E>) 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.</P> <P>(<E T="03">3</E>) 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.</P> <P>(E) Any vessel that exceeds its -assigned DML, after -any applic-able -adjustment under paragraph -(d)(2)(x)(C)(<E T="03">2</E>) of this section, shall have its DML for the subsequent year reduced by the amount of overage.</P> <P>(F)(<E T="03">1</E>) The vessel operator and owner are responsible for ensuring that the DML for that vessel is not exceeded.</P> <P>(<E T="03">2</E>) 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.</P> <P>(<E T="03">3</E>) Vessel captains must cease deploying purse seine sets to encircle -dolphins intentionally when the ves-sel's DML, as adjusted under para-graph (d)(2)(x)(C)(<E T="03">2</E>) of this section, -is reached.</P> <P>(G)(<E T="03">1</E>) Sanctions recommended by the Review Panel for any violation of these rules shall be considered by NMFS in its enforcement of these regulations.</P> <P>(<E T="03">2</E>) 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.</P> <P>(3) <E T="03">Encircling gear, purse seining not involving the intentional taking of marine mammals.</E> (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.</P> <P>(ii) A certificate holder may take such steps as are necessary to protect <PRTPAGE P="30"/>his catch, gear, or person from depredation, damage or personal injury without inflicting death or injury to any marine mammal.</P> <P>(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, <E T="03">Tursiops truncatus,</E> 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.</P> <P>(iv) Marine mammals taken in the course of commercial fishing operations shall be subject to the provisions of § 216.3 with respect to “Incidental catch,” and may be retained except where a specific permit has been obtained authorizing the retention.</P> <P>(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:</P> <P>(A) The location, time, and date of the death or injury;</P> <P>(B) The identity and number of marine mammals killed or injured; and</P> <P>(C) A description of the circum-stances which led up to and caused -the death or injury.</P> <P>(4) <E T="03">Stationary gear.</E> (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.</P> <P>(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.</P> <P>(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, <E T="03">Tursiops truncatus,</E> 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.</P> <P>(iv) Marine mammals taken in the course of commercial fishing operations shall be subject to the provisions of § 216.3 with respect to “Incidental catch,” and may not be retained <PRTPAGE P="31"/>except where a specific permit has been obtained authorizing the retention.</P> <P>(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:</P> <P>(A) The location time, and date of the death or injury;</P> <P>(B) The identity and number of marine mammals killed or injured; and</P> <P>(C) A description of the circumstances which led up to and caused the death or injury.</P> <P>(5) <E T="03">Other gear.</E> (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.</P> <P>(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.</P> <P>(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, <E T="03">Tursiops truncatus,</E> 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.</P> <P>(iv) Marine mammals taken in the course of commercial fishing operations shall be subject to the provisions of § 216.3 with respect to “Incidental catch,” and may not be retained except where a specific permit has been obtained authorizing the retention.</P> <P>(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:</P> <P>(A) The location, time, and date of the death or injury;</P> <P>(B) The identity and number of marine mammals killed or injured; and</P> <P>(C) A description of the circumstances which led up to and caused the death or injury.</P> <P>(vi) [Reserved]</P> <P>(vii) The number of Dall's porpoise (<E T="03">Phocoenoides dalli</E>) 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 <PRTPAGE P="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.</P> <P>(6) <E T="03">Commercial passenger fishing vessels (CPFV).</E> (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).</P> <P>(ii) Takings are prohibited within 500 yards of a pinniped rookery or haul-out site.</P> <P>(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 <E T="04">Federal Register</E> and stipulated in the General Permit for taking marine mammals.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) The time, date, and location of the taking;</P> <P>(B) The type of harassment device used, and the number used at each occurrence;</P> <P>(C) The number and species of affected marine mammals; and</P> <P>(D) A description of any behavioral changes noted that may be due to using the harassment device.</P> <P>(e) <E T="03">Importation, purchase, shipment, sale and transport.</E> (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.</P> <P>(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 § 216.3.</P> <P>(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:</P> <P>(i) <E T="03">Tuna: yellowfin.</E> 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:<PRTPAGE P="33"/> </P> <P>(A) Tuna, frozen whole or in the round: </P> <EXTRACT> <FP SOURCE="FP-2">0303.42.00.20.0 Tuna, yellowfin, whole frozen.</FP> <FP SOURCE="FP-2">0303.42.00.40.6 Tuna, yellowfin, eviscerated head-on, frozen.</FP> <FP SOURCE="FP-2">0303.42.00.60.1 Tuna, yellowfin, eviscerated head-off, frozen.</FP> <FP SOURCE="FP-2">0303.49.00.40.9 Tuna, non-specific, frozen.</FP> </EXTRACT> <P>(B) Tuna, canned: </P> <EXTRACT> <FP SOURCE="FP-2">1604.14.10.00.0Tuna, non-specific, canned in oil.</FP> <FP SOURCE="FP-2">1604.14.20.40.0Tuna, non-specific, canned, not in oil, not over 7kg in quota.</FP> <FP SOURCE="FP-2">1604.14.30.40.8Tuna, non-specific, canned, not in oil, not over 7kg over quota.</FP> </EXTRACT> <P>(C) Tuna, loins: </P> <EXTRACT> <FP SOURCE="FP-2">1604.14.40.00.4Tuna, non-specific, not in airtight container, not in oil, over 6.8kg.</FP> <FP SOURCE="FP-2">1604.14.50.00.1Tuna, non-specific, not in airtight container, not in oil, not over 6.8kg.</FP> </EXTRACT> <P>(ii) <E T="03">Tuna: non-yellowfin.</E> 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:</P> <P>(A) Tuna, frozen whole or in the round: </P> <EXTRACT> <FP SOURCE="FP-2">0303.41.00.00.5Tuna, albacore, frozen.</FP> <FP SOURCE="FP-2">0303.43.00.00.3Tuna, skipjack, frozen.</FP> <FP SOURCE="FP-2">0303.49.00.20.3Tuna, bluefin, frozen.</FP> </EXTRACT> <P>(B) Tuna, canned: </P> <EXTRACT> <FP SOURCE="FP-2">1604.14.20.20.4Tuna, albacore, canned, not in oil, not over 7kg in quota.</FP> <FP SOURCE="FP-2">1604.14.30.20.2Tuna, albacore, canned, not in oil, not over 7kg over quota.</FP> </EXTRACT> <P>(iii) <E T="03">Fish, other than tuna.</E> 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:</P> <P>(A) Salmon:</P> <P>(<E T="03">1</E>) Salmon, frozen whole or in the round: </P> <EXTRACT> <FP SOURCE="FP-2">0303.10.00.12.8Salmon, chinook, frozen.</FP> <FP SOURCE="FP-2">0303.10.00.22.6Salmon, chum, frozen.</FP> <FP SOURCE="FP-2">0303.10.00.32.4Salmon, pink, frozen.</FP> <FP SOURCE="FP-2">0303.10.00.42.2Salmon, sockeye, frozen.</FP> <FP SOURCE="FP-2">0303.10.00.52.9Salmon, coho, frozen.</FP> <FP SOURCE="FP-2">0303.10.00.62.7Salmon, Pacific, non-specific, frozen.</FP> <FP SOURCE="FP-2">0303.21.00.00.9Trout, frozen.</FP> <FP SOURCE="FP-2">0303.22.00.00.8Salmon, Atlantic, Danube, frozen.</FP> <FP SOURCE="FP-2">0303.29.00.00.1Salmonidae, non-specific, frozen.</FP> <FP SOURCE="FP-2">0304.20.60.07.9Salmonidae, salmon fillet, frozen.</FP> <FP SOURCE="FP-2">0305.69.40.00.2Salmon, non-specific, salted.</FP> </EXTRACT> <P>(<E T="03">2</E>) Salmon, canned: </P> <EXTRACT> <FP SOURCE="FP-2">1604.11.20.20.7Salmon, pink, canned in oil.</FP> <FP SOURCE="FP-2">1604.11.20.30.5Salmon, sockeye, canned in oil.</FP> <FP SOURCE="FP-2">1604.11.20.90.2Salmon, non-specific, canned in oil.</FP> <FP SOURCE="FP-2">1604.11.40.10.5Salmon, chum, canned, not in oil.</FP> <FP SOURCE="FP-2">1604.11.40.20.3Salmon, pink, canned, not in oil.</FP> <FP SOURCE="FP-2">1604.11.40.30.1Salmon, sockeye, canned, not in oil.</FP> <FP SOURCE="FP-2">1604.11.40.40.9Salmon, non-specific, canned, not in oil.</FP> <FP SOURCE="FP-2">1604.11.40.50.6Salmon, non-specific, other.</FP> </EXTRACT> <P>(B) Squid: </P> <EXTRACT> <FP SOURCE="FP-2">0307.49.00.10.1Squid, non-specific, fillet, frozen.</FP> <FP SOURCE="FP-2">0307.49.00.50.2Squid, non-specific, frozen/dried/salted/brine.</FP> <FP SOURCE="FP-2">0307.49.00.60.0Squid, non-specific, & cuttlefish frozen/dried/salted/brine.</FP> <FP SOURCE="FP-2">1605.90.60.55.9Squid, non-specific, prepared/preserved.</FP> </EXTRACT> <P>(C) Shark: </P> <EXTRACT> <FP SOURCE="FP-2">0303.75.00.00.4Shark, dogfish and other sharks, frozen.</FP> <FP SOURCE="FP-2">0305.59.20.00.8Shark fins.</FP> </EXTRACT> <P>(D) Swordfish: </P> <EXTRACT> <FP SOURCE="FP-2">0303.79.20.40.8Swordfish, frozen.</FP> </EXTRACT> <P>(E) Species not specifically identified: </P> <EXTRACT> <FP SOURCE="FP-2">0303.79.40.90.3Marine fish, non-specific, frozen.</FP> <FP SOURCE="FP-2">0304.20.20.66.6Marine fish, non-specific, fillet blocks frozen over 4.5kg.</FP> <FP SOURCE="FP-2">0304.20.60.85.4Marine fish, non-specific, fillet, frozen.</FP> <FP SOURCE="FP-2">0305.30.60.80.6Fish, non-specific, fillet dried/salted/brine over 6.8kg.</FP> <FP SOURCE="FP-2">0305.49.40.40.9Fish, non-specific, smoked.</FP> <FP SOURCE="FP-2">0305.59.40.00.4Fish, non-specific, dried.</FP> <FP SOURCE="FP-2">0305.69.50.00.9Fish, non-specific, salted, not over 6.8kg.</FP> <FP SOURCE="FP-2">0305.69.60.00.7Fish, non-specific, salted, over 6.8kg.</FP> <FP SOURCE="FP-2">1604.19.20.00.3Fish, non-specific, in airtight containers, not in oil.</FP> <FP SOURCE="FP-2">1604.19.30.00.1Fish, non-specific, in airtight containers, in oil.</FP> </EXTRACT> <P>(3)(i) <E T="03">Tuna</E>—(A) <E T="03">All nations.</E> 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:<PRTPAGE P="34"/> </P> <P>(<E T="03">1</E>) 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;</P> <P>(<E T="03">2</E>) The tuna or tuna product was not harvested with a large-scale driftnet after July 1, 1991; and</P> <P>(<E T="03">3</E>) 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.</P> <P>(B) <E T="03">Harvesting nations.</E> 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.</P> <P>(C) <E T="03">Intermediary nations.</E> 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.</P> <P>(D) <E T="03">Harvesting and intermediary nations.</E> 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.</P> <P>(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.</P> <P>(ii) <E T="03">Other fish.</E> 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:</P> <P>(A) Accompanied by a complete Fisheries Certificate of Origin, as described in paragraph (e)(3)(iii) of this section;</P> <P>(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:</P> <P>(<E T="03">1</E>) The South Pacific Ocean, for harvests after July 1, 1991; or</P> <P>(<E T="03">2</E>) Anywhere on the high seas, for harvests after July 1, 1992; and</P> <P>(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.</P> <P>(iii) <E T="03">Certificates of Origin.</E> A Fisheries Certificate of Origin (NOAA Form 370), <SU>1</SU> <FTREF/> certified to be accurate by the first exporter of the accompanying shipment, must include the following information:</P> <FTNT> <P> <SU>1</SU> Copies of the form are available from the Director, Southwest Region (see § 216.3).</P> </FTNT> <P>(A) Country under whose laws the harvesting vessel operated;</P> <P>(B) Exporter (name and address);</P> <P>(C) Consignee (name and address);</P> <P>(D) Type and quantity of the fish or fish products to be imported, listed by U.S. Harmonized Tariff Schedule Number;</P> <P>(E) Ocean area where the fish was harvested (ETP, Western Pacific Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean, or other);</P> <P>(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);</P> <P>(G) Dates on which the fishing trip began and ended;</P> <P>(H) If shipment is tuna or products from tuna that were harvested in the <PRTPAGE P="35"/>ETP with a purse seine net, the name of the harvesting vessel; and</P> <P>(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:</P> <P>(<E T="03">1</E>) 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</P> <P>(<E T="03">2</E>) 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.</P> <P>(4) <E T="03">Large-scale driftnet nations.</E> 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 <E T="04">Federal Register</E>. 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 <E T="04">Federal Register</E>, that none of the nation's vessels engage in fishing with large-scale driftnets.</P> <P>(5) <E T="03">Yellowfin tuna.</E> (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 <E T="04">Federal Register</E> that:</P> <P>(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</P> <P>(B) The average rate of incidental mortality by the vessels of the har-vesting nation is comparable to the -average rate of incidental mortality of -marine mammals by U.S. vessels in -the course of such harvesting as speci-fied in paragraphs (e)(5)(v)(E) and -(e)(5)(v)(F) of this section.</P> <P>(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:</P> <P>(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:</P> <P>(<E T="03">1</E>) 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:</P> <P>(<E T="03">i</E>) 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;</P> <P>(<E T="03">ii</E>) 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 <PRTPAGE P="36"/>period used for their comparability finding; and</P> <P>(<E T="03">iii</E>) 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.</P> <P>(<E T="03">2</E>) A detailed description of the method (e.g., Inter-American Tropi-cal 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.</P> <P>(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.</P> <P>(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:</P> <P>(<E T="03">1</E>) Total number of tons of yellowfin tuna observed caught in each fishing area by purse seine sets on:</P> <P>(<E T="03">i</E>) Common dolphin and</P> <P>(<E T="03">ii</E>) All other marine mammal species;</P> <P>(<E T="03">2</E>) 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:</P> <P>(<E T="03">i</E>) Common dolphin and</P> <P>(<E T="03">ii</E>) All other marine mammal species;</P> <P>(<E T="03">3</E>) 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;</P> <P>(<E T="03">4</E>) 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</P> <P>(<E T="03">5</E>) The total number of observed purse seine sets in each fishing area -in which more than 15 marine mam-mals were killed.</P> <P>(D) Data required by paragraph (e)(5)(ii)(C)(<E T="03">2</E>) 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”.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> within 120 days of receipt of the information required in paragraph (e)(5)(ii) of this section.</P> <P>(iv) A harvesting nation that has in effect a positive finding under this -section may request renewal of its find-ing 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 § 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.</P> <P>(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 <PRTPAGE P="37"/>Assistant Administrator will make an affirmative finding or renew an affirmative finding if:</P> <P>(A) The harvesting nation has provided all information required by paragraphs (e)(5)(ii) and (e)(5)(iv) of this section;</P> <P>(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;</P> <P>(C) The data on marine mammal mortality and serious injury submitted by the harvesting nation are determined to be accurate;</P> <P>(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;</P> <P>(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;</P> <P>(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 com-parability 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 fo-reign nation's fleet.</P> <P>(G) For the 1989 fishing year and subsequent years, the nation's observed kill of eastern spinner dolphin (<E T="03">Stenella longirostris</E>) and coastal spotted dolphin (<E T="03">Stenella attenuata</E>) is no greater than 15 percent and 2 percent, respectively, of the nation's total annual observed dolphin mortality; and</P> <P>(H) The nation has complied with all reasonable requests by the Assistant Administrator for cooperation in carrying out dolphin population assessments in the ETP.</P> <P>(vi) <E T="03">Period of validity.</E> 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.</P> <P>(vii) <E T="03">Reconsideration of finding.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(viii) <E T="03">Application for finding for non-marine-mammal intentional sets.</E> The Assistant Administrator's determination on a nation's application for a finding will be announced and published in the <E T="04">Federal Register.</E> 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 <PRTPAGE P="38"/>listed in paragraph (e)(2)(i) of this section must provide the Assistant Administrator with the following:</P> <P>(A) Documentary evidence establishing that its regulatory program includes:</P> <P>(<E T="03">1</E>) A law prohibiting the intentional setting of purse seine nets on marine mammals (a copy of the law must be submitted);</P> <P>(<E T="03">2</E>) 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</P> <P>(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.</P> <P>(ix) <E T="03">Application for renewal of finding for non-marine-mammal intentional sets.</E> 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:</P> <P>(A) Vessel summary data, to include:</P> <P>(<E T="03">1</E>) The total number of observed trips;</P> <P>(<E T="03">2</E>) The percentage of all purse seine fishing trips that carried observers under a program approved by the Assistant Administrator;</P> <P>(<E T="03">3</E>) The total number, if any, of observed purse seine sets on marine mammals;</P> <P>(<E T="03">4</E>) 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;</P> <P>(<E T="03">5</E>) 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;</P> <P>(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</P> <P>(C) A summary of any enforcement actions taken to ensure compliance with the nation's marine mammal protection laws.</P> <P>(x) <E T="03">Review of finding for non-marine-mammal intentional sets.</E> The Assistant Administrator will renew an affirmative finding obtained under paragraph (e)(5)(ix) of this section if:</P> <P>(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</P> <P>(B) Either 100-percent observer coverage is provided for all purse seine vessels as required by paragraph (e)(5)(viii)(A)(<E T="03">2</E>) of this section; or the harvesting nation is in a probationary status in accordance with paragraph (e)(5)(xi)(B)(<E T="03">1</E>) of this section; and</P> <P>(C) The harvesting nation meets the criteria of paragraphs (e)(5)(v)(E), and (e)(5)(v)(G) of this section; and</P> <P>(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.</P> <P>(xi) <E T="03">Probation and revocation.</E> (A)(<E T="03">1</E>) 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, <PRTPAGE P="39"/>effective upon the date the vessel returns to port to unload.</P> <P>(<E T="03">2</E>) 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.</P> <P>(B)(<E T="03">1</E>) 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.</P> <P>(<E T="03">2</E>) 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.</P> <P>(xii) <E T="03">Reconsideration.</E> (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:</P> <P>(<E T="03">1</E>) 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</P> <P>(<E T="03">2</E>) 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.</P> <P>(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.</P> <P>(xiii) <E T="03">Verification.</E> The Assistant Administrator may require verification of statements made in connection with requests to allow importations.</P> <P>(xiv) <E T="03">Intermediary nation.</E> 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 <E T="04">Federal Register</E> 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 <E T="04">Federal Register</E>, 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.</P> <P>(xv) <E T="03">Pelly certification.</E> 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.</P> <P>(xvi) <E T="03">Coordination.</E> The Assistant Administrator will promptly advise the <PRTPAGE P="40"/>Department of State of embargo decisions, actions and finding determinations.</P> <P>(6) <E T="03">Fish refused entry.</E> If fish is -denied entry under the provisions of § 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 con-signee.</P> <P>(7) [Reserved]</P> <P>(8) <E T="03">Disposition of fish refused entry -into the United States; redelivered fish. -</E> Fish which is denied entry under § 216.24(e)(3) -or which is delivered in accordance with § 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. <E T="03">Provided however,</E> 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.</P> <P>(9) <E T="03">Dolphin safe requirements</E>. (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.</P> <P>(ii) For purposes of this section, tuna or a tuna product is dolphin safe if:</P> <P>(A) It does not contain tuna that was harvested on the high seas by a vessel engaged in large-scale driftnet fishing;</P> <P>(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:</P> <P>(<E T="03">1</E>) A completed Fisheries Certificate of Origin;</P> <P>(<E T="03">2</E>) 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</P> <P>(<E T="03">3</E>) 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;</P> <P>(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</P> <P>(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.</P> <P>(iii) <E T="03">Submission of documentation</E>—(A) <E T="03">Imported tuna or tuna product</E>. 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.</P> <P>(B) <E T="03">U.S. domestic shipments</E>. 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 <PRTPAGE P="41"/>Marine Fisheries Service, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802.</P> <P>(f) <E T="03">Observers.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="42"/>July 10, 1989 and establishing the following:</P> <P>(A) The vessel will have an all-male crew;</P> <P>(B) The vessel has fewer than two private (one-person) and semi-private (two-person) cabins in total (excluding the captain's cabin);</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(g) <E T="03">Penalties and rewards:</E> 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 in-formation or renders service in -the performance of his official duties -shall not be eligible for payment under -this section.</P> <CITA>[45 FR 72187, Oct. 31, 1980]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 216.24, see the List of CFR Sections Affected in the Finding Aids section of this volume.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 216.25</SECTNO> <SUBJECT>Exempted marine mammals and marine mammal products.</SUBJECT> <P>(a) The provisions of the MMPA and these regulations shall not apply:</P> <P>(1) To any marine mammal taken before December 21, 1972 <SU>1</SU> <FTREF/>, or</P> <FTNT> <P> <SU>1</SU> 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.</P> </FTNT> <P>(2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date.</P> <P>(b) The prohibitions contained in § 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 <E T="04">Federal Register</E> with respect to the designation of the species or stock concerned as depleted or endangered.</P> <P>(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.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.26</SECTNO> <SUBJECT>Collection of certain marine mammal parts without prior authorization.</SUBJECT> <P>Notwithstanding any other provision of this subpart:</P> <P>(a) Any bones, teeth or ivory of any dead marine mammal may be collectedfrom a beach or from land within <FR>1/4</FR> of a mile of the ocean. The term <E T="03">ocean</E> includes bays and estuaries.</P> <P>(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 <PRTPAGE P="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.</P> <P>(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 § 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.</P> <P>(d) No person may purchase, sell or trade for commercial purposes any marine mammal part collected or imported under this section.</P> <P>(e) The export of parts collected without prior authorization under paragraph (b) of this section may occur if consistent with the provisions at § 216.37(d) under subpart D.</P> <CITA>[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.27</SECTNO> <SUBJECT>Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.</SUBJECT> <P>(a) <E T="03">Release requirements.</E> (1) Any marine mammal held for rehabilitation must be released within six months of capture or import unless the attending veterinarian determines that:</P> <P>(i) The marine mammal might adversely affect marine mammals in the wild;</P> <P>(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</P> <P>(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.</P> <P>(2) The custodian of the rehabilitated marine mammal shall provide written notification prior to any release into the wild.</P> <P>(i) Notification shall be provided to:</P> <P>(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</P> <P>(B) The Office Director at least 30 days in advance of releasing any imported marine mammal.</P> <P>(ii) Notification shall include the following:</P> <P>(A) A description of the marine mammal, including its physical condition and estimated age;</P> <P>(B) The date and location of release; and</P> <P>(C) The method and duration of transport prior to release.</P> <P>(3) The Regional Director, or the Office Director as appropriate, may:</P> <P>(i) Require additional information prior to any release;</P> <P>(ii) Change the date or location of release, or the method or duration of transport prior to release;</P> <P>(iii) Impose additional conditions to improve the likelihood of success or to monitor the success of the release; or</P> <P>(iv) Require other disposition of the marine mammal.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Non-releasability and postponed determinations.</E> (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.</P> <P>(2) Upon receipt of a report under paragraph (b)(1) of this section, the Regional Director or Office Director, in their sole discretion, may:</P> <P>(i) Order the release of the marine mammal;<PRTPAGE P="44"/> </P> <P>(ii) Order continued rehabilitation for an additional 6 months; or</P> <P>(iii) Order other disposition as authorized.</P> <P>(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:</P> <P>(i) Request authorization to retain or transfer custody of the marine mammal in accordance with paragraph (c) of this section, or;</P> <P>(ii) Humanely euthanize the marine mammal or arrange any other disposition of the marine mammal authorized by the Regional Director or Office Director.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Disposition for a special exception purpose.</E> (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.</P> <P>(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.</P> <P>(3) The Office Director may authorize retention or transfer of custody of the marine mammal only if:</P> <P>(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 § 216.33 or a request for a major amendment under § 216.39 has been submitted to the Office Director and has been found complete;</P> <P>(ii) The recipient agrees to hold the marine mammal in conformance with all applicable requirements and standards; and</P> <P>(iii) The recipient acknowledges that the marine mammal is subject to seizure by the Office Director:</P> <P>(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;</P> <P>(B) If the major amendment or permit is denied; or</P> <P>(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.</P> <P>(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.</P> <P>(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</P> <P>(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 <PRTPAGE P="45"/>Committee of Scientific Advisors on Marine Mammals, and are conducted pursuant to a scientific research permit.</P> <P>(d) Reporting. In addition to the report required under § 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.</P> <CITA>[61 FR 21933, May 10, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Special Exceptions</HD> <SECTION> <SECTNO>§ 216.30</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.31</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.32</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>The regulations of this subpart apply to:</P> <P>(a) All marine mammals and marine mammal parts taken or born in captivity after December 20, 1972; and</P> <P>(b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the ESA.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.33</SECTNO> <SUBJECT>Permit application submission, review, and decision procedures.</SUBJECT> <P>(a) <E T="03">Application submission.</E> 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.</P> <P>(b) <E T="03">Applications to export living marine mammals.</E> For applicants seeking a special exception permit to export living marine mammals, the application must:</P> <P>(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.</P> <P>(2) Include a certification from the foreign government that:</P> <P>(i) The information set forth in the application is accurate;</P> <P>(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</P> <P>(iii) The foreign government involved will afford comity to any permit amendment, modification, suspension or revocation decision.</P> <P>(c) <E T="03">Initial review.</E> (1) NMFS will notify the applicant of receipt of the application.</P> <P>(2) During the initial review, the Office Director will determine:</P> <P>(i) Whether the application is complete.</P> <P>(ii) Whether the proposed activity is for purposes authorized under this subpart.</P> <P>(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.</P> <P>(iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and permit specific conditions as described in § 216.35 and § 216.36(a).</P> <P>(v) Whether sufficient information is included regarding the environmental impact of the proposed activity to enable the Office Director:</P> <P>(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 <PRTPAGE P="46"/>preparation of an environmental assessment (EA) or environmental impact statement (EIS) is appropriate or necessary; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Notice of receipt and application review.</E> (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 <E T="04">Federal Register</E>. The notice will:</P> <P>(i) Summarize the application, including:</P> <P>(A) The purpose of the request;</P> <P>(B) The species and number of marine mammals;</P> <P>(C) The type and manner of special exception activity proposed;</P> <P>(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</P> <P>(E) The requested period of the permit.</P> <P>(ii) List where the application is available for review.</P> <P>(iii) Invite interested parties to submit written comments concerning the application within 30 days of the date of the notice.</P> <P>(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.</P> <P>(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.</P> <P>(3) The Office Director may consult with any other person, institution, or agency concerning the application.</P> <P>(4) Within 30 days of publication of the notice of receipt in the <E T="04">Federal Register</E>, any interested party may submit written comments or may request a public hearing on the application.</P> <P>(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 <E T="04">Federal Register</E>. Notice of the date, time, and place of the public hearing will be published in the <E T="04">Federal Register</E> 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.</P> <P>(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 <E T="04">Federal Register</E> within 60 days of publication of the notice of receipt in the <E T="04">Federal Register</E>.</P> <P>(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.</P> <P>(e) <E T="03">Issuance or denial procedures.</E> (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 <PRTPAGE P="47"/>public comment period, the Office Director will issue or deny a special exception permit.</P> <P>(2) The decision to issue or deny a permit will be based upon:</P> <P>(i) All relevant issuance criteria set forth at § 216.34;</P> <P>(ii) All purpose-specific issuance criteria as appropriate set forth at § 216.41, § 216.42, and § 216.43;</P> <P>(iii) All comments received or views solicited on the permit application; and</P> <P>(iv) Any other information or data that the Office Director deems relevant.</P> <P>(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:</P> <P>(i) Agrees to abide by all terms and conditions set forth in the permit, and all restrictions and relevant regulations under this subpart; and</P> <P>(ii) Acknowledges that the authority to conduct certain activities specified in the permit is conditional and subject to authorization by the Office Director.</P> <P>(4) Notice of the decision of the Office Director shall be published in the <E T="04">Federal Register</E> 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:</P> <P>(i) Was applied for in good faith;</P> <P>(ii) If exercised, will not operate to the disadvantage of such endangered or threatened species; and</P> <P>(iii) Is consistent with the purposes and policy set forth in section 2 of the ESA.</P> <P>(5) If the permit is denied, the Office Director shall provide the applicant with an explanation for the denial.</P> <P>(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 <E T="04">Federal Register</E> within 10 days of issuance.</P> <P>(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.</P> <CITA>[61 FR 21935, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.34</SECTNO> <SUBJECT>Issuance criteria.</SUBJECT> <P>(a) For the Office Director to issue any permit under this subpart, the applicant must demonstrate that:</P> <P>(1) The proposed activity is humane and does not present any unnecessary risks to the health and welfare of marine mammals;</P> <P>(2) The proposed activity is consistent with all restrictions set forth at § 216.35 and any purpose-specific restrictions as appropriate set forth at § 216.41, § 216.42, and § 216.43;</P> <P>(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;</P> <P>(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;</P> <P>(5) Whether the applicant's expertise, facilities, and resources are adequate to accomplish successfully the objectives and activities stated in the application;</P> <P>(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</P> <P>(7) Any requested import or export will not likely result in the taking of marine mammals or marine mammal <PRTPAGE P="48"/>parts beyond those authorized by the permit.</P> <P>(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.</P> <CITA>[61 FR 21936, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.35</SECTNO> <SUBJECT>Permit restrictions.</SUBJECT> <P>The following restrictions shall apply to all permits issued under this subpart:</P> <P>(a) The taking, importation, export, or other permitted activity involving marine mammals and marine mammal parts shall comply with the regulations of this subpart.</P> <P>(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 § 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.</P> <P>(c) Except as provided for in § 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.</P> <P>(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.</P> <P>(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.</P> <P>(f) The permit holder is responsible for all activities of any individual who is operating under the authority of the permit;</P> <P>(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;</P> <P>(h) Persons who require state or Federal licenses to conduct activities authorized under the permit must be duly licensed when undertaking such activities;</P> <P>(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;</P> <P>(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.</P> <CITA>[61 FR 21936, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.36</SECTNO> <SUBJECT>Permit conditions.</SUBJECT> <P>(a) <E T="03">Specific conditions.</E> (1) Permits issued under this subpart shall contain specific terms and conditions deemed appropriate by the Office Director, including, but not limited to:</P> <P>(i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;</P> <P>(ii) The manner in which marine mammals may be taken according to type of take;</P> <P>(iii) The location(s) in which the marine mammals may be taken, from <PRTPAGE P="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;</P> <P>(iv) The period during which the permit is valid.</P> <P>(2) [Reserved]</P> <P>(b) <E T="03">Other conditions.</E> 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.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.37</SECTNO> <SUBJECT>Marine mammal parts.</SUBJECT> <P>With respect to marine mammal parts acquired by take or import authorized under a permit issued under this subpart:</P> <P>(a) Marine mammal parts are transferrable if:</P> <P>(1) The person transferring the part receives no remuneration of any kind for the marine mammal part;</P> <P>(2) The person receiving the marine mammal part is:</P> <P>(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;</P> <P>(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</P> <P>(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;</P> <P>(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.</P> <P>(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;</P> <P>(4) A unique number assigned by the permit holder is marked on or affixed to the marine mammal part or container;</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) A record of the loan is maintained; and</P> <P>(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).</P> <P>(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:</P> <P>(1) Maintained as part of a properly curated, professionally accredited collection; or</P> <P>(2) Made available for purposes of scientific research or enhancement at the request of the Office Director.</P> <P>(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 <PRTPAGE P="50"/>properly curated, professionally accredited scientific collection, or education, provided that:</P> <P>(1) The permit holder or other person receives no remuneration for the marine mammal part;</P> <P>(2) A unique number assigned by the permit holder is marked on or affixed to the marine mammal specimen or container;</P> <P>(3) The marine mammal part is exported or reimported in compliance with all applicable domestic and foreign laws;</P> <P>(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</P> <P>(5) Special reports are submitted within 30 days after both export and reimport as required by the Office Director under § 216.38.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.38</SECTNO> <SUBJECT>Reporting.</SUBJECT> <P>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.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.39</SECTNO> <SUBJECT>Permit amendments.</SUBJECT> <P>(a) <E T="03">General</E>. 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.</P> <P>(1) A <E T="03">major amendment</E> means any change to the permit specific conditions under § 216.36(a) regarding:</P> <P>(i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(2) A <E T="03">minor amendment</E> means any amendment that does not constitute a major amendment.</P> <P>(b) <E T="03">Amendment requests and proposals</E>. (1) Requests by a permit holder for an amendment must be submitted in writing and include the following:</P> <P>(i) The purpose and nature of the amendment;</P> <P>(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 § 216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43.</P> <P>(iii) Any additional information required by the Office Director for purposes of reviewing the proposed amendment.</P> <P>(2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed amendment, together with an explanation.</P> <P>(c) <E T="03">Review of proposed amendments</E>. (1) <E T="03">Major amendments</E>. The provisions of § 216.33(d) and (e) governing notice of receipt, review and decision shall apply to all proposed major amendments.</P> <P>(2) <E T="03">Minor amendments</E>. (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.</P> <P>(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 <E T="04">Federal Register</E> within 10 days from the date of the Office Director's decision.</P> <P>(iii) A minor amendment will be effective upon a final decision by the Office Director.</P> <CITA>[61 FR 21937, May 10, 1996]</CITA> </SECTION> <SECTION> <PRTPAGE P="51"/> <SECTNO>§ 216.40</SECTNO> <SUBJECT>Penalties and permit sanctions.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[61 FR 21938, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.41</SECTNO> <SUBJECT>Permits for scientific research and enhancement.</SUBJECT> <P>In addition to the requirements under §§ 216.33 through 216.38, permits for scientific research and enhancement are governed by the following requirements:</P> <P>(a) <E T="03">Applicant</E>. (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.</P> <P>(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.</P> <P>(b) <E T="03">Issuance Criteria</E>. For the Office Director to issue any scientific research or enhancement permit, the applicant must demonstrate that:</P> <P>(1) The proposed activity furthers a bona fide scientific or enhancement purpose;</P> <P>(2) If the lethal taking of marine mammals is proposed:</P> <P>(i) Non-lethal methods for conducting the research are not feasible; and</P> <P>(ii) For depleted, endangered, or threatened species, the results will directly benefit that species or stock, or will fulfill a critically important research need.</P> <P>(3) Any permanent removal of a marine mammal from the wild is consistent with any applicable quota established by the Office Director.</P> <P>(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.</P> <P>(5) For species or stocks designated or proposed to be designated as depleted, or listed or proposed to be listed as endangered or threatened:</P> <P>(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;</P> <P>(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;</P> <P>(iii) The proposed research will either:</P> <P>(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;</P> <P>(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</P> <P>(C) Contribute significantly to fulfilling a critically important research need.</P> <P>(6) For proposed enhancement activities:</P> <P>(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.</P> <P>(ii) The activity will likely contribute significantly to maintaining or increasing distribution or abundance, enhancing the health or welfare of the <PRTPAGE P="52"/>species or stock, or ensuring the survival or recovery of the affected species or stock in the wild.</P> <P>(iii) The activity is consistent with:</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(v) The Office Director may authorize the public display of marine mammals held under the authority of an enhancement permit only if:</P> <P>(A) The public display is incidental to the authorized captive maintenance;</P> <P>(B) The public display will not interfere with the attainment of the survival or recovery objectives;</P> <P>(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</P> <P>(D) The marine mammals will be excluded from any interactive program and will not be trained for performance.</P> <P>(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:</P> <P>(A) Is incidental to the permitted enhancement activities; and</P> <P>(B) Will not interfere with the attainment of the survival or recovery objectives.</P> <P>(c) <E T="03">Restrictions</E>. (1) The following restrictions apply to all scientific research permits issued under this subpart:</P> <P>(i) Research activities must be conducted in the manner authorized in the permit.</P> <P>(ii) Research results shall be published or otherwise made available to the scientific community in a reasonable period of time.</P> <P>(iii) Research activities must be conducted under the direct supervision of the principal investigator or a co-investigator identified in the permit.</P> <P>(iv) Personnel involved in research activities shall be reasonable in number and limited to:</P> <P>(A) Individuals who perform a function directly supportive of and necessary to the permitted research activity; and</P> <P>(B) Support personnel included for the purpose of training or as backup personnel for persons described in paragraph (c)(1)(iv)(A).</P> <P>(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.</P> <P>(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:</P> <P>(A) Are necessary to address scientific research objectives and have been specifically authorized by the Office Director under the scientific research permit; and</P> <P>(B) Are conducted incidental to and do not in any way interfere with the permitted scientific research; and<PRTPAGE P="53"/> </P> <P>(C) Are conducted in a manner consistent with provisions applicable to public display, unless exceptions are specifically authorized by the Office Director.</P> <P>(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).</P> <P>(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.</P> <CITA>[61 FR 21938, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.42</SECTNO> <RESERVED>Photography. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.43</SECTNO> <RESERVED>Public display. [Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.44</SECTNO> <SUBJECT>Applicability/transition.</SUBJECT> <P>(a) <E T="03">General</E>. 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.</P> <P>(b) <E T="03">Scientific research</E>. Any intrusive research as defined in § 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.</P> <CITA>[61 FR 21939, May 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.45</SECTNO> <SUBJECT>General Authorization for Level B harassment for scientific research.</SUBJECT> <P>(a) <E T="03">General Authorization.</E> (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 § 216.3, for purposes of bona fide scientific research <E T="03">Provided,</E> That:</P> <P>(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</P> <P>(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 § 222.23 through § 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.</P> <P>(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.</P> <P>(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).</P> <P>(b) <E T="03">Letter of intent</E>. 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 <PRTPAGE P="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.</P> <P>(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.</P> <P>(2) The letter of intent must include the following information:</P> <P>(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;</P> <P>(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;</P> <P>(iii) The geographic location(s) in which the research is to be conducted, e.g., geographic name or lat./long.;</P> <P>(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;</P> <P>(v) The purpose of the research, including a description of how the proposed research qualifies as bona fide research as defined in § 216.3; and</P> <P>(vi) The methods to be used to conduct the research.</P> <P>(3) The letter of intent must be signed, dated, and certified by the applicant as follows: </P> <EXTRACT> <P>In accordance with section 104(c)(3)(C) of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 <E T="03">et seq</E>.) 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.</P> </EXTRACT> <P>(c) <E T="03">Confirmation that the General Authorization applies or notification of permit requirement</E>.</P> <P>(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:</P> <P>(i) Confirming that the General Authorization applies to the proposed scientific research as described in the letter of intent;</P> <P>(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</P> <P>(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 § 216.3.</P> <P>(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.</P> <P>(3) Periodically, NMFS will publish a summary document in the <E T="04">Federal Register</E> notifying the public of letters of confirmation issued.<PRTPAGE P="55"/> </P> <P>(d) <E T="03">Terms and conditions</E>. Persons issued letters of confirmation in accordance with paragraph (c) of this section are responsible for complying with the following terms and conditions:</P> <P>(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;</P> <P>(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:</P> <P>(i) A summary of research activities conducted;</P> <P>(ii) Identification of the species and number of each species taken by Level B harassment;</P> <P>(iii) An evaluation of the progress made in meeting the objectives of the research as described in the letter of intent; and</P> <P>(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.</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(6) If research activities result in a taking which exceeds Level B harassment, the applicant shall:</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(i) Allow any employee of NOAA or any other person designated by the Director, Office of Protected Resources to observe research activities; and</P> <P>(ii) Provide any documents or other information relating to the scientific research;</P> <P>(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, <PRTPAGE P="56"/>educational, or commercial uses of the images, and if there are any such uses, the names of all photographers; and</P> <P>(9) Persons conducting scientific research under authority of the General Authorization may not transfer or assign any authority granted thereunder to any other person.</P> <P>(e) <E T="03">Suspension, revocation, or modification.</E> (1) NMFS may suspend, revoke, or modify the authority to conduct scientific research under the General Authorization if:</P> <P>(i) The letter of intent included false information or statements of a material nature;</P> <P>(ii) The research does not constitute bona fide scientific research;</P> <P>(iii) Research activities result in takings of marine mammals other than by Level B harassment;</P> <P>(iv) Research activities differ from those described in the letter of intent submitted by the applicant and letter of confirmation issued by NMFS; or</P> <P>(v) The applicant violates any term or condition set forth in this section.</P> <P>(2) Any suspension, revocation, or modification is subject to the requirements of 15 CFR part 904.</P> <CITA>[59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§§ 216.46-216.49</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Designated Ports</HD> <SECTION> <SECTNO>§ 216.50</SECTNO> <SUBJECT>Importation at designated ports.</SUBJECT> <P>(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.</P> <P>(b) For the information of importers, designated ports of entry for the United States are: </P> <EXTRACT> <FP>New York, N.Y.</FP> <FP>Miami, Fla.</FP> <FP>Chicago, Ill.</FP> <FP>San Francisco, Calif.</FP> <FP>Los Angeles, Calif.</FP> <FP>New Orleans, La.</FP> <FP>Seattle, Wash.</FP> <FP>Honolulu, Hi.</FP> </EXTRACT> <P>(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: </P> <EXTRACT> <FP>Alaska—Juneau, Anchorage, Fairbanks</FP> <FP>Hawaii—Honolulu</FP> <FP>Puerto Rico—San Juan</FP> <FP>Guam—Honolulu, Hi.</FP> <FP>American Samoa—Honolulu, Hi.</FP> <FP>Virgin Islands—San Juan, P.R.</FP> </EXTRACT> <P>(d) Importers are advised to see 50 CFR part 14 for importation requirements and information.</P> <CITA>[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Pribilof Islands, Taking for Subsistence Purposes</HD> <SECTION> <SECTNO>§ 216.71</SECTNO> <SUBJECT>Allowable take of fur seals.</SUBJECT> <P>Pribilovians may take fur seals on the Pribilof Islands if such taking is</P> <P>(a) For subsistence uses, and</P> <P>(b) Not accomplished in a wasteful manner.</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.72</SECTNO> <SUBJECT>Restrictions on taking.</SUBJECT> <P>(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.</P> <P>(b) By April 1 of every third year, beginning April 1994, the Assistant Administrator will publish in the <E T="04">Federal Register</E> 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 <PRTPAGE P="57"/>30-day public comment period, a final notification of the expected annual harvest levels for the next 3 years will be published.</P> <P>(c)(1) No fur seal may be taken on the Pribilof Islands before June 23 of each year.</P> <P>(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.</P> <P>(3) Any taking of adult fur seals or pups, or the intentional taking of subadult female fur seals is prohibited.</P> <P>(4) Only subadult male fur seals 124.5 centimeters or less in length may be taken.</P> <P>(5) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.</P> <P>(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:</P> <P>(1) <E T="03">St. Paul Island</E>—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.</P> <P>(2) <E T="03">St. George Island</E>—Seals may only be harvested from the following haulout areas: Northeast and Zapadni. Neither haulout area may be harvested more than twice per week.</P> <P>(e)(1) The Assistant Administrator is required to suspend the take provided for in § 215.31 when:</P> <P>(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;</P> <FP>or</FP> <P>(ii) He determines that the harvest is otherwise being conducted in a wasteful manner; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) The Assistant Administrator shall terminate the take provided for in § 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.73</SECTNO> <SUBJECT>Disposition of fur seal parts.</SUBJECT> <P>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:</P> <P>(a) Has been transformed into an article of handicraft, or</P> <P>(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<PRTPAGE P="58"/> </P> <P>(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.</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.74</SECTNO> <SUBJECT>Cooperation with Federal officials.</SUBJECT> <P>Pribilovians who engage in the harvest of seals are required to co-operate 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 re-search purposes. In addition, Prib-i-lovians who take fur seals for sub-sistence 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:</P> <P>(a) The number of seals taken each day in the subsistence harvest,</P> <P>(b) The extent of the utilization of fur seals taken, and</P> <P>(c) Other information determined by the Assistant Administrator to be necessary for determining the subsistence needs of the Pribilovians or for making determinations under § 215.32(e).</P> <CITA>[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Pribilof Islands Administration</HD> <SECTION> <SECTNO>§ 216.81</SECTNO> <SUBJECT>Visits to fur seal rookeries.</SUBJECT> <P>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.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.82</SECTNO> <SUBJECT>Dogs prohibited.</SUBJECT> <P>In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.83</SECTNO> <SUBJECT>Importation of birds or mammals.</SUBJECT> <P>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.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.84</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 216.85</SECTNO> <SUBJECT>Walrus and Otter Islands.</SUBJECT> <P>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.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.86</SECTNO> <SUBJECT>Local regulations.</SUBJECT> <P>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.</P> <CITA>[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.87</SECTNO> <SUBJECT>Wildlife research.</SUBJECT> <P>(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:</P> <P>(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.<PRTPAGE P="59"/> </P> <P>(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:</P> <P>(i) Copies of the required Federal and State of Alaska permits; and</P> <P>(ii) A resume of the intended research program.</P> <P>(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.</P> <P>(4) Any approved research program shall be subject to such terms and conditions as the Director, Pribilof Islands Program deems appropriate.</P> <P>(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.</P> <CITA>[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Dolphin Safe Tuna Labeling</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1385.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 27794, June 3, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 216.90</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.91</SECTNO> <SUBJECT>Labeling requirements.</SUBJECT> <P>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:</P> <P>(a) Contains tuna harvested with a large-scale driftnet; or</P> <P>(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 § 216.92 or § 216.93.</P> </SECTION> <SECTION> <SECTNO>§ 216.92</SECTNO> <SUBJECT>Purse seine vessels greater than 400 short tons (362.8 metric tons).</SUBJECT> <P>For purposes of § 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:</P> <P>(a) A completed Fisheries Certificate of Origin;</P> <P>(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;</P> <P>(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:</P> <P>(1) The Secretary; or</P> <P>(2) A representative of the Inter-American Tropical Tuna Commission; and</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="60"/> <SECTNO>§ 216.93</SECTNO> <SUBJECT>Submission of documentation.</SUBJECT> <P>The documents required by § 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:</P> <P>(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</P> <P>(b) The documents are endorsed as required by § 216.92(d) and delivered to the Director, Southwest Region, or to the U.S. Customs Service at the time of exportation.</P> </SECTION> <SECTION> <SECTNO>§ 216.94</SECTNO> <SUBJECT>Requests to review documents.</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.95</SECTNO> <SUBJECT>False statements or endorsements.</SUBJECT> <P>Any person who knowingly and willfully makes a false statement or false endorsement required by § 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 15887, Apr. 10, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 216.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 216.102</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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:</P> <P>(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;</P> <P>(b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an incidental harassment authorization issued under § 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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to definitions contained in the MMPA, and in § 216.3, and unless the context otherwise requires, in subsequent subparts to this part:</P> <P> <E T="03">Arctic waters</E> means the marine and estuarine waters north of 60° N. lat.</P> <P> <E T="03">Citizens of the United States</E> and <E T="03">U.S. citizens</E> 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 <PRTPAGE P="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.</P> <P> <E T="03">Incidental harassment, incidental taking</E> and <E T="03">incidental, but not intentional, taking</E> 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 § 216.3).</P> <P> <E T="03">Negligible impact</E> 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.</P> <P> <E T="03">Small numbers</E> means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.</P> <P> <E T="03">Specified activity</E> 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.</P> <P> <E T="03">Specified geographical region</E> means an area within which a specified activity is conducted and that has certain biogeographic characteristics.</P> <P> <E T="03">Unmitigable adverse impact</E> means an impact resulting from the specified activity:</P> <P>(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by:</P> <P>(i) Causing the marine mammals to abandon or avoid hunting areas;</P> <P>(ii) Directly displacing subsistence users; or</P> <P>(iii) Placing physical barriers between the marine mammals and the subsistence hunters; and</P> <P>(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.</P> </SECTION> <SECTION> <SECTNO>§ 216.104</SECTNO> <SUBJECT>Submission of requests.</SUBJECT> <P>(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:</P> <P>(1) A detailed description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals;</P> <P>(2) The date(s) and duration of such activity and the specific geographical region where it will occur;</P> <P>(3) The species and numbers of marine mammals likely to be found within the activity area;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(7) The anticipated impact of the activity upon the species or stock of marine mammal;</P> <P>(8) The anticipated impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses;</P> <P>(9) The anticipated impact of the activity upon the habitat of the marine mammal populations, and the likelihood of restoration of the affected habitat;</P> <P>(10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations involved;</P> <P>(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 <PRTPAGE P="62"/>availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance;</P> <P>(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:</P> <P>(i) A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation;</P> <P>(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;</P> <P>(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</P> <P>(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;</P> <P>(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</P> <P>(14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects.</P> <P>(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 <E T="04">Federal Register</E> either:</P> <P>(i) A proposed incidental harassment authorization; or</P> <P>(ii) A notice of receipt of a request for the implementation or reimplementation of regulations governing the incidental taking.</P> <P>(2) Through notice in the <E T="04">Federal Register</E>, 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 <E T="04">Federal Register</E>. 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="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.</P> <P>(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 <E T="04">Federal Register</E> the negative finding along with the basis for denying the request.</P> </SECTION> <SECTION> <SECTNO>§ 216.105</SECTNO> <SUBJECT>Specific regulations.</SUBJECT> <P>(a) For all petitions for regulations under this paragraph, applicants must provide the information requested in § 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.</P> <P>(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:</P> <P>(1) Permissible methods of taking;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.106</SECTNO> <SUBJECT>Letter of Authorization.</SUBJECT> <P>(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 § 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.</P> <P>(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.</P> <P>(c) Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request.</P> <P>(d) Notice of issuance of all Letters of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> <P>(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:</P> <P>(1) The regulations prescribed are not being substantially complied with; or</P> <P>(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.</P> <P>(f) The requirement for notice and opportunity for public review in § 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.</P> <P>(g) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations <PRTPAGE P="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.</P> </SECTION> <SECTION> <SECTNO>§ 216.107</SECTNO> <SUBJECT>Incidental harassment authorization for Arctic waters.</SUBJECT> <P>(a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under § 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:</P> <P>(1) Permissible methods of taking by harassment;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(c) An incidental harassment authorization will be either issued or denied within 45 days after the close of the public review period.</P> <P>(d) Notice of issuance or denial of an incidental harassment authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance of a determination.</P> <P>(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.</P> <P>(f) An incidental harassment authorization shall be modified, withdrawn, or suspended if, after notice and opportunity for public comment, the Assistant Administrator determines that:</P> <P>(1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.108</SECTNO> <SUBJECT>Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters.</SUBJECT> <P>(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.<PRTPAGE P="65"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Dates and type(s) of activity;</P> <P>(ii) Dates and location(s) of any activities related to monitoring the effects on marine mammals; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Taking of Ringed Seals Incidental to On-Ice Seismic Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 5283, Feb. 2, 1998, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 63 FR 5283, Feb. 2, 1998, subpart J was revised, effective Feb. 2, 1998, to Dec. 31, 2002.</P> </EFFDNOT> <SECTION> <PRTPAGE P="66"/> <SECTNO>§ 216.111</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>Regulations in this subpart apply only to the incidental taking of ringed seals (<E T="03">Phoca</E> <E T="03">hispida</E>) and bearded seals (<E T="03">Erignathus</E> <E T="03">barbatus</E>) 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.112</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from February 2, 1998 through December 31, 2002.</P> </SECTION> <SECTION> <SECTNO>§ 216.113</SECTNO> <SUBJECT>Permissible methods.</SUBJECT> <P>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 § 216.106, is permitted during the course of the following activities:</P> <P>(a) On-ice geophysical seismic activities involving vibrator-type, airgun, or other energy source equipment shown to have similar or lesser effects.</P> <P>(b) Operation of transportation and camp facilities associated with seismic activities.</P> </SECTION> <SECTION> <SECTNO>§ 216.114</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>(a) All activities identified in § 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.</P> <P>(b) All activities identified in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.115</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Holders of Letters of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.</P> <P>(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:</P> <P>(1) Location(s) of survey activities.</P> <P>(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.</P> <P>(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.</P> <P>(4) Numbers of ringed seal lairs observed and proximity to seismic or associated activities for each location.</P> <P>(5) Other information as required in a Letter of Authorization.</P> </SECTION> <SECTION> <SECTNO>§ 216.116</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(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 § 216.111, must apply for and obtain a Letter of Authorization in accordance with § 216.106.</P> <P>(b) The application must be submitted to the National Marine Fisheries Service at least 90 days before the activity is scheduled to begin.</P> <P>(c) Applications for Letters of Authorization and for renewals of Letters of Authorization must include the following:</P> <P>(1) Name of company requesting the authorization;</P> <P>(2) A description of the activity including method to be used (vibroseis, <PRTPAGE P="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;</P> <P>(3) Any plans to monitor the behavior and effects of the activity on marine mammals;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.117</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.111 will be renewed annually upon:</P> <P>(1) Timely receipt of the reports required under § 216.115(d), which have been reviewed by the Assistant Administrator and determined to be acceptable; and</P> <P>(2) A determination that the mitigation measures required under § 216.114(b) and the Letter of Authorization have been undertaken.</P> <P>(b) A notice of issuance of a Letter of Authorization or of a renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.118</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 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 § 216.117, without modification, is not considered a substantive modification.</P> <P>(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 § 216.111, the Letter of Authorization issued pursuant to § 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 <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§ 216.119</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 9930, Mar. 1, 1999, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 9930, Mar. 1, 1999, subpart K was added, effective Mar. 1, 1999, to Dec. 31, 2003.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.120</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>(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:</P> <P>(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,</P> <P>(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,</P> <P>(3) Aircraft flight test operations, and</P> <P>(4) Helicopter operations from Vandenberg Air Force Base.</P> <P>(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 (<E T="03">Phoca</E> <E T="03">vitulina</E>), California sea lions (<E T="03">Zalophus</E> <E T="03">californianus</E>), northern elephant seals (<E T="03">Mirounga</E> <E T="03">angustirostris</E>), northern fur seals (<E T="03">Callorhinus</E> <E T="03">ursinus</E>), <PRTPAGE P="68"/>Guadalupe fur seals (<E T="03">Arctocephalus</E> <E T="03">townsendi</E>), and Steller sea lions (<E T="03">Eumetopias</E> <E T="03">jubatus</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.121</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from March 1, 1999, through December 31, 2003.</P> </SECTION> <SECTION> <SECTNO>§ 216.122</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>(a) Under Letters of Authorization issued pursuant to § 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 § 216.120, provided all terms, conditions, and requirements of these regulations and such Letter(s) of Authorization are complied with.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 216.123</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.120 and by a Letter of Authorization issued under § 216.106, no person in connection with the activities described in § 216.120 shall:</P> <P>(a) Take any marine mammal not specified in § 216.120(b);</P> <P>(b) Take any marine mammal specified in § 216.120(b) other than by incidental, unintentional harassment;</P> <P>(c) Take a marine mammal specified in § 216.120(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or</P> <P>(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <SECTNO>§ 216.124</SECTNO> <SUBJECT>Mitigation.</SUBJECT> <P>(a) The activity identified in § 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 § 216.120, the following mitigation measures must be utilized:</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(5) Additional mitigation measures as contained in a Letter of Authorization.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 216.125</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(a) Holders of Letters of Authorization issued pursuant to § 216.106 for activities described in § 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.</P> <P>(b) Holders of Letters of Authorization must designate qualified on-site individuals, as specified in the Letter of Authorization, to:<PRTPAGE P="69"/> </P> <P>(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,</P> <P>(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),</P> <P>(3) As required under a Letter of Authorization, investigate the potential for spontaneous abortion, disruption of effective female-neonate bonding, and other reproductive dysfunction,</P> <P>(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</P> <P>(5) Conduct acoustic measurements of those launch vehicles not having sound pressure level measurements made previously.</P> <P>(c) Holders of Letters of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.</P> <P>(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:</P> <P>(1) Date(s) and time(s) of the launch,</P> <P>(2) Design of the monitoring program, and</P> <P>(3) Results of the monitoring programs, including, but not necessarily limited to:</P> <P>(i) Numbers of pinnipeds present on the haulout prior to commencement of the launch,</P> <P>(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,</P> <P>(iii) The length of time(s) pinnipeds remained off the haulout or rookery,</P> <P>(iv) The numbers of pinniped adults or pups that may have been injured or killed as a result of the launch, and</P> <P>(v) Behavioral modifications by pinnipeds noted that were likely the result of launch noise or the sonic boom.</P> <P>(e) An annual report must be submitted that describes any incidental takings not reported under paragraph (d) of this section.</P> <P>(f) A final report must be submitted at least 180 days prior to expiration of these regulations. This report will:</P> <P>(1) Summarize the activities undertaken and the results reported all previous reports,</P> <P>(2) Assess the impacts at each of the major rookeries,</P> <P>(3) Assess the cumulative impact on pinnipeds and other marine mammals from Vandenberg activities, and</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.126</SECTNO> <SUBJECT>Applications for Letters of Authorization.</SUBJECT> <P>(a) To incidentally take harbor seals and other marine mammals pursuant to these regulations, either the U.S. citizen (see definition at § 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 § 216.106.</P> <P>(b) The application must be submitted to the National Marine Fisheries Service at least 30 days before the activity is scheduled to begin.</P> <P>(c) Applications for Letters of Authorization and for renewals of Letters of Authorization must include the following:</P> <P>(1) Name of the U.S. citizen requesting the authorization,</P> <P>(2) A description of the activity, the dates of the activity, and the specific location of the activity, and</P> <P>(3) Plans to monitor the behavior and effects of the activity on marine mammals.</P> <P>(d) A copy of the Letter of Authorization must be in the possession of the persons conducting activities that may <PRTPAGE P="70"/>involve incidental takings of seals and sea lions.</P> </SECTION> <SECTION> <SECTNO>§ 216.127</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>A Letter of Authorization issued under § 216.126 for the activity identified in § 216.120(a) will be renewed annually upon:</P> <P>(a) Timely receipt of the reports required under § 216.125(d), which have been reviewed by the Assistant Administrator and determined to be acceptable;</P> <P>(b) A determination that the mitigation measures required under § 216.124 and the Letter of Authorization have been undertaken; and</P> <P>(c) A notice of issuance of a Letter of Authorization or a renewal of a Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.128</SECTNO> <SUBJECT>Modifications of Letters of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 216.106 and subject to the provisions of this subpart shall be made until after notice and an opportunity for public comment.</P> <P>(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 § 216.120(b) or that significantly and detrimentally alters the scheduling of launches, a Letter of Authorization issued pursuant to § 216.106 may be substantively modified without a prior notice and an opportunity for public comment. A notice will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Taking of Marine Mammals Incidental to Power Plant Operations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 28120, May 25, 1999, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 28120, May 25, 1999, subpart L was added, effective July 1, 1999 through June 30, 2004.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.130</SECTNO> <SUBJECT>Specified activity, specified geographical region, and incidental take levels.</SUBJECT> <P>(a) Regulations in this subpart apply only to the incidental taking of harbor seals (<E T="03">Phoca</E> <E T="03">vitulina</E>), gray seals (<E T="03">Halichoerus</E> <E T="03">grypus</E>), harp seals (<E T="03">Phoca</E> <E T="03">groenlandica</E>), and hooded seals (<E T="03">Cystophora</E> <E T="03">cristata</E>) by U.S. citizens engaged in power plant operations at the Seabrook Station nuclear power plant, Seabrook, NH.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.131</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from July 1, 1999 through June 30, 2004.</P> </SECTION> <SECTION> <SECTNO>§ 216.132</SECTNO> <SUBJECT>Permissible methods of taking.</SUBJECT> <P>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 § 216.130 in the course of operating the station's intake cooling water system.</P> </SECTION> <SECTION> <SECTNO>§ 216.133</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.130(a) and by the Letter of Authorization, issued under § 216.106, the following activities are prohibited:</P> <P>(a) The taking of harbor seals, gray seals, harp seals, and hooded seals that is other than incidental.</P> <P>(b) The taking of any marine mammal not authorized in this applicable subpart or by any other law or regulation.</P> <P>(c) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued under § 216.106.</P> </SECTION> <SECTION> <SECTNO>§ 216.134</SECTNO> <SUBJECT>Mitigation requirements.</SUBJECT> <P>The holder of the Letter of Authorization is required to report, within 6 months from the issuance of a final <PRTPAGE P="71"/>rule, to the Administrator, Northeast Region, NMFS, on possible mitigation measures effecting the least practicable adverse impact on the seals specified in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 216.135</SECTNO> <SUBJECT>Monitoring and reporting.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 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.</P> <P>(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 § 216.135(b) through (e).</P> <P>(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.</P> <P>(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 § 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.</P> </SECTION> <SECTION> <PRTPAGE P="72"/> <SECTNO>§ 216.136</SECTNO> <SUBJECT>Renewal of the Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.130(a) may be renewed annually provided the following conditions and requirements are satisfied:</P> <P>(1) Timely receipt of the reports required under § 216.135, which have been reviewed by the Administrator, Northeast Region, NMFS, and determined to be acceptable;</P> <P>(2) A determination that the maximum incidental take authorizations in § 216.130(b) will not be exceeded; and</P> <P>(3) A determination that research on mitigation measures required under § 216.134(a) and the Letter of Authorization have been undertaken.</P> <P>(b) If a species’ annual incidental take authorization is exceeded, NMFS will review the documentation submitted under § 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 § 216.136(a) are satisfied, and provided that any modifications of the Letter of Authorization that may be required are done pursuant to § 216.137.</P> <P>(c) Notice of issuance of a renewal of the Letter of Authorization will be published in the <E T="04">Federal Register</E> within 30 days of issuance.</P> </SECTION> <SECTION> <SECTNO>§ 216.137</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 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 § 216.136, without modification, is not considered a substantive modification.</P> <P>(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 § 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 <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§§ 216.138-216.140</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Taking of Bottlenose Dolphins and Spotted Dolphins Incidental to Oil and Gas Structure Removal Activities</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 53145, Oct. 12, 1995, unless otherwise noted. Redesignated at 61 FR 15887, Apr. 10, 1996.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>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.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.141</SECTNO> <SUBJECT>Specified activity and specified geographical region.</SUBJECT> <P>(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.</P> <P>(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 (<E T="03">Tursiops</E> <E T="03">truncatus</E>) and spotted dolphins (<E T="03">Stenella</E> <E T="03">frontalis</E> and <E T="03">S</E>. <E T="03">attenuata</E>).</P> </SECTION> <SECTION> <SECTNO>§ 216.142</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from November 13, 1995 through November 13, 2000.</P> </SECTION> <SECTION> <PRTPAGE P="73"/> <SECTNO>§ 216.143</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <P>(a) The use of the following means in conducting the activities identified in § 216.141 is permissible: Bulk explosives, shaped explosive charges, mechanical or abrasive cutters, and underwater arc cutters.</P> <P>(b) All activities identified in § 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:</P> <P>(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;</P> <P>(ii) Whenever the conditions described in paragraph (b)(1)(i) of this section occur, the aerial survey required under § 216.145(b)(1) must be repeated prior to detonation of charges if the timing requirements of § 216.145(b)(1) cannot be met.</P> <P>(2) Detonation of explosives must occur no earlier than 1 hour after sunrise and no later than 1 hour before sunset;</P> <P>(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</P> <P>(4) Detonations must be staggered by a minimum of 0.9 seconds for each group of charges.</P> <CITA>[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.144</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.143 or by a Letter of Authorization issued under § 216.106, the following activities are prohibited:</P> <P>(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;</P> <P>(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 § 216.106 or § 216.146;</P> <P>(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</P> <P>(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.</P> <CITA>[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.145</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="74"/>concentrate down-current from the structure.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.146</SECTNO> <SUBJECT>Letters of Authorization.</SUBJECT> <P>(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 § 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 § 216.106.</P> <P>(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.</P> <CITA>[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.147</SECTNO> <SUBJECT>Renewal of Letters of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.141 will be renewed annually upon:</P> <P>(1) Timely receipt of the reports required under § 216.145(d), which have been reviewed by the Assistant Administrator and determined to be acceptable;</P> <P>(2) A determination that the maximum incidental take authorizations in § 216.141(b) will not be exceeded; and</P> <P>(3) A determination that the mitigation measures required under § 216.143(b) and the Letter of Authorization have been undertaken.</P> <P>(b) If a species’ annual authorization is exceeded, the Assistant Administrator will review the documentation submitted with the annual reports required under § 216.145(d), to determine that the taking is not having more than a negligible impact on the species or stock involved.</P> <P>(c) Notice of issuance of a renewal of the Letter of Authorization will be published in the <E T="04">Federal Register</E>.</P> <CITA>[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.148</SECTNO> <SUBJECT>Modifications to Letters of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 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 § 216.147, without modification, is not considered a substantive modification.</P> <P>(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 § 216.141(b), the Letter of Authorization issued pursuant to § 216.106, or renewed pursuant to this section may be substantively modified without prior notice and an <PRTPAGE P="75"/>opportunity for public comment. A notice will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> <CITA>[60 FR 53145, Oct. 12, 1995. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Taking of Marine Mammals Incidental to Underwater Detonation of Conventional Explosives by the Department of Defense</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 5126, Feb. 3, 1994, unless otherwise noted. Redesignated at 61 FR 15887, Apr. 10, 1996.</P> </SOURCE> <SECTION> <SECTNO>§ 216.151</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <P>(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.</P> <P>(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:</P> <GPOTABLE CDEF="s25,4,4,4" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1"/> <CHED H="1">Lethal</CHED> <CHED H="1">Injury</CHED> <CHED H="1">Harassment</CHED> </BOXHD> <ROW> <ENT I="01">California Sea Lion</ENT> <ENT>2</ENT> <ENT>38</ENT> <ENT>173</ENT> </ROW> <ROW> <ENT I="01">Harbor Seal.</ENT> <ENT>2</ENT> <ENT>16</ENT> <ENT>68</ENT> </ROW> <ROW> <ENT I="01">Northern Elephant Seal</ENT> <ENT>9</ENT> <ENT>158</ENT> <ENT>724</ENT> </ROW> <ROW> <ENT I="01">Northern Fur Seal</ENT> <ENT>2</ENT> <ENT>13</ENT> <ENT>57</ENT> </ROW> <ROW> <ENT I="01">Common Dolphin</ENT> <ENT>1</ENT> <ENT>16</ENT> <ENT>67</ENT> </ROW> <ROW> <ENT I="01">Striped Dolphin</ENT> <ENT>0</ENT> <ENT>2</ENT> <ENT>5</ENT> </ROW> <ROW> <ENT I="01">Risso's Dolphin</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>2</ENT> </ROW> <ROW> <ENT I="01">Pacific White-Sided Dolphin</ENT> <ENT>3</ENT> <ENT>52</ENT> <ENT>236</ENT> </ROW> <ROW> <ENT I="01">Northern Rt. Whale Dolphin</ENT> <ENT>2</ENT> <ENT>24</ENT> <ENT>108</ENT> </ROW> <ROW> <ENT I="01">Dall's Porpoise</ENT> <ENT>0</ENT> <ENT>6</ENT> <ENT>18</ENT> </ROW> <ROW> <ENT I="01">Bottlenose Dolphin</ENT> <ENT>0</ENT> <ENT>4</ENT> <ENT>15</ENT> </ROW> <ROW> <ENT I="01">Killer Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Sperm Whale</ENT> <ENT>0</ENT> <ENT>6</ENT> <ENT>20</ENT> </ROW> <ROW> <ENT I="01">Beaked Whales</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>3</ENT> </ROW> <ROW> <ENT I="01">Minke Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Blue Whale</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>11</ENT> </ROW> <ROW> <ENT I="01">Fin Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>6</ENT> </ROW> <ROW> <ENT I="01">Sei Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>1</ENT> </ROW> <ROW> <ENT I="01">Humpback Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>4</ENT> </ROW> <ROW> <ENT I="01">Gray Whale</ENT> <ENT>0</ENT> <ENT>3</ENT> <ENT>40</ENT> </ROW> <ROW> <ENT I="01">Right Whale</ENT> <ENT>0</ENT> <ENT>0</ENT> <ENT>1</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 216.152</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective from March 3, 1994, through March 3, 1999.</P> </SECTION> <SECTION> <SECTNO>§ 216.153</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <P>(a) U.S. citizens holding a Letter of Authorization issued pursuant to § 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 § 216.151(a):</P> <P>(1) 12 detonations of 10,000 lbs (4,536 kg);</P> <P>(2) 2 detonations of 1,200 lbs (544 kg);</P> <P>(3) 10 detonations of 100 lbs (45 kg);</P> <P>(4) 10 detonations of 10 lbs (4.5 kg); and</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.154</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.153 or by a Letter of Authorization issued under § 216.106, the following activities are prohibited:<PRTPAGE P="76"/> </P> <P>(a) The taking of a marine mammal that is other than unintentional;</P> <P>(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 § 216.106 or § 216.156; and</P> <P>(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.</P> <CITA>[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 15890, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.155</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(1) Date and time of the test(s);</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) Date and time of all tests conducted under the expiring Letter of Authorization;<PRTPAGE P="77"/> </P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(5) Results of any population assessment studies made on marine mammals in the Outer Sea Test Range during the previous year.</P> </SECTION> <SECTION> <SECTNO>§ 216.156</SECTNO> <SUBJECT>Renewal of Letter of Authorization.</SUBJECT> <P>(a) A Letter of Authorization issued under § 216.106 for the activity identified in § 216.151(a) will be renewed annually upon:</P> <P>(1) Timely receipt of the reports required under § 216.155(f) and (g), which have been reviewed by the Assistant Administrator for Fisheries, NOAA, and determined to be acceptable;</P> <P>(2) A determination that the maximum incidental take authorizations in § 216.151(b) will not be exceeded; and</P> <P>(3) A determination that the mitigation measures required under § 216.153(b) and the Letter of Authorization have been undertaken.</P> <P>(b) If a species’ annual authorization is exceeded, the National Marine Fisheries Service will review the documentation submitted with the annual report required under § 216.155(g), to determine that the taking is not having more than a negligible impact on the species or stock involved.</P> <P>(c) Notice of issuance of a renewal of the Letter of Authorization will be published in the <E T="04">Federal Register</E>.</P> <CITA>[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 15890-15891, Apr. 10, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 216.157</SECTNO> <SUBJECT>Modifications to Letter of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 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 § 216.146, without modification, is not considered a substantive modification.</P> <P>(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 § 216.151, or that significantly and detrimentally alters the scheduling of explosives detonation within the area specified in § 216.151, the Letter of Authorization issued pursuant to § 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 <E T="04">Federal Register</E> subsequent to the action.</P> <CITA>[59 FR 5126, Feb. 3, 1994. Redesignated and amended at 61 FR 15887, 15891, Apr. 10, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">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</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>63 FR 66076, Dec. 1, 1998, unless otherwise noted.</P> </SOURCE> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 63 FR 66076, Dec. 1, 1998, subpart O was added, effective Jan. 1, 1999 through Sept. 30, 2004.</P> </EFFDNOT> <SECTION> <SECTNO>§ 216.161</SECTNO> <SUBJECT>Specified activity, geographical region, and incidental take levels.</SUBJECT> <P>(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 <PRTPAGE P="78"/>Mayport, FL for the purpose of shock testing the USS SEAWOLF.</P> <P>(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 (<E T="03">Balaenoptera</E> <E T="03">musculus</E>); fin whale (<E T="03">B</E>. <E T="03">physalus</E>); sei whale (<E T="03">B</E>. <E T="03">borealis</E>); Bryde's whale (<E T="03">B</E>. <E T="03">edeni</E>); minke whale (<E T="03">B</E>. <E T="03">acutorostrata</E>); humpback whale (<E T="03">Megaptera</E> <E T="03">novaeangliae</E>); northern right whale (<E T="03">Eubalaena</E> <E T="03">glacialis</E>); sperm whale (<E T="03">Physeter</E> <E T="03">macrocephalus</E>); dwarf sperm whale (<E T="03">Kogia</E> <E T="03">simus</E>); pygmy sperm whale (<E T="03">K</E>. <E T="03">breviceps</E>); pilot whales (<E T="03">Globicephala</E> <E T="03">melas</E>, <E T="03">G</E>. <E T="03">macrorhynchus</E>); Atlantic spotted dolphin (<E T="03">Stenella</E> <E T="03">frontalis</E>); Pantropical spotted dolphin (<E T="03">S</E>. <E T="03">attenuata</E>); striped dolphin (<E T="03">Stenella</E> <E T="03">coeruleoalba</E>); spinner dolphin (<E T="03">S</E>. <E T="03">longirostris</E>); Clymene dolphin (<E T="03">S</E>. <E T="03">clymene</E>); bottlenose dolphin (<E T="03">Tursiops</E> <E T="03">truncatus</E>); Risso's dolphin (<E T="03">Grampus</E> <E T="03">griseus</E>); rough-toothed dolphin (<E T="03">Steno</E> <E T="03">bredanensis</E>); killer whale (<E T="03">Orcinus</E> <E T="03">orca</E>); false killer whale (<E T="03">Pseudorca</E> <E T="03">crassidens</E>); pygmy killer whale (<E T="03">Feresa</E> <E T="03">attenuata</E>); Fraser's dolphin (<E T="03">Lagenodelphis</E> <E T="03">hosei</E>); harbor porpoise (<E T="03">Phocoena</E> <E T="03">phocoena</E>); melon-headed whale (<E T="03">Peponocephala</E> <E T="03">electra</E>); northern bottlenose whale (<E T="03">Hyperoodon</E> <E T="03">ampullatus</E>); Cuvier's beaked whale (<E T="03">Ziphius</E> <E T="03">cavirostris</E>), Blainville's beaked whale (<E T="03">Mesoplodon</E> <E T="03">densirostris</E>); Gervais’ beaked whale (<E T="03">M</E>. <E T="03">europaeus</E>); Sowerby's beaked whale (<E T="03">M</E>. <E T="03">bidens</E>); True's beaked whale (<E T="03">M</E>. <E T="03">mirus</E>); common dolphin (<E T="03">Delphinus</E> <E T="03">delphis</E>); and Atlantic white-sided dolphin (<E T="03">Lagenorhynchus</E> <E T="03">acutus</E>).</P> <P>(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 § 17.11 of this title, is prohibited.</P> </SECTION> <SECTION> <SECTNO>§ 216.162</SECTNO> <SUBJECT>Effective dates.</SUBJECT> <P>Regulations in this subpart are effective May 1 through September 30 of any single year between the years 2000 and 2004, inclusive.</P> </SECTION> <SECTION> <SECTNO>§ 216.163</SECTNO> <SUBJECT>Permissible methods of taking; mitigation.</SUBJECT> <P>(a) Under a Letter of Authorization issued pursuant to § 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 § 216.161(a), provided all terms, conditions, and requirements of these regulations and such Letter of Authorization are complied with.</P> <P>(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:</P> <P>(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 § 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.</P> <P>(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.<PRTPAGE P="79"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.164</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>Notwithstanding takings authorized by § 216.161(b) and by a Letter of Authorization issued under § 216.106, the following activities are prohibited:</P> <P>(a) The taking of a marine mammal that is other than unintentional.</P> <P>(b) The violation of, or failure to comply with, the terms, conditions, and requirements of this part or a Letter of Authorization issued under § 216.106.</P> <P>(c) The incidental taking of any marine mammal of a species not specified in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 216.165</SECTNO> <SUBJECT>Requirements for monitoring and reporting.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) Activities related to the monitoring described in paragraphs (c) and (d) of this section, or in the Letter of Authorization issued under § 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.</P> <P>(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.</P> <P>(h) A final report must be submitted to the Administrator, Southeast Region, no later than 120 days after completion of shock testing the USS <PRTPAGE P="80"/>SEAWOLF. This report must contain the following information:</P> <P>(1) Date and time of all detonations conducted under the Letter of Authorization.</P> <P>(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.</P> <P>(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.</P> <P>(4) Results of coordination with coastal marine mammal/sea turtle stranding networks.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 216.166</SECTNO> <SUBJECT>Modifications to the Letter of Authorization.</SUBJECT> <P>(a) In addition to complying with the provisions of § 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 § 216.106 and subject to the provisions of this subpart shall be made until after notice and an opportunity for public comment.</P> <P>(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 § 216.161(b), or that significantly and detrimentally alters the scheduling of explosives detonation within the area specified in § 216.161(a), the Letter of Authorization issued pursuant to § 216.106 may be substantively modified without prior notice and an opportunity for public comment. A notice will be published in the <E T="04">Federal Register</E> subsequent to the action.</P> </SECTION> <SECTION> <SECTNO>§§ 216.167-216.169</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subparts P-Q[Reserved]</RESERVED> </SUBPART> </PART> <PART> <RESERVED>PARTS 217-221[RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 222</EAR> <HD SOURCE="HED">PART 222—GENERAL ENDANGERED AND THREATENED MARINE SPECIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction and General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>222.101</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <SECTNO>222.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>222.103</SECTNO> <SUBJECT>Federal/state cooperation in the conservation of endangered and threatened species.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Certificates of Exemption for Pre-Act Endangered Species Parts</HD> <SECTNO>222.201</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>222.202</SECTNO> <SUBJECT>Certificate renewal.</SUBJECT> <SECTNO>222.203</SECTNO> <SUBJECT>Modification, amendment, suspension, and revocation of certificates.</SUBJECT> <SECTNO>222.204</SECTNO> <SUBJECT>Administration of certificates.</SUBJECT> <SECTNO>222.205</SECTNO> <SUBJECT>Import and export requirements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Permit Procedures</HD> <SECTNO>222.301</SECTNO> <SUBJECT>General requirements.</SUBJECT> <SECTNO>222.302</SECTNO> <SUBJECT>Procedure for obtaining permits.</SUBJECT> <SECTNO>222.303</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <SECTNO>222.304</SECTNO> <SUBJECT>Renewal of permits.</SUBJECT> <SECTNO>222.305</SECTNO> <SUBJECT>Rights of succession and transfer of permits.</SUBJECT> <SECTNO>222.306</SECTNO> <SUBJECT>Modification, amendment, suspension, cancellation, and revocation of permits.</SUBJECT> <SECTNO>222.307</SECTNO> <SUBJECT>Permits for incidental taking of species.</SUBJECT> <SECTNO>222.308</SECTNO> <SUBJECT>Permits for scientific purposes or for the enhancement of propagation or survival of species.</SUBJECT> <SECTNO>222.309</SECTNO> <SUBJECT>Permits for listed species of sea turtles involving the Fish and Wildlife Service.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531 <E T="03">et seq.</E>; 16 U.S.C. 742a <E T="03">et seq.</E>; 31 U.S.C. 9701.</P> <P>Section 222.403 also issued under 16 U.S.C. 1361 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 14054, Mar. 23, 1999, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction and General Provisions</HD> <SECTION> <SECTNO>§ 222.101</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <P>(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 <PRTPAGE P="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 §§ 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.</P> <P>(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).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Accelerator funnel</E> means a device used to accelerate the flow of water through a shrimp trawl net.</P> <P> <E T="03">Act</E> means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 <E T="03">et seq.</E> </P> <P> <E T="03">Adequately covered</E> 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.</P> <P> <E T="03">Alaska Regional Administrator</E> 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.</P> <P> <E T="03">Approved turtle excluder device (TED)</E> 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.</P> <P> <E T="03">Assistant Administrator</E> 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.</P> <P> <E T="03">Atlantic Area</E> means all waters of the Atlantic Ocean south of 36°33′00.8″ N. <PRTPAGE P="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).</P> <P> <E T="03">Atlantic Shrimp Fishery—Sea Turtle Conservation Area (Atlantic SFSTCA)</E> 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°42′45.6″ N. lat.) to the North Carolina-South Carolina border (defined as the line extending in a direction of 135°34′55″ from true north from the North Carolina-South Carolina land boundary, as marked by the border station on Bird Island at 33°51′07.9″ N. lat., 078°32′32.6″ W. long.).</P> <P> <E T="03">Authorized officer</E> means:</P> <P>(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard;</P> <P>(2) Any special agent or enforcement officer of the National Marine Fisheries Service;</P> <P>(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</P> <P>(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.</P> <P> <E T="03">Bait shrimper</E> means a shrimp trawler that fishes for and retains its shrimp catch alive for the purpose of selling it for use as bait.</P> <P> <E T="03">Beam trawl</E> 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.</P> <P> <E T="03">Certificate of exemption</E> 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.</P> <P> <E T="03">Changed circumstances</E> 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).</P> <P> <E T="03">Commercial activity</E> 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.</P> <P> <E T="03">Conservation plan</E> 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.”</P> <P> <E T="03">Conserved habitat areas</E> means areas explicitly designated for habitat restoration, acquisition, protection, or other conservation purposes under a conservation plan.</P> <P> <E T="03">Cooperative Agreement</E> 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.</P> <P> <E T="03">Fishing,</E> or <E T="03">to fish,</E> means:</P> <P>(1) The catching, taking, or harvesting of fish or wildlife;</P> <P>(2) The attempted catching, taking, or harvesting of fish or wildlife;</P> <P>(3) Any other activity that can reasonably be expected to result in the catching, taking, or harvesting of fish or wildlife; or</P> <P>(4) Any operations on any waters in support of, or in preparation for, any activity described in paragraphs (1) through (3) of this definition.</P> <P> <E T="03">Footrope</E> 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.</P> <P> <E T="03">Footrope length</E> 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.</P> <P> <E T="03">Foreign commerce</E> includes, among other things, any transaction between persons within one foreign country, or <PRTPAGE P="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.</P> <P> <E T="03">Four-seam, straight-wing trawl</E> 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.</P> <P> <E T="03">Four-seam, tapered-wing trawl</E> 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.</P> <P> <E T="03">Gulf Area</E> means all waters of the Gulf of Mexico west of 81° W. long. (the line at which the Gulf Area meets the Atlantic Area) and all waters shoreward thereof (including ports).</P> <P> <E T="03">Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA)</E> 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°08.5′ W. long.) to the U.S.-Mexican border.</P> <P> <E T="03">Habitat restoration activity</E> means an activity that has the sole objective of restoring natural aquatic or riparian habitat conditions or processes.</P> <P> <E T="03">Headrope</E> means a rope that is attached to the upper lip (top edge) of the mouth of a trawl net along the forward-most webbing.</P> <P> <E T="03">Headrope length</E> 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.</P> <P> <E T="03">Import</E> 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.</P> <P> <E T="03">Inshore</E> 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.</P> <P> <E T="03">Leatherback conservation zone</E> means that portion of the Atlantic Area lying north of a line along 28°24.6′ N. lat. (Cape Canaveral, FL).</P> <P> <E T="03">Northeast Regional Administrator</E> 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.</P> <P> <E T="03">Northwest Regional Administrator</E> 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.</P> <P> <E T="03">Office of Enforcement</E> 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.</P> <P> <E T="03">Office of Protected Resources</E> 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.<PRTPAGE P="84"/> </P> <P> <E T="03">Offshore</E> 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.</P> <P> <E T="03">Operating conservation program</E> 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.</P> <P> <E T="03">Permit</E> 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.</P> <P> <E T="03">Person</E> 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.</P> <P> <E T="03">Possession</E> 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.</P> <P> <E T="03">Pre-Act endangered species part</E> 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.</P> <P> <E T="03">Properly implemented conservation plan</E> means any conservation plan, implementing agreement, or permit whose commitments and provisions have been or are being fully implemented by the permittee.</P> <P> <E T="03">Pusher-head trawl (chopsticks)</E> means a trawl that is spread by two poles suspended from the bow of the trawler in an inverted “V” configuration.</P> <P> <E T="03">Resident species</E> 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.</P> <P> <E T="03">Right whale</E> 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 (<E T="03">Eubalaena glacialis</E>).</P> <P> <E T="03">Roller trawl</E> means a variety of beam trawl that is used, usually by small vessels, for fishing over uneven or vegetated sea bottoms.</P> <P> <E T="03">Scrimshaw product</E> 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.</P> <P> <E T="03">Secretary</E> means the Secretary of Commerce or an authorized representative.</P> <P> <E T="03">Shrimp</E> means any species of marine shrimp (Order Crustacea) found in the Atlantic Area or the Gulf Area, including, but not limited to:</P> <P>(1) Brown shrimp (<E T="03">Penaeus aztecus</E>).</P> <P>(2) White shrimp (<E T="03">Penaeus setiferus</E>).</P> <P>(3) Pink shrimp (<E T="03">Penaeus duorarum</E>).</P> <P>(4) Rock shrimp (<E T="03">Sicyonia brevirostris</E>).</P> <P>(5) Royal red shrimp (<E T="03">Hymenopenaeus robustus</E>).</P> <P>(6) Seabob shrimp (<E T="03">Xiphopenaeus kroyeri</E>).</P> <P> <E T="03">Shrimp trawler</E> 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 <PRTPAGE P="85"/>landed catch of shrimp is more than 1 percent, by weight, of all fish comprising its on-board or landed catch.</P> <P> <E T="03">Skimmer trawl</E> 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.</P> <P> <E T="03">Southeast Regional Administrator</E> 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.</P> <P> <E T="03">Southwest Regional Administrator</E> 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.</P> <P> <E T="03">Stretched mesh size</E> means the distance between the centers of the two opposite knots in the same mesh when pulled taut.</P> <P> <E T="03">Summer flounder</E> means the species <E T="03">Paralichthys dentatus.</E> </P> <P> <E T="03">Summer flounder fishery-sea turtle protection area</E> means all offshore waters, bounded on the north by a line along 37°05′ N. lat. (Cape Charles, VA) and bounded on the south by a line extending in a direction of 135°34′55″ from true north from the North Carolina-South Carolina land boundary, as marked by the border station on Bird Island at 33°51′07.9″ N. lat., 078°32′32.6″ W. long.(the North Carolina-South Carolina border).</P> <P> <E T="03">Summer flounder trawler</E> 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).</P> <P> <E T="03">Take</E> 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.</P> <P> <E T="03">Taper,</E> 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.</P> <P> <E T="03">Taut</E> means a condition in which there is no slack in the net webbing.</P> <P> <E T="03">Test net,</E> or <E T="03">try net,</E> 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.).</P> <P> <E T="03">Tongue</E> 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.</P> <P> <E T="03">Transportation</E> means to ship, convey, carry or transport by any means whatever, and deliver or receive for such shipment, conveyance, carriage, or transportation.<PRTPAGE P="86"/> </P> <P> <E T="03">Triple-wing trawl</E> 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.</P> <P> <E T="03">Two-seam trawl</E> 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.</P> <P> <E T="03">Underway</E> with respect to a vessel, means that the vessel is not at anchor, or made fast to the shore, or aground.</P> <P> <E T="03">Unforeseen circumstances</E> 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.</P> <P> <E T="03">Vessel</E> 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.</P> <P> <E T="03">Vessel restricted in her ability to maneuver</E> has the meaning specified for this term at 33 U.S.C. 2003(g).</P> <P> <E T="03">Wildlife</E> 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.</P> <P> <E T="03">Wing net (butterfly trawl)</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 222.103</SECTNO> <SUBJECT>Federal/state cooperation in the conservation of endangered and threatened species.</SUBJECT> <P>(a) <E T="03">Application for and renewal of cooperative agreements.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Allocation and availability of funds.</E> (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:</P> <P>(i) The international commitments of the United States to protect endangered or threatened species;</P> <P>(ii) The readiness of a state to proceed with a conservation program consistent with the objectives and purposes of the Act;</P> <P>(iii) The number of federally listed endangered and threatened species within a state;</P> <P>(iv) The potential for restoring endangered and threatened species within a state; and</P> <P>(v) The relative urgency to initiate a program to restore and protect an endangered or threatened species in terms of survival of the species.</P> <P>(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.<PRTPAGE P="87"/> </P> <P>(c) <E T="03">Financial assistance and payments.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Certificates of Exemption for Pre-Act Endangered Species Parts</HD> <SECTION> <SECTNO>§ 222.201</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="88"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.202</SECTNO> <SUBJECT>Certificate renewal.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The following information will be used as the basis for determining whether an application for renewal of a Certificate of Exemption is complete:</P> <P>(1) Title: Application for Renewal of Certificate of Exemption.</P> <P>(2) The date of application.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 222.201(d).</P> <P>(iii) No renewals will be issued for scrimshaw products in excess of any <PRTPAGE P="89"/>quantities declared in the original application for a Certificate of Exemption.</P> <P>(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.</P> <P>(7) Signature of the applicant.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.203</SECTNO> <SUBJECT>Modification, amendment, suspension, and revocation of certificates.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.204</SECTNO> <SUBJECT>Administration of certificates.</SUBJECT> <P>(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.</P> <P>(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 § 222.201(d).</P> <P>(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.</P> <P>(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.</P> <P>(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, <PRTPAGE P="90"/>including places of storage, for the purpose of inspecting or of examining any records or documents and any endangered species parts.</P> <P>(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.</P> <P>(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 § 222.201(d), must similarly maintain records of all such parts or products they receive.</P> <P>(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.</P> <P>(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.</P> <P>(ii) Quarterly reports are due on January 15, April 15, July 15, and October 15.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.205</SECTNO> <SUBJECT>Import and export requirements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="91"/> </P> <P>(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.</P> <P>(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 § 222.103.</P> <P>(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.</P> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. 23, 1999, with the exception of § 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.</P> </EFFDNOT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Permit Procedures</HD> <SECTION> <SECTNO>§ 222.301</SECTNO> <SUBJECT>General requirements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="92"/>other act and during the period of any transit incident to such taking, importation, exportation, or to any other act.</P> <P>(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.</P> <P>(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.</P> <P>(f) Permits shall not be altered, erased, or mutilated, and any permit which has been altered, erased, or mutilated shall immediately become invalid.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.302</SECTNO> <SUBJECT>Procedure for obtaining permits.</SUBJECT> <P>(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 § 222.301(a)(2), will applications be accepted either orally or by telephone.</P> <P>(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 <E T="04">Federal Register</E>.</P> <P>(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.</P> <P>(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 <PRTPAGE P="93"/>waive any requirement for information or require any elaboration or further information deemed necessary.</P> </SECTION> <SECTION> <SECTNO>§ 222.303</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <P>(a)(1) No permit may be issued prior to the receipt of a written application unless an emergency pursuant to § 222.301(a)(2) exists, and a written variation from the requirements is recorded by the National Marine Fisheries Service.</P> <P>(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 § 222.102.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E>. 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.</P> <P>(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 <E T="04">Federal Register</E> 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.</P> <P>(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 <E T="04">Federal Register</E>, the Assistant Administrator shall issue or deny issuance of the permit. Notice of the decision of the Assistant Administrator shall be published in the <E T="04">Federal Register</E> within 10 days after the date of the issuance or denial and indicate where copies of the permit, if issued, may be obtained.</P> <P>(e)(1) The Assistant Administrator shall issue the permit unless:</P> <P>(i) Denial of the permit has been made pursuant to subpart D to 15 CFR part 904;</P> <P>(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;</P> <P>(iii) The applicant has failed to demonstrate a valid justification for the permit or a showing of responsibility;</P> <P>(iv) The authorization requested potentially threatens a fish or wildlife population; or</P> <P>(v) The Assistant Administrator finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.</P> <P>(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.</P> <P>(f) If a permit is issued under § 222.308, the Assistant Administrator shall publish notice thereof in the <E T="04">Federal Register</E>, including the Assistant Administrator's finding that such permit—</P> <P>(1) Was applied for in good faith;<PRTPAGE P="94"/> </P> <P>(2) Will not operate to the disadvantage of such endangered species; and</P> <P>(3) Will be consistent with the purposes and policy set forth in section 2 of the Act.</P> <P>(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 <E T="04">Federal Register</E> within 10 days following the issuance of the permit.</P> </SECTION> <SECTION> <SECTNO>§ 222.304</SECTNO> <SUBJECT>Renewal of permits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 222.305</SECTNO> <SUBJECT>Rights of succession and transfer of permits.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(i) The surviving spouse, child, executor, administrator, or other legal representative of a deceased permittee, and</P> <P>(ii) The receiver or trustee in bankruptcy or a court designated assignee for the benefit of creditors.</P> <P>(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.</P> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. 23, 1999, with the exception of § 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.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 222.306</SECTNO> <SUBJECT>Modification, amendment, suspension, cancellation, and revocation of permits.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="95"/>amended permit to the person to whom it was issued.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 222.307</SECTNO> <SUBJECT>Permits for incidental taking of species.</SUBJECT> <P>(a) <E T="03">Scope.</E> (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.</P> <P>(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.</P> <P>(b) <E T="03">Permit application procedures.</E> 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:</P> <P>(1) The type of application, either:</P> <P>(i) Application for an Individual Incidental Take Permit under the Act; or</P> <P>(ii) Application for a General Incidental Take Permit under the Act;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(5) A conservation plan, based on the best scientific and commercial data available, which specifies the following:</P> <P>(i) The anticipated impact (i.e., amount, extent, and type of anticipated taking) of the proposed activity on the species or stocks;</P> <P>(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;</P> <P>(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;</P> <P>(iv) The alternative actions to such taking that were considered and the reasons why those alternatives are not being used; and</P> <P>(v) A list of all sources of data used in preparation of the plan, including <PRTPAGE P="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.</P> <P>(c) <E T="03">Issuance criteria.</E> (1) In determining whether to issue a permit, the Assistant Administrator will consider the following:</P> <P>(i) The status of the affected species or stocks;</P> <P>(ii) The potential severity of direct, indirect, and cumulative impacts on the species or stocks and habitat as a result of the proposed activity;</P> <P>(iii) The availability of effective monitoring techniques;</P> <P>(iv) The use of the best available technology for minimizing or mitigating impacts; and</P> <P>(v) The views of the public, scientists, and other interested parties knowledgeable of the species or stocks or other matters related to the application.</P> <P>(2) To issue the permit, the Assistant Administrator must find that—</P> <P>(i) The taking will be incidental;</P> <P>(ii) The applicant will, to the maximum extent practicable, monitor, minimize, and mitigate the impacts of such taking;</P> <P>(iii) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;</P> <P>(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</P> <P>(v) There are adequate assurances that the conservation plan will be funded and implemented, including any measures required by the Assistant Administrator.</P> <P>(d) <E T="03">Permit conditions.</E> 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:</P> <P>(1) Reporting requirements or rights of inspection for determining whether the terms and conditions are being complied with;</P> <P>(2) The species and number of animals covered;</P> <P>(3) The authorized method of taking;</P> <P>(4) The procedures to be used to handle or dispose of any animals taken; and</P> <P>(5) The payment of an adequate fee to the National Marine Fisheries Service to process the application.</P> <P>(e) <E T="03">Duration of permits.</E> 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.</P> <P>(f) <E T="03">Certificates of inclusion.</E> (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:</P> <P>(i) The general incidental take permit under which the applicant wants coverage;</P> <P>(ii) The name, address, and telephone number of the applicant. If the applicant is a partnership or a corporate entity, the applicable details;</P> <P>(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</P> <P>(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.</P> <P>(2) To issue a Certificate of Inclusion, the Assistant Administrator must find that:<PRTPAGE P="97"/> </P> <P>(i) The applicant will be engaged in the activity covered by the general permit, and</P> <P>(ii) The applicant has made adequate assurances that the applicable measures of the conservation plan will be funded and implemented.</P> <P>(g) <E T="03">Assurances provided to permittee in case of changed or unforeseen circumstances.</E> 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.</P> <P>(1) <E T="03">Changed circumstances provided for in the plan.</E> 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.</P> <P>(2) <E T="03">Changed circumstances not provided for in the plan.</E> 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.</P> <P>(3) <E T="03">Unforeseen circumstances.</E> (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.</P> <P>(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.</P> <P>(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:</P> <P>(A) Size of the current range of the affected species;</P> <P>(B) Percentage of range adversely affected by the conservation plan;</P> <P>(C) Percentage of range conserved by the conservation plan;</P> <P>(D) Ecological significance of that portion of the range affected by the conservation plan;</P> <P>(E) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and</P> <P>(F) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="98"/> <SECTNO>§ 222.308</SECTNO> <SUBJECT>Permits for scientific purposes or for the enhancement of propagation or survival of species.</SUBJECT> <P>(a) <E T="03">Scope.</E> 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.</P> <P>(b) <E T="03">Application procedures.</E> 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 § 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:</P> <P>(1) Title, as applicable, either—</P> <P>(i) Application for permit for scientific purposes under the Act; or</P> <P>(ii) Application for permit for the enhancement of the propagation or survival of the endangered species Under the Act.</P> <P>(2) The date of the application.</P> <P>(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.</P> <P>(4) A description of the purpose of the proposed acts, including the following:</P> <P>(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</P> <P>(ii) A detailed description of how the species will be used.</P> <P>(5) A detailed description of the project, or program, in which the endangered species is to be used, including the following:</P> <P>(i) The period of time over which the project or program will be conducted;</P> <P>(ii) A list of the names and addresses of the sponsors or cooperating institutions and the scientists involved;</P> <P>(iii) A copy of the formal research proposal or contract if one has been prepared;</P> <P>(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</P> <P>(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.</P> <P>(6) A description of the endangered species which is the subject of the application, including the following:</P> <P>(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;</P> <P>(ii) A physical description of each animal, including the age, size, and sex;</P> <P>(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;</P> <P>(iv) A description of the status of the stock of each species related insofar as <PRTPAGE P="99"/>possible to the location or area of taking;</P> <P>(v) A description of the manner of taking for each animal, including the gear to be used;</P> <P>(vi) The name and qualifications of the persons or entity which will capture or otherwise take the animals; and</P> <P>(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.</P> <P>(7) A description of the manner of transportation for any live animal taken, imported, exported, or shipped in interstate commerce, including the following:</P> <P>(i) Mode of transportation;</P> <P>(ii) Name of transportation company;</P> <P>(iii) Length of time in transit for the transfer of the animal(s) from the capture site to the holding facility;</P> <P>(iv) Length of time in transit for any planned future move or transfer of the animals;</P> <P>(v) The qualifications of the common carrier or agent used for transportation of the animals;</P> <P>(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;</P> <P>(vii) Special care before and during transportation, such as salves, antibiotics, moisture; and</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(ii) The water supply, amount, and quality;</P> <P>(iii) The diet, amount and type, for all animals;</P> <P>(iv) Sanitation practices used;</P> <P>(v) Qualifications and experience of the staff;</P> <P>(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</P> <P>(vii) The availability in the future of a consulting expert or veterinarian meeting paragraph requirements of (b)(8)(vi) in this section.</P> <P>(9) A statement of willingness to participate in a cooperative breeding program and maintain or contribute data to a stud book.</P> <P>(10) A statement of how the applicant's proposed project or program will enhance or benefit the wild population.</P> <P>(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:</P> <P>(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;</P> <P>(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;<PRTPAGE P="100"/> </P> <P>(iii) The cause(s) of any such mortality; and</P> <P>(iv) The steps which have been taken by applicant to avoid or decrease any such mortality.</P> <P>(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.</P> <P>(13) The applicant and/or an officer thereof must sign the application.</P> <P>(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.</P> <P>(c) <E T="03">Issuance criteria.</E> 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:</P> <P>(1) Whether the permit was applied for in good faith;</P> <P>(2) Whether the permit, if granted and exercised, will not operate to the disadvantage of the endangered species;</P> <P>(3) Whether the permit would be consistent with the purposes and policy set forth in section 2 of the Act;</P> <P>(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;</P> <P>(5) The status of the population of the requested species and the effect of the proposed action on the population, both direct and indirect;</P> <P>(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;</P> <P>(7) Whether alternative non-endangered species or population stocks can and should be used;</P> <P>(8) Whether the animal was born in captivity or was (or will be) taken from the wild;</P> <P>(9) Provision for disposition of the species if and when the applicant's project or program terminates;</P> <P>(10) How the applicant's needs, program, and facilities compare and relate to proposed and ongoing projects and programs;</P> <P>(11) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application; and</P> <P>(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.</P> <P>(d) <E T="03">Terms and conditions.</E> 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:</P> <P>(1) The number and kind of species covered;</P> <P>(2) The location and manner of taking;</P> <P>(3) Port of entry or export;</P> <P>(4) The methods of transportation, care, and maintenance to be used with live species;</P> <P>(5) Any requirements for reports or rights of inspections with respect to any activities carried out pursuant to the permit;</P> <P>(6) The transferability or assignability of the permit;</P> <P>(7) The sale or other disposition of the species, its progeny, or the species product; and</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="101"/> <SECTNO>§ 222.309</SECTNO> <SUBJECT>Permits for listed species of sea turtles involving the Fish and Wildlife Service.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 223</EAR> <HD SOURCE="HED">PART 223—THREATENED MARINE AND ANADROMOUS SPECIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>223.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>223.102</SECTNO> <SUBJECT>Enumeration of threatened marine and anadromous species.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species</HD> <SECTNO>223.201</SECTNO> <SUBJECT>Guadalupe fur seal.</SUBJECT> <SECTNO>223.202</SECTNO> <SUBJECT>Steller sea lion.</SUBJECT> <SECTNO>223.203</SECTNO> <SUBJECT>Anadromous fish.</SUBJECT> <SECTNO>223.204</SECTNO> <SUBJECT>Exceptions to prohibitions relating to anadromous fish.</SUBJECT> <SECTNO>223.205</SECTNO> <SUBJECT>Sea turtles.</SUBJECT> <SECTNO>223.206</SECTNO> <SUBJECT>Exceptions to prohibitions relating to sea turtles.</SUBJECT> <SECTNO>223.207</SECTNO> <SUBJECT>Approved TEDs.</SUBJECT> <APP>Figure 1 to Part 223—NMFS TED</APP> <APP>Figure 2 to Part 223—Cameron TED</APP> <APP>Figure 3 to Part 223—Matagorda TED</APP> <APP>Figure 4 to Part 223—Georgia TED</APP> <APP>Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED</APP> <APP>Figures 6—9<E T="01">b</E> to Part 223[Reserved]</APP> <APP>Figure 10 to Part 223—Flounder TED</APP> <APP>Figure 11 to Part 223—Jones TED</APP> <APP>Figure 12<E T="01">a</E> to Part 223—Attachment of the Exit Hole Cover</APP> <APP>Figure 12<E T="01">b</E> to Part 223—Grid TED Leatherback Modification</APP> <APP>Figure 13 to Part 223—Single Grid Hard TED Escape Opening</APP> <APP>Figure 14<E T="01">a</E> to Part 223—Maximum Angle of Deflector Bars with Straight Bars Attached to the Bottom of the Frame</APP> <APP>Figure 14<E T="01">b</E> to Part 223—Maximum Angle of Deflector Bars with Bent Bars Attached to the Bottom of the Frame</APP> <APP>Figure 15 to Part 223—Maximum Angle of Deflector Bars with Bars Unattached to the Bottom of the Frame</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.; 16 U.S.C. 742a <E T="03">et</E> <E T="03">seq</E>.; 31 U.S.C. 9701.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>43 FR 32809, July 28, 1978, unless otherwise noted. Redesignated at 64 FR 14068, Mar. 23, 1999.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For a document relating to adoption of alternative scientific testing protocol for evaluating TEDs see 55 FR 41092, Oct. 9, 1990.</P> </EDNOTE> <SUBPART> <PRTPAGE P="102"/> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 223.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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.</P> <P>(b) The regulations contained in this part apply only to the threatened species enumerated in § 223.102.</P> <P>(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.</P> <CITA>[64 FR 14068, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.102</SECTNO> <SUBJECT>Enumeration of threatened marine and anadromous species.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Marine and anadromous fish.</E> (1) Snake River spring/summer chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). 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.</P> <P>(2) Snake River fall chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). 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.</P> <P>(3) Central California Coast Coho Salmon (<E T="03">Oncorhynchus kisutch</E>). 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.</P> <P>(4) Southern Oregon/Northern California Coast coho salmon (<E T="03">Oncorhynchus kisutch</E>). Includes all coho salmon naturally reproduced in streams between Cape Blanco in Curry County, OR, and Punta Gorda in Humboldt County, CA.</P> <P>(5) Central California Coast steelhead (<E T="03">Oncorhynchus mykiss</E>). 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.</P> <P>(6) South-Central California Coast steelhead (<E T="03">Oncorhynchus mykiss</E>). 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.</P> <P>(7) Snake River Basin steelhead (<E T="03">Oncorhynchus mykiss</E>). Includes all naturally spawned populations of steelhead (and their progeny) in streams in the Snake River Basin of southeast Washington, northeast Oregon, and Idaho.</P> <P>(8) Lower Columbia River steelhead (<E T="03">Oncorhynchus mykiss</E>). 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;</P> <P>(9) Central Valley, California steelhead (<E T="03">Oncorhynchus mykiss</E>). 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.</P> <P>(10) Oregon Coast coho salmon (<E T="03">Oncorhynchus kisutch</E>). Includes all naturally spawned populations of coho <PRTPAGE P="103"/>salmon in streams south of the Columbia River and north of Cape Blanco in Curry County, OR.</P> <P>(11) Gulf sturgeon (Acipenser oxyrinchus desotoi).</P> <P>(12) Hood Canal summer-run chum salmon (<E T="03">Oncorhynchus</E> <E T="03">keta</E>). 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;</P> <P>(13) Columbia River chum salmon (<E T="03">Oncorhynchus</E> <E T="03">keta</E>). Includes all naturally spawned populations of chum salmon in the Columbia River and its tributaries in Washington and Oregon.</P> <P>(14) Upper Willamette River steelhead (<E T="03">Oncorhynchus</E> <E T="03">mykiss</E>). 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;</P> <P>(15) Middle Columbia River steelhead (<E T="03">Oncorhynchus</E> <E T="03">mykiss</E>). 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.</P> <P>(16) Puget sound chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). 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.</P> <P>(17) Lower Columbia River chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). 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.</P> <P>(18) Upper Willamette River chinook salmon (<E T="03">Oncorhynchus tshawytscha</E>). 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.</P> <P>(19) Ozette Lake sockeye salmon (<E T="03">Oncorhynchus</E> <E T="03">nerka</E>). Includes all naturally spawned populations of sockeye salmon in Ozette Lake and streams and tributaries flowing into Ozette Lake, Washington.</P> <P>(20) Central Valley spring-run chinook salmon (<E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E>). Includes all naturally spawned populations of spring-run chinook salmon in the Sacramento River Basin, and its tributaries, California.</P> <P>(21) California coastal chinook salmon (<E T="03">Oncorhynchus</E> <E T="03">tshawytscha</E>). Includes all naturally spawned populations of chinook salmon from Redwood Creek (Humboldt County, California) through the Russian River (Sonoma County, California).</P> <P>(b) <E T="03">Marine plants.</E> Johnson's seagrass (Halophila johnsonii).</P> <P>(c) <E T="03">Marine mammals.</E> Guadalupe fur seal (<E T="03">Arctocephalus townsendi</E>); Steller sea lion, eastern population (<E T="03">Eumetopias jubatus</E>), which consists of all Stellar sea lions from breeding colonies located east of 114° W. longitude.</P> <P>(d) <E T="03">Sea turtles.</E> Green turtle (<E T="03">Chelonia mydas</E>) except for those populations listed under § 224.101(c) of this chapter; Loggerhead turtle (<E T="03">Caretta caretta</E>); Olive ridley turtle (<E T="03">Lepidochelys olivacea</E>) except for those populations listed under § 224.101(c) of this chapter.</P> <NOTE> <HD SOURCE="HED">Note to § 223.201(d):</HD> <P>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.</P> </NOTE> <CITA>[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]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 50415, Sept. 16, 1999, § 223.102 was amended by adding paragraphs (a)(20) and (a)(21), effective Nov. 15, 1999.</P> </EFFDNOT> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="104"/> <HD SOURCE="HED">Subpart B—Restrictions Applicable to Threatened Marine and Anadromous Species</HD> <SECTION> <SECTNO>§ 223.201</SECTNO> <SUBJECT>Guadalupe fur seal.</SUBJECT> <P>(a) <E T="03">Prohibitions.</E> 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.</P> <P>(b) <E T="03">Exceptions.</E> (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.</P> <P>(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:</P> <P>(i) Is accomplished in a humane manner;</P> <P>(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;</P> <P>(iii) Includes steps designed to ensure the return of the animal to its natural habitat, if feasible; and</P> <P>(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.</P> <P>(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.</P> <CITA>[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.202</SECTNO> <SUBJECT>Steller sea lion.</SUBJECT> <P>(a) <E T="03">General prohibitions.</E> 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:</P> <P>(1) <E T="03">No discharge of firearms.</E> 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.</P> <P>(2) <E T="03">No approach in buffer areas.</E> Except as provided in paragraph (b) of this section:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(3) <E T="03">Listed sea lion rookery sites.</E> Listed Steller sea lion rookery sites consist of the rookeries in the Aleutian Islands and the Gulf of Alaska listed in Table 1.</P> <GPOTABLE CDEF="s50,xls44,xls44,xls44,xls44,8,r25" COLS="7" OPTS="L2,i1"> <TTITLE>Table 1 to § 223.202—Listed Steller Sea Lion Rookery Sites \1\</TTITLE> <BOXHD> <CHED H="1">Island</CHED> <CHED H="1">From</CHED> <CHED H="2">Lat.</CHED> <CHED H="2">Long.</CHED> <CHED H="1">To</CHED> <CHED H="2">Lat.</CHED> <CHED H="2">Long.</CHED> <CHED H="1">NOAA chart</CHED> <CHED H="1">Notes</CHED> </BOXHD> <ROW> <ENT I="01">1. Outer I. </ENT> <ENT>59°20.5 N </ENT> <ENT>150°23.0 W </ENT> <ENT>59°21.0 N </ENT> <ENT>150°24.5 W </ENT> <ENT>16681 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">2. Sugarloaf I.</ENT> <ENT>58°53.0 N </ENT> <ENT>152°02.0 W </ENT> <ENT/> <ENT/> <ENT>16580 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">3. Marmot I. </ENT> <ENT>58°14.5 N </ENT> <ENT>151°47.5 W </ENT> <ENT>58°10.0 N </ENT> <ENT>151°51.0 W </ENT> <ENT>16580 </ENT> <ENT>SE quadrant.</ENT> </ROW> <ROW> <ENT I="01">4. Chirikof I. </ENT> <ENT>55°46.5 N </ENT> <ENT>155°39.5 W </ENT> <ENT>55°46.5 N </ENT> <ENT>155°43.0 W </ENT> <ENT>16580 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">5. Chowiet I. </ENT> <ENT>56°00.5 N </ENT> <ENT>156°41.5 W </ENT> <ENT>56°00.5 N </ENT> <ENT>156°42.0 W </ENT> <ENT>16013 </ENT> <ENT>S quadrant.</ENT> </ROW> <ROW> <ENT I="01">6. Atkins I.</ENT> <ENT>55°03.5 N </ENT> <ENT>159°18.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">7. Chernabura I. </ENT> <ENT>54°47.5 N </ENT> <ENT>159°31.0 W </ENT> <ENT>54°45.5 N </ENT> <ENT>159°33.5 W </ENT> <ENT>16540 </ENT> <ENT>SE corner.</ENT> </ROW> <ROW> <PRTPAGE P="105"/> <ENT I="01">8. Pinnacle Rock </ENT> <ENT>54°46.0 N </ENT> <ENT>161°46.0 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">9. Clubbing Rks (N) </ENT> <ENT>54°43.0 N </ENT> <ENT>162°26.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">Clubbing Rks (S) </ENT> <ENT>54°42.0 N </ENT> <ENT>162°26.5 W </ENT> <ENT/> <ENT/> <ENT>16540 </ENT> <ENT>Whole Island.</ENT> </ROW> <ROW> <ENT I="01">10. Sea Lion Rks </ENT> <ENT>55°28.0 N </ENT> <ENT>163°12.0 W </ENT> <ENT/> <ENT/> <ENT>16520 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">11. Ugamak I. </ENT> <ENT>54°14.0 N </ENT> <ENT>164°48.0 W </ENT> <ENT>54°13.0 N </ENT> <ENT>164°48.0 W </ENT> <ENT>16520 </ENT> <ENT>E end of island.</ENT> </ROW> <ROW> <ENT I="01">12. Akun I.</ENT> <ENT>54°18.0N </ENT> <ENT>165°32.5W </ENT> <ENT>54°18.0N </ENT> <ENT>165°31.5W </ENT> <ENT>16547 </ENT> <ENT>Billings Head Bight.</ENT> </ROW> <ROW> <ENT I="01">13. Akutan I. </ENT> <ENT>54°03.5 N </ENT> <ENT>166°00.0 W </ENT> <ENT>54°05.5 N </ENT> <ENT>166°05.0 W </ENT> <ENT>16520 </ENT> <ENT>SW corner, Cape Morgan.</ENT> </ROW> <ROW> <ENT I="01">14. Bogoslof I. </ENT> <ENT>53°56.0 N </ENT> <ENT>168°02.0 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">15. Ogchul I. </ENT> <ENT>53°00.0 N </ENT> <ENT>168°24.0 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">16. Adugak I. </ENT> <ENT>52°55.0 N </ENT> <ENT>169°10.5 W </ENT> <ENT/> <ENT/> <ENT>16500 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">17. Yunaska I. </ENT> <ENT>52°42.0 N </ENT> <ENT>170°38.5 W </ENT> <ENT>52°41.0 N </ENT> <ENT>170°34.5 W </ENT> <ENT>16500 </ENT> <ENT>NE end.</ENT> </ROW> <ROW> <ENT I="01">18. Seguam I. </ENT> <ENT>52°21.0 N </ENT> <ENT>172°35.0 W </ENT> <ENT>52°21.0 N </ENT> <ENT>172°33.0 W </ENT> <ENT>16480 </ENT> <ENT>N coast, Saddleridge Pt.</ENT> </ROW> <ROW> <ENT I="01">19. Agligadak I. </ENT> <ENT>52°06.5 N </ENT> <ENT>172°54.0 W </ENT> <ENT/> <ENT/> <ENT>16480 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">20. Kasatochi I.</ENT> <ENT>52°10.0N </ENT> <ENT>175°31.5W </ENT> <ENT>52°10.5N </ENT> <ENT>175°29.0W </ENT> <ENT>16480 </ENT> <ENT>N half of island.</ENT> </ROW> <ROW> <ENT I="01">21. Adak I.</ENT> <ENT>51°36.5N </ENT> <ENT>176°59.0W </ENT> <ENT>51°38.0N </ENT> <ENT>176°59.5W </ENT> <ENT>16460 </ENT> <ENT>SW Point, Lake Point.</ENT> </ROW> <ROW> <ENT I="01">22. Gramp rock </ENT> <ENT>51°29.0 N </ENT> <ENT>178°20.5 W </ENT> <ENT/> <ENT/> <ENT>16460 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">23. Tag I. </ENT> <ENT>51°33.5 N </ENT> <ENT>178°34.5 W </ENT> <ENT/> <ENT/> <ENT>16460 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">24. Ulak I. </ENT> <ENT>51°20.0 N </ENT> <ENT>178°57.0 W </ENT> <ENT>51°18.5 N </ENT> <ENT>178°59.5 W </ENT> <ENT>16460 </ENT> <ENT>SE corner, Hasgox Pt.</ENT> </ROW> <ROW> <ENT I="01">25. Semisopochnoi </ENT> <ENT>51°58.5 N </ENT> <ENT>179°45.5 E </ENT> <ENT>51°57.0 N </ENT> <ENT>179°46.0 E </ENT> <ENT>16440 </ENT> <ENT>E quadrant, Pochnoi Pt.</ENT> </ROW> <ROW> <ENT I="01">Semisopochnoi </ENT> <ENT>52°01.5 N </ENT> <ENT>179°37.5 E </ENT> <ENT>52°01.5 N </ENT> <ENT>179°39.0 E </ENT> <ENT>16440 </ENT> <ENT>N quadrant, Petrel Pt.</ENT> </ROW> <ROW> <ENT I="01">26. Amchitka I.</ENT> <ENT>51°22.5N </ENT> <ENT>179°28.0E </ENT> <ENT>51°21.5N </ENT> <ENT>179°25.0E </ENT> <ENT>16440 </ENT> <ENT>East Cape.</ENT> </ROW> <ROW> <ENT I="01">27. Amchitka I.</ENT> <ENT>51°32.5N </ENT> <ENT>178°49.5E </ENT> <ENT/> <ENT/> <ENT>16440 </ENT> <ENT>Column Rocks.</ENT> </ROW> <ROW> <ENT I="01">28. Ayugadak Pt. </ENT> <ENT>51°45.5 N </ENT> <ENT>178°24.5 E </ENT> <ENT/> <ENT/> <ENT>16440 </ENT> <ENT>SE coast of Rat Island.</ENT> </ROW> <ROW> <ENT I="01">29. Kiska I. </ENT> <ENT>51°57.5 N </ENT> <ENT>177°21.0 E </ENT> <ENT>51°56.5 N </ENT> <ENT>177°20.0 E </ENT> <ENT>16440 </ENT> <ENT>W central, Lief Cove.</ENT> </ROW> <ROW> <ENT I="01">30. Kiska I. </ENT> <ENT>51°52.5 N </ENT> <ENT>177°13.0 E </ENT> <ENT>51°53.5 N </ENT> <ENT>177°12.0 E </ENT> <ENT>16440 </ENT> <ENT>Cape St. Stephen.</ENT> </ROW> <ROW> <ENT I="01">31. Walrus I. </ENT> <ENT>57°11.0 N </ENT> <ENT>169°56.0 W </ENT> <ENT/> <ENT/> <ENT>16380 </ENT> <ENT>Whole island.</ENT> </ROW> <ROW> <ENT I="01">32. Buldir I. </ENT> <ENT>52°20.5 N </ENT> <ENT>175°57.0 E </ENT> <ENT>52°23.5 N </ENT> <ENT>175°51.0 E </ENT> <ENT>16420 </ENT> <ENT>Se point to NW point.</ENT> </ROW> <ROW> <ENT I="01">33. Agattu I. </ENT> <ENT>52°24.0 N </ENT> <ENT>173°21.5 E </ENT> <ENT/> <ENT/> <ENT>16420 </ENT> <ENT>Gillion Point.</ENT> </ROW> <ROW> <ENT I="01">34. Agattu I. </ENT> <ENT>52°23.5 N </ENT> <ENT>173°43.5 E </ENT> <ENT>52°22.0 N </ENT> <ENT>173°41.0 E </ENT> <ENT>16420 </ENT> <ENT>Cape Sabak.</ENT> </ROW> <ROW> <ENT I="01">35. Attu I.</ENT> <ENT>52°54.5N </ENT> <ENT>172°28.5E </ENT> <ENT>52°57.5N </ENT> <ENT>172°31.5E </ENT> <ENT>16681 </ENT> <ENT>S Quadrant.</ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> </GPOTABLE> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="106"/> <GID>EC01JY91.016</GID> </GPH> <GPH DEEP="436" SPAN="2"> <PRTPAGE P="107"/> <GID>EC01JY91.017</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="108"/> <GID>EC01JY91.018</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="109"/> <GID>EC01JY91.019</GID> </GPH> <GPH DEEP="443" SPAN="2"> <PRTPAGE P="110"/> <GID>EC01JY91.020</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="111"/> <GID>EC01JY91.021</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="112"/> <GID>EC01JY91.022</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="113"/> <GID>EC01JY91.023</GID> </GPH> <GPH DEEP="440" SPAN="2"> <PRTPAGE P="114"/> <GID>EC01JY91.024</GID> </GPH> <GPH DEEP="442" SPAN="2"> <PRTPAGE P="115"/> <GID>EC01JY91.025</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="116"/> <GID>EC01JY91.026</GID> </GPH> <GPH DEEP="441" SPAN="2"> <PRTPAGE P="117"/> <GID>EC01JY91.027</GID> </GPH> <GPH DEEP="446" SPAN="2"> <PRTPAGE P="118"/> <GID>EC01JY91.028</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="119"/> <GID>EC01JY91.029</GID> </GPH> <GPH DEEP="449" SPAN="2"> <PRTPAGE P="120"/> <GID>EC01JY91.030</GID> </GPH> <GPH DEEP="433" SPAN="2"> <PRTPAGE P="121"/> <GID>EC01JY91.031</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="122"/> <GID>EC01JY91.032</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="123"/> <GID>EC01JY91.033</GID> </GPH> <GPH DEEP="437" SPAN="2"> <PRTPAGE P="124"/> <GID>EC01JY91.034</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="125"/> <GID>EC01JY91.035</GID> </GPH> <GPH DEEP="439" SPAN="2"> <PRTPAGE P="126"/> <GID>EC01JY91.036</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="127"/> <GID>EC01JY91.037</GID> </GPH> <GPH DEEP="432" SPAN="2"> <PRTPAGE P="128"/> <GID>EC01JY91.038</GID> </GPH> <GPH DEEP="435" SPAN="2"> <PRTPAGE P="129"/> <GID>EC01JY91.039</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="130"/> <GID>EC01JY91.040</GID> </GPH> <GPH DEEP="423" SPAN="2"> <PRTPAGE P="131"/> <GID>EC01JY91.041</GID> </GPH> <GPH DEEP="434" SPAN="2"> <PRTPAGE P="132"/> <GID>EC01JY91.042</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="133"/> <GID>EC01JY91.043</GID> </GPH> <GPH DEEP="431" SPAN="2"> <PRTPAGE P="134"/> <GID>EC01JY91.044</GID> </GPH> <PRTPAGE P="135"/> <P>(4) <E T="03">Commercial Fishing Operations.</E> 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.</P> <P>(b) <E T="03">Exceptions</E>—(1) <E T="03">Permits.</E> 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.</P> <P>(2) <E T="03">Official activities.</E> 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:</P> <P>(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</P> <P>(ii) Entering the buffer areas to perform activities that are necessary for national defense, or the performance of other legitimate governmental activities.</P> <P>(3) <E T="03">Subsistence takings by Alaska natives.</E> 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.</P> <P>(4) <E T="03">Emergency situations.</E> 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.</P> <P>(5) <E T="03">Exemptions.</E> 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 <E T="04">Federal Register</E>. 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.</P> <P>(6) <E T="03">Navigational transit.</E> 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 issafe for navigation. The listed straits, narrows, or passageways include the following:</P> <GPOTABLE CDEF="s40,r100" COLS="2" OPTS="L2,p7,7/8"> <BOXHD> <CHED H="1">Rookery</CHED> <CHED H="1">Straits, narrows, or pass</CHED> </BOXHD> <ROW> <ENT I="01">Akutan Island </ENT> <ENT>Akutan Pass between Cape Morgan and Unalga Island.</ENT> </ROW> <ROW> <ENT I="01">Clubbing Rocks </ENT> <ENT>Between Clubbing Rocks and Cherni Island.</ENT> </ROW> <ROW> <ENT I="01">Outer Island </ENT> <ENT>Wildcat Pass between Rabbit and Ragged Islands.</ENT> </ROW> </GPOTABLE> <P>(c) <E T="03">Penalties.</E> (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.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.203</SECTNO> <SUBJECT>Anadromous fish.</SUBJECT> <P>(a) <E T="03">Prohibitions</E>. 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 § 223.102(a)(1) through (a)(4), except as provided in paragraph (b) of this section.</P> <P>(b) <E T="03">Exceptions</E>. (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 § 223.102(a)(1) through (a)(4).<PRTPAGE P="136"/> </P> <P>(2) The prohibitions of paragraph (a) of this section relating to threatened species of salmon listed in § 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.</P> <P>(3) The prohibitions of paragraph (a) of this section relating to threatened species of salmon listed in § 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.</P> <CITA>[62 FR 38483, July 18, 1997. Redesignated and amended at 64 FR 14068-14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.204</SECTNO> <SUBJECT>Exceptions to prohibitions relating to anadromous fish.</SUBJECT> <P>(a) The following exceptions to the prohibitions of § 223.203(a) of this part apply to the Southern Oregon/Northern California Coast (SONCC) coho salmon.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(4) Take of SONCC coho salmon in fisheries research and monitoring activities conducted in California and Oregon is not prohibited provided that:</P> <P>(i) Research and monitoring involving directed take of coho salmon is conducted by CDFG personnel (in California) and ODFW personnel (in Oregon);</P> <P>(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;</P> <P>(iii) The CDFG and ODFW, respectively, provide NMFS annually with the results of research and monitoring <PRTPAGE P="137"/>studies directed at SONCC coho salmon, including a report of the directed take resulting from the studies;</P> <P>(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.</P> <P>(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.</P> <P>(5) Incidental take of the SONCC coho salmon in Oregon resulting from a habitat restoration activity is not prohibited, provided that:</P> <P>(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 § 222.307(c) of this chapter. NMFS shall also concur in writing that the plan is consistent with the state watershed plan guidelines; or</P> <P>(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 § 222.307(c) of this chapter.</P> <P>(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:</P> <P>(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 § 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</P> <P>(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 § 222.307(c) of this chapter by NMFS.</P> <CITA>[64 FR 14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.205</SECTNO> <SUBJECT>Sea turtles.</SUBJECT> <P>(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 § 223.206.</P> <P>(b) Except as provided in § 223.206, it is unlawful for any person subject to the jurisdiction of the United States to do any of the following:</P> <P>(1) Own, operate, or be on board a vessel, except if that vessel is in compliance with all applicable provisions of § 223.206(d);</P> <P>(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 § 223.206(d);</P> <P>(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, § 223.206(d)(3) or (d)(4);</P> <P>(4) Possess fish or wildlife taken in violation of paragraph (b) of this section;</P> <P>(5) Fail to follow any of the sea turtle handling and resuscitation requirements specified in § 223.206(d)(1);</P> <P>(6) Possess a sea turtle in any manner contrary to the handling and resuscitation requirements of § 223.206(d)(1);</P> <P>(7) Fail to comply immediately, in the manner specified at § 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;<PRTPAGE P="138"/> </P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(12) Resist a lawful arrest for an act prohibited by this section;</P> <P>(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;</P> <P>(14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED; or</P> <P>(15) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.</P> <P>(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 § 223.207 (c) or (d) has the burden of proving such claim.</P> <CITA>[64 FR 14069, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 223.206</SECTNO> <SUBJECT>Exceptions to prohibitions relating to sea turtles.</SUBJECT> <P>(a) <E T="03">Permits</E>—(1) <E T="03">Scientific research, education, zoological exhibition, or species enhancement permits.</E> The Assistant Administrator may issue permits authorizing activities which would otherwise be prohibited under § 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.</P> <P>(2) <E T="03">Incidental-take permits.</E> The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 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.</P> <P>(b) <E T="03">Exception for injured, dead, or stranded specimens.</E> 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 <PRTPAGE P="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:</P> <P>(1) Name and position of the official or employee involved;</P> <P>(2) Description of the specimen(s) involved;</P> <P>(3) Date and location of disposal;</P> <P>(4) Circumstances requiring the action;</P> <P>(5) Method of disposal;</P> <P>(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</P> <P>(7) Such other information as the Assistant Administrator may require.</P> <P>(c) <E T="03">Exception for research or conservation.</E> 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.</P> <P>(d) <E T="03">Exception for incidental taking.</E> The prohibitions against taking in § 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.</P> <P>(1) <E T="03">Handling and resuscitation requirements.</E> (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:</P> <P>(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.</P> <P>(B) Resuscitation must be attempted on sea turtles that are comatose or inactive but not dead by:</P> <P>(<E T="03">1</E>) Placing the turtle on its back (carapace) and pumping its breastplate (plastron) with hand or foot; or</P> <P>(<E T="03">2</E>) 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.</P> <P>(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.</P> <P>(2) <E T="03">Gear requirements</E>—(i) <E T="03">TED requirement for shrimp trawlers.</E> 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.<PRTPAGE P="140"/> </P> <P>(ii) <E T="03">Exemptions from the TED requirement</E>—(A) <E T="03">Alternative tow-time restrictions.</E> 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:</P> <P>(<E T="03">1</E>) Has on board no power or mechanical-advantage trawl retrieval system (i.e., any device used to haul any part of the net aboard);</P> <P>(<E T="03">2</E>) 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);</P> <P>(<E T="03">3</E>) Has only a pusher-head trawl, skimmer trawl, or wing net rigged for fishing; and</P> <P>(<E T="03">4</E>) 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.</P> <P>(B) <E T="03">Exempted gear or activities.</E> The following fishing gear or activities are exempted from the TED requirements of paragraph (d)(2)(i) of this section:</P> <P>(<E T="03">1</E>) 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;</P> <P>(<E T="03">2</E>) 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</P> <P>(<E T="03">3</E>) 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.</P> <P>(iii) <E T="03">Gear requirement—summer flounder trawlers</E>—(A) <E T="03">TED requirement.</E> 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.</P> <P>(B) <E T="03">Exemptions from the TED requirement.</E> Any summer flounder trawler north of 35°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.</P> <P>(C) <E T="03">Monitoring.</E> 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.</P> <P>(D) <E T="03">Additional sea turtle conservation measures.</E> 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.<PRTPAGE P="141"/> </P> <P>(iv) <E T="03">Gear requirement—leatherback conservation zone</E>—(A) <E T="03">Leatherback surveys.</E> 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.</P> <P>(B) <E T="03">TED requirements and registration.</E> 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° 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 § 223.207(a)(7)(ii)(B) or, prior to October 13, 1999, § 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.</P> <P>(C) <E T="03">Notification.</E> 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.</P> <P>(3) <E T="03">Tow-time restrictions</E>—(i) <E T="03">Duration of tows.</E> 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:</P> <P>(A) 55 minutes from April 1 through October 31; and</P> <P>(B) 75 minutes from November 1 through March 31.</P> <P>(ii) <E T="03">Alternative—special environmental conditions.</E> 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.</P> <P>(iii) <E T="03">Substitute—ineffectiveness of TEDs.</E> 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.</P> <P>(iv) <E T="03">Notice; applicability; conditions.</E> The Assistant Administrator will publish notification concerning any tow-time restriction imposed under paragraph (d)(3)(ii) or (iii) of this section in the <E T="04">Federal Register</E> 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 <PRTPAGE P="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.</P> <P>(v) <E T="03">Procedures.</E> 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.</P> <P>(4) <E T="03">Limitations on incidental takings during fishing activities</E>—(i) <E T="03">Limitations.</E> 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:</P> <P>(A) Would violate the restrictions, terms, or conditions of an incidental take statement or biological opinion;</P> <P>(B) Would violate the restrictions, terms, or conditions of an incidental take permit; or</P> <P>(C) May be likely to jeopardize the continued existence of a species listed under the Act.</P> <P>(ii) <E T="03">Determination; restrictions on fishing activities.</E> 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.</P> <P>(iii) <E T="03">Notice; applicability; conditions.</E> The Assistant Administrator will publish a notification of a determination concerning unauthorized takings or a notification concerning the restriction of fishing activities in the <E T="04">Federal Register</E>. 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 <PRTPAGE P="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.</P> <P>(iv) <E T="03">Procedures.</E> 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.</P> <P>(5) <E T="03">Registration.</E> 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:</P> <P>(i) The name and official number (or registration number) of the vessel;</P> <P>(ii) The names, mailing and street addresses, and telephone numbers of the vessel owner and operator;</P> <P>(iii) The permit number or other identification of relevant state or Federal fishing permit(s);</P> <P>(iv) Where and when the vessel intends to fish;</P> <P>(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</P> <P>(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.</P> <CITA>[64 FR 14070, Mar. 23, 1999]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14070, Mar. 23, 1999, newly redesignated § 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.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 223.207</SECTNO> <SUBJECT>Approved TEDs.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Hard TEDs.</E> 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:</P> <P>(1) <E T="03">Construction materials.</E> A hard TED must be constructed of one or a combination of the following materials, with minimum dimensions as follows:</P> <P>(i) Solid steel rod with a minimum outside diameter of <FR>1/4</FR> inch (0.64 cm);</P> <P>(ii) Fiberglass or aluminum rod with a minimum outside diameter of <FR>1/2</FR> inch (1.27 cm); or</P> <P>(iii) Steel or aluminum tubing with a minimum outside diameter of <FR>1/2</FR> inch (1.27 cm) and a minimum wall thickness of <FR>1/8</FR> inch (0.32 cm) (also known as schedule 40 tubing).</P> <P>(2) <E T="03">Method of attachment.</E> A hard TED must be sewn into the trawl around the entire circumference of the TED with heavy twine.</P> <P>(3) <E T="03">Angle of deflector bars.</E> (i) The angle of the deflector bars must be between 30° and 55° from the normal, horizontal flow through the interior of the trawl, except as provided in paragraph (a)(3)(ii) of this section.</P> <P>(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 <PRTPAGE P="144"/>through the interior of the trawl, at any point, must not exceed 55°, and:</P> <P>(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° (Figures 14a and 14b to this part);</P> <P>(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° (Figure 15 to this part).</P> <P>(4) <E T="03">Space between bars.</E> The space between deflector bars and between the deflector bars and the frame must not exceed 4 inches (10.2 cm).</P> <P>(5) <E T="03">Direction of bars.</E> 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.</P> <P>(6) <E T="03">Position of escape opening.</E> 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.</P> <P>(7) <E T="03">Size of escape opening</E>—(i) <E T="03">Hooped hard TED.</E> 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.</P> <P>(ii) <E T="03">Single-grid hard TED</E>—(A) <E T="03">Escape opening for standard single-grid hard TED.</E> 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.</P> <P>(B) <E T="03">Escape opening for leatherback turtles.</E> 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 <FR>1/2</FR> 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<FR>1/2</FR> inch (4 cm) stretch mesh and no larger than 1<FR>5/8</FR> 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).</P> <P>(8) <E T="03">Size of hoop or grid</E>—(i) <E T="03">Hooped hard TED.</E> (A) An oval front hoop on a hard TED must have an inside horizontal measurement of at least 32 <PRTPAGE P="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.</P> <P>(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.</P> <P>(ii) <E T="03">Single-grid hard TED.</E> 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.</P> <P>(9) <E T="03">Flotation.</E> 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.</P> <P>(i) <E T="03">Float dimension requirements.</E> (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.</P> <P>(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.</P> <P>(ii) <E T="03">Float buoyancy requirements.</E> 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:</P> <P>(A) <E T="03">Float buoyancy markings.</E> 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.</P> <P>(B) <E T="03">TED weight markings.</E> 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.</P> <P>(iii) <E T="03">Buoyancy-dimension requirements.</E> 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:</P> <P>(A) For floats constructed of aluminum or hard plastic, regardless of the size of the TED grid, the combined <PRTPAGE P="146"/>buoyancy must equal or exceed 14 lb (6.4 kg);</P> <P>(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</P> <P>(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).</P> <P>(b) <E T="03">Special Hard TEDs.</E> 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:</P> <P>(1) <E T="03">Flounder TED</E> (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<FR>1/4</FR> inch (3.2 cm) outside diameter aluminum or steel pipe with a wall thickness of at least <FR>1/8</FR> 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<FR>1/2</FR> 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.</P> <P>(2) <E T="03">Jones TED</E> (Figure 11 to this part). The Jones TED must be constructed of at least 1<FR>1/4</FR> inch (3.2 cm) outside diameter aluminum or steel pipe, and the pipe must have a wall thickness of at least <FR>1/8</FR> 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° 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<FR>1/2</FR> inches (6.4 cm). The spacing between all other deflector bars must not exceed 3<FR>1/2</FR> inches (8.9 cm) and spacing between ends of opposing deflector bars also must not exceed 3<FR>1/2</FR> 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.</P> <P>(c) <E T="03">Soft TEDs.</E> 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:</P> <P>(1) <E T="03">Parker TED.</E> 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.</P> <P>(i) <E T="03">Excluder Panel.</E> (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) <PRTPAGE P="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.</P> <P>(ii) <E T="03">Limitations on which trawls may have a Parker TED installed.</E> 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.</P> <P>(iii) <E T="03">Panel installation</E>—(A) <E T="03">Leading edge attachment.</E> 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:</P> <P>(<E T="03">1</E>) For a mesh size of 2<FR>1/4</FR> inches (5.7 cm), 152-168 meshes;</P> <P>(<E T="03">2</E>) For a mesh size of 2<FR>1/8</FR> inches (5.4 cm), 161-178 meshes;</P> <P>(<E T="03">3</E>) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;</P> <P>(<E T="03">4</E>) For a mesh size of 1<FR>7/8</FR> inches (4.8 cm), 182-202 meshes;</P> <P>(<E T="03">5</E>) For a mesh size of 1<FR>3/4</FR> inches (4.4 cm), 196-216 meshes;</P> <P>(<E T="03">6</E>) For a mesh size of 1<FR>5/8</FR> inches (4.1 cm), 211-233 meshes;</P> <P>(<E T="03">7</E>) For a mesh size of 1<FR>1/2</FR> inches (3.8 cm), 228-252 meshes;</P> <P>(<E T="03">8</E>) For a mesh size of 1<FR>3/8</FR> inches (3.5 cm), 249-275 meshes; and</P> <P>(<E T="03">9</E>) For a mesh size of 1<FR>1/4</FR> inches (3.2 cm), 274-302 meshes.</P> <P>(B) <E T="03">Apex attachment.</E> 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:</P> <P>(<E T="03">1</E>) For a mesh size of 2<FR>1/4</FR> inches (5.7 cm), 78-83 meshes;</P> <P>(<E T="03">2</E>) For a mesh size of 2<FR>1/8</FR> inches (5.4 cm), 83-88 meshes;</P> <P>(<E T="03">3</E>) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;</P> <P>(<E T="03">4</E>) For a mesh size of 1<FR>7/8</FR> inches (4.8 cm), 93-99 meshes;</P> <P>(<E T="03">5</E>) For a mesh size of 1<FR>3/4</FR> inches (4.4 cm), 100-106 meshes;</P> <P>(<E T="03">6</E>) For a mesh size of 1<FR>5/8</FR> inches (4.1 cm), 107-114 meshes;</P> <P>(<E T="03">7</E>) For a mesh size of 1<FR>1/2</FR> inches (3.8 cm), 114-124 meshes;</P> <P>(<E T="03">8</E>) For a mesh size of 1<FR>3/8</FR> inches (3.5 cm), 127-135 meshes; and<PRTPAGE P="148"/> </P> <P>(<E T="03">9</E>) For a mesh size of 1<FR>1/4</FR> inches (3.2 cm), 137-146 meshes.</P> <P>(C) <E T="03">Side attachment.</E> 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.</P> <P>(iv) <E T="03">Escape opening.</E> The escape opening for the Parker soft TED must match one of the following specifications:</P> <P>(A) <E T="03">Longitudinal cut.</E> 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.</P> <P>(B) <E T="03">Leatherback escape opening.</E> 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 § 223.206(d)(2)(iv)(B).</P> <P>(2) [Reserved]</P> <P>(d) <E T="03">Allowable modifications to hard TEDs and special hard TEDs.</E> 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:</P> <P>(1) <E T="03">Floats.</E> 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.</P> <P>(2) <E T="03">Accelerator funnel.</E> 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<FR>5/8</FR> 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 <FR>1/3</FR> 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 <FR>1/3</FR> of the circumference of the funnel may be attached to the TED. In a top-opening TED, only the bottom <FR>1/3</FR> of the circumference of the funnel may be attached to the TED.</P> <P>(3) <E T="03">Webbing flap.</E> 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<FR>5/8</FR> 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 <PRTPAGE P="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.</P> <P>(4) <E T="03">Chafing webbing.</E> 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.</P> <P>(5) <E T="03">Roller gear.</E> 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:</P> <P>(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 <FR>1/2</FR> 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.</P> <P>(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<FR>1/2</FR> 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.</P> <P>(e) <E T="03">Revision of generic design criteria, and approval of TEDs, of allowable modifications of hard TEDs, and of special hard TEDs.</E> (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.</P> <P>(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 § 223.206(d)(2). Applications should be made to the Southeast Regional Administrator (see § 222.102 <PRTPAGE P="150"/>definition of “Southeast Regional Administrator”).</P> <CITA>[64 FR 14073, Mar. 23, 1999]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 14073, Mar. 23, 1999, § 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.</P> </EFFDNOT> <PRTPAGE P="151"/> <EAR>Pt. 223, Fig. 1</EAR> <GPH DEEP="162" SPAN="2"> <GID>EC01JY91.045</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 1 to Part 223—NMFS TED</HD> </WIDE> <CITA TYPE="W">[60 FR 15519, Mar. 24, 1995]</CITA> <PRTPAGE P="152"/> <EAR>Pt. 223, Fig. 2</EAR> <GPH DEEP="232" SPAN="2"> <GID>EC01JY91.046</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 2 to Part 223—Cameron TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> <PRTPAGE P="153"/> <EAR>Pt. 223, Fig. 3</EAR> <GPH DEEP="203" SPAN="2"> <GID>EC01JY91.047</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 3 to Part 223—Matagorda TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> <PRTPAGE P="154"/> <EAR>Pt. 223, Fig. 4</EAR> <GPH DEEP="212" SPAN="2"> <GID>EC01JY91.048</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 4 to Part 223—Georgia TED</HD> </WIDE> <CITA TYPE="W">[52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]</CITA> <PRTPAGE P="155"/> <EAR>Pt. 223, Fig. 5</EAR> <GPH DEEP="460" SPAN="2"> <GID>ER13AP98.001</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 5 to Part 223—Net Diagram for the Excluder Panel of the Parker Soft TED</HD> </WIDE> <CITA TYPE="W">[63 FR 17958, Apr. 13, 1998]</CITA> <WIDE> <PRTPAGE P="156"/> <HD SOURCE="HD1">Figures 6-<E T="01">9b</E> to Part 223[Reserved]</HD> </WIDE> <EAR>Pt. 223, Fig. 10</EAR> <GPH DEEP="378" SPAN="2"> <GID>EC01JY91.056</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 10 to Part 223—Flounder TED</HD> </WIDE> <CITA TYPE="W">[58 FR 54069, Oct. 20, 1993]</CITA> <PRTPAGE P="157"/> <EAR>Pt. 223, Fig. 11</EAR> <GPH DEEP="381" SPAN="2"> <GID>EC01JY91.057</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 11 to Part 223—Jones TED</HD> </WIDE> <CITA TYPE="W">[58 FR 54070, Oct. 20, 1993]</CITA> <PRTPAGE P="158"/> <EAR>Pt. 223, Fig. 12a</EAR> <GPH DEEP="430" SPAN="2"> <GID>EC01JY91.058</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 12A to Part 223—Attachment of the Exit Hole Cover</HD> </WIDE> <CITA TYPE="W">[59 FR 25830, May 18, 1994]</CITA> <PRTPAGE P="159"/> <EAR>Pt. 223, Fig. 12b</EAR> <GPH DEEP="439" SPAN="2"> <GID>EC01JY91.059</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 12B to Part 223—Grid TED Leatherback Modification</HD> </WIDE> <CITA TYPE="W">[59 FR 25831, May 18, 1994]</CITA> <PRTPAGE P="160"/> <EAR>Pt. 223, Fig. 13</EAR> <GPH DEEP="375" SPAN="2"> <GID>EC01JY91.060</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 13 to Part 223—Single Grid Hard TED Escape Opening</HD> </WIDE> <CITA TYPE="W">[60 FR 15520, Mar. 24, 1995]</CITA> <PRTPAGE P="161"/> <EAR>Pt. 223, Figs. 14a and 14b</EAR> <WIDE> <HD SOURCE="HD1">Figure 14A to Part 223—Maximum Angle of Deflector Bars With Straight Bars Attached to the Bottom of the Frame</HD> </WIDE> <GPH DEEP="413" SPAN="2"> <GID>ER19DE96.002</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 14B to Part 223—Maximum Angle of Deflector Bars With Bent Bars Attached to the Bottom of the Frame</HD> </WIDE> <CITA TYPE="W">[61 FR 66946, Dec. 19, 1996]</CITA> <PRTPAGE P="162"/> <EAR>Pt. 223, Fig. 15</EAR> <GPH DEEP="260" SPAN="2"> <GID>ER19DE96.003</GID> </GPH> <WIDE> <HD SOURCE="HD1">Figure 15 to Part 223—Maximum Angle of Deflector Bars With Bars Unattached to the Bottom of the Frame</HD> </WIDE> <CITA TYPE="W">[61 FR 66947, Dec. 19, 1996]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 224</EAR> <HD SOURCE="HED">PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>224.101</SECTNO> <SUBJECT>Enumeration of endangered marine and anadromous species.</SUBJECT> <SECTNO>224.102</SECTNO> <SUBJECT>Permits for endangered marine and anadromous species.</SUBJECT> <SECTNO>224.103</SECTNO> <SUBJECT>Special prohibitions for endangered marine mammals.</SUBJECT> <SECTNO>224.104</SECTNO> <SUBJECT>Incidental capture of endangered sea turtles.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1531-1543 and 16 U.S.C. 1361 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 14066, Mar. 23, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 224.101</SECTNO> <SUBJECT>Enumeration of endangered marine and anadromous species.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Marine and anadromous fish</E>. Shortnose sturgeon (<E T="03">Acipenser brevirostrum</E>); Totoaba (<E T="03">Cynoscian macdonaldi</E>), Snake River sockeye salmon (<E T="03">Oncorhynchus nerka</E>), Umpqua River cutthroat trout (<E T="03">Oncorhynchus clarki clarki</E>); Southern California steelhead (<E T="03">Oncorhynchus mykiss</E>), 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 (<E T="03">Oncorhynchus mykiss</E>), including the Wells Hatchery stock and all naturally spawned populations of steelhead (and <PRTPAGE P="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 (<E T="03">Oncorhynchus tshawytscha</E>).</P> <P>(b) <E T="03">Marine mammals.</E> Blue whale (<E T="03">Balaenoptera musculus</E>); Bowhead whale (<E T="03">Balaena mysticetus</E>); Caribbean monk seal (<E T="03">Monachus tropicalis</E>); Chinese river dolphin (<E T="03">Lipotes vexillifer</E>); Cochito (<E T="03">Phocoena sinus</E>); Fin or finback whale (<E T="03">Balaenoptera physalus</E>); Hawaiian monk seal (<E T="03">Monachus schauinslandi</E>); Humpback whale (<E T="03">Megaptera novaeangliae</E>); Indus River dolphin (<E T="03">Platanista minor</E>); Mediterranean monk seal (<E T="03">Monachus monachus</E>); Right whales (<E T="03">Eubalaena spp.</E>); Saimaa seal (<E T="03">Phoca hispida saimensis</E>); Sei whale (<E T="03">Balaenoptera borealis</E>); Sperm whale (<E T="03">Physeter catodon</E>); Western North Pacific (Korean) gray whale (<E T="03">Eschrichtius robustus</E>); Steller sea lion, western population, (<E T="03">Eumetopias jubatus</E>), which consists of Stellar sea lions from breeding colonies located west of 144° W. longitude.</P> <P>(c) <E T="03">Sea turtles.</E> Green turtle (<E T="03">Chelonia mydas</E>) breeding colony populations in Florida and on the Pacific coast of Mexico; Hawksbill turtle (<E T="03">Eretmochelys imbricata</E>); Kemp's ridley turtle (<E T="03">Lepidochelys kempii</E>); Leatherback turtle (<E T="03">Dermochelys coriacea</E>); Olive ridley turtle (<E T="03">Lepidochelys olivacea</E>) breeding colony population on the Pacific coast of Mexico. </P> <NOTE> <HD SOURCE="HED">Note to § 224.101(c):</HD> <P> 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.</P> </NOTE> <CITA>[64 FR 14066, Mar. 23, 1999, as amended 64 FR 14328, Mar. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 224.102</SECTNO> <SUBJECT>Permits for endangered marine and anadromous species.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 224.103</SECTNO> <SUBJECT>Special prohibitions for endangered marine mammals.</SUBJECT> <P>(a) <E T="03">Approaching humpback whales in Hawaii.</E> 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 (<E T="03">Megaptera novaeangliae</E>):</P> <P>(1) Operate any aircraft within 1,000 feet (300 m) of any humpback whale;</P> <P>(2) Approach, by any means, within 100 yard (90 m) of any humpback whale;</P> <P>(3) Cause a vessel or other object to approach within 100 yd (90 m) of a humpback whale; or</P> <P>(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.<PRTPAGE P="164"/> </P> <P>(b) <E T="03">Approaching North Atlantic right whales</E>—(1) <E T="03">Prohibitions.</E> 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:</P> <P>(i) Approach (including by interception) within 500 yards (460 m) of a right whale by vessel, aircraft, or any other means;</P> <P>(ii) Fail to undertake required right whale avoidance measures specified under paragraph (b)(2) of this section.</P> <P>(2) <E T="03">Right whale avoidance measures.</E> 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:</P> <P>(i) If underway, a vessel must steer a course away from the right whale and immediately leave the area at a slow safe speed.</P> <P>(ii) An aircraft must take a course away from the right whale and immediately leave the area at a constant airspeed.</P> <P>(3) <E T="03">Exceptions.</E> 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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(iv) Paragraphs (b)(1) and (b)(2) of this section do not apply to an aircraft unless the aircraft is conducting whale watch activities.</P> <P>(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.</P> <P>(c) <E T="03">Special prohibitions relating to endangered Steller sea lion protection.</E> 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° W. long.</P> </SECTION> <SECTION> <SECTNO>§ 224.104</SECTNO> <SUBJECT>Incidental capture of endangered sea turtles.</SUBJECT> <P>(a) Shrimp fishermen in the southeastern United States and the Gulf of Mexico who comply with rules for threatened sea turtles specified in § 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.</P> <P>(b) Summer flounder fishermen in the Summer flounder fishery-sea turtle protection area who comply with rules for threatened sea turtles specified in § 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.</P> <P>(c) Special prohibitions relating to leatherback sea turtles are provided at § 223.206(d)(2)(iv) of this chapter.</P> </SECTION> </PART> <PART> <RESERVED>PART 225[RESERVED]</RESERVED> </PART> <PART> <EAR>Pt. 226</EAR> <HD SOURCE="HED">PART 226—DESIGNATED CRITICAL HABITAT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>226.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>226.201</SECTNO> <SUBJECT>Critical habitat for Hawaiian monk seals.</SUBJECT> <SECTNO>226.202</SECTNO> <SUBJECT>Critical habitat for Steller sea lions.</SUBJECT> <SECTNO>226.203</SECTNO> <SUBJECT>Critical habitat for Northern right whales.</SUBJECT> <SECTNO>226.204</SECTNO> <SUBJECT>Critical habitat for Sacramento winter-run chinook salmon.</SUBJECT> <SECTNO>226.205</SECTNO> <SUBJECT>Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon, and Snake River spring/summer chinook salmon.</SUBJECT> <SECTNO>226.206</SECTNO> <SUBJECT>Critical habitat for Umpqua River cutthroat trout.<PRTPAGE P="165"/> </SUBJECT> <SECTNO>226.207</SECTNO> <SUBJECT>Critical habitat for leatherback turtle.</SUBJECT> <SECTNO>226.208</SECTNO> <SUBJECT>Critical habitat for green turtle.</SUBJECT> <SECTNO>226.209</SECTNO> <SUBJECT>Critical habitat for hawksbill turtle.</SUBJECT> <SECTNO>226.210</SECTNO> <SUBJECT>Central California Coast Coho Salmon (Oncorhynchus kisutch), Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</SUBJECT> <APP>Table 1 to Part 226—Major Steller Sea Lion Rookery Sites</APP> <APP>Table 2 to Part 226—Major Steller Sea Lion Haulout Sites in Alaska</APP> <APP>Table 3 to Part 226—Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River Spring/Summer and Fall Chinook Salmon</APP> <APP>Table 4 to Part 226—Hydrologic Units Containing Critical Habitat for Endangered Umpqua River Cutthroat Trout and Counties Contained in Each Hydrologic Unit</APP> <APP>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</APP> <APP>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</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1533.</P> </AUTH> <SECTION> <SECTNO>§ 226.101</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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 § 223.102 of this chapter, if threatened and at § 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 § 222.102, definition of “Office of Protected Resources”).</P> <CITA>[64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.201</SECTNO> <SUBJECT>Critical habitat for Hawaiian monk seals.</SUBJECT> <HD SOURCE="HD1">Hawaiian Monk Seal</HD> <HD SOURCE="HD2">(Monachus schauinslandi)</HD> <P>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: </P> <EXTRACT> <FP SOURCE="FP-1">Kure Atoll (28<E T="61">°</E>24<E T="61">′</E> N, 178<E T="61">°</E>20<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Midway Islands, except Sand Island and its harbor (28<E T="61">°</E>14<E T="61">′</E> N, 177<E T="61">°</E>22<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Pearl and Hermes Reef (27<E T="61">°</E>55<E T="61">′</E> N, 175<E T="61">°</E> W)</FP> <FP SOURCE="FP-1">Lisianski Island (26<E T="61">°</E>46<E T="61">′</E> N, 173<E T="61">°</E>58<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Laysan Island (25<E T="61">°</E>46<E T="61">′</E> N, 171<E T="61">°</E>44<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Maro Reef (25<E T="61">°</E>25<E T="61">′</E> N, 170<E T="61">°</E>35<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Gardner Pinnacles (25<E T="61">°</E>00<E T="61">′</E> N, 168<E T="61">°</E>00<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">French Frigate Shoals (23<E T="61">°</E>45<E T="61">′</E> N, 166<E T="61">°</E>00<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Necker Island (23<E T="61">°</E>34<E T="61">′</E> N, 164<E T="61">°</E>42<E T="61">′</E> W)</FP> <FP SOURCE="FP-1">Nihoa Island (23<E T="61">°</E>03.5<E T="61">′</E> N, 161<E T="61">°</E>55.5<E T="61">′</E> W).</FP> </EXTRACT> <GPH DEEP="428" SPAN="2"> <PRTPAGE P="166"/> <GID>EC01JY91.000</GID> </GPH> <GPH DEEP="426" SPAN="2"> <PRTPAGE P="167"/> <GID>EC01JY91.001</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="168"/> <GID>EC01JY91.002</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="169"/> <GID>EC01JY91.003</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="170"/> <GID>EC01JY91.004</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="171"/> <GID>EC01JY91.005</GID> </GPH> <GPH DEEP="407" SPAN="2"> <PRTPAGE P="172"/> <GID>EC01JY91.006</GID> </GPH> <GPH DEEP="444" SPAN="2"> <PRTPAGE P="173"/> <GID>EC01JY91.007</GID> </GPH> <CITA TYPE="W">[53 FR 18990, May 26, 1988. Redesinated at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="174"/> <SECTNO>§ 226.202</SECTNO> <SUBJECT>Critical habitat for Stellar sea lions.</SUBJECT> <HD SOURCE="HD1">Steller Sea Lion (<E T="03">Eumetopias jubatus</E>)</HD> <P>(a) <E T="03">Alaska rookeries, haulouts, and associated areas.</E> 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° 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° W. longitude.</P> <P>(b) <E T="03">California and Oregon rookeries and associated areas.</E> 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.</P> <P>(c) <E T="03">Three special aquatic foraging areas in Alaska.</E> Three special aquatic foraging areas in Alaska, including the Shelikof Strait area, the Bogoslof area, and the Seguam Pass area.</P> <P>(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°38″/157°27′W) and the southwestern tip of Tugidak Island (56°24′N/154°41′W) and bounded in the east by a line connecting Cape Douglas (58°51′N/153°15′W) and the northernmost tip of Shuyak Island (58°37′N/152°22′W).</P> <P>(2) Critical habitat includes the Bogoslof area in the Bering Sea shelf and consists of the area between 170°00′W and 164°00′W, south of straight lines connecting 55°00′N/170°00′W and 55°00′N/168°00′W; 55°30′N/168°00′W and 55°30′N/166°00′W; 56°00′N/166°00′W and 56°00′N/164°00′W and north of the Aleutian Islands and straight lines between the islands connecting the following coordinates in the order listed:</P> <EXTRACT> <FP SOURCE="FP-1">52°49.2′N/169°40.4′W</FP> <FP SOURCE="FP-1">52°49.8′N/169°06.3′W</FP> <FP SOURCE="FP-1">53°23.8′N/167°50.1′W</FP> <FP SOURCE="FP-1">53°18.7′N/167°51.4′W</FP> <FP SOURCE="FP-1">53°59.0′N/166°17.2′W</FP> <FP SOURCE="FP-1">54°02.9′N/166°03.0′W</FP> <FP SOURCE="FP-1">54°07.7′N/165°40.6′W</FP> <FP SOURCE="FP-1">54°08.9′N/165°38.8′W</FP> <FP SOURCE="FP-1">54°11.9′N/165°23.3′W</FP> <FP SOURCE="FP-1">54°23.9′N/164°44.0′W</FP> </EXTRACT> <P>(3) Critical habitat includes the Seguam Pass area and consists of the area between 52°00′N and 53°00′N and between 173°30′W and 172°30′W.</P> <CITA>[58 FR 45278, Aug. 27, 1993. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.203</SECTNO> <SUBJECT>Critical habitat for Northern right whales.</SUBJECT> <HD SOURCE="HD1">Northern Right Whale <E T="03">(Eubalaena glacialis)</E> </HD> <P>(a) <E T="03">Great South Channel.</E> The area bounded by 41°40′ N/69°45′ W; 41°00′ N/69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/68°31′ W.</P> <P>(b) <E T="03">Cape Cod Bay, Massachusetts.</E> The area bounded by 42°04.8′ N/70°10′ W; 42°12′ N/70°15′ W; 42°12′ N/70°30′ W; 41°46.8′ N/70°30′ W and on the south and east by the interior shore line of Cape Cod, Massachusetts.</P> <P>(c) <E T="03">Southeastern United States.</E> The coastal waters between 31°15′ N and 30°15′ N from the coast out 15 nautical miles; and the coastal waters between <PRTPAGE P="175"/>30°15′ N and 28°00′ N from the coast out 5 nautical miles (Figure 8 to part 226).</P> <CITA>[59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.204</SECTNO> <SUBJECT>Critical habitat for Sacramento winter-run chinook salmon.</SUBJECT> <P>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.</P> <CITA>[58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.205</SECTNO> <SUBJECT>Critical habitat for Snake River sockeye salmon, Snake River fall chinook salmon, and Snake River spring/summer chinook salmon.</SUBJECT> <P>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.</P> <P>(a) <E T="03">Snake River Sockeye Salmon (Oncorhynchus nerka).</E> 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, <PRTPAGE P="176"/>Custer, Idaho, Lemhi, Lewis, Nez Perce.</P> <P>(b) <E T="03">Snake River Spring/Summer Chinook Salmon (Oncorhynchus tshawytscha).</E> 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.</P> <P>(c) <E T="03">Snake River Fall Chinook Salmon (Oncorhynchus tshawytscha).</E> 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.206</SECTNO> <SUBJECT>Critical habitat for Umpqua River cutthroat trout.</SUBJECT> <P>(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: <PRTPAGE P="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.</P> <P>(b) <E T="03">Geographic boundaries.</E> 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).</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.207</SECTNO> <SUBJECT>Critical habitat for leatherback turtle.</SUBJECT> <CITA>[44 FR 17711, Mar. 23, 1979. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> <HD SOURCE="HD1">Leatherback Sea Turtle (dermochelys coriacea)</HD> <P>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°42′12″ North and 64°50′00″ West.</P> </SECTION> <SECTION> <SECTNO>§ 226.208</SECTNO> <SUBJECT>Critical habitat for green turtle.</SUBJECT> <P>(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<AC T="1"/>, Isla Culebrita, Arrecife Culebrita, Cayo de Luis Pen<AC T="6"/>a, Las Hermanas, El Mono, Cayo Lobo, Cayo Lobito, Cayo Botijuela, Alcarraza, Los Gemelos, and Piedra Steven.</P> <P>(b) [Reserved]</P> <CITA>[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.209</SECTNO> <SUBJECT>Critical habitat for hawksbill turtle.</SUBJECT> <P>(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).</P> <P>(b) [Reserved]</P> <CITA>[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, Mar. 23, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 226.210</SECTNO> <SUBJECT>Central California Coast Coho Salmon (Oncorhynchus kisutch), Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</SUBJECT> <P>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 <PRTPAGE P="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.</P> <P>(a) <E T="03">Central California Coast Coho Salmon (Oncorhynchus kisutch).</E> 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).</P> <P>(b) <E T="03">Southern Oregon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch).</E> 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).</P> <CITA>[64 FR 24061, May 5, 1999]</CITA> <EAR>Pt. 226, Table 1</EAR> <HD SOURCE="HD1">Table 1 to Part 226—Major Stellar Sea Lion Rookery Sites</HD> <P>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.</P> <GPOTABLE CDEF="s100,r45,r45,r45,r45" COLS="5" OPTS="L2,i1"> <BOXHD> <CHED H="1">State/region/site</CHED> <CHED H="1">Boundaries to—</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> </BOXHD> <ROW> <ENT I="11">Alaska:</ENT> </ROW> <ROW> <ENT I="13">Western Aleutians:</ENT> </ROW> <ROW> <ENT I="15">Agattu I.:</ENT> </ROW> <ROW> <ENT I="07">Cape Sabak <SU>1</SU> </ENT> <ENT>52 23.5N </ENT> <ENT>173 43.5E </ENT> <ENT>52 22.0N </ENT> <ENT>173 41.0E</ENT> </ROW> <ROW> <ENT I="07">Gillon Point <SU>1</SU> </ENT> <ENT>52 24.0N </ENT> <ENT>173 21.5E</ENT> </ROW> <ROW> <ENT I="05">Attu I.<SU>1</SU> </ENT> <ENT>52 54.5N </ENT> <ENT>172 28.5E </ENT> <ENT>52 57.5N </ENT> <ENT>172 31.5E</ENT> </ROW> <ROW> <ENT I="05">Buldir I.<SU>1</SU> </ENT> <ENT>52 20.5N </ENT> <ENT>175 57.0E </ENT> <ENT>52 23.5N </ENT> <ENT>172 51.0E</ENT> </ROW> <ROW> <ENT I="13">Central Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Adak I.<SU>1</SU> </ENT> <ENT>51 36.5N </ENT> <ENT>176 59.0W </ENT> <ENT>51 38.0N </ENT> <ENT>176 59.5W</ENT> </ROW> <ROW> <PRTPAGE P="179"/> <ENT I="05">Agligadak I.<SU>1</SU> </ENT> <ENT>52 06.5N </ENT> <ENT>172 54.0W</ENT> </ROW> <ROW> <ENT I="15">Amchitka I.:<SU>1</SU> </ENT> </ROW> <ROW> <ENT I="07">Column Rock <SU>1</SU> </ENT> <ENT>51 32.5N </ENT> <ENT>178 49.5E</ENT> </ROW> <ROW> <ENT I="07">East Cape <SU>1</SU> </ENT> <ENT>51 22.5N </ENT> <ENT>179 28.0E </ENT> <ENT>51 21.5N </ENT> <ENT>179 25.0E</ENT> </ROW> <ROW> <ENT I="05">Ayugadak I.<SU>1</SU> </ENT> <ENT>51 45.5N </ENT> <ENT>178 24.5E</ENT> </ROW> <ROW> <ENT I="05">Gramp Rock <SU>1</SU> </ENT> <ENT>51 29.0N </ENT> <ENT>178 20.5W</ENT> </ROW> <ROW> <ENT I="05">Kasatochi I.<SU>1</SU> </ENT> <ENT>52 10.0N </ENT> <ENT>175 31.5W </ENT> <ENT>52 10.5N </ENT> <ENT>175 29.0W</ENT> </ROW> <ROW> <ENT I="15">Kiska I.:</ENT> </ROW> <ROW> <ENT I="07">Lief Cove <SU>1</SU> </ENT> <ENT>51 57.5N </ENT> <ENT>177 21.0E </ENT> <ENT>51 56.5N </ENT> <ENT>177 20.0E</ENT> </ROW> <ROW> <ENT I="07">Cape St. Stephen <SU>1</SU> </ENT> <ENT>51 52.5N </ENT> <ENT>177 13.0E </ENT> <ENT>51 53.5N </ENT> <ENT>177 12.0E</ENT> </ROW> <ROW> <ENT I="05">Seguam I./Saddleridge <SU>1</SU> </ENT> <ENT>52 21.0N </ENT> <ENT>172 35.0W </ENT> <ENT>52 21.0N </ENT> <ENT>172 33.0W</ENT> </ROW> <ROW> <ENT I="15">Semisopochnoi I.:</ENT> </ROW> <ROW> <ENT I="07">Pochnoi Pt <SU>1</SU> </ENT> <ENT>51 58.5N </ENT> <ENT>179 45.5E </ENT> <ENT>51 57.0N </ENT> <ENT>179 46.0E</ENT> </ROW> <ROW> <ENT I="07">Petrel Pt <SU>1</SU> </ENT> <ENT>52 01.5N </ENT> <ENT>179 37.5E </ENT> <ENT>52 01.5E </ENT> <ENT>179 39.0E</ENT> </ROW> <ROW> <ENT I="05">Tag I.<SU>1</SU> </ENT> <ENT>51 33.5N </ENT> <ENT>178 34.5W</ENT> </ROW> <ROW> <ENT I="05">Ulak I.<SU>1</SU> </ENT> <ENT>51 20.0N </ENT> <ENT>178 57.0W </ENT> <ENT>51 18.5N </ENT> <ENT>178 59.5W</ENT> </ROW> <ROW> <ENT I="05">Yunaska I.<SU>1</SU> </ENT> <ENT>52 42.0N </ENT> <ENT>170 38.5W </ENT> <ENT>52 41.0N </ENT> <ENT>170 34.5W</ENT> </ROW> <ROW> <ENT I="13">Eastern Aleutian:</ENT> </ROW> <ROW> <ENT I="05">Adugak I.<SU>1</SU> </ENT> <ENT>52 55.0N </ENT> <ENT>169 10.5W</ENT> </ROW> <ROW> <ENT I="05">Akun I./Billings Head <SU>1</SU> </ENT> <ENT>54 18.0N </ENT> <ENT>165 32.5W </ENT> <ENT>54 18.0N </ENT> <ENT>165 31.5W</ENT> </ROW> <ROW> <ENT I="05">Akutan I./Cape Morgan <SU>1</SU> </ENT> <ENT>54 03.5N </ENT> <ENT>166 00.0W </ENT> <ENT>54 05.5N </ENT> <ENT>166 05.0W</ENT> </ROW> <ROW> <ENT I="05">Bogoslof I.<SU>1</SU> <SU>2</SU> </ENT> <ENT>53 56.0N </ENT> <ENT>168 02.0W</ENT> </ROW> <ROW> <ENT I="05">Ogchul I.<SU>1</SU> </ENT> <ENT>53 00.0N </ENT> <ENT>168 24.0W</ENT> </ROW> <ROW> <ENT I="05">Sea Lion Rocks. (Amak) <SU>1</SU> </ENT> <ENT>55 28.0N </ENT> <ENT>163 12.0W</ENT> </ROW> <ROW> <ENT I="05">Ugamak I.<SU>1</SU> </ENT> <ENT>54 14.0N </ENT> <ENT>164 48.0W </ENT> <ENT>54 13.0N </ENT> <ENT>164 48.0W</ENT> </ROW> <ROW> <ENT I="13">Bering Sea:</ENT> </ROW> <ROW> <ENT I="05">Walrus I.<SU>1</SU> </ENT> <ENT>57 11.0N </ENT> <ENT>169 56.0W</ENT> </ROW> <ROW> <ENT I="13">Western Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Atkins I.<SU>1</SU> </ENT> <ENT>55 03.5N </ENT> <ENT>159 18.5W</ENT> </ROW> <ROW> <ENT I="05">Chernabura I.<SU>1</SU> </ENT> <ENT>54 47.5N </ENT> <ENT>159 31.0W </ENT> <ENT>54 45.5N </ENT> <ENT>159 33.5W</ENT> </ROW> <ROW> <ENT I="05">Clubbing Rocks (N) <SU>1</SU> </ENT> <ENT>54 43.0N </ENT> <ENT>162 26.5W</ENT> </ROW> <ROW> <ENT I="05">Clubbing Rocks (S) <SU>1</SU> </ENT> <ENT>54 42.0N </ENT> <ENT>162 26.5W</ENT> </ROW> <ROW> <ENT I="05">Pinnacle Rock <SU>1</SU> </ENT> <ENT>54 46.0N </ENT> <ENT>161 46.0W</ENT> </ROW> <ROW> <ENT I="13">Central Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Chirikof I.<SU>1</SU> </ENT> <ENT>55 46.5N </ENT> <ENT>155 39.5W </ENT> <ENT>55 46.5N </ENT> <ENT>155 43.0W</ENT> </ROW> <ROW> <ENT I="05">Chowiet I.<SU>1</SU> </ENT> <ENT>56 00.5N </ENT> <ENT>156 41.5W </ENT> <ENT>56 00.5N </ENT> <ENT>156 42.0W</ENT> </ROW> <ROW> <ENT I="05">Marmot I.<SU>1</SU> </ENT> <ENT>58 14.5N </ENT> <ENT>151 47.5W </ENT> <ENT>58 10.0N </ENT> <ENT>151 51.0W</ENT> </ROW> <ROW> <ENT I="05">Outer I.<SU>1</SU> </ENT> <ENT>59 20.5N </ENT> <ENT>150 23.0W </ENT> <ENT>59 21.0N </ENT> <ENT>150 24.5W</ENT> </ROW> <ROW> <ENT I="05">Sugarloaf I.<SU>1</SU> </ENT> <ENT>58 53.0N </ENT> <ENT>152 02.0W</ENT> </ROW> <ROW> <ENT I="13">Eastern Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Seal Rocks <SU>1</SU> </ENT> <ENT>60 10.0N </ENT> <ENT>146 50.0W</ENT> </ROW> <ROW> <ENT I="05">Fish I.<SU>1</SU> </ENT> <ENT>59 53.0N </ENT> <ENT>147 20.5W</ENT> </ROW> <ROW> <ENT I="13">Southeast Alaska:</ENT> </ROW> <ROW> <ENT I="05">Forrester I. </ENT> <ENT>54 51.0N </ENT> <ENT>133 32.0W </ENT> <ENT>54 52.5N </ENT> <ENT>133 35.5W</ENT> </ROW> <ROW> <ENT I="05">Hazy I </ENT> <ENT>55 52.0N </ENT> <ENT>134 34.0W </ENT> <ENT>55 51.5N </ENT> <ENT>134 35.0W</ENT> </ROW> <ROW> <ENT I="05">White Sisters </ENT> <ENT>57 38.0N </ENT> <ENT>136 15.5W</ENT> </ROW> <ROW> <ENT I="11">Oregon:</ENT> </ROW> <ROW> <ENT I="03">Rogue Reef: Pyramid Rock </ENT> <ENT>42 26.4N </ENT> <ENT>124 28.1W</ENT> </ROW> <ROW> <ENT I="13">Orford Reef:</ENT> </ROW> <ROW> <ENT I="05">Long Brown Rock </ENT> <ENT>42 47.3N </ENT> <ENT>124 36.2W</ENT> </ROW> <ROW> <ENT I="05">Seal Rock </ENT> <ENT>42 47.1N </ENT> <ENT>124 35.4W</ENT> </ROW> <ROW> <ENT I="11">California:</ENT> </ROW> <ROW> <ENT I="03">Ano Nuevo I. </ENT> <ENT>37 06.3N </ENT> <ENT>122 20.3W</ENT> </ROW> <ROW> <ENT I="03">Southeast Farallon I. </ENT> <ENT>37 41.3N </ENT> <ENT>123 00.1W</ENT> </ROW> <ROW> <ENT I="03">Sugarloaf I. & Cape Mendocino </ENT> <ENT>40 26.0N </ENT> <ENT>124 24.0W</ENT> </ROW> <TNOTE> <SU>1</SU> Includes an associated 20 NM aquatic zone.</TNOTE> <TNOTE> <SU>2</SU> Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 45278, Aug. 27, 1993]</CITA> <EAR>Pt. 226, Table 2</EAR> <HD SOURCE="HD1">Table 2 to Part 226—Major Stellar Sea Lion Haulout Sites in Alaska</HD> <P>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.<PRTPAGE P="180"/> </P> <GPOTABLE CDEF="s100,r45,r45,r45,r45" COLS="5" OPTS="L2,i1"> <BOXHD> <CHED H="1">State/region/site</CHED> <CHED H="1">Boundaries to—</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> <CHED H="2">Latitude</CHED> <CHED H="2">Longitude</CHED> </BOXHD> <ROW> <ENT I="11">Alaska:</ENT> </ROW> <ROW> <ENT I="13">Western Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Alaid I.<SU>1</SU> </ENT> <ENT>52 45.0N</ENT> <ENT>173 56.5E</ENT> <ENT>52 46.5N</ENT> <ENT>173 51.5E</ENT> </ROW> <ROW> <ENT I="05">Attu/Chirikof Pt.<SU>1</SU> </ENT> <ENT>52 30.0N</ENT> <ENT>173 26.7E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Shemya I.<SU>1</SU> </ENT> <ENT>52 44.0N</ENT> <ENT>174 09.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Central Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Amatignak I.<SU>1</SU> </ENT> <ENT>51 13.0N</ENT> <ENT>179 08.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Amlia I:</ENT> </ROW> <ROW> <ENT I="07">East <SU>1</SU> </ENT> <ENT>52 05.0N</ENT> <ENT>172 58.5W</ENT> <ENT>52 06.0N</ENT> <ENT>172 57.0W</ENT> </ROW> <ROW> <ENT I="07">Sviech. Harbor <SU>1</SU> </ENT> <ENT>52 02.0N</ENT> <ENT>173 23.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Amukta I. & Rocks <SU>1</SU> </ENT> <ENT>52 31.5N</ENT> <ENT>171 16.5W</ENT> <ENT>52 26.5N</ENT> <ENT>171 16.5W</ENT> </ROW> <ROW> <ENT I="05">Anagaksik I.<SU>1</SU> </ENT> <ENT>51 51.0N</ENT> <ENT>175 53.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Atka I.<SU>1</SU> </ENT> <ENT>52 23.5N</ENT> <ENT>174 17.0W</ENT> <ENT>52 24.5N</ENT> <ENT>174 07.5W</ENT> </ROW> <ROW> <ENT I="05">Bobrof I.<SU>1</SU> </ENT> <ENT>51 54.0N</ENT> <ENT>177 27.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chagulak I.<SU>1</SU> </ENT> <ENT>52 34.0N</ENT> <ENT>171 10.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chuginadak I.<SU>1</SU> </ENT> <ENT>52 46.5N</ENT> <ENT>169 44.5W</ENT> <ENT>52 46.5N</ENT> <ENT>169 42.0W</ENT> </ROW> <ROW> <ENT I="05">Great Sitkin I.<SU>1</SU> </ENT> <ENT>52 06.0N</ENT> <ENT>176 10.5W</ENT> <ENT>52 07.0N</ENT> <ENT>176 08.5W</ENT> </ROW> <ROW> <ENT I="05">Kagamil I.<SU>1</SU> </ENT> <ENT>53 02.5N</ENT> <ENT>169 41.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Kanaga I:</ENT> </ROW> <ROW> <ENT I="07">North Cape <SU>1</SU> </ENT> <ENT>51 56.5N</ENT> <ENT>177 09.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Ship Rock <SU>1</SU> </ENT> <ENT>51 47.0N</ENT> <ENT>177 22.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Kavalga I.<SU>1</SU> </ENT> <ENT>51 34.5N</ENT> <ENT>178 51.5W</ENT> <ENT>51 34.5N</ENT> <ENT>178 49.5W</ENT> </ROW> <ROW> <ENT I="05">Kiska I./Sirius Pt.<SU>1</SU> </ENT> <ENT>52 08.5N</ENT> <ENT>177 36.5E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Kiska I./Sobaka & Vega <SU>1</SU> </ENT> <ENT>51 50.0N</ENT> <ENT>177 20.0E</ENT> <ENT>51 48.5N</ENT> <ENT>177 20.5E</ENT> </ROW> <ROW> <ENT I="05">Little Sitkin I.<SU>1</SU> </ENT> <ENT>51 59.5N</ENT> <ENT>178 30.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Little Tanaga I.<SU>1</SU> </ENT> <ENT>51 50.5N</ENT> <ENT>176 13.0W</ENT> <ENT>51 49.0N</ENT> <ENT>176 13.0W</ENT> </ROW> <ROW> <ENT I="05">Sagigik I.<SU>1</SU> </ENT> <ENT>52 00.5N</ENT> <ENT>173 08.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">Seguam I:</ENT> </ROW> <ROW> <ENT I="07">South <SU>1</SU> </ENT> <ENT>52 19.5N </ENT> <ENT>172 18.0W </ENT> <ENT>52 15.0N </ENT> <ENT>172 37.0W</ENT> </ROW> <ROW> <ENT I="07">Finch Pt.<SU>1</SU> </ENT> <ENT>52 23.5N</ENT> <ENT>172 25.5W</ENT> <ENT>52 23.5N</ENT> <ENT>172 24.0W</ENT> </ROW> <ROW> <ENT I="05">Segula I.<SU>1</SU> </ENT> <ENT>52 00.0N</ENT> <ENT>178 06.5E</ENT> <ENT>52 03.5N</ENT> <ENT>178 09.0E</ENT> </ROW> <ROW> <ENT I="05">Tanaga I.<SU>1</SU> </ENT> <ENT>51 55.0N</ENT> <ENT>177 58.5W</ENT> <ENT>51 55.0N</ENT> <ENT>177 57.0W</ENT> </ROW> <ROW> <ENT I="05">Tanadak I. (Amlia) <SU>1</SU> </ENT> <ENT>52 04.5N</ENT> <ENT>172 57.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tanadak I. (Kiska) <SU>1</SU> </ENT> <ENT>51 57.0N</ENT> <ENT>177 47.0E</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Ugidak I.<SU>1</SU> </ENT> <ENT>51 35.0N</ENT> <ENT>178 30.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Uliaga I.<SU>1</SU> </ENT> <ENT>53 04.0N</ENT> <ENT>169 47.0W</ENT> <ENT>53 05.0N</ENT> <ENT>169 46.0W</ENT> </ROW> <ROW> <ENT I="05">Unalga & Dinkum Rocks <SU>1</SU> </ENT> <ENT>51 34.0N</ENT> <ENT>179 04.0W</ENT> <ENT>51 34.5N</ENT> <ENT>179 03.0W</ENT> </ROW> <ROW> <ENT I="13">Eastern Aleutians:</ENT> </ROW> <ROW> <ENT I="05">Akutan I./Reef-Lava <SU>1</SU> </ENT> <ENT>54 10.5N</ENT> <ENT>166 04.5W</ENT> <ENT>54 07.5N</ENT> <ENT>166 06.5W</ENT> </ROW> <ROW> <ENT I="05">Amak I.<SU>1</SU> </ENT> <ENT>55 24.0N</ENT> <ENT>163 07.0W</ENT> <ENT>55 26.0N</ENT> <ENT>163 10.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Sedanka & Island <SU>1</SU> </ENT> <ENT>53 50.5N</ENT> <ENT>166 05.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Emerald I.<SU>1</SU> </ENT> <ENT>53 17.5N</ENT> <ENT>167 51.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Old Man Rocks <SU>1</SU> </ENT> <ENT>53 52.0N</ENT> <ENT>166 05.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Polivnoi Rock <SU>1</SU> </ENT> <ENT>53 16.0N</ENT> <ENT>167 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tanginak I.<SU>1</SU> </ENT> <ENT>54 13.0N</ENT> <ENT>165 19.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Tigalda I.<SU>1</SU> </ENT> <ENT>54 08.5N</ENT> <ENT>164 58.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Umnak I./Cape Aslik <SU>1</SU> </ENT> <ENT>53 25.0N</ENT> <ENT>168 24.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Bering Sea:</ENT> </ROW> <ROW> <ENT I="05">Cape Newenham <SU>1</SU> </ENT> <ENT>58 39.0N</ENT> <ENT>162 10.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Hall I.<SU>1</SU> </ENT> <ENT>60 37.0N</ENT> <ENT>173 00.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Round I.<SU>1</SU> </ENT> <ENT>58 36.0N</ENT> <ENT>159 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. Paul I:</ENT> </ROW> <ROW> <ENT I="07">Northeast Point <SU>1</SU> </ENT> <ENT>57 15.0N</ENT> <ENT>170 06.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Sea Lion Rock <SU>1</SU> </ENT> <ENT>57 06.0N</ENT> <ENT>170 17.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. George I:</ENT> </ROW> <ROW> <ENT I="07">S Rookery <SU>1</SU> </ENT> <ENT>56 33.5N</ENT> <ENT>169 40.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">Dalnoi Point <SU>1</SU> </ENT> <ENT>56 36.0N</ENT> <ENT>169 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="15">St. Lawrence I:</ENT> </ROW> <ROW> <ENT I="07">S Punuk I.<SU>1</SU> </ENT> <ENT>64 04.0N</ENT> <ENT>168 51.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="07">SW Cape <SU>1</SU> </ENT> <ENT>63 18.0N</ENT> <ENT>171 26.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Western Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Bird I. <SU>1</SU> </ENT> <ENT>54 40.5N </ENT> <ENT>163 18.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Castle Rock <SU>1</SU> </ENT> <ENT>55 17.0N</ENT> <ENT>159 30.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Caton I.<SU>1</SU> </ENT> <ENT>54 23.5N</ENT> <ENT>162 25.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Jude I.<SU>1</SU> </ENT> <ENT>55 16.0N</ENT> <ENT>161 06.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Lighthouse Rocks <SU>1</SU> </ENT> <ENT>55 47.5N</ENT> <ENT>157 24.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Nagai I.<SU>1</SU> </ENT> <ENT>54 52.5N</ENT> <ENT>160 14.0W</ENT> <ENT>54 56.0N</ENT> <ENT>160 15.0W</ENT> </ROW> <ROW> <ENT I="05">Nagai Rocks <SU>1</SU> </ENT> <ENT>55 50.0N</ENT> <ENT>155 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Lion Rocks (Unga) <SU>1</SU> </ENT> <ENT>55 04.5N</ENT> <ENT>160 31.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">South Rock <SU>1</SU> </ENT> <ENT>54 18.0N</ENT> <ENT>162 43.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Spitz I.<SU>1</SU> </ENT> <ENT>55 47.0N</ENT> <ENT>158 54.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">The Whaleback <SU>1</SU> </ENT> <ENT>55 16.5N</ENT> <ENT>160 06.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <PRTPAGE P="181"/> <ENT I="13">Central Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Cape Barnabas <SU>1</SU> </ENT> <ENT>57 10.0N</ENT> <ENT>152 55.0W</ENT> <ENT>57 07.5N</ENT> <ENT>152 55.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Chiniak <SU>1</SU> </ENT> <ENT>57 35.0N</ENT> <ENT>152 09.0W</ENT> <ENT>57 37.5N</ENT> <ENT>152 09.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Gull <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 13.5N</ENT> <ENT>154 09.5W</ENT> <ENT>58 12.5N</ENT> <ENT>154 10.5W</ENT> </ROW> <ROW> <ENT I="05">Cape Ikolik <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 17.0N</ENT> <ENT>154 47.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Kuliak <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 08.0N</ENT> <ENT>154 12.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Sitkinak <SU>1</SU> </ENT> <ENT>56 32.0N</ENT> <ENT>153 52.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Ugat <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 52.0N</ENT> <ENT>153 51.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Gore Point <SU>1</SU> </ENT> <ENT>59 12.0N</ENT> <ENT>150 58.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Gull Point <SU>1</SU> </ENT> <ENT>57 21.5N</ENT> <ENT>152 36.5W</ENT> <ENT>57 24.5N</ENT> <ENT>152 39.0W</ENT> </ROW> <ROW> <ENT I="05">Latax Rocks <SU>1</SU> </ENT> <ENT>58 42.0N</ENT> <ENT>152 28.5W</ENT> <ENT>58 40.5N</ENT> <ENT>152 30.0W</ENT> </ROW> <ROW> <ENT I="05">Long I.<SU>1</SU> </ENT> <ENT>57 45.5N</ENT> <ENT>152 16.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Nagahut Rocks <SU>1</SU> </ENT> <ENT>59 06.0N</ENT> <ENT>151 46.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Puale Bay <SU>1</SU> <SU>2</SU> </ENT> <ENT>57 41.0N</ENT> <ENT>155 23.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Lion Rocks (Marmot) <SU>1</SU> </ENT> <ENT>58 21.0N</ENT> <ENT>151 48.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sea Otter I.<SU>1</SU> </ENT> <ENT>58 31.5N</ENT> <ENT>152 13.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Shakun Rock <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 33.0N</ENT> <ENT>153 41.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sud I.<SU>1</SU> </ENT> <ENT>58 54.0N</ENT> <ENT>152 12.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Sutwik I.<SU>1</SU> </ENT> <ENT>56 32.0N</ENT> <ENT>157 14.0W</ENT> <ENT>56 32.0N</ENT> <ENT>157 20.0W</ENT> </ROW> <ROW> <ENT I="05">Takli I. <SU>1</SU> <SU>2</SU> </ENT> <ENT>58 03.0N</ENT> <ENT>154 27.5W</ENT> <ENT>58 03.0N</ENT> <ENT>154 30.0W</ENT> </ROW> <ROW> <ENT I="05">Two-headed I.<SU>1</SU> </ENT> <ENT>56 54.5N</ENT> <ENT>153 33.0W</ENT> <ENT>56 53.5N</ENT> <ENT>153 35.5W</ENT> </ROW> <ROW> <ENT I="05">Ugak I.<SU>1</SU> </ENT> <ENT>57 23.0N</ENT> <ENT>152 15.5W</ENT> <ENT>57 22.0N</ENT> <ENT>152 19.0W</ENT> </ROW> <ROW> <ENT I="05">Ushagat I. <SU>1</SU> </ENT> <ENT>58 55.0N </ENT> <ENT>152 22.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Eastern Gulf of Alaska:</ENT> </ROW> <ROW> <ENT I="05">Cape Fairweather</ENT> <ENT>58 47.5N </ENT> <ENT>137 56.3W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape St. Elias <SU>1</SU> </ENT> <ENT>59 48.0N</ENT> <ENT>144 36.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Chiswell Islands <SU>1</SU> </ENT> <ENT>59 36.0N</ENT> <ENT>149 34.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Graves Rock</ENT> <ENT>58 14.5N </ENT> <ENT>136 45.5W</ENT> </ROW> <ROW> <ENT I="05">Hook Point <SU>1</SU> </ENT> <ENT>60 20.0N</ENT> <ENT>146 15.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Middleton I.<SU>1</SU> </ENT> <ENT>59 26.5N</ENT> <ENT>146 20.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Perry I.<SU>1</SU> </ENT> <ENT>60 39.5N</ENT> <ENT>147 56.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Point Eleanor <SU>1</SU> </ENT> <ENT>60 35.0N</ENT> <ENT>147 34.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Point Elrington <SU>1</SU> </ENT> <ENT>59 56.0N</ENT> <ENT>148 13.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Seal Rocks <SU>1</SU> </ENT> <ENT>60 10.0N</ENT> <ENT>146 50.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">The Needle <SU>1</SU> </ENT> <ENT>60 07.0N</ENT> <ENT>147 37.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="13">Southeast Alaska:</ENT> </ROW> <ROW> <ENT I="05">Benjamin I.</ENT> <ENT>58 33.5N</ENT> <ENT>134 54.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Biali Rock</ENT> <ENT>56 43.0N</ENT> <ENT>135 20.5W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Biorka I.</ENT> <ENT>56 50.0N </ENT> <ENT>135 34.0W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Addington</ENT> <ENT>55 26.5N </ENT> <ENT>133 49.5W </ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Cape Cross</ENT> <ENT>57 55.0N </ENT> <ENT>136 34.0W</ENT> </ROW> <ROW> <ENT I="05">Cape Ommaney</ENT> <ENT>56 10.5N </ENT> <ENT>134 42.5W</ENT> </ROW> <ROW> <ENT I="05">Coronation I.</ENT> <ENT>55 56.0N </ENT> <ENT>134 17.0W</ENT> </ROW> <ROW> <ENT I="05">Gran Point</ENT> <ENT>59 08.0N </ENT> <ENT>135 14.5W</ENT> </ROW> <ROW> <ENT I="05">Lull Point</ENT> <ENT>57 18.5N </ENT> <ENT>134 48.5W</ENT> </ROW> <ROW> <ENT I="05">Sunset I.</ENT> <ENT>57 30.5N</ENT> <ENT>133 35.0W</ENT> <ENT/> <ENT/> </ROW> <ROW> <ENT I="05">Timbered I.</ENT> <ENT>55 42.0N</ENT> <ENT>133 48.0W</ENT> <ENT/> <ENT/> </ROW> <TNOTE> <SU>1</SU> Includes an associated 20 NM aquatic zone.</TNOTE> <TNOTE> <SU>2</SU> Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]</CITA> <EAR>Pt. 226, Table 3</EAR> <GPOTABLE CDEF="s200,8,8,8" COLS="4" OPTS="L2,i1"> <TTITLE>Table 3.—Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River Spring/Summer and Fall Chinook Salmon</TTITLE> <BOXHD> <CHED H="1">Hydrologic unit name</CHED> <CHED H="1">Hydrologic unit number</CHED> <CHED H="2">Sockeye salmon</CHED> <CHED H="2">Spring/summer chinook salmon</CHED> <CHED H="2">Fall chinook salmon</CHED> </BOXHD> <ROW> <ENT I="01">Hells Canyon</ENT> <ENT/> <ENT>17060101</ENT> <ENT>17060101</ENT> </ROW> <ROW> <ENT I="01">Imnaha</ENT> <ENT/> <ENT>17060102</ENT> <ENT>17060102</ENT> </ROW> <ROW> <ENT I="01">Lower Snake—Asotin</ENT> <ENT>17060103</ENT> <ENT>17060103</ENT> <ENT>17060103</ENT> </ROW> <ROW> <ENT I="01">Upper Grande Ronde</ENT> <ENT/> <ENT>17060104</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Wallowa</ENT> <ENT/> <ENT>17060105</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Grande Ronde</ENT> <ENT/> <ENT>17060106</ENT> <ENT>17060106</ENT> </ROW> <ROW> <ENT I="01">Lower Snake—Tucannon</ENT> <ENT>17060107</ENT> <ENT>17060107</ENT> <ENT>17060107</ENT> </ROW> <ROW> <ENT I="01">Palouse</ENT> <ENT/> <ENT/> <ENT>17060108</ENT> </ROW> <ROW> <PRTPAGE P="182"/> <ENT I="01">Lower Snake</ENT> <ENT>17060110</ENT> <ENT>17060110</ENT> <ENT>17060110</ENT> </ROW> <ROW> <ENT I="01">Upper Salmon</ENT> <ENT>17060201</ENT> <ENT>17060201</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Pahsimeroi</ENT> <ENT/> <ENT>17060202</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon—Panther</ENT> <ENT>17060203</ENT> <ENT>17060203</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lemhi</ENT> <ENT/> <ENT>17060204</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Upper Middle Fork Salmon</ENT> <ENT/> <ENT>17060205</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Middle Fork Salmon</ENT> <ENT/> <ENT>17060206</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Middle Salmon—Chamberlain</ENT> <ENT>17060207</ENT> <ENT>17060207</ENT> <ENT/> </ROW> <ROW> <ENT I="01">South Fork Salmon</ENT> <ENT/> <ENT>17060208</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Lower Salmon</ENT> <ENT>17060209</ENT> <ENT>17060209</ENT> <ENT>17060209</ENT> </ROW> <ROW> <ENT I="01">Little Salmon</ENT> <ENT/> <ENT>17060210</ENT> <ENT/> </ROW> <ROW> <ENT I="01">Clearwater</ENT> <ENT/> <ENT/> <ENT>17060306</ENT> </ROW> <ROW> <ENT I="01">Lower North Fork Clearwater</ENT> <ENT/> <ENT/> <ENT>17060308</ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> </GPOTABLE> <CITA TYPE="W">[58 FR 68552, Dec. 28, 1993]</CITA> <EAR>Pt. 226, Table 4</EAR> <GPOTABLE CDEF="s25,8,r25" COLS="3" OPTS="L2,i1"> <TTITLE>Table 4.—Hydrologic Units Containing Critical Habitat for Endangered Umpqua River Cutthroat Trout and Counties Contained in Each Hydrologic Unit</TTITLE> <BOXHD> <CHED H="1">Hydrologic unit name</CHED> <CHED H="1">Hydrologic unit No.</CHED> <CHED H="1">Counties contained in hydrologic unit</CHED> </BOXHD> <ROW> <ENT I="01">North Umpqua </ENT> <ENT>17100301 </ENT> <ENT>Douglas, Lane, Klamath.</ENT> </ROW> <ROW> <ENT I="01">South Umpqua </ENT> <ENT>17100302 </ENT> <ENT>Douglas, Jackson, Coos.</ENT> </ROW> <ROW> <ENT I="01">Umpqua </ENT> <ENT>17100303 </ENT> <ENT>Douglas, Lane, Coos.</ENT> </ROW> <TNOTE> <SU>1</SU> 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale State of Oregon (1974) hydrologic unit map (available from USGS).</TNOTE> </GPOTABLE> <CITA>[63 FR 1394, Jan. 9, 1998]</CITA> <EAR>Pt. 226, Table 5</EAR> <WIDE> <HD SOURCE="HD1">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</HD> </WIDE> <GPOTABLE CDEF="s50,10,r100,r100" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1">Hydrologic<LI>unit name</LI> </CHED> <CHED H="1">Hydrologic unit No.</CHED> <CHED H="1">Counties and tribal lands contained in hydrologic unit and within the range of ESU<E T="51">1 2</E> </CHED> <CHED H="1">Dams (reservoirs)</CHED> </BOXHD> <ROW> <ENT I="01">San Lorenzo-Soquel </ENT> <ENT>18060001 </ENT> <ENT>Santa Cruz (CA), San Mateo (CA) </ENT> <ENT>Newell Dam (Loch Lomond).</ENT> </ROW> <ROW> <ENT I="01">San Francisco Coastal South </ENT> <ENT>18050006 </ENT> <ENT>San Mateo (CA)</ENT> </ROW> <ROW> <ENT I="01">San Pablo Bay </ENT> <ENT>18050002 </ENT> <ENT>Marin (CA), Napa (CA) </ENT> <ENT>Phoenix Dam (Phoenix Lake).</ENT> </ROW> <ROW> <ENT I="01">Tomales-Drake Bays </ENT> <ENT>18050005 </ENT> <ENT>Marin (CA), Sonoma (CA) </ENT> <ENT>Peters Dam (Kent Lake); Seeger Dam (Nicasio Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Bodega Bay </ENT> <ENT>18010111 </ENT> <ENT>Marin (CA), Sonoma (CA)</ENT> </ROW> <ROW> <ENT I="01">Russian </ENT> <ENT>18010110 </ENT> <ENT>Sonoma (CA), Mendocino (CA)—<E T="03">Cloverdale Rancheria; Coyote Valley Rancheria; Dry Creek Rancheria; Guidiville Rancheria; Hopland Rancheria; Lytton Rancheria; Pinoleville Rancheria; Stewarts Point Rancheria</E> </ENT> <ENT>Warm Springs Dam (Lake Sonoma); Coyote Dam (Lake Mendocino).</ENT> </ROW> <ROW> <ENT I="01">Gualala-Salmon </ENT> <ENT>18010109 </ENT> <ENT>Sonoma (CA), Mendocino (CA)</ENT> </ROW> <ROW> <PRTPAGE P="183"/> <ENT I="01">Big-Navarro-Garcia </ENT> <ENT>18010108 </ENT> <ENT>Mendocino (CA)—<E T="03">Manchester/Point Arena Rancheria</E>;</ENT> </ROW> <TNOTE> <E T="51">1</E> 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.</TNOTE> <TNOTE> <E T="51">2</E> Tribal lands are specifically excluded from critical habitat for this ESU.</TNOTE> </GPOTABLE> <CITA TYPE="W">[64 FR 24061, May 5, 1999]</CITA> <EAR>Pt. 226, Table 6</EAR> <WIDE> <HD SOURCE="HD1">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</HD> </WIDE> <GPOTABLE CDEF="s50,10,r100,r100" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1">Hydrologic unit name</CHED> <CHED H="1">Hydrologic unit No.</CHED> <CHED H="1">Counties and tribal lands contained in hydrologic unit and within the range of ESU<E T="51">1 2</E> </CHED> <CHED H="1">Dams (reservoirs)</CHED> </BOXHD> <ROW> <ENT I="01">Mattole </ENT> <ENT>18010107 </ENT> <ENT>Humboldt (CA), Mendocino (CA)</ENT> </ROW> <ROW> <ENT I="01">South Fork Eel </ENT> <ENT>18010106 </ENT> <ENT>Mendocino (CA), Humboldt (CA)—<E T="03">Laytonville Rancheria; Sherwood Valley Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">Lower Eel </ENT> <ENT>18010105 </ENT> <ENT>Mendocino (CA), Humboldt (CA), Trinity (CA)</ENT> </ROW> <ROW> <ENT I="01">Middle Fork Eel </ENT> <ENT>18010104 </ENT> <ENT>Mendocino (CA), Trinity (CA), Glenn (CA), Lake (CA)—<E T="03">Round Valley Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Upper Eel </ENT> <ENT>18010103 </ENT> <ENT>Mendocino (CA), Glenn (CA), Lake (CA) </ENT> <ENT>Scott Dam (Lake Pillsbury).</ENT> </ROW> <ROW> <ENT I="01">Mad-Redwood </ENT> <ENT>18010102 </ENT> <ENT>Humboldt (CA), Trinity (CA)—<E T="03">Big Lagoon Rancheria; Blue Lake Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">Smith </ENT> <ENT>18010101 </ENT> <ENT>Del Norte (CA), Curry (OR)—<E T="03">Elk Valley Rancheria; Smith River Rancheria</E> </ENT> </ROW> <ROW> <ENT I="01">South Fork Trinity </ENT> <ENT>18010212 </ENT> <ENT>Humboldt (CA), Trinity (CA)</ENT> </ROW> <ROW> <ENT I="01">Trinity </ENT> <ENT>18010211 </ENT> <ENT>Humboldt (CA), Trinity (CA)—<E T="03">Hoopa Valley Reservation</E> </ENT> <ENT>Lewiston Dam (Lewiston Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Salmon </ENT> <ENT>18010210 </ENT> <ENT>Siskiyou (CA)</ENT> </ROW> <ROW> <ENT I="01">Lower Klamath </ENT> <ENT>18010209 </ENT> <ENT>Del Norte (CA), Humboldt (CA), Siskiyou (CA)—<E T="03">Karuk Reservation; Resighini Rancheria; Yurok Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Scott </ENT> <ENT>18010208 </ENT> <ENT>Siskiyou (CA)—<E T="03">Quartz Valley Reservation</E> </ENT> </ROW> <ROW> <ENT I="01">Shasta </ENT> <ENT>18010207 </ENT> <ENT>Siskiyou (CA) </ENT> <ENT>Dwinnell Dam (Dwinnell Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Upper Klamath </ENT> <ENT>18010206 </ENT> <ENT>Siskiyou (CA), Jackson (OR) </ENT> <ENT>Irongate Dam (Irongate Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Chetco </ENT> <ENT>17100312 </ENT> <ENT>Curry (OR), Del Norte (CA)</ENT> </ROW> <ROW> <ENT I="01">Illinois </ENT> <ENT>17100311 </ENT> <ENT>Curry (OR), Josephine (OR), Del Norte (CA) </ENT> <ENT>Selmac Lake Dam (Lake Selmac).</ENT> </ROW> <ROW> <ENT I="01">Lower Rogue </ENT> <ENT>17100310 </ENT> <ENT>Curry (OR), Josephine (OR), Jackson (OR)</ENT> </ROW> <ROW> <ENT I="01">Applegate </ENT> <ENT>17100309 </ENT> <ENT>Josephine (OR), Jackson (OR), Siskiyou (CA) </ENT> <ENT>Applegate Dam (Applegate Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Middle Rogue </ENT> <ENT>17100308 </ENT> <ENT>Josephine (OR), Jackson (OR) </ENT> <ENT>Emigrant Lake Dam (Emigrant Lake).</ENT> </ROW> <ROW> <ENT I="01">Upper Rogue </ENT> <ENT>17100307 </ENT> <ENT>Jackson (OR), Klamath (OR), Douglas (OR) </ENT> <ENT>Agate Lake Dam (Agate Lake); Fish Lake Dam (Fish Lake); Willow Lake Dam (Willow Lake); Lost Creek Dam (Lost Creek Reservoir).</ENT> </ROW> <ROW> <ENT I="01">Sixes </ENT> <ENT>17100306 </ENT> <ENT>Curry (OR)</ENT> </ROW> <TNOTE> <E T="51">1</E> 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.</TNOTE> <TNOTE> <E T="51">2</E> Tribal lands are specifically excluded from critical habitat for this ESU. </TNOTE> </GPOTABLE> <CITA TYPE="W">[64 FR 24061, May 5, 1999]</CITA> </SECTION> </PART> <PART> <PRTPAGE P="184"/> <EAR>Pt. 229</EAR> <HD SOURCE="HED">PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>229.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>229.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>229.3</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <SECTNO>229.4</SECTNO> <SUBJECT>Requirements for Category I and II fisheries.</SUBJECT> <SECTNO>229.5</SECTNO> <SUBJECT>Requirements for Category III fisheries.</SUBJECT> <SECTNO>229.6</SECTNO> <SUBJECT>Reporting requirements.</SUBJECT> <SECTNO>229.7</SECTNO> <SUBJECT>Monitoring of incidental mortalities and serious injuries.</SUBJECT> <SECTNO>229.8</SECTNO> <SUBJECT>Publication of List of Fisheries.</SUBJECT> <SECTNO>229.9</SECTNO> <SUBJECT>Emergency regulations.</SUBJECT> <SECTNO>229.10</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>229.11</SECTNO> <SUBJECT>Confidential fisheries data.</SUBJECT> <SECTNO>229.12</SECTNO> <SUBJECT>Consultation with the Secretary of the Interior.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Takes of Endangered and Threatened Marine Mammals</HD> <SECTNO>229.20</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Take Reduction Plan Regulations and Emergency Regulations</HD> <SECTNO>229.30</SECTNO> <SUBJECT>Basis.</SUBJECT> <SECTNO>229.31</SECTNO> <SUBJECT>Pacific Offshore Cetacean Take Reduction Plan.</SUBJECT> <SECTNO>229.32</SECTNO> <SUBJECT>Atlantic large whale take reduction plan regulations.</SUBJECT> <SECTNO>229.33</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan Implementing Regulations—Gulf of Maine.</SUBJECT> <SECTNO>229.34</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan—Mid-Atlantic.</SUBJECT> <APP>Figure 1 to Part 229—Drift Gillnet Pinger Configuration and Extender Requirements</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 1361 <E T="03">et</E> <E T="03">seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 45100, Aug. 30, 1995, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 229.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>(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.</P> <P>(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)).</P> <P>(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 <E T="03">et</E> <E T="03">seq</E>.).</P> <P>(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.</P> <P>(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.</P> <P>(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 §§ 229.4(k) and 229.5(f).</P> <P>(g) The purposes of the regulations in this part are to:</P> <P>(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</P> <P>(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.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9086, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="185"/> <SECTNO>§ 229.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>In addition to the definitions contained in the Act and § 216.3 of this chapter, and unless the context otherwise requires, in this part 229:</P> <P> <E T="03">Act</E> or <E T="03">MMPA</E> means the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 <E T="03">et</E> <E T="03">seq</E>.).</P> <P> <E T="03">American lobster or lobster</E> means <E T="03">Homarus americanus.</E> </P> <P> <E T="03">Anchored gillnet</E> 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.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.</P> <P> <E T="03">Authorization Certificate</E> 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.</P> <P> <E T="03">Breaking strength</E> means the highest tensile force which an object can withstand before breaking.</P> <P> <E T="03">Bridle</E> means the lines connecting a gillnet to an anchor or buoy line.</P> <P> <E T="03">Buoy line</E> means a line connecting fishing gear in the water to a buoy at the surface of the water.</P> <P> <E T="03">Category I fishery</E> 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.</P> <P> <E T="03">Category II fishery</E> 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.</P> <P> <E T="03">Category III fishery</E> 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:</P> <P>(1) Ten percent or less of any marine mammal stock's potential biological removal level, or</P> <P>(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.<PRTPAGE P="186"/> </P> <P> <E T="03">Commercial fishing operation</E> 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 § 216.3 of this chapter) activities and aquaculture activities.</P> <P> <E T="03">Depleted species</E> means any species or population that has been designated as depleted under the Act and is listed in § 216.15 of this chapter or part 18, subpart E of this title, or any endangered or threatened species of marine mammal.</P> <P> <E T="03">Driftnet, drift gillnet, or drift entanglement gear</E> 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.</P> <P> <E T="03">Fisher or fisherman</E> means the vessel owner or operator, or the owner or operator of gear in a nonvessel fishery.</P> <P> <E T="03">Fishery</E> has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).</P> <P> <E T="03">Fishing trip</E> 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.</P> <P> <E T="03">Fishing vessel</E> or <E T="03">vessel</E> 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.</P> <P> <E T="03">Float-line</E> means the rope at the top of a gillnet from which the mesh portion of the net is hung.</P> <P> <E T="03">Gillnet</E> 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.</P> <P> <E T="03">Groundline,</E> 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.</P> <P> <E T="03">Incidental</E> 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.</P> <P> <E T="03">Injury</E> 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.</P> <P> <E T="03">Inshore Lobster waters</E> means all state and Federal waters between 36°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.”</P> <P> <E T="03">Integrated fishery</E> 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.</P> <P> <E T="03">Interaction</E> 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.</P> <P> <E T="03">Large mesh gillnet</E> means a gillnet constructed with a mesh size of 7 inches (17.78 cm) to 18 inches (45.72 cm).</P> <P> <E T="03">Lead-line</E> means the rope, weighted or otherwise, to which the bottom edge of a gillnet is attached.<PRTPAGE P="187"/> </P> <P> <E T="03">List of Fisheries</E> means the most recent final list of commercial fisheries published in the <E T="04">Federal Register</E> by the Assistant Administrator, categorized according to the likelihood of incidental mortality and serious injury of marine mammals during commercial fishing operations.</P> <P> <E T="03">Lobster trap</E> 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.</P> <P> <E T="03">Lobster trap trawl</E> means two or more lobster traps attached to a single groundline.</P> <P> <E T="03">Mesh size</E> means the distance between inside knot to inside knot. Mesh size is measured as described in § 648.80(f)(1) of this title.</P> <P> <E T="03">Mid-Atlantic coastal waters</E> means waters bounded by the line defined by the following points: The southern shoreline of Long Island, New York at 72°30′W, then due south to 33°51′N lat., thence west to the North Carolina/South Carolina border.</P> <P> <E T="03">Minimum population estimate</E> means an estimate of the number of animals in a stock that:</P> <P>(1) Is based on the best available scientific information on abundance, incorporating the precision and variability associated with such information; and</P> <P>(2) Provides reasonable assurance that the stock size is equal to or greater than the estimate.</P> <P> <E T="03">Mudhole</E> means waters off New Jersey bounded as follows: From the point 40°30′ N. latitude where it intersects with the shoreline of New Jersey east to its intersection with 73°20′ W. longitude, then south to its intersection with 40°05′ N. latitude, then west to its intersection with the shoreline of New Jersey.</P> <P> <E T="03">Negligible impact</E> has the same meaning as in § 228.3 of this chapter.</P> <P> <E T="03">Net productivity rate</E> means the annual per capita rate of increase in a stock resulting from additions due to reproduction, less losses due to mortality.</P> <P> <E T="03">Night</E> means any time between one half hour before sunset and one half hour after sunrise.</P> <P> <E T="03">NMFS</E> means the National Marine Fisheries Service.</P> <P> <E T="03">Nonvessel fishery</E> 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.</P> <P> <E T="03">Northeast waters</E> means those U.S. waters east of 72°30′W and north of 36°33′00.8″N lat. (the Virginia-North Carolina border).</P> <P> <E T="03">Observer</E> 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.</P> <P> <E T="03">Offshore lobster waters</E> 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:</P> <GPOTABLE CDEF="s25,xls40,xls40" COLS="3" OPTS="L2,i1"> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">Latitude (°N)</CHED> <CHED H="1">Longitude (°W)</CHED> </BOXHD> <ROW> <ENT I="01">A </ENT> <ENT>43° 58′ </ENT> <ENT>67° 22′</ENT> </ROW> <ROW> <ENT I="01">B </ENT> <ENT>43° 41′ </ENT> <ENT>68° 00′</ENT> </ROW> <ROW> <ENT I="01">C </ENT> <ENT>43° 12.5′ </ENT> <ENT>69° 00′</ENT> </ROW> <ROW> <ENT I="01">D </ENT> <ENT>42° 49′ </ENT> <ENT>69° 40′</ENT> </ROW> <ROW> <ENT I="01">E </ENT> <ENT>42° 15.5′ </ENT> <ENT>69° 40′</ENT> </ROW> <ROW> <ENT I="01">F </ENT> <ENT>42° 10′ </ENT> <ENT>69° 56′</ENT> </ROW> <ROW> <ENT I="01">K </ENT> <ENT>41° 10′ </ENT> <ENT>69° 06.5′</ENT> </ROW> <ROW> <ENT I="01">N </ENT> <ENT>40° 45.5′ </ENT> <ENT>71° 34′</ENT> </ROW> <ROW> <ENT I="01">M </ENT> <ENT>40° 27.5′ </ENT> <ENT>72° 14′</ENT> </ROW> <ROW> <ENT I="01">U </ENT> <ENT>40° 12.5′ </ENT> <ENT>72° 48.5′</ENT> </ROW> <ROW> <ENT I="01">V </ENT> <ENT>39° 50′ </ENT> <ENT>73° 01′</ENT> </ROW> <ROW> <ENT I="01">X </ENT> <ENT>38° 39.5′ </ENT> <ENT>73° 40′</ENT> </ROW> <ROW> <ENT I="01">Y </ENT> <ENT>38° 12′ </ENT> <ENT>73° 55′</ENT> </ROW> <ROW> <ENT I="01">Z </ENT> <ENT>37° 12′ </ENT> <ENT>74° 44′</ENT> </ROW> <ROW> <ENT I="01">ZA </ENT> <ENT>36° 33′ </ENT> <ENT>74° 47′</ENT> </ROW> </GPOTABLE> <FP>From point “ZA” east to the EEZ boundary and thence along the seaward EEZ boundary to point “A”.</FP> <P> <E T="03">Operator,</E> with respect to any vessel, means the master, captain, or other individual in charge of that vessel.</P> <P> <E T="03">Potential biological removal level</E> 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:</P> <P>(1) The minimum population estimate of the stock;<PRTPAGE P="188"/> </P> <P>(2) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and</P> <P>(3) A recovery factor of between 0.1 and 1.0.</P> <P> <E T="03">Regional Fishery Management Council</E> means a regional fishery management council established under section 302 of the Magnuson Fishery Conservation and Management Act.</P> <P> <E T="03">Serious injury</E> means any injury that will likely result in mortality.</P> <P> <E T="03">Shark gillnetting</E> means to fish a gillnet in waters south of the South Carolina/Georgia border with webbing of 5 inches or greater stretched mesh.</P> <P> <E T="03">Sink gillnet</E> or <E T="03">stab net</E> 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.</P> <P> <E T="03">Sinking line</E> 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.</P> <P> <E T="03">Small mesh gillnet</E> means a gillnet constructed with a mesh size of greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).</P> <P> <E T="03">Southeast waters</E> means waters south of a line extending due eastward from 33°51′N lat. (the North Carolina/South Carolina border).</P> <P> <E T="03">Southern Mid-Atlantic waters</E> 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°47′ N. latitude (the latitude that corresponds with Cape Henlopen, DE), east to its intersection with 72°30′ W. longitude, south to the 33°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.</P> <P> <E T="03">Spotter plane</E> 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.</P> <P> <E T="03">Stellwagen Bank/Jeffreys Ledge area</E> means all Federal waters in the Gulf of Maine, except those designated as right whale critical habitat, that lie south of the 43°15′N lat. line and west of the 70° W long. line.</P> <P> <E T="03">Stowed</E> means nets that are unavailable for use and that are stored in accordance with the regulations found in § 648.81(e) of this title.</P> <P> <E T="03">Strategic stock</E> means a marine mammal stock:</P> <P>(1) For which the level of direct human-caused mortality exceeds the potential biological removal level;</P> <P>(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;</P> <P>(3) Which is listed as a threatened species or endangered species under the Endangered Species Act of 1973; or</P> <P>(4) Which is designated as depleted under the Marine Mammal Protection Act of 1972, as amended.</P> <P> <E T="03">Strikenet</E> or <E T="03">to fish with strikenet gear</E> 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.</P> <P> <E T="03">Take Reduction Plan</E> 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.</P> <P> <E T="03">Take Reduction Team</E> 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.</P> <P> <E T="03">Tended gear or tend</E> 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.</P> <P> <E T="03">Tie-down</E> 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.</P> <P> <E T="03">To strikenet for sharks</E> means to fish with strikenet gear in waters south of the South Carolina/Georgia border with webbing of 5 inches or greater stretched mesh.<PRTPAGE P="189"/> </P> <P> <E T="03">U.S. waters</E> 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.</P> <P> <E T="03">Vessel owner or operator</E> means the owner or operator of:</P> <P>(1) A fishing vessel that engages in a commercial fishing operation; or</P> <P>(2) Fixed or other commercial fishing gear that is used in a nonvessel fishery.</P> <P> <E T="03">Vessel of the United States</E> has the same meaning as in section 3 of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).</P> <P> <E T="03">Waters off New Jersey</E> 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°40′ N. latitude, on the south by a line extending eastward from the northern shoreline of Delaware at 38°47′ N. latitude (the latitude that corresponds with Cape Henlopen, DE), and on the east by the 72°30′ W. longitude. This area includes the Mudhole.</P> <P> <E T="03">Weak link</E> means a breakable component of gear that will part when subject to a certain tension load.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.3</SECTNO> <SUBJECT>Prohibitions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) It is prohibited to tamper with or destroy observer equipment in any way.</P> <P>(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.</P> <P>(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 § 229.6.</P> <P>(g) It is prohibited to violate any regulation in this part or any provision of section 118 of the Act.</P> <P>(h) It is prohibited to fish with lobster trap gear in the areas and for the times specified in § 229.32(c)(3) through (c)(9) unless the lobster trap gear complies with the closures, marking requirements, modifications, and restrictions specified in § 229.32(c)(1) through (c)(10).</P> <P>(i) It is prohibited to fish with anchored gillnet gear in the areas and for the times specified in § 229.32(d)(2) through (d)(7) unless that gillnet gear complies with the closures, marking requirements, modifications, and restrictions specified in § 229.32(d)(1) through (d)(8).</P> <P>(j) It is prohibited to fish with drift gillnets in the areas and for the times specified in § 229.32(e)(1) unless the drift gillnet gear complies with the restrictions specified in § 229.32(e)(1).</P> <P>(k) It is prohibited to fish with shark gillnet gear in the areas and for the times specified in § 229.32(f)(1) and (3) unless the gear meets the marking requirements specified in § 229.32(f)(2) and complies with the restrictions and requirements specified in 229.32(f)(1) and (f)(3).</P> <P>(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 § 229.33 <PRTPAGE P="190"/>(a)(1) through (a)(6), except with the use of pingers as provided in § 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 § 648.81(f)(2)(ii) of this title).</P> <P>(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 § 229.34 (b)(1) (ii) or (iii) or (b)(2)(ii).</P> <P>(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 § 229.34 (c)(1) through (c)(4) unless the gear complies with the specified gear restrictions set forth in those provisions.</P> <P>(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 § 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> <P>(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 § 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.</P> <P>(q) <E T="03">Net tag requirement.</E> 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.4</SECTNO> <SUBJECT>Requirements for Category I and II fisheries.</SUBJECT> <P>(a) <E T="03">General.</E> (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.</P> <P>(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 <E T="04">Federal Register</E> 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.</P> <P>(b) <E T="03">Registration.</E> (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 <PRTPAGE P="191"/>be registered for a Certificate of Authorization.</P> <P>(2) Unless a notice is published in the <E T="04">Federal Register</E> 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:</P> <P>(i) Name, address, and phone number of owner.</P> <P>(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.</P> <P>(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.</P> <P>(iv) A list of all Category I and II fisheries in which the fisher may actively engage during the calendar year.</P> <P>(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.”</P> <P>(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.</P> <P>(3) If a notice is published in the <E T="04">Federal Register</E> 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.</P> <P>(c) <E T="03">Address.</E> 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:</P> <P>(1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, Juneau, AK 99802; telephone: 907-586-7235;</P> <P>(2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; telephone: 206-526-4353;</P> <P>(3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; telephone: 562-980-4001;</P> <P>(4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; telephone: 978-281-9254; or</P> <P>(5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; telephone: 727-570-5312.</P> <P>(d) <E T="03">Issuance.</E> (1) For integrated fisheries, an Authorization Certificate or other proof of registration will be issued annually to each fisher registered for that fishery.</P> <P>(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:</P> <P>(i) Submits a completed registration form and the required fee.</P> <P>(ii) Has complied with the requirements of this section and §§ 229.6 and 229.7</P> <P>(iii) Has submitted updated registration or renewal registration which includes a statement (yes/no) whether <PRTPAGE P="192"/>any marine mammals were killed or injured during the current or previous calender year.</P> <P>(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.</P> <P>(e) <E T="03">Authorization Certificate and decal requirements</E>. (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.</P> <P>(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.</P> <P>(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.</P> <P>(4) An Authorization Certificate holder must notify the issuing office in writing:</P> <P>(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,</P> <P>(ii) If there are any changes in the mailing address or vessel ownership within 30 days of such change.</P> <P>(f) <E T="03">Reporting</E>. Any Authorization Certificate holders must comply with the reporting requirements specified under § 229.6.</P> <P>(g) <E T="03">Disposition of marine mammals</E>. 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.</P> <P>(h) <E T="03">Monitoring</E>. Authorization Certificate holders must comply with the observer or other monitoring requirements specified under § 229.7.</P> <P>(i) <E T="03">Deterrence</E>. 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.</P> <P>(j) <E T="03">Self defense</E>. 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 § 229.6.</P> <P>(k) <E T="03">Take reduction plans and emergency regulations</E>. Authorization Certificate holders must comply with any applicable take reduction plans and emergency regulations.</P> <P>(l) <E T="03">Expiration</E>. Authorization Certificates expire at the end of each calendar year.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 46, Jan. 2, 1997; 64 FR 9086, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.5</SECTNO> <SUBJECT>Requirements for Category III fisheries.</SUBJECT> <P>(a) <E T="03">General</E>. 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.</P> <P>(b) <E T="03">Reporting</E>. Vessel owners engaged in a Category III fishery must comply with the reporting requirements specified in § 229.6.</P> <P>(c) <E T="03">Disposition of marine mammals</E>. 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 <PRTPAGE P="193"/>an official observer, or authorized otherwise by a scientific research permit in the possession of the operator.</P> <P>(d) <E T="03">Monitoring.</E> Vessel owners engaged in a Category III fishery must comply with the observer requirements specified under § 229.7(d).</P> <P>(e) <E T="03">Deterrence</E>. 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.</P> <P>(f) <E T="03">Self-defense</E>. 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 § 229.6.</P> <P>(g) <E T="03">Emergency regulations</E>. Vessel owners engaged in a Category III fishery must comply with any applicable emergency regulations.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.6</SECTNO> <SUBJECT>Reporting requirements.</SUBJECT> <P>(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:</P> <P>(1) The vessel name, and Federal, state, or tribal registration numbers of the registered vessel;</P> <P>(2) The name and address of the vessel owner or operator;</P> <P>(3) The name and description of the fishery, including gear type and target species; and</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.7</SECTNO> <SUBJECT>Monitoring of incidental mortalities and serious injuries.</SUBJECT> <P>(a) <E T="03">Purpose</E>. 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:</P> <P>(1) Obtain statistically reliable estimates of incidental mortality and serious injury;</P> <P>(2) Determine the reliability of reports of incidental mortality and injury under § 229.6; and</P> <P>(3) Identify changes in fishing methods or technology that may increase or decrease incidental mortality and serious injury.</P> <P>(b) <E T="03">Observer program.</E> Pursuant to paragraph (a) of this section, the Assistant Administrator may observe Category I and II vessels as necessary. Observers may, among other tasks:</P> <P>(1) Record incidental mortality and injury, and bycatch of other nontarget species;</P> <P>(2) Record numbers of marine mammals sighted; and</P> <P>(3) Perform other scientific investigations, which may include, but are not limited to, sampling and photographing incidental mortalities and serious injuries.</P> <P>(c) <E T="03">Observer requirements for participants in Category I and II fisheries.</E> (1) If requested by NMFS or by a designated contractor providing observer services to NMFS, a vessel owner/operator must <PRTPAGE P="194"/>take aboard an observer to accompany the vessel on fishing trips.</P> <P>(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.</P> <P>(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.</P> <P>(4) The vessel owner/operator and crew must cooperate with the observer in the performance of the observer's duties including:</P> <P>(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;</P> <P>(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;</P> <P>(iii) Allowing the observer access to all areas of the vessel necessary to conduct observer duties;</P> <P>(iv) Allowing the observer access to communications equipment and navigation equipment, when available on the vessel, as necessary to perform observer duties;</P> <P>(v) Providing true vessel locations by latitude and longitude, accurate to the minute, or by loran coordinates, upon request by the observer;</P> <P>(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;</P> <P>(vii) Notifying the observer in a timely fashion of when all commercial fishing operations are to begin and end;</P> <P>(viii) Not impairing or in any way interfering with the research or observations being carried out; and</P> <P>(ix) Complying with other guidelines or regulations that NMFS may develop to ensure the effective deployment and use of observers.</P> <P>(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.</P> <P>(d) <E T="03">Observer requirements for participants in Category III fisheries.</E> (1) The Assistant Administrator may place observers on Category III vessels if the Assistant Administrator:</P> <P>(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 <E T="03">et</E> <E T="03">seq</E>.); and</P> <P>(ii) Has complied with § 229.9(a)(3)(i) and (ii); or</P> <P>(iii) Has the consent of the vessel owner.</P> <P>(2) If an observer is placed on a Category III vessel, the vessel owner and/or operator must comply with the requirements of § 229.7(c).<PRTPAGE P="195"/> </P> <P>(e) <E T="03">Alternative observer program</E>. 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.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.8</SECTNO> <SUBJECT>Publication of List of Fisheries.</SUBJECT> <P>(a) The Assistant Administrator will publish in the <E T="04">Federal Register</E> 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.</P> <P>(b) The proposed and final revised List of Fisheries will:</P> <P>(1) Categorize each commercial fishery based on the definitions of Category I, II, and III fisheries set forth in § 229.2; and</P> <P>(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.</P> <P>(c) The Assistant Administrator may publish a revised List of Fisheries at other times, after notification and opportunity for public comment.</P> <P>(d) The revised final List of Fisheries will become effective no sooner than 30 days after publication in the <E T="04">Federal Register</E>.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.9</SECTNO> <SUBJECT>Emergency regulations.</SUBJECT> <P>(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:</P> <P>(1) In the case of a stock or species for which a take reduction plan is in effect—</P> <P>(i) Prescribe emergency regulations that, consistent with such plan to the maximum extent practicable, reduce incidental mortality and serious injury in that fishery; and</P> <P>(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;</P> <P>(2) In the case of a stock or species for which a take reduction plan is being developed—</P> <P>(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery; and</P> <P>(ii) Approve and implement, on an expedited basis, such plan, which will provide methods to address such adverse impact if still necessary;</P> <P>(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,</P> <P>(i) Prescribe emergency regulations to reduce such incidental mortality and serious injury in that fishery, to the extent necessary to mitigate such adverse impact;</P> <P>(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</P> <P>(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 <E T="03">et</E> <E T="03">seq</E>.), 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.</P> <P>(b) Prior to taking any action under § 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, <PRTPAGE P="196"/>and the appropriate take reduction team, if established.</P> <P>(c) Any emergency regulations issued under this section:</P> <P>(1) Shall be published in the <E T="04">Federal Register</E> 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</P> <P>(2) May be terminated by notification in the <E T="04">Federal Register</E> at an earlier date if the Assistant Administrator determines that the reasons for the emergency regulations no longer exist.</P> <P>(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.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9087, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.10</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(g) <E T="03">Suspension, revocation or denial of Authorization Certificates</E>. (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 § 229.6; or fails to take aboard an observer if requested by NMFS or its designated contractors.</P> <P>(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;</P> <P>(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 <PRTPAGE P="197"/>apply or corrective actions have been taken.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.11</SECTNO> <SUBJECT>Confidential fisheries data.</SUBJECT> <P>(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:</P> <P>(1) To Federal employees whose duties require access to such information;</P> <P>(2) To state employees under an agreement with NMFS that prevents public disclosure of the identity or business of any person;</P> <P>(3) When required by court order; or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.12</SECTNO> <SUBJECT>Consultation with the Secretary of the Interior.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Takes of Endangered and Threatened Marine Mammals</HD> <SECTION> <SECTNO>§ 229.20</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <P>(a) <E T="03">Determinations</E>. 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:</P> <P>(1) The incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;</P> <P>(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</P> <P>(3) Where required under regulations in subpart A of this part:</P> <P>(i) A monitoring program has been established under § 229.7;</P> <P>(ii) Vessels engaged in such fisheries are registered in accordance with § 229.4; and</P> <P>(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.</P> <P>(b) <E T="03">Procedures for making determinations</E>. In making any of the determinations listed in paragraph (a) of this section, the Assistant Administrator will publish an announcement in the <E T="04">Federal Register</E> 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 <PRTPAGE P="198"/>following publication, NMFS will publish in the <E T="04">Federal Register</E> 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.</P> <P>(c) <E T="03">Issuance of authorization</E>. The Assistant Administrator will issue appropriate permits for vessels in fisheries that are required to register under § 229.4 and for which determinations under the procedures of paragraph (b) of this section can be made.</P> <P>(d) <E T="03">Category III fisheries</E>. 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 § 229.6.</P> <P>(e) <E T="03">Emergency authority</E>. 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 § 229.9 to protect such species or stock, and may modify any permit granted under this paragraph as necessary.</P> <P>(f) <E T="03">Suspension, revocation, modification and amendment</E>. 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.</P> <P>(g) <E T="03">Southern sea otters</E>. This subpart does not apply to the taking of Southern (California) sea otters.</P> <CITA>[60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Take Reduction Plan Regulations and Emergency Regulations</HD> <SECTION> <SECTNO>§ 229.30</SECTNO> <SUBJECT>Basis.</SUBJECT> <P>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.</P> <CITA>[64 FR 9088, Feb. 24, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.31</SECTNO> <SUBJECT>Pacific Offshore Cetacean Take Reduction Plan.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> 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.</P> <P>(b) <E T="03">Extenders.</E> An <E T="03">extender</E> 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.</P> <P>(c) <E T="03">Pingers.</E> (1) For the purposes of this paragraph (c), a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (<E T="61">±</E> 2 kHz) sound at 132 dB (<E T="61">±</E> 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).<PRTPAGE P="199"/> </P> <P>(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.</P> <P>(3) <E T="03">Floatline.</E> Pingers shall be attached within 30 ft (9.14 m) of the floatline and spaced no more than 300 ft (91.44 m) apart.</P> <P>(4) <E T="03">Leadline.</E> Pingers shall be attached within 36 ft (10.97 m) of the leadline and spaced no more than 300 ft (91.44 m) apart.</P> <P>(5) <E T="03">Staggered Configuration.</E> 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).</P> <P>(6) Any materials used to weight pingers must not change its specifications set forth under paragraph (c)(1) of this section.</P> <P>(7) The pingers must be operational and functioning at all times during deployment.</P> <P>(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.</P> <P>(d) <E T="03">Skipper education workshops.</E> 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.</P> <CITA>[62 FR 51813, Oct. 3, 1997, as amended at 63 FR 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.32</SECTNO> <SUBJECT>Atlantic large whale take reduction plan regulations.</SUBJECT> <P>(a)(1) <E T="03">Regulated waters.</E> 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.</P> <P>(2) <E T="03">Exempted waters.</E> 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:</P> <HD SOURCE="HD3">Rhode Island</HD> <FP SOURCE="FP-2">41° 27.99′ N 71° 11.75′ W TO 41° 28.49′ N 71° 14.63′ W</FP> <FP SOURCE="FP1-2">(Sakonnet River)</FP> <FP SOURCE="FP-2">41° 26.96′ N 71° 21.34′ W TO 41° 26.96′ 71° 25.92″ W</FP> <FP SOURCE="FP1-2">(Narragansett Bay)</FP> <FP SOURCE="FP-2">41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° 30.85′ W</FP> <FP SOURCE="FP1-2">(Pt. Judith Pond Inlet)</FP> <FP SOURCE="FP-2">41° 21.31′ 71° 38.30′ W TO 41° 21.30′ N 71° 38.33′ W</FP> <FP SOURCE="FP1-2">(Ninigret Pond Inlet)</FP> <FP SOURCE="FP-2">41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° 43.10′ W</FP> <FP SOURCE="FP1-2">(Quonochontaug Pond Inlet)</FP> <FP SOURCE="FP-2">41° 19.66′ N 71° 45.75′ W TO 41° 19.66′ N 71° 45.78′ W</FP> <FP SOURCE="FP1-2">(Weekapaug Pond Inlet)</FP> <HD SOURCE="HD3">New York</HD> <P>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) </P> <FP SOURCE="FP-2">41° 11.40′ N 72° 09.70′ W TO 41° 04.50′ N 71° 51.60;min; W</FP> <FP SOURCE="FP1-2">(Gardiners Bay)</FP> <FP SOURCE="FP-2">40° 50.30′ 72° 28.50′ W TO 40° 50.36′ N 72° 28.67′ W</FP> <FP SOURCE="FP1-2">(Shinnecock Bay Inlet)</FP> <FP SOURCE="FP-2">40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ W</FP> <FP SOURCE="FP1-2">(Moriches Bay Inlet)</FP> <FP SOURCE="FP-2">40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ W</FP> <FP SOURCE="FP1-2">(Fire Island Inlet)</FP> <FP SOURCE="FP-2">40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ W</FP> <FP SOURCE="FP1-2">(Jones Inlet)</FP> <HD SOURCE="HD3">New Jersey</HD> <FP SOURCE="FP-2">39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W</FP> <FP SOURCE="FP1-2">(Barnegat Inlet)</FP> <FP SOURCE="FP-2">39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ W</FP> <FP SOURCE="FP1-2">(Beach Haven to Brigantine Inlet)</FP> <FP SOURCE="FP-2">38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ W</FP> <FP SOURCE="FP1-2">(Cape May Inlet)</FP> <FP SOURCE="FP-2">39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ W</FP> <FP SOURCE="FP1-2">(Delaware Bay)<PRTPAGE P="200"/> </FP> <HD SOURCE="HD3">Maryland/Virginia</HD> <FP SOURCE="FP-2">38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ W</FP> <FP SOURCE="FP1-2">(Ocean City Inlet)</FP> <FP SOURCE="FP-2">37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ W</FP> <FP SOURCE="FP1-2">(Chincoteague to Ship Shoal Inlet)</FP> <FP SOURCE="FP-2">37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W</FP> <FP SOURCE="FP1-2">(Little Inlet)</FP> <FP SOURCE="FP-2">37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.50′ W</FP> <FP SOURCE="FP1-2">(Smith Island Inlet)</FP> <HD SOURCE="HD3">North Carolina to Florida</HD> <P>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.</P> <P>(b) <E T="03">Gear marking provisions</E>—(1)(i) <E T="03">Specified gear.</E> Specified fishing gear consists of lobster trap gear and gillnet gear set in specified areas.</P> <P>(ii) <E T="03">Specified areas.</E> 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.</P> <P>(iii) <E T="03">Requirement.</E> 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.</P> <P>(2) <E T="03">Color code.</E> Specified gear must be marked with the appropriate colors to designate gear-types and areas as follows: </P> <FP SOURCE="FP-1">Lobster trap gear—red</FP> <FP SOURCE="FP-1">Gillnet gear—green</FP> <FP SOURCE="FP-1">Southeast U.S. Observer Area—blue</FP> <FP SOURCE="FP-1">Great South Channel Restricted Areas—yellow</FP> <FP SOURCE="FP-1">Cape Cod Bay Restricted Area—orange</FP> <FP SOURCE="FP-1">Stellwagen Bank/Jeffreys Ledge Area—black</FP> <P>(3) <E T="03">Markings.</E> 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.</P> <P>(4) <E T="03">Changes to requirements.</E> 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.</P> <P>(c) <E T="03">Restrictions applicable to lobster trap gear in regulated waters</E>—(1) <E T="03">No line floating at the surface.</E> 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.</P> <P>(2) <E T="03">No wet storage of gear.</E> Lobster traps must be hauled out of the water at least once in 30 days.<PRTPAGE P="201"/> </P> <P>(3) <E T="03">Cape Cod Bay Restricted Area</E>—(i) <E T="03">Area.</E> 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.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Winter restricted period.</E> 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:</P> <P>(A) <E T="03">Weak links</E>—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).</P> <P>(B) <E T="03">Multiple trap trawls</E>—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.</P> <P>(C) <E T="03">Sinking buoy lines</E>—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.</P> <P>(D) <E T="03">Sinking ground line—</E>All ground lines are made entirely of sinking line.</P> <P>(iv) <E T="03">Other restricted period.</E> 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.</P> <P>(4) <E T="03">Great South Channel Restricted Lobster Area—</E>(i) <E T="03">Area.</E> 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.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Spring closed period.</E> 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.</P> <P>(iv) <E T="03">Other restricted period.</E> 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.</P> <P>(5) <E T="03">Stellwagen Bank/Jeffreys Ledge Restricted Area—</E>(i) <E T="03">Area.</E> 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°15′ N lat. line and west of the 70° W long. line, except for right whale critical habitat, unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.<PRTPAGE P="202"/> </P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Gear requirements.</E> 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.</P> <P>(6) <E T="03">Northern offshore lobster waters—</E>(i) <E T="03">Area.</E> The northern offshore lobster waters area includes all offshore lobster waters (as defined in § 229.2) north of 41°30 N lat., except for areas included in the Great South Channel Critical Habitat.</P> <P>(ii) <E T="03">Gear requirements.</E> 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.</P> <P>(7) <E T="03">Southern offshore lobster waters—(i) Area.</E> The southern offshore lobster waters area includes all offshore lobster waters (as defined in § 229.2) south of 41°30 N lat., except for areas included in the Great South Channel Critical Habitat.</P> <P>(ii) <E T="03">Gear requirements.</E> 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.</P> <P>(8) <E T="03">Northern inshore lobster waters—</E>(i) <E T="03">Area.</E> Northern inshore lobster waters consist of all inshore lobster waters (as defined in § 229.2) north of 41°30′ N lat., except the Cape Cod Bay restricted area, Great South Channel restricted area and the Stellwagen Bank/Jeffreys Ledge restricted area.</P> <P>(ii) <E T="03">Gear Requirements.</E> 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.</P> <P>(9) <E T="03">Southern inshore lobster waters—</E>(i) <E T="03">Area.</E> The southern inshore lobster waters consist of all inshore lobster waters (as defined in § 229.2) south of 41°30′ N lat., except the Great South Channel restricted area.</P> <P>(ii) <E T="03">Gear requirements.</E> 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.</P> <P>(10) <E T="03">Lobster Take Reduction Technology List.</E> The following gear characteristics comprise the Lobster Take Reduction Technology List:</P> <P>(i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.</P> <P>(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.</P> <P>(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).</P> <P>(iv) For gear set in offshore lobster areas only, all buoys are attached to the buoy line by a section of rope no <PRTPAGE P="203"/>more than three fourths the diameter of the buoy line.</P> <P>(v) All buoy lines are composed entirely of sinking line.</P> <P>(vi) All ground lines are made of sinking line.</P> <P>(d) <E T="03">Restrictions applicable to anchored gillnet gear—</E>(1) <E T="03">No line floating at the surface.</E> 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.</P> <P>(2) <E T="03">Cape Cod Bay Restricted Area—</E>(i) <E T="03">Area.</E> 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.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Winter restricted period.</E> 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 <E T="04">Federal Register</E> if NMFS determines that right whales have left the critical habitat and are unlikely to return for the remainder of the season.</P> <P>(iv) <E T="03">Other restricted period.</E> 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.</P> <P>(3) <E T="03">Great South Channel Restricted Gillnet Area—</E>(i) <E T="03">Area.</E> The Great South Channel Restricted Gillnet Area consists of the area bounded by lines connecting the following four points: 41°02.2′ N/69°02′ W, 41°43.5′ N/69°36.3′ W, 42°10′ N/68°31′ W, and 41°38′ N/68°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.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Spring closed period.</E> 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.</P> <P>(iv) <E T="03">Other restricted period.</E> 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 <PRTPAGE P="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.</P> <P>(4) <E T="03">Great South Channel Sliver Restricted Area</E>—(i) <E T="03">Area.</E> The Great South Channel Sliver Restricted Area consists of the area bounded by lines connecting the following points: 41°02.2′ N/69°02′ W, 41°43.5′ N/69°36.3′ W, 41°40′ N/69°45′ W, and 41°00′ N/69°05′ W, unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Gear requirements.</E> 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.</P> <P>(5) <E T="03">Stellwagen Bank/Jeffreys Ledge Restricted Area</E>—(i) <E T="03">Area.</E> 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°15′ N lat. line and west of the 70° W long. line, except right whale critical habitat, unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Gear marking requirements.</E> 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.</P> <P>(iii) <E T="03">Gear requirements.</E> 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.</P> <P>(6) <E T="03">Other Northeast Waters Area</E>—(i) <E T="03">Area.</E> The “Other Northeast Waters Area” consists of all northeast waters (as defined in § 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.</P> <P>(ii) <E T="03">Gear requirements.</E> 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.</P> <P>(7) <E T="03">Mid-Atlantic Coastal Waters Area</E>—(i) <E T="03">Area.</E> The mid-Atlantic Coastal Waters Area is defined in § 229.2.</P> <P>(ii) <E T="03">Gear requirements.</E> 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.</P> <P>(8) <E T="03">Gillnet Take Reduction Technology List.</E> The following gear characteristics comprise the Gillnet Take Reduction Technology List:</P> <P>(i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.</P> <P>(ii) All buoys are attached to the buoy line with a weak link having a maximum breaking strength of up to <PRTPAGE P="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.</P> <P>(iii) Weak links with a breaking strength of up to 1100 lb (498.8 kg) are installed in the float rope between net panels.</P> <P>(iv) All buoy lines are composed entirely of sinking line.</P> <P>(e) <E T="03">Restrictions applicable to mid-Atlantic driftnet gear</E>—(1) <E T="03">Restrictions.</E> 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.</P> <P>(f) <E T="03">Restrictions applicable to shark gillnet gear</E>—(1) Management areas—(i) <E T="03">Southeast U.S. restricted area.</E> The southeast U.S. restricted area consists of the area from 32°00′ N lat. (near Savannah, GA) south to 27°51′ N lat. (near Sebastian Inlet, FL), extending from the shore eastward to 80°00′ W long., unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(ii) <E T="03">Southeast U.S. observer area.</E> The southeast U.S. observer area consists of the southeast U.S. restricted area and an additional area along the coast south to 26°46.5′ N lat. (near West Palm Beach, FL) and extending from the shore eastward out to 80°00′ W long., unless the Assistant Administrator changes that area in accordance with paragraph (g) of this section.</P> <P>(2) <E T="03">Gear marking requirements.</E> 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).</P> <P>(3) Restrictions—(i) <E T="03">Observer requirement.</E> 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.</P> <P>(ii) <E T="03">Closure.</E> 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.</P> <P>(iii) <E T="03">Special provision for strikenets.</E> Fishing for sharks with strikenet gear is exempt from the restriction under paragraph (f)(3)(ii) of this section if:</P> <P>(A) No nets are set at night or when visibility is less than 500 yards (460 m).</P> <P>(B) Each set is made under the observation of a spotter plane.</P> <P>(C) No net is set within 3 nautical miles of a right, humpback, fin or minke whale.</P> <P>(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.</P> <P>(g) <E T="03">Other provisions.</E> 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:</P> <P>(1) <E T="03">Entanglements in critical habitat.</E> If a serious injury or mortality of a right <PRTPAGE P="206"/>whale occurs in the Cape Cod Bay critical habitat from January 1 through May 15, in the GreatSouth 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).</P> <P>(2) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through a publication in the <E T="04">Federal Register</E> if:</P> <P>(i) NMFS verifies that certain gear characteristics are both operationally effective and reduce serious injuries and mortalities of endangered whales;</P> <P>(ii) New gear technology is developed and determined to be appropriate;</P> <P>(iii) Revised breaking strengths are determined to be appropriate;</P> <P>(iv) New marking systems are developed and determined to be appropriate;</P> <P>(v) NMFS determines that right whales are remaining longer than expected in a closed area or have left earlier than expected;</P> <P>(vi) NMFS determines that the boundaries of a closed area are not appropriate;</P> <P>(vii) Gear testing operations are considered appropriate; or</P> <P>(viii) Similar situations occur.</P> <CITA>[64 FR 7552, Feb. 16, 1999]</CITA> <EFFDNOT> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 64 FR 17292, Apr. 9, 1999, in § 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.</P> </EFFDNOT> </SECTION> <SECTION> <SECTNO>§ 229.33</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan Implementing Regulations—Gulf of Maine.</SUBJECT> <P>(a) <E T="03">Restrictions</E>—(1) <E T="03">Northeast Closure Area.</E> 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 § 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:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Northeast Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">NE1 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>68°55.0′</ENT> </ROW> <ROW> <ENT I="01">NE2 </ENT> <ENT>43°29.6′ </ENT> <ENT>68°55.0′</ENT> </ROW> <ROW> <ENT I="01">NE3 </ENT> <ENT>44°04.4′ </ENT> <ENT>67°48.7′</ENT> </ROW> <ROW> <ENT I="01">NE4 </ENT> <ENT>44°06.9′ </ENT> <ENT>67°52.8′</ENT> </ROW> <ROW> <ENT I="01">NE5 </ENT> <ENT>44°31.2′ </ENT> <ENT>67°02.7′</ENT> </ROW> <ROW> <ENT I="01">NE6 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>67°02.7′</ENT> </ROW> <TNOTE> <SU>1</SU> Maine shoreline.</TNOTE> </GPOTABLE> <P>(2) <E T="03">Mid-coast Closure Area.</E> 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 § 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:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Mid-Coast Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">MC1 </ENT> <ENT>42°30′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="01">MC2 </ENT> <ENT>42°30′ </ENT> <ENT>70°15′</ENT> </ROW> <ROW> <ENT I="01">MC3 </ENT> <ENT>42°40′ </ENT> <ENT>70°15′</ENT> </ROW> <ROW> <ENT I="01">MC4 </ENT> <ENT>42°40′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MC5 </ENT> <ENT>43°00′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MC6 </ENT> <ENT>43°00′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">MC7 </ENT> <ENT>43°30′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">MC8 </ENT> <ENT>43°30′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">MC9 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>69°00′</ENT> </ROW> <TNOTE> <SU>1</SU> Massachusetts shoreline.</TNOTE> <TNOTE> <SU>2</SU> Maine shoreline.</TNOTE> </GPOTABLE> <P>(3) <E T="03">Massachusetts Bay Closure Area.</E> 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 § 648.81(f)(2)(ii) of this title). The Massachusetts Bay <PRTPAGE P="207"/>Closure Area is the area bounded by straight lines connecting the following points in the order stated:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Massachusetts Bay Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">MB1 </ENT> <ENT>42°30′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="01">MB2 </ENT> <ENT>42°30′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">MB3 </ENT> <ENT>42°12′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">MB4 </ENT> <ENT>42°12′ </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MB5 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>70°00′</ENT> </ROW> <ROW> <ENT I="01">MB6 </ENT> <ENT>42°00′ </ENT> <ENT>(<SU>2</SU>)</ENT> </ROW> <ROW> <ENT I="01">MC7 </ENT> <ENT>42°00′ </ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <TNOTE> <SU>1</SU> Massachusetts shoreline.</TNOTE> <TNOTE> <SU>2</SU> Cape Cod shoreline.</TNOTE> </GPOTABLE> <P>(4) <E T="03">Cape Cod South Closure Area.</E> 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 § 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:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Cape Cod South Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">CCS1 </ENT> <ENT>(<SU>1</SU>) </ENT> <ENT>71°45′</ENT> </ROW> <ROW> <ENT I="01">CCS2 </ENT> <ENT>40°40′ </ENT> <ENT>71°45′</ENT> </ROW> <ROW> <ENT I="01">CCS3 </ENT> <ENT>40°40′ </ENT> <ENT>70°30′</ENT> </ROW> <ROW> <ENT I="01">CCS4 </ENT> <ENT>(<SU>2</SU>) </ENT> <ENT>70°30′</ENT> </ROW> <TNOTE> <SU>1</SU> Rhode Island shoreline.</TNOTE> <TNOTE> <SU>2</SU> Massachusetts shoreline.</TNOTE> </GPOTABLE> <P>(5) <E T="03">Offshore Closure Area.</E> 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 § 229.33(d)(4). This prohibition does not apply to a single pelagic gillnet (as described in § 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:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Offshore Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">OFS1 </ENT> <ENT>42°50′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">OFS2 </ENT> <ENT>43°10′ </ENT> <ENT>69°10′</ENT> </ROW> <ROW> <ENT I="01">OFS3 </ENT> <ENT>43°10′ </ENT> <ENT>67°40′</ENT> </ROW> <ROW> <ENT I="01">OFS4 </ENT> <ENT>42°10′ </ENT> <ENT>67°40′</ENT> </ROW> <ROW> <ENT I="01">OFS5 </ENT> <ENT>42°10′ </ENT> <ENT>69°30′</ENT> </ROW> <ROW> <ENT I="01">OFS6 </ENT> <ENT>42°50′ </ENT> <ENT>69°30′</ENT> </ROW> </GPOTABLE> <P>(6) <E T="03">Cashes Ledge Closure Area.</E> 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 § 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:</P> <GPOTABLE CDEF="xl25,xl25,xs40" COLS="3" OPTS="L2,i1"> <TTITLE>Cashes Ledge Closure Area</TTITLE> <BOXHD> <CHED H="1">Point</CHED> <CHED H="1">N. Lat.</CHED> <CHED H="1">W. Long.</CHED> </BOXHD> <ROW> <ENT I="01">CL1 </ENT> <ENT>42°30′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">CL2 </ENT> <ENT>42°30′ </ENT> <ENT>68°30′</ENT> </ROW> <ROW> <ENT I="01">CL3 </ENT> <ENT>43°00′ </ENT> <ENT>68°30′</ENT> </ROW> <ROW> <ENT I="01">CL4 </ENT> <ENT>43°00′ </ENT> <ENT>69°00′</ENT> </ROW> <ROW> <ENT I="01">CL5 </ENT> <ENT>42°30′ </ENT> <ENT>69°00′</ENT> </ROW> </GPOTABLE> <P>(b) Pingers—(1) <E T="03">Pinger specifications.</E> For the purposes of this subpart, a pinger is an acoustic deterrent device which, when immersed in water, broadcasts a 10 kHz (<E T="61">±</E>2 kHz) sound at 132 dB (<E T="61">±</E>4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (<E T="61">±</E>15 milliseconds), and repeating every 4 seconds (<E T="61">±</E>.2 seconds).</P> <P>(2) <E T="03">Pinger attachment.</E> 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.</P> <P>(c) <E T="03">Pinger training and certification.</E> 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.<PRTPAGE P="208"/> </P> <P>(d) <E T="03">Use of pingers in closed areas</E>—(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through notification published in the <E T="04">Federal Register</E> if:</P> <P>(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.</P> <P>(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.</P> <CITA>[63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 229.34</SECTNO> <SUBJECT>Harbor Porpoise Take Reduction Plan—Mid-Atlantic.</SUBJECT> <P>(a)(1) <E T="03">Regulated waters.</E> The regulations in this section apply to all waters in the Mid-Atlantic bounded on the east by 72°30′ W. longitude and on the south by the North Carolina/South Carolina border (33°51′ N. latitude), except for the areas exempted in paragraph (a)(2) of this section.</P> <P>(2) <E T="03">Exempted waters.</E> 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:</P> <EXTRACT> <HD SOURCE="HD3">New York</HD> <FP SOURCE="FP-2">40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ W (Moriches Bay Inlet)</FP> <FP SOURCE="FP-2">40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ W (Fire Island Inlet)</FP> <FP SOURCE="FP-2">40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ W (Jones Inlet)</FP> <HD SOURCE="HD3">New Jersey</HD> <FP SOURCE="FP-2">39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W (Barnegat Inlet)</FP> <FP SOURCE="FP-2">39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ W (Beach Haven to Brigantine Inlet)</FP> <FP SOURCE="FP-2">38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ W (Cape May Inlet)</FP> <FP SOURCE="FP-2">39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ W (Delaware Bay)</FP> <HD SOURCE="HD3">Maryland/Virginia</HD> <FP SOURCE="FP-2">38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ W (Ocean City Inlet)</FP> <FP SOURCE="FP-2">37° 52.′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ W (Chincoteague to Ship Shoal Inlet)</FP> <FP SOURCE="FP-2">37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ W (Little Inlet)</FP> <FP SOURCE="FP-2">37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.′ W (Smith Island Inlet)</FP> <HD SOURCE="HD3">North Carolina</HD> <P>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 <PRTPAGE P="209"/>Charts 1:80,000 scale), and as described in 33 CFR part 80.</P> </EXTRACT> <P>(b) <E T="03">Closures</E>—(1) <E T="03">New Jersey waters.</E> 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.</P> <P>(2) <E T="03">Mudhole.</E> 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.</P> <P>(3) <E T="03">Southern Mid-Atlantic waters.</E> 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.</P> <P>(c) Gear requirements and limitations—(1) <E T="03">Waters off New Jersey—large mesh gear requirements and limitations.</E> 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:</P> <P>(i) <E T="03">Floatline length.</E> 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).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.04 inches (0.090 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.44 m, or 50 fathoms), in length.</P> <P>(iv) <E T="03">Number of nets.</E> 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.</P> <P>(v) <E T="03">Tie-down system.</E> 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.</P> <P>(vi) <E T="03">Tagging requirements.</E> 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.</P> <P>(2) <E T="03">Waters off New Jersey—small mesh gillnet gear requirements and limitations.</E> 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:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is less than 3,000 ft (914.4 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.031 inches (0.081 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> 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.</P> <P>(v) <E T="03">Tie-down system.</E> Tie-downs are prohibited.</P> <P>(vi) <E T="03">Tagging requirements.</E> 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.</P> <P>(3) <E T="03">Southern Mid-Atlantic waters—large mesh gear requirements and limitations.</E> 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 <PRTPAGE P="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:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is no longer than 3,900 ft (1,188.7 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.04 inches (0.090 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> 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.</P> <P>(v) <E T="03">Tie-down system.</E> 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.</P> <P>(vi) <E T="03">Tagging requirements.</E> 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.</P> <P>(4) <E T="03">Southern Mid-Atlantic waters—small mesh gillnet gear requirements and limitations.</E> 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:</P> <P>(i) <E T="03">Floatline length.</E> The floatline is no longer than 2118 ft (645.6 m).</P> <P>(ii) <E T="03">Twine size.</E> The twine is at least 0.03 inches (0.080 cm) in diameter.</P> <P>(iii) <E T="03">Size of nets.</E> Individual nets or net panels are not more than 300 ft (91.4 m or 50 fathoms) in length.</P> <P>(iv) <E T="03">Number of nets.</E> 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.</P> <P>(v) <E T="03">Tie-down system.</E> Tie-downs are prohibited.</P> <P>(vi) <E T="03">Tagging requirements.</E> 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.</P> <P>(d) <E T="03">Other special measures.</E> The Assistant Administrator may revise the requirements of this section through notification published in the <E T="04">Federal Register</E> if:</P> <P>(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.</P> <P>(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.</P> <CITA>[63 FR 66489, Dec. 2, 1998]</CITA> <EAR>Pt. 229, Fig. 1</EAR> <GPH DEEP="425" SPAN="2"> <PRTPAGE P="211"/> <GID>ER22JA99.001</GID> </GPH> <CITA TYPE="W">[64 FR 3434, Jan. 22, 1999]</CITA> </SECTION> </SUBPART> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="212"/> <HD SOURCE="HED">SUBCHAPTER D—WHALING</HD> <PART> <EAR>Pt. 230</EAR> <HD SOURCE="HED">PART 230—WHALING PROVISIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>230.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>230.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>230.3</SECTNO> <SUBJECT>General prohibitions.</SUBJECT> <SECTNO>230.4</SECTNO> <SUBJECT>Aboriginal subsistence whaling.</SUBJECT> <SECTNO>230.5</SECTNO> <SUBJECT>Licenses for aboriginal subsistence whaling.</SUBJECT> <SECTNO>230.6</SECTNO> <SUBJECT>Quotas and other restrictions.</SUBJECT> <SECTNO>230.7</SECTNO> <SUBJECT>Salvage of stinkers.</SUBJECT> <SECTNO>230.8</SECTNO> <SUBJECT>Reporting by whaling captains.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 916 <E T="03">et</E> <E T="03">seq</E>.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 29631, June 11, 1996, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 230.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>The purpose of the regulations in this part is to implement the Whaling Convention Act (16 U.S.C. 916 <E T="03">et</E> <E T="03">seq</E>.) 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 <E T="03">et</E> <E T="03">seq</E>.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 <E T="03">et</E> <E T="03">seq</E>.) 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.</P> </SECTION> <SECTION> <SECTNO>§ 230.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Aboriginal subsistence whaling</E> means whaling authorized by paragraph 13 of the Schedule annexed to and constituting a part of the Convention.</P> <P> <E T="03">Assistant Administrator</E> means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration.</P> <P> <E T="03">Authorized officer</E> means:</P> <P>(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard;</P> <P>(2) Any special agent or enforcement officer of the National Marine Fisheries Service;</P> <P>(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</P> <P>(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.</P> <P> <E T="03">Calf</E> means any whale less than 1 year old or having milk in its stomach.</P> <P> <E T="03">Commission</E> means the International Whaling Commission established by article III of the Convention.</P> <P> <E T="03">Convention</E> means the International Convention for the Regulation of Whaling signed at Washington on December 2, 1946.</P> <P> <E T="03">Cooperative agreement</E> 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.</P> <P> <E T="03">Landing</E> means bringing a whale or any parts thereof onto the ice or land in the course of whaling operations.</P> <P> <E T="03">Native American whaling organization</E> 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.</P> <P> <E T="03">Regulations of the Commission</E> 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.</P> <P> <E T="03">Stinker</E> means a dead, unclaimed whale found upon a beach, stranded in shallow water, or floating at sea.</P> <P> <E T="03">Strike</E> means hitting a whale with a harpoon, lance, or explosive device.</P> <P> <E T="03">Wasteful manner</E> 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.</P> <P> <E T="03">Whale products</E> means any unprocessed part of a whale and blubber, meat, bones, whale oil, sperm oil, spermaceti, meal, and baleen.</P> <P> <E T="03">Whaling</E> means the scouting for, hunting, striking, killing, flensing, or landing of a whale, and the processing of whales or whale products.<PRTPAGE P="213"/> </P> <P> <E T="03">Whaling captain</E> or <E T="03">captain</E> means any Native American who is authorized by a Native American whaling organization to be in charge of a vessel and whaling crew.</P> <P> <E T="03">Whaling crew</E> means those Native Americans under the control of a captain.</P> <P> <E T="03">Whaling village</E> means any U.S. village recognized by the Commission as having a cultural and/or subsistence need for whaling.</P> </SECTION> <SECTION> <SECTNO>§ 230.3</SECTNO> <SUBJECT>General prohibitions.</SUBJECT> <P>(a) No person shall engage in whaling in a manner that violates the Convention, any regulation of the Commission, or this part.</P> <P>(b) No person shall engage in whaling without first having obtained a license or scientific research permit issued by the Assistant Administrator.</P> <P>(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 § 230.4(f).</P> <P>(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.</P> <P>(e) No person shall refuse to permit any authorized officer to enforce the Convention, any regulation of the Commission, or this part.</P> </SECTION> <SECTION> <SECTNO>§ 230.4</SECTNO> <SUBJECT>Aboriginal subsistence whaling.</SUBJECT> <P>(a) No person shall engage in aboriginal subsistence whaling, except a whaling captain licensed pursuant to § 230.5 or a member of a whaling crew under the control of a licensed captain.</P> <P>(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.</P> <P>(c) No whaling captain shall engage in whaling for any calf or any whale accompanied by a calf.</P> <P>(d) No whaling captain shall engage in whaling without an adequate crew or without adequate supplies and equipment.</P> <P>(e) No person may receive money for participation in aboriginal subsistence whaling.</P> <P>(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.</P> <P>(g) No whaling captain shall continue to whale after:</P> <P>(1) The quota set for his/her village by the relevant Native American whaling organization is reached;</P> <P>(2) The license under which he/she is whaling is suspended as provided in § 230.5(b); or</P> <P>(3) The whaling season for that species has been closed pursuant to § 230.6.</P> <P>(h) No whaling captain shall claim domicile in more than one whaling village.</P> <P>(i) No person may salvage a stinker without complying with the provisions of § 230.7.</P> <P>(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.</P> <P>(k) No whaling captain shall engage in whaling in a wasteful manner.</P> </SECTION> <SECTION> <SECTNO>§ 230.5</SECTNO> <SUBJECT>Licenses for aboriginal subsistence whaling.</SUBJECT> <P>(a) A license is hereby issued to whaling captains identified by the relevant Native American whaling organization.</P> <P>(b) The Assistant Administrator may suspend the license of any whaling captain who fails to comply with the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 230.6</SECTNO> <SUBJECT>Quotas and other restrictions.</SUBJECT> <P>(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 <E T="04">Federal Register</E>, 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.<PRTPAGE P="214"/> </P> <P>(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 <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 230.7</SECTNO> <SUBJECT>Salvage of stinkers.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 230.8</SECTNO> <SUBJECT>Reporting by whaling captains.</SUBJECT> <P>(a) The relevant Native American whaling organization shall require each whaling captain licensed pursuant to § 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.</P> <P>(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:</P> <P>(1) The number, dates, and locations of each strike, attempted strike, or landing.</P> <P>(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.</P> <P>(3) The length and sex of a fetus, if present in a landed whale.</P> <P>(4) An explanation of circumstances associated with the striking or attempted striking of any whale not landed.</P> <P>(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.</P> </SECTION> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="215"/> <RESERVED>SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE[RESERVED]</RESERVED> </SUBCHAP> <SUBCHAP> <HD SOURCE="HED">SUBCHAPTER F—AID TO FISHERIES</HD> <PART> <EAR>Pt. 253</EAR> <HD SOURCE="HED">PART 253—FISHERIES ASSISTANCE PROGRAMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>253.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Fisheries Obligation Guarantee Program</HD> <SECTNO>253.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>253.11</SECTNO> <SUBJECT>Guarantee policy.</SUBJECT> <SECTNO>253.12</SECTNO> <SUBJECT>Guaranteed note, U.S. note, and security documents.</SUBJECT> <SECTNO>253.13</SECTNO> <SUBJECT>Ability and experience requirements.</SUBJECT> <SECTNO>253.14</SECTNO> <SUBJECT>Economic and financial requirements.</SUBJECT> <SECTNO>253.15</SECTNO> <SUBJECT>Miscellaneous.</SUBJECT> <SECTNO>253.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>253.17</SECTNO> <SUBJECT>Demand and payment.</SUBJECT> <SECTNO>253.18</SECTNO> <SUBJECT>Program operating guidelines.</SUBJECT> <SECTNO>253.19</SECTNO> <SUBJECT>Default and liquidation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Interjurisdictional Fisheries</HD> <SECTNO>253.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>253.21</SECTNO> <SUBJECT>Apportionment.</SUBJECT> <SECTNO>253.22</SECTNO> <SUBJECT>State projects.</SUBJECT> <SECTNO>253.23</SECTNO> <SUBJECT>Other funds.</SUBJECT> <SECTNO>253.24</SECTNO> <SUBJECT>Administrative requirements.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>46 U.S.C. 1271-1279 and 16 U.S.C. 4101 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>61 FR 19172, May 1, 1996, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 253.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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.</P> <P>(b) Subpart C implements Title III of Public Law 99-659 (16 U.S.C. 4100 <E T="03">et seq.</E>), which has two objectives:</P> <P>(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</P> <P>(2) To promote and encourage management of interjurisdictional fishery resources throughout their range.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Fisheries Obligation Guarantee Program</HD> <SECTION> <SECTNO>§ 253.10</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The terms used in this subpart have the following meanings:</P> <P> <E T="03">Act</E> means Title XI of the Merchant Marine Act, 1936, as amended.</P> <P> <E T="03">Actual cost</E> 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.</P> <P> <E T="03">Applicant</E> means the one applying for a guarantee (the prospective notemaker).</P> <P> <E T="03">Application</E> means an application for a guarantee.</P> <P> <E T="03">Application fee</E> means 0.5 percent of the dollar amount of an application.</P> <P> <E T="03">Aquacultural facility</E> 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 <PRTPAGE P="216"/>and for its unloading, receiving, holding, processing, or distribution for commercial purposes.</P> <P> <E T="03">CCF</E> means Capital Construction Fund.</P> <P> <E T="03">Citizen</E> 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.</P> <P> <E T="03">Contributory project</E> 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.</P> <P> <E T="03">Demand</E> means a noteholder's request that the guarantor pay a guaranteed note's full principal and interest balance.</P> <P> <E T="03">Division</E> means the Financial Services Division, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.</P> <P> <E T="03">Dual Use CCF</E> means a CCF agreement whose qualified vessel is project property and whose deposits are pledged to repayment of the U.S. note.</P> <P> <E T="03">Facility</E> means a fisheries facility or aquacultural facility.</P> <P> <E T="03">Financing</E> means the first permanent debt placed on project property for financing its project cost.</P> <P> <E T="03">Fish</E> means all forms of aquatic animal and plant life, except marine mammals and birds.</P> <P> <E T="03">Fishery facility</E> 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).</P> <P> <E T="03">Fishing</E> means catching wild fish for commercial purposes (including passenger fishing).</P> <P> <E T="03">Guarantee</E> 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.</P> <P> <E T="03">Guarantee fee</E> means 1 percent of a guaranteed note's average annual unpaid principal balance.</P> <P> <E T="03">Guaranteed note</E> means a promissory note from a notemaker to a noteholder whose repayment the guarantor guarantees.</P> <P> <E T="03">Guarantor</E> means the U.S., acting, under the Act, by and through the Secretary of Commerce.</P> <P> <E T="03">Industry</E> means the fisheries and/or aquacultural industry.</P> <P> <E T="03">Noteholder</E> means a guaranteed note payee.</P> <P> <E T="03">Notemaker</E> means a guaranteed note payor.</P> <P> <E T="03">Passenger fishing</E> means carrying in vessels for commercial purposes passengers who catch fish.</P> <P> <E T="03">Program</E> means the Fisheries Obligation Guarantee Program.</P> <P> <E T="03">Project</E> 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.</P> <P> <E T="03">Project property</E> 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.</P> <P> <E T="03">Property</E> means the project property and all other property pledged as security for a U.S. note.</P> <P> <E T="03">Qualified</E> means acceptable, in the Division's credit risk judgment, and otherwise meeting the Division's requirements for guarantee.</P> <P> <E T="03">Refinancing</E> means newer debt that either replaces older debt or reimburses applicants for previous expenditures.</P> <P> <E T="03">Refinancing/assumption fee</E> means 0.25 percent of the principal amount of a guaranteed note to be refinanced or assumed.</P> <P> <E T="03">Refurbishing</E> means any reconstruction, reconditioning, or other improvement of used project property involving more than routine repair or maintenance.</P> <P> <E T="03">Security documents</E> mean all collateral securing the U.S. note's repayment and all other assurances, undertakings, and <PRTPAGE P="217"/>contractual arrangements associated with the U.S. note.</P> <P> <E T="03">Underutilized fishery</E> means:</P> <P>(1) For a vessel, any fish species harvested below its sustainable yield.</P> <P>(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.</P> <P> <E T="03">U.S.</E> 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.</P> <P> <E T="03">U.S. note</E> means a promissory note payable by the notemaker to the guarantor.</P> <P> <E T="03">Useful life</E> means the period during which project property will, as determined by the Division, remain economically productive.</P> <P> <E T="03">Vessel</E> means any vessel documented under U.S. law and used for fishing.</P> <P> <E T="03">Wise use</E> means the wise use of fisheries resources and their development, advancement, management, conservation, and protection.</P> </SECTION> <SECTION> <SECTNO>§ 253.11</SECTNO> <SUBJECT>Guarantee policy.</SUBJECT> <P>(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:</P> <P>(1) <E T="03">Vessel construction.</E> 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.</P> <P>(2) <E T="03">Vessel refurbishing that materially increases an existing vessel's harvesting capacity.</E> 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.</P> <P>(3) <E T="03">Purchasing a used vessel or used fishery facility.</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 253.12</SECTNO> <SUBJECT>Guaranteed note, U.S. note, and security documents.</SUBJECT> <P>(a) <E T="03">Guaranteed note—</E>(1) <E T="03">Principal.</E> This may not exceed 80 percent of actual cost, but may, in the Division's credit judgment, be less.</P> <P>(2) <E T="03">Maturity.</E> 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.</P> <P>(3) <E T="03">Interest rate.</E> This may not exceed the amount the Division deems reasonable.</P> <P>(4) <E T="03">Prepayment penalty.</E> The Division will allow a reasonable prepayment penalty, but the guarantor will not guarantee a notemaker's payment of it.</P> <P>(5) <E T="03">Form.</E> This will be the simple promissory note (with the guarantee attached) the Division prescribes, promising only to pay principal, interest, and prepayment penalty.</P> <P>(6) <E T="03">Sole security.</E> The guaranteed note and the guarantee will be the noteholder's sole security.</P> <P>(b) <E T="03">U.S. note and security documents—</E>(1) <E T="03">Form.</E> The U.S. note and security documents will be in the form the Division prescribes.</P> <P>(2) <E T="03">U.S. note.</E> 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 <PRTPAGE P="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.</P> <P>(3) <E T="03">Security documents.</E> 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.</P> <P>(4) <E T="03">Recourse.</E> 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.</P> <P>(c) <E T="03">Dual-use CCF.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.13</SECTNO> <SUBJECT>Ability and experience requirements.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 253.14</SECTNO> <SUBJECT>Economic and financial requirements.</SUBJECT> <P>(a) <E T="03">Income and expense projections.</E> 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.</P> <P>(b) <E T="03">Working capital.</E> 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.).<PRTPAGE P="219"/> </P> <P>(c) <E T="03">Audited financial statements.</E> 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.</P> <P>(d) <E T="03">Consultant services.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.15</SECTNO> <SUBJECT>Miscellaneous.</SUBJECT> <P>(a) <E T="03">Applicant.</E> 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.</P> <P>(b) <E T="03">Investigation and approval.</E> 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.</P> <P>(c) <E T="03">Insurance.</E> 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.)</P> <P>(d) <E T="03">Property inspections.</E> 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.</P> <P>(e) <E T="03">Guarantee terms and conditions.</E> 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.</P> <P>(f) <E T="03">Noteholder.</E> 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.</P> <P>(g) <E T="03">Closing—</E>(1) <E T="03">Approval in principle letters.</E> Every closing will be in strict accordance with a final approval in principle letter.<PRTPAGE P="220"/> </P> <P>(2) <E T="03">Contracts.</E> 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.</P> <P>(3) <E T="03">Closing schedules.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.16</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">Application fee.</E> 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.</P> <P>(b) <E T="03">Guarantee fee.</E> 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.</P> <P>(c) <E T="03">Refinancing or assumption fee.</E> 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.</P> <P>(d) <E T="03">Where payable.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.17</SECTNO> <SUBJECT>Demand and payment.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 253.18</SECTNO> <SUBJECT>Program operating guidelines.</SUBJECT> <P>The Division may issue Program operating guidelines, as the need arises, governing national Program policy and administrative issues not addressed by these rules.</P> </SECTION> <SECTION> <SECTNO>§ 253.19</SECTNO> <SUBJECT>Default and liquidation.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="221"/> <HD SOURCE="HED">Subpart C—Interjurisdictional Fisheries</HD> <SECTION> <SECTNO>§ 253.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The terms used in this subpart have the following meanings:</P> <P> <E T="03">Act</E> means the Interjurisdictional Fisheries Act of 1986, Public Law 99-659 (Title III).</P> <P> <E T="03">Adopt</E> means to implement an interstate fishery management plan by State action or regulation.</P> <P> <E T="03">Commercial fishery failure</E> means a serious disruption of a fishery resource affecting present or future productivity due to natural or undetermined causes. It does not include either:</P> <P>(1) The inability to harvest or sell raw fish or manufactured and processed fishery merchandise; or</P> <P>(2) Compensation for economic loss suffered by any segment of the fishing industry as the result of a resource disaster.</P> <P> <E T="03">Enforcement agreement</E> 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.</P> <P> <E T="03">Federal fishery management plan</E> means a plan developed and approved under the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 <E T="03">et seq.</E>).</P> <P> <E T="03">Fisheries management</E> 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.</P> <P> <E T="03">Fishery resource</E> 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.</P> <P> <E T="03">Interjurisdictional fishery resource</E> means:</P> <P>(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</P> <P>(2) A fishery resource for which an interstate or a Federal fishery management plan exists; or</P> <P>(3) A fishery resource which migrates between the waters under the jurisdiction of two or more States bordering on the Great Lakes.</P> <P> <E T="03">Interstate Commission</E> means a commission or other administrative body established by an interstate compact.</P> <P> <E T="03">Interstate compact</E> 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.</P> <P> <E T="03">Interstate Fisheries Research Program</E> means research conducted by two or more state agencies under a formal interstate agreement.</P> <P> <E T="03">Interstate fishery management plan</E> 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.</P> <P> <E T="03">Landed</E> means the first point of offloading fishery resources.</P> <P> <E T="03">NMFS Regional Director</E> means the Director of any one of the five National Marine Fisheries Service regions.</P> <P> <E T="03">Project</E> means an undertaking or a proposal for research in support of management of an interjurisdictional fishery resource or an interstate fishery management plan.</P> <P> <E T="03">Research</E> means work or investigative study, designed to acquire knowledge of fisheries resources and their habitat.</P> <P> <E T="03">Secretary</E> means the Secretary of Commerce or his/her designee.</P> <P> <E T="03">State</E> 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.</P> <P> <E T="03">State Agency</E> 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.</P> <P> <E T="03">Value</E> 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.<PRTPAGE P="222"/> </P> <P> <E T="03">Volume</E> means the weight of the fishery resource as landed, at the first point of landing.</P> </SECTION> <SECTION> <SECTNO>§ 253.21</SECTNO> <SUBJECT>Apportionment.</SUBJECT> <P>(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.</P> <P>(1) The equally weighted average value is determined by the following formula:</P> <MATH DEEP="26" SPAN="1"> <MID>ER01MY96.004</MID> </MATH> <MATH DEEP="26" SPAN="1"> <MID>ER01MY96.005</MID> </MATH> <MATH DEEP="31" SPAN="1"> <MID>ER01MY96.006</MID> </MATH> <P>(2) Upon appropriation of funds by Congress, the Secretary will take the following actions:</P> <P>(i) Determine each state's share according to the apportionment formula.</P> <P>(ii) Certify the funds to the respective NMFS Regional Director.</P> <P>(iii) Instruct NMFS Regional Directors to promptly notify states of funds’ availability.</P> <P>(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.</P> <P>(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:</P> <P>(1) Is signatory to an interstate fishery compact;</P> <P>(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;</P> <P>(3) Borders one or more of the Great Lakes;</P> <P>(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</P> <P>(5) Has adopted a Federal fishery management plan for an interjurisdictional fishery resource.</P> <P>(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.</P> <P>(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.</P> <P>(f) Unused apportionments. Any part of an apportionment for any fiscal year to any state:</P> <P>(1) That is not obligated during that year;</P> <P>(2) With respect to which the state notifies the Secretary that it does not wish to receive that part; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 253.22</SECTNO> <SUBJECT>State projects.</SUBJECT> <P>(a) <E T="03">General—</E>(1) <E T="03">Designation of state agency.</E> 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 <PRTPAGE P="223"/>in accordance with state law to commit the state to participation under the Act, to sign project documents, and to receive payments.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Evaluation of projects.</E> 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).</P> <P>(c) <E T="03">State matching requirements.</E> 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:</P> <P>(1) The state has adopted an interstate fishery management plan for the fishery resource to which the project applies; or</P> <P>(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.</P> <P>(d) <E T="03">Financial assistance award.</E> 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.</P> <P>(e) <E T="03">Restrictions.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Prosecution of work.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.23</SECTNO> <SUBJECT>Other funds.</SUBJECT> <P>(a) <E T="03">Funds for disaster assistance.</E> (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 § 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.<PRTPAGE P="224"/> </P> <P>(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.</P> <P>(b) <E T="03">Funds for interstate commissions.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 253.24</SECTNO> <SUBJECT>Administrative requirements.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 259</EAR> <HD SOURCE="HED">PART 259—CAPITAL CONSTRUCTION FUND</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">Joint Tax Regulations</HD> <SECHD>Sec.</SECHD> <SECTNO>259.1</SECTNO> <SUBJECT>Execution of agreements and deposits made in a Capital Construction Fund.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Capital Construction Fund Agreement</HD> <SECTNO>259.30</SECTNO> <SUBJECT>Application for Interim Capital Construction Fund Agreement (“Interim CCF Agreement”).</SUBJECT> <SECTNO>259.31</SECTNO> <SUBJECT>Acquisition, construction, or reconstruction.</SUBJECT> <SECTNO>259.32</SECTNO> <SUBJECT>Conditional fisheries.</SUBJECT> <SECTNO>259.33</SECTNO> <SUBJECT>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.</SUBJECT> <SECTNO>259.34</SECTNO> <SUBJECT>Minimum and maximum deposits; maximum time to deposit.</SUBJECT> <SECTNO>259.35</SECTNO> <SUBJECT>Annual deposit and withdrawal reports required.</SUBJECT> <SECTNO>259.36</SECTNO> <SUBJECT>CCF accounts.</SUBJECT> <SECTNO>259.37</SECTNO> <SUBJECT>Conditional consents to withdrawal qualification.</SUBJECT> <SECTNO>259.38</SECTNO> <SUBJECT>Miscellaneous.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>46 U.S.C. 1177.</P> </AUTH> <SUBJGRP> <HD SOURCE="HED">Joint Tax Regulations</HD> <SECTION> <SECTNO>§ 259.1</SECTNO> <SUBJECT>Execution of agreements and deposits made in a Capital Construction Fund.</SUBJECT> <P>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:</P> <P>(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.</P> <P>(b) Notwithstanding the provisions of paragraph (a) of this section, where:</P> <P>(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</P> <P>(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.<PRTPAGE P="225"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.<E T="21">1</E> <FTREF/> </P> <FTNT> <P> <E T="21">1</E> 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.</P> </FTNT> <CITA>[37 FR 25025, Nov. 25, 1972, as amended at 38 FR 8163, Mar. 29, 1973]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Capital Construction Fund Agreement</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Sections 259.30 to 259.38 appear at 39 FR 33675, Sept. 19, 1974, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 259.30</SECTNO> <SUBJECT>Application for Interim Capital Construction Fund Agreement (“Interim CCF Agreement”).</SUBJECT> <P>(a) <E T="03">General qualifications.</E> To be eligible to enter into an Interim CCF Agreement an applicant must:</P> <P>(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);</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Content of application.</E> Applicants seeking an Interim CCF Agreement may make application by letter providing the following information:</P> <P>(1) Proof of U.S. citizenship;</P> <P>(2) The first taxable year for which the Interim CCF Agreement is to apply (see § 259.33 for the latest time at which applications for an Interim CCF Agreement relating to a previous taxable year may be received);</P> <P>(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:</P> <P>(i) Name of vessel,<PRTPAGE P="226"/> </P> <P>(ii) Official number, or, in the case of vessels under 5 net tons, the State registration number where required,</P> <P>(iii) Type of vessel (i.e., catching vessel, processing vessel, transporting vessel, charter vessel, barge, passenger carrying fishing vessel, etc.),</P> <P>(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.),</P> <P>(v) Whether owned or leased and, if leased, the name of the owner, and a copy of the lease,</P> <P>(vi) Date and place of construction,</P> <P>(vii) If reconstructed, date of redelivery and place of reconstruction,</P> <P>(viii) Trade (or trades) in which vessel is documented and date last documented,</P> <P>(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),</P> <P>(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).</P> <P>(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:</P> <P>(i) Number of vessels,</P> <P>(ii) Type of vessel (i.e., catching, processing, transporting, or passenger carrying fishing vessel),</P> <P>(iii) General characteristics (i.e., net tonnage, fish-carrying capacity, age, length, type of fishing gear, number of passengers carried),</P> <P>(iv) Cost of projects,</P> <P>(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),</P> <P>(vi) Date of construction, acquisition, or reconstruction,</P> <P>(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),</P> <P>(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).</P> <P>(c) <E T="03">Filing.</E> 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.</P> <CITA>[39 FR 33675, Sept. 19, 1974, as amended at 42 FR 65185, Dec. 30, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 259.31</SECTNO> <SUBJECT>Acquisition, construction, or reconstruction.</SUBJECT> <P>(a) <E T="03">Acquisition.</E> 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:</P> <P>(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 <PRTPAGE P="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.</P> <P>(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.</P> <P>(3) Reserved for minimum deposits under this section.</P> <P>(4) Reserved for liquidated damages.</P> <P>(b) <E T="03">Reconstruction.</E> 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Time permitted for construction or reconstruction.</E> Construction or reconstruction must be completed within 18 months from the date construction or reconstruction first commences, unless otherwise consented to by the Secretary.</P> <P>(d) <E T="03">Energy saving improvements.</E> 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 § 259.32 and from all qualifying tests for reconstruction set forth in paragraph (b) of this section with the following exceptions:<PRTPAGE P="228"/> </P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Safety projects</E>. 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 § 259.32, and shall be exempt from all qualifying tests for reconstruction set forth in paragraph (b) of this section, with the following exceptions:</P> <P>(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;</P> <P>(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;</P> <P>(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).</P> <CITA>[39 FR 33675, Sept. 19, 1974, as amended at 46 FR 54563, Nov. 3, 1981; 62 FR 331, Jan. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 259.32</SECTNO> <SUBJECT>Conditional fisheries.</SUBJECT> <P>(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 § 259.32 is to establish the effect of conditional fishery adoption upon Interim CCF Agreements.</P> <P>(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.</P> <P>(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 fish-ery <PRTPAGE P="229"/>provided, however, that this para-graph shall apply only to construction -or reconstruction for which a binding -contract has been reduced to writing -prior to the date upon which condi-tional fishery adoption occurred. Nevertheless, the conditions as set forth in paragraph (d) of this section shall apply.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="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.</P> <P>(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</P> <P>(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).</P> <P>(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.</P> <P>(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:</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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 § 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 § 259.32. Such an express condition would not survive beyond the time at which conditional fishery status is removed.</P> </SECTION> <SECTION> <PRTPAGE P="231"/> <SECTNO>§ 259.33</SECTNO> <SUBJECT>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.</SUBJECT> <P>(a) <E T="03">Periods controlling permissibility.</E> For the purpose of this § 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)”.</P> <P>(b) <E T="03">Constructive deposits and withdrawals</E> (<E T="03">before Interim CCF Agreement effectiveness date</E>). 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: <E T="03">Provided,</E> 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.</P> <P>(c) <E T="03">Constructive deposits</E> (<E T="03">after Interim CCF Agreement effectiveness date</E>). 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).</P> <P>(d) <E T="03">Ratification of withdrawals</E> (<E T="03">as qual-ified</E>) <E T="03">made without first having obtained Secretary's consent.</E> The Secre-tary 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).</P> <P>(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.<PRTPAGE P="232"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">First tax year for which Interim CCF Agreement is effective.</E> 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).</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 259.34</SECTNO> <SUBJECT>Minimum and maximum deposits; maximum time to deposit.</SUBJECT> <P>(a) <E T="03">Minimum annual deposit.</E> 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.</P> <P>(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 <PRTPAGE P="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: <E T="03">Provided, however,</E> 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).</P> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(b) <E T="03">Maximum deposits.</E> Other than the maximum annual ceilings established by the Act, the Secretary shall not establish a maximum annual ceiling: <E T="03">Provided, however,</E> 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.</P> <P>(c) <E T="03">Maximum time to deposit.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 259.35</SECTNO> <SUBJECT>Annual deposit and withdrawal reports required.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="234"/>action specified in the paragraph above.</P> <CITA>[39 FR 33675, Sept. 19, 1974, as amended at 48 FR 57302, Dec. 29, 1983; 53 FR 35203, Sept. 12, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 259.36</SECTNO> <SUBJECT>CCF accounts.</SUBJECT> <P>(a) <E T="03">General:</E> Each CCF account in each scheduled depository shall have an account number, which must be reflected on the reports required by § 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.</P> <P>(b) <E T="03">Assignment:</E> 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.</P> <P>(c) <E T="03">Depositories:</E> (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.</P> <P>(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.</P> <P>(3) Non-cash deposits or investments of the Fund should be placed in control of a trustee under the following conditions:</P> <P>(i) The trustee should be specified in the Agreement;</P> <P>(ii) The trust instrument should provide that all investment restrictions stated in section 607(c) of the Act will be observed;</P> <P>(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;</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 259.37</SECTNO> <SUBJECT>Conditional consents to withdrawal qualification.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 259.38</SECTNO> <SUBJECT>Miscellaneous.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="235"/> </P> <P>(d) These §§ 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 §§ 259.30 through 259.38 are adopted. These §§ 259.30 through 259.38 are applicable to all Interim CCF Agreements entered into before the date these §§ 259.30 through 259.38 are adopted, with the following exceptions only:</P> <P>(1) The vessel age limitations imposed by § 259.31 shall not apply to already scheduled Schedule B objectives.</P> <P>(2) The minimum deposits imposed by § 259.34 shall not apply to any party's tax year before that party's tax year next following the one in which these §§ 259.30 through 259.38 are adopted.</P> <P>(e) These §§ 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.</P> </SECTION> </SUBJGRP> </PART> </SUBCHAP> <SUBCHAP TYPE="P"> <PRTPAGE P="236"/> <HD SOURCE="HED">SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS</HD> <PART> <EAR>Pt. 260</EAR> <HD SOURCE="HED">PART 260—INSPECTION AND CERTIFICATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Inspection and Certification of Establishments and Fishery Products for Human Consumption</HD> <SECHD>Sec.</SECHD> <SECTNO>260.1</SECTNO> <SUBJECT>Administration of regulations.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTNO>260.6</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <SECTNO>260.7</SECTNO> <SUBJECT>Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Inspection Service</HD> <SECTNO>260.12</SECTNO> <SUBJECT>Where inspection service is offered.</SUBJECT> <SECTNO>260.13</SECTNO> <SUBJECT>Who may obtain inspection service.</SUBJECT> <SECTNO>260.14</SECTNO> <SUBJECT>How to make application.</SUBJECT> <SECTNO>260.15</SECTNO> <SUBJECT>Information required in connection with application.</SUBJECT> <SECTNO>260.16</SECTNO> <SUBJECT>Filing of application.</SUBJECT> <SECTNO>260.17</SECTNO> <SUBJECT>Record of filing time.</SUBJECT> <SECTNO>260.18</SECTNO> <SUBJECT>When application may be rejected.</SUBJECT> <SECTNO>260.19</SECTNO> <SUBJECT>When application may be withdrawn.</SUBJECT> <SECTNO>260.20</SECTNO> <SUBJECT>Disposition of inspected sample.</SUBJECT> <SECTNO>260.21</SECTNO> <SUBJECT>Basis of inspection and grade or compliance determination.</SUBJECT> <SECTNO>260.22</SECTNO> <SUBJECT>Order of inspection service.</SUBJECT> <SECTNO>260.23</SECTNO> <SUBJECT>Postponing inspection service.</SUBJECT> <SECTNO>260.24</SECTNO> <SUBJECT>Financial interest of inspector.</SUBJECT> <SECTNO>260.25</SECTNO> <SUBJECT>Forms of certificates.</SUBJECT> <SECTNO>260.26</SECTNO> <SUBJECT>Issuance of certificates.</SUBJECT> <SECTNO>260.27</SECTNO> <SUBJECT>Issuance of corrected certificates.</SUBJECT> <SECTNO>260.28</SECTNO> <SUBJECT>Issuance of an inspection report in lieu of an inspection certificate.</SUBJECT> <SECTNO>260.29</SECTNO> <SUBJECT>Disposition of inspection certificates.</SUBJECT> <SECTNO>260.30</SECTNO> <SUBJECT>Report of inspection results prior to issuance of formal report.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal Inspection</HD> <SECTNO>260.36</SECTNO> <SUBJECT>When appeal inspection may be requested.</SUBJECT> <SECTNO>260.37</SECTNO> <SUBJECT>Where to file for an appeal inspection and information required.</SUBJECT> <SECTNO>260.38</SECTNO> <SUBJECT>When an application for an appeal inspection may be withdrawn.</SUBJECT> <SECTNO>260.39</SECTNO> <SUBJECT>When appeal inspection may be refused.</SUBJECT> <SECTNO>260.40</SECTNO> <SUBJECT>Who shall perform appeal inspection.</SUBJECT> <SECTNO>260.41</SECTNO> <SUBJECT>Appeal inspection certificate.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Licensing of Samplers and Inspectors</HD> <SECTNO>260.47</SECTNO> <SUBJECT>Who may become licensed sampler.</SUBJECT> <SECTNO>260.48</SECTNO> <SUBJECT>Application to become a licensed sampler.</SUBJECT> <SECTNO>260.49</SECTNO> <SUBJECT>Inspectors.</SUBJECT> <SECTNO>260.50</SECTNO> <SUBJECT>Suspension or revocation of license of licensed sampler or licensed inspector.</SUBJECT> <SECTNO>260.51</SECTNO> <SUBJECT>Surrender of license.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Sampling</HD> <SECTNO>260.57</SECTNO> <SUBJECT>How samples are drawn by inspectors or licensed samplers.</SUBJECT> <SECTNO>260.58</SECTNO> <SUBJECT>Accessibility for sampling.</SUBJECT> <SECTNO>260.59</SECTNO> <SUBJECT>How officially drawn samples are to be identified.</SUBJECT> <SECTNO>260.60</SECTNO> <SUBJECT>How samples are to be shipped.</SUBJECT> <SECTNO>260.61</SECTNO> <SUBJECT>Sampling plans and procedures for determining lot compliance.</SUBJECT> <SECTNO>260.62</SECTNO> <SUBJECT>Issuance of certificate of sampling.</SUBJECT> <SECTNO>260.63</SECTNO> <SUBJECT>Identification of lots sampled.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Fees and Charges</HD> <SECTNO>260.69</SECTNO> <SUBJECT>Payment fees and charges.</SUBJECT> <SECTNO>260.70</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <SECTNO>260.71</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>260.72</SECTNO> <SUBJECT>Fees for inspection service performed under cooperative agreement.</SUBJECT> <SECTNO>260.73</SECTNO> <SUBJECT>Disposition of fees for inspections made under cooperative agreement.</SUBJECT> <SECTNO>260.74</SECTNO> <SUBJECT>Fee for appeal inspection.</SUBJECT> <SECTNO>260.76</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>260.77</SECTNO> <SUBJECT>Fees for score sheets.</SUBJECT> <SECTNO>260.78</SECTNO> <SUBJECT>Fees for additional copies of inspection certificates.</SUBJECT> <SECTNO>260.79</SECTNO> <SUBJECT>Travel and other expenses.</SUBJECT> <SECTNO>260.80</SECTNO> <SUBJECT>Charges for inspection service on a contract basis.</SUBJECT> <SECTNO>260.81</SECTNO> <SUBJECT>Readjustment and increase in hourly rates of fees.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>260.84</SECTNO> <SUBJECT>Policies and procedures.</SUBJECT> <SECTNO>260.86</SECTNO> <SUBJECT>Approved identification.</SUBJECT> <SECTNO>260.88</SECTNO> <SUBJECT>Political activity.</SUBJECT> <SECTNO>260.90</SECTNO> <SUBJECT>Compliance with other laws.</SUBJECT> <SECTNO>260.91</SECTNO> <SUBJECT>Identification.</SUBJECT> <SECTNO>260.93</SECTNO> <SUBJECT>Debarment and suspension.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Requirements for Plants Operating Under Continuous Inspection on a Contract Basis</HD> <SECTNO>260.96</SECTNO> <SUBJECT>Application for fishery products inspection service on a contract basis at official establishments.</SUBJECT> <SECTNO>260.97</SECTNO> <SUBJECT>Conditions for providing fishery products inspection service at official establishments.</SUBJECT> <SECTNO>260.98</SECTNO> <SUBJECT>Premises.</SUBJECT> <SECTNO>260.99</SECTNO> <SUBJECT>Buildings and structures.</SUBJECT> <SECTNO>260.100</SECTNO> <SUBJECT>Facilities.</SUBJECT> <SECTNO>260.101</SECTNO> <SUBJECT>Lavatory accommodations.</SUBJECT> <SECTNO>260.102</SECTNO> <SUBJECT>Equipment.<PRTPAGE P="237"/> </SUBJECT> <SECTNO>260.103</SECTNO> <SUBJECT>Operations and operating procedures shall be in accordance with an effective sanitation program.</SUBJECT> <SECTNO>260.104</SECTNO> <SUBJECT>Personnel.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Labeling Requirements</HD> <SECTNO>260.200-260.201</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>31 FR 16052, Dec. 15, 1966, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Inspection and Certification of Establishments and Fishery Products for Human Consumption</HD> <SECTION> <SECTNO>§ 260.1</SECTNO> <SUBJECT>Administration of regulations.</SUBJECT> <P>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.<E T="21">1</E> <FTREF/> </P> <FTNT> <P> <E T="21">1</E> 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.</P> </FTNT> <CITA>[36 FR 21037, Nov. 3, 1971]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Definitions</HD> <SECTION> <SECTNO>§ 260.6</SECTNO> <SUBJECT>Terms defined.</SUBJECT> <P>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:</P> <P> <E T="03">Acceptance number.</E> “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.</P> <P> <E T="03">Act.</E> “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.).</P> <P> <E T="03">Applicant.</E> “Applicant” means any interested party who requests inspection service under the regulations in this part.</P> <P> <E T="03">Case.</E> “Case” means the number of containers (cased or uncased) which, by the particular industry are ordinarily packed in a shipping container.</P> <P> <E T="03">Certificate of loading.</E> “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.</P> <P> <E T="03">Certificate of sampling.</E> “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.</P> <P> <E T="03">Class.</E> “Class” means a grade or rank of quality.</P> <P> <E T="03">Condition.</E> “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.</P> <P> <E T="03">Department.</E> “Department” means the U.S. Department of Commerce.</P> <P> <E T="03">Deviant.</E> “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.</P> <P> <E T="03">Deviation.</E> “Deviation” means any specifically defined variation from a particular requirement.</P> <P> <E T="03">Director.</E> “Director” means the Director of the National Marine Fisheries Service.<PRTPAGE P="238"/> </P> <P> <E T="03">Establishment.</E> “Establishment” means any -premises, buildings, structures, facilities, and equipment (including vehicles) used in the processing, handling, transporting, and storage of fish and fishery products.</P> <P> <E T="03">Inspection certificate.</E> “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.</P> <P> <E T="03">Inspection service.</E> “Inspection service” means:</P> <P>(1) The sampling pursuant to the regulations in this part;</P> <P>(2) The determination pursuant to the regulations in this part of:</P> <P>(i) Essential characteristics such as style, type, size, or identity of any processed product which differentiates between major groups of the same kind;</P> <P>(ii) The class, quality, and condition of any processed product, including the condition of the container thereof by the examination of appropriate samples;</P> <P>(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</P> <P>(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.</P> <P> <E T="03">Inspector.</E> “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.</P> <P> <E T="03">Interested party.</E> “Interested party” means any person who has a financial interest in the commodity involved.</P> <P> <E T="03">Licensed sampler.</E> “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.</P> <P> <E T="03">Lot.</E> “Lot” has the following meanings:</P> <P>(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: <E T="03">Provided,</E> That:</P> <P>(i) Processed products in separate piles which differ from each other as to grade or other factors may be deemed to be separate lots;</P> <P>(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</P> <P>(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.</P> <P>(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 <PRTPAGE P="239"/>pile may be deemed to be a separate lot.</P> <P> <E T="03">Official establishment.</E> “Official establishment” means any establishment which has been approved by National Marine Fisheries Service, and utilizes inspection service on a contract basis.</P> <P> <E T="03">Officially drawn sample.</E> “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.</P> <P> <E T="03">Person.</E> “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.</P> <P> <E T="03">Plant.</E> “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.</P> <P> <E T="03">Processed product.</E> “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.</P> <P> <E T="03">Quality.</E> “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.</P> <P> <E T="03">Rejection number.</E> “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.</P> <P> <E T="03">Sample.</E> “Sample” means any number of sample units to be used for inspection.</P> <P> <E T="03">Sample unit.</E> “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.</P> <P> <E T="03">Sampling.</E> “Sampling” means the act of selecting samples of processed products for the purpose of inspection under the regulations in this part.</P> <P> <E T="03">Secretary.</E> “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.</P> <P> <E T="03">Shipping container.</E> “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.</P> <P> <E T="03">Unofficially drawn sample.</E> “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.</P> <P> <E T="03">Wholesome.</E> “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.</P> <CITA>[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 21037, Nov. 3, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 260.7</SECTNO> <SUBJECT>Designation of official certificates, memoranda, marks, other identifications, and devices for purposes of the Agricultural Marketing Act.</SUBJECT> <P>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:<PRTPAGE P="240"/> </P> <P> <E T="03">Official certificate.</E> “Official certificate” means any form of certification, either written or printed, including those defined in § 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).</P> <P> <E T="03">Official device.</E> “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.</P> <P> <E T="03">Official identification.</E> “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.</P> <P> <E T="03">Official mark.</E> “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 § 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.</P> <P> <E T="03">Official memorandum.</E> “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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Inspection Service</HD> <SECTION> <SECTNO>§ 260.12</SECTNO> <SUBJECT>Where inspection service is offered.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.13</SECTNO> <SUBJECT>Who may obtain inspection service.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.14</SECTNO> <SUBJECT>How to make application.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.15</SECTNO> <SUBJECT>Information required in connection with application.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="241"/> <SECTNO>§ 260.16</SECTNO> <SUBJECT>Filing of application.</SUBJECT> <P>An application for inspection service shall be regarded as filed only when made in accordance with the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 260.17</SECTNO> <SUBJECT>Record of filing time.</SUBJECT> <P>A record showing the date and hour when each application for inspection or for an appeal inspection is received shall be maintained.</P> </SECTION> <SECTION> <SECTNO>§ 260.18</SECTNO> <SUBJECT>When application may be rejected.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.19</SECTNO> <SUBJECT>When application may be withdrawn.</SUBJECT> <P>An application for inspection service may be withdrawn by the applicant at any time before the inspection is performed: <E T="03">Provided,</E> That, the applicant shall pay at the hourly rate prescribed in § 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.</P> <CITA>[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 260.20</SECTNO> <SUBJECT>Disposition of inspected sample.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.21</SECTNO> <SUBJECT>Basis of inspection and grade or compliance determination.</SUBJECT> <P>(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.</P> <P>(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: <E T="03">Provided,</E> 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: <E T="03">Provided further,</E> That:</P> <P>(1) Such sample complies with the applicable standards of quality promulgated under the Federal Food, Drug, and Cosmetic Act;</P> <P>(2) Such sample complies with the product description;</P> <P>(3) Such sample meets the indicated grade with respect to factors of quality which are not rated by score points; and</P> <P>(4) With respect to those factors of quality which are rated by score points, each of the following requirements is met:</P> <P>(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;</P> <P>(ii) None of the sample units falls more than 4 score points below the minimum total score for the indicated grade; and</P> <P>(iii) The number of sample units classed as deviants does not exceed the applicable acceptance number indicated in the sampling plans contained in § 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.</P> <P>(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 <PRTPAGE P="242"/>grades until the grade of the lot, if assignable, is established.</P> </SECTION> <SECTION> <SECTNO>§ 260.22</SECTNO> <SUBJECT>Order of inspection service.</SUBJECT> <P>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 there-of) and to any application for an -appeal inspection.</P> </SECTION> <SECTION> <SECTNO>§ 260.23</SECTNO> <SUBJECT>Postponing inspection service.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.24</SECTNO> <SUBJECT>Financial interest of inspector.</SUBJECT> <P>No inspector shall inspect any processed product in which he is directly or indirectly financially interested.</P> </SECTION> <SECTION> <SECTNO>§ 260.25</SECTNO> <SUBJECT>Forms of certificates.</SUBJECT> <P>Inspection certificates, certificates of sampling or loading, and other memoranda concerning inspection service shall be issued on forms approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 260.26</SECTNO> <SUBJECT>Issuance of certificates.</SUBJECT> <P>(a) An inspection certificate may be issued only by an inspector: <E T="03">Provided,</E> 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.</P> <P>(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: <E T="03">Provided,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 260.27</SECTNO> <SUBJECT>Issuance of corrected certificates.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.28</SECTNO> <SUBJECT>Issuance of an inspection report in lieu of an inspection certificate.</SUBJECT> <P>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: <E T="03">Provided,</E> That, the issuance of such report is approved by the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 260.29</SECTNO> <SUBJECT>Disposition of inspection certificates.</SUBJECT> <P>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 <PRTPAGE P="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 § 260.78.</P> </SECTION> <SECTION> <SECTNO>§ 260.30</SECTNO> <SUBJECT>Report of inspection results prior to issuance of formal report.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeal Inspection</HD> <SECTION> <SECTNO>§ 260.36</SECTNO> <SUBJECT>When appeal inspection may be requested.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.37</SECTNO> <SUBJECT>Where to file for an appeal inspection and information required.</SUBJECT> <P>(a) Application for an appeal inspection may be filed with:</P> <P>(1) The inspector who issued the inspection certificate on which the appeal covering the processed product is requested; or</P> <P>(2) The inspector in charge of the office of inspection at or nearest the place where the processed product is located.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 260.38</SECTNO> <SUBJECT>When an application for an appeal inspection may be withdrawn.</SUBJECT> <P>An application for appeal inspection may be withdrawn by the applicant at any time before the appeal inspection is performed: <E T="03">Provided,</E> That the applicant shall pay at the hourly rate prescribed in § 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.</P> <CITA>[31 FR 16052, Dec. 15, 1966, as amended at 36 FR 18738, Sept. 21, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 260.39</SECTNO> <SUBJECT>When appeal inspection may be refused.</SUBJECT> <P>An application for an appeal inspection may be refused if:</P> <P>(a) The reasons for the appeal inspection are frivolous or not substantial;</P> <P>(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;</P> <P>(c) The lot in question is not, or cannot be made accessible for the selection of officially drawn samples;</P> <P>(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</P> <P>(e) There is noncompliance with the regulations in this part. Such applicant shall be notified promptly of the reason for such refusal.</P> </SECTION> <SECTION> <SECTNO>§ 260.40</SECTNO> <SUBJECT>Who shall perform appeal inspection.</SUBJECT> <P>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: <E T="03">Provided,</E> That the inspector who made the inspection on which the appeal is requested may be authorized to draw the samples when <PRTPAGE P="244"/>another inspector or licensed sampler is not available in the area where the product is located.</P> </SECTION> <SECTION> <SECTNO>§ 260.41</SECTNO> <SUBJECT>Appeal inspection certificate.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Licensing of Samplers and Inspectors</HD> <SECTION> <SECTNO>§ 260.47</SECTNO> <SUBJECT>Who may become licensed sampler.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.48</SECTNO> <SUBJECT>Application to become a licensed sampler.</SUBJECT> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(d) Such other information as may be requested.</P> </SECTION> <SECTION> <SECTNO>§ 260.49</SECTNO> <SUBJECT>Inspectors.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="245"/> <SECTNO>§ 260.50</SECTNO> <SUBJECT>Suspension or revocation of license of licensed sampler or licensed inspector.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.51</SECTNO> <SUBJECT>Surrender of license.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Sampling</HD> <SECTION> <SECTNO>§ 260.57</SECTNO> <SUBJECT>How samples are drawn by inspectors or licensed samplers.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.58</SECTNO> <SUBJECT>Accessibility for sampling.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.59</SECTNO> <SUBJECT>How officially drawn samples are to be identified.</SUBJECT> <P>Officially drawn samples shall be marked by the inspector or licensed sampler so such samples can be properly identified for inspection.</P> </SECTION> <SECTION> <SECTNO>§ 260.60</SECTNO> <SUBJECT>How samples are to be shipped.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.61</SECTNO> <SUBJECT>Sampling plans and procedures for determining lot compliance.</SUBJECT> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(b) Under the single sampling plans with respect to any specified requirement:<PRTPAGE P="246"/> </P> <P>(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;</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="247"/> </P> <GPOTABLE CDEF="s400,1" COLS="2" OPTS="L0,8/9"> <ROW> <ENT I="21"> <E T="04">Single Sampling Plans and Acceptance Levels</E> </ENT> </ROW> </GPOTABLE> <GPOTABLE CDEF="s40,12,12,12,12,13,14,14,14,12" COLS="10" OPTS="L2"> <TTITLE>Table I—Canned or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable</TTITLE> <BOXHD> <CHED H="1">Container size group</CHED> <CHED H="1">Lot size (number of containers)</CHED> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> </BOXHD> <ROW> <ENT I="21"> <E T="04">group 1</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of less volume than that of a No. 300 size can (300×407)</ENT> <ENT>3,600 or less</ENT> <ENT>3,601-14,400</ENT> <ENT>14,401-48,000</ENT> <ENT>48,001-96,000</ENT> <ENT>96,001-156,000</ENT> <ENT>156,001-228,000</ENT> <ENT>228,001-300,000</ENT> <ENT>300,001-420,000</ENT> <ENT>Over 420,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 2</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of a volume equal to or exceeding that of a No. 300 size can, but not exceeding that of a No. 3 cylinder size can (404×700)</ENT> <ENT>2,400 or less</ENT> <ENT>2,401-12,000</ENT> <ENT>12,001-24,000</ENT> <ENT>24,001-48,000</ENT> <ENT>48,001-72,000</ENT> <ENT>72,001-108,000</ENT> <ENT>108,001-168,000</ENT> <ENT>168,001-240,000</ENT> <ENT>Over 240,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 3</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of a volume exceeding that of a No. 3 cylinder size can, but not exceeding that of a No. 12 size can (603×812)</ENT> <ENT>1,200 or less</ENT> <ENT>1,201-7,200</ENT> <ENT>7,201-15,000</ENT> <ENT>15,001-24,000</ENT> <ENT>24,001-36,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-84,000</ENT> <ENT>84,001-120,000</ENT> <ENT>Over 120,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 4</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of a volume exceeding that of a No. 12 size can, but not exceeding that of a 5-gallon container</ENT> <ENT>200 or less</ENT> <ENT>201-800</ENT> <ENT>801-1,600</ENT> <ENT>1,601-2,400</ENT> <ENT>2,401-3,600</ENT> <ENT>3,601-8,000</ENT> <ENT>8,001-16,000</ENT> <ENT>16,001-28,000</ENT> <ENT>Over 28,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 5</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of a volume exceeding that of a 5-gallon container</ENT> <ENT>25 or less</ENT> <ENT>26-80</ENT> <ENT>81-200</ENT> <ENT>201-400</ENT> <ENT>401-800</ENT> <ENT>801-1,200</ENT> <ENT>1,201-2,000</ENT> <ENT>2,001-3,200</ENT> <ENT>Over 3,200</ENT> </ROW> </GPOTABLE> <GPOTABLE CDEF="s400,1" COLS="2" OPTS="L0,tp6,6/7"> <TTITLE>Single sampling plans <SU>1</SU> </TTITLE> <ROW> <ENT I="01"/> </ROW> </GPOTABLE> <PRTPAGE P="248"/> <GPOTABLE CDEF="s40,12,12,12,12,13,14,14,14,12" COLS="10" OPTS="L2(0),6/7"> <ROW> <ENT I="01">Sample size (number of sample units) <SU>2</SU> </ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>13</ENT> <ENT>21</ENT> <ENT>29</ENT> <ENT>38</ENT> <ENT>48</ENT> <ENT>60</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">Acceptance number</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>3</ENT> <ENT>4</ENT> <ENT>5</ENT> <ENT>6</ENT> <ENT>7</ENT> <ENT/> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <GPOTABLE CDEF="s40,12,12,12,12,13,14,14,14,12" COLS="10" OPTS="L2"> <TTITLE>Table II—Frozen or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable</TTITLE> <BOXHD> <CHED H="1">Container size group</CHED> <CHED H="1">Lot size (number of containers)</CHED> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> </BOXHD> <ROW> <ENT I="21"> <E T="04">group 1</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of 1 pound or less net weight</ENT> <ENT>2,400 or less</ENT> <ENT>2,401-12,000</ENT> <ENT>12,001-24,000</ENT> <ENT>24,001-48,000</ENT> <ENT>48,001-72,000</ENT> <ENT>72,001-108,000</ENT> <ENT>108,001-168,000</ENT> <ENT>168,001-240,000</ENT> <ENT>Over 240,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 2</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 1 pound but not over 4 pounds net weight</ENT> <ENT>1,800 or less</ENT> <ENT>1,801-8,400</ENT> <ENT>8,401-18,000</ENT> <ENT>18,001-36,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-96,000</ENT> <ENT>96,001-132,000</ENT> <ENT>132,001-168,000</ENT> <ENT>Over 168,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 3</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 4 pounds but not over 10 pounds net weight</ENT> <ENT>900 or less</ENT> <ENT>901-3,600</ENT> <ENT>3,601-10,800</ENT> <ENT>10,801-18,000</ENT> <ENT>18,001-36,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-84,000</ENT> <ENT>84,001-120,000</ENT> <ENT>Over 120,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 4</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 10 pounds but not over 100 pounds net weight</ENT> <ENT>200 or less</ENT> <ENT>201-800</ENT> <ENT>801-1,600</ENT> <ENT>1,601-2,400</ENT> <ENT>2,401-3,600</ENT> <ENT>3,601-8,000</ENT> <ENT>8,001-16,000</ENT> <ENT>16,001-28,000</ENT> <ENT>Over 28,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 5</E> </ENT> </ROW> <ROW RUL="02,s"> <ENT I="01">Any type of container over 100 pounds net weight</ENT> <ENT>25 or less</ENT> <ENT>26-80</ENT> <ENT>81-200</ENT> <ENT>201-400</ENT> <ENT>401-800</ENT> <ENT>801-1,200</ENT> <ENT>1,201-2,000</ENT> <ENT>2,001-3,200</ENT> <ENT>Over 3,200</ENT> </ROW> <ROW EXPSTB="09" RUL="02,s"> <ENT I="21">Single sampling plans <SU>1</SU> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">Sample size (number of sample units) <SU>2</SU> </ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>13</ENT> <ENT>21</ENT> <ENT>29</ENT> <ENT>38</ENT> <ENT>48</ENT> <ENT>60</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">Acceptance number</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>3</ENT> <ENT>4</ENT> <ENT>5</ENT> <ENT>6</ENT> <ENT>7</ENT> <ENT>8</ENT> </ROW> <TNOTE> <SU>1</SU> 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.<PRTPAGE P="249"/> </TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <GPOTABLE CDEF="s40,11,11,12,13,14,14,14,14,11" COLS="10" OPTS="L2"> <TTITLE>Table III—Canned, Frozen, or Otherwise Processed Fishery and Related Products, and Products Thereof of a Comminuted, Fluid, or Homogeneous State</TTITLE> <BOXHD> <CHED H="1">Container size group <SU>1</SU> </CHED> <CHED H="1">Lot size (number of containers)</CHED> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> </BOXHD> <ROW> <ENT I="21"> <E T="04">group 1</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of 12 ounces or less</ENT> <ENT>5,400 or less</ENT> <ENT>5,401-21,600</ENT> <ENT>21,601-62,400</ENT> <ENT>62,401-112,000</ENT> <ENT>112,001-174,000</ENT> <ENT>174,001-240,000</ENT> <ENT>240,001-360,000</ENT> <ENT>360,001-480,000</ENT> <ENT>Over 480,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 2</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 12 ounces but not over 60 ounces</ENT> <ENT>3,600 or less</ENT> <ENT>3,601-14,400</ENT> <ENT>14,401-48,000</ENT> <ENT>48,001-96,000</ENT> <ENT>96,001-156,000</ENT> <ENT>156,001-228,000</ENT> <ENT>228,001-300,000</ENT> <ENT>300,001-420,000</ENT> <ENT>Over 420,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 3</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 60 ounces but not over 160 ounces</ENT> <ENT>1,800 or less</ENT> <ENT>1,801-8,400</ENT> <ENT>8,401-18,000</ENT> <ENT>18,001-60,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-96,000</ENT> <ENT>96,001-132,000</ENT> <ENT>132,001-168,000</ENT> <ENT>Over 168,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 4</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 160 ounces but not over 10 gallons or 100 pounds whichever is applicable</ENT> <ENT>200 or less</ENT> <ENT>201-800</ENT> <ENT>801-1,600</ENT> <ENT>1,601-3,200</ENT> <ENT>3,201-8,000</ENT> <ENT>8,001-16,000</ENT> <ENT>16,001-24,000</ENT> <ENT>24,001-32,000</ENT> <ENT>Over 32,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 5</E> </ENT> </ROW> <ROW RUL="02,s"> <ENT I="01">Any type of container over 10 gallons or 100 pounds whichever is applicable</ENT> <ENT>25 or less</ENT> <ENT>26-80</ENT> <ENT>81-200</ENT> <ENT>201-400</ENT> <ENT>401-800</ENT> <ENT>801-1,200</ENT> <ENT>1,201-2,000</ENT> <ENT>2,001-3,200</ENT> <ENT>Over 3,200</ENT> </ROW> <ROW EXPSTB="09" RUL="02,s"> <ENT I="21">Single sampling plans <SU>2</SU> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">Sample size (number of sample units) <SU>3</SU> </ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>13</ENT> <ENT>21</ENT> <ENT>29</ENT> <ENT>38</ENT> <ENT>48</ENT> <ENT>60</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">Acceptance number</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>3</ENT> <ENT>4</ENT> <ENT>5</ENT> <ENT>6</ENT> <ENT>7</ENT> <ENT>8</ENT> </ROW> <TNOTE> <SU>1</SU> Ounces pertain to either fluid ounces of volume or avoirdupois ounces of net weight whichever is applicable for the product involved.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> <TNOTE> <SU>3</SU> 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.</TNOTE> </GPOTABLE> <PRTPAGE P="250"/> <GPOTABLE CDEF="s30,12,12,12,12,14,14,14,14,12" COLS="10" OPTS="L2"> <TTITLE>Table IV—Dehydrated Fishery and Related Products</TTITLE> <BOXHD> <CHED H="1">Container size group</CHED> <CHED H="1">Lot size (number of containers)</CHED> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> <CHED H="2"/> </BOXHD> <ROW> <ENT I="21"> <E T="04">group 1</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container of 1 pound or less net weight</ENT> <ENT>1,800 or less</ENT> <ENT>1,801-8,400</ENT> <ENT>8,401-18,000</ENT> <ENT>18,001-36,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-96,000</ENT> <ENT>96,001-132,000</ENT> <ENT>132,001-168,000</ENT> <ENT>Over 168,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 2</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 1 pound but not over 6 pounds net weight</ENT> <ENT>900 or less</ENT> <ENT>901-3,600</ENT> <ENT>3,601-10,800</ENT> <ENT>10,801-18,000</ENT> <ENT>18,001-36,000</ENT> <ENT>36,001-60,000</ENT> <ENT>60,001-84,000</ENT> <ENT>84,001-120,000</ENT> <ENT>Over 120,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 3</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 6 pounds but not over 20 pounds net weight</ENT> <ENT>200 or less</ENT> <ENT>201-800</ENT> <ENT>801-1,600</ENT> <ENT>1,601-3,200</ENT> <ENT>3,201-8,000</ENT> <ENT>8,001-16,000</ENT> <ENT>16,001-24,000</ENT> <ENT>24,001-32,000</ENT> <ENT>Over 32,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 4</E> </ENT> </ROW> <ROW> <ENT I="01">Any type of container over 20 pounds but not over 100 pounds net weight</ENT> <ENT>48 or less</ENT> <ENT>49-400</ENT> <ENT>401-1,200</ENT> <ENT>1,201-2,000</ENT> <ENT>2,001-2,800</ENT> <ENT>2,801-6,000</ENT> <ENT>6,001-9,600</ENT> <ENT>9,601-15,000</ENT> <ENT>Over 15,000 </ENT> </ROW> <ROW> <ENT I="21"> <E T="04">group 5</E> </ENT> </ROW> <ROW RUL="02,s"> <ENT I="01">Any type of container over 100 pounds net weight</ENT> <ENT>16 or less</ENT> <ENT>17-80</ENT> <ENT>81-200</ENT> <ENT>201-400</ENT> <ENT>401-800</ENT> <ENT>801-1,200</ENT> <ENT>1,201-2,000</ENT> <ENT>2,001-3,200</ENT> <ENT>Over 3,200</ENT> </ROW> <ROW EXPSTB="09" RUL="02,s"> <ENT I="21">Single sampling plans <SU>1</SU> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">Sample size (number of sample units) <SU>2</SU> </ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>13</ENT> <ENT>21</ENT> <ENT>29</ENT> <ENT>38</ENT> <ENT>48</ENT> <ENT>60</ENT> <ENT>72</ENT> </ROW> <ROW> <ENT I="01">Acceptance number</ENT> <ENT>0</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>3</ENT> <ENT>4</ENT> <ENT>5</ENT> <ENT>6</ENT> <ENT>7</ENT> <ENT>8</ENT> </ROW> <TNOTE> <SU>1</SU> 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.</TNOTE> <TNOTE> <SU>2</SU> 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.</TNOTE> </GPOTABLE> <GPOTABLE CDEF="s20,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3" COLS="26" OPTS="L0,6/7"> <TTITLE>Table V—Single Sampling Plans for Use in Increasing Sample Size Beyond 72 Sample Units</TTITLE> <ROW> <ENT I="01">Sample size, <E T="03">n</E> </ENT> <ENT>84</ENT> <ENT>96</ENT> <ENT>108</ENT> <ENT>120</ENT> <ENT>132</ENT> <ENT>144</ENT> <ENT>156</ENT> <ENT>168</ENT> <ENT>180</ENT> <ENT>192</ENT> <ENT>204</ENT> <ENT>216</ENT> <ENT>230</ENT> <ENT>244</ENT> <ENT>258</ENT> <ENT>272</ENT> <ENT>286</ENT> <ENT>300</ENT> <ENT>314</ENT> <ENT>328</ENT> <ENT>342</ENT> <ENT>356</ENT> <ENT>370</ENT> <ENT>384</ENT> <ENT>400</ENT> </ROW> <ROW> <ENT I="01">Acceptance numbers, <E T="03">c</E> </ENT> <ENT>9</ENT> <ENT>10</ENT> <ENT>11</ENT> <ENT>12</ENT> <ENT>13</ENT> <ENT>14</ENT> <ENT>15</ENT> <ENT>16</ENT> <ENT>17</ENT> <ENT>18</ENT> <ENT>19</ENT> <ENT>20</ENT> <ENT>21</ENT> <ENT>22</ENT> <ENT>23</ENT> <ENT>24</ENT> <ENT>25</ENT> <ENT>26</ENT> <ENT>27</ENT> <ENT>28</ENT> <ENT>29</ENT> <ENT>30</ENT> <ENT>31</ENT> <ENT>32</ENT> <ENT>33</ENT> </ROW> </GPOTABLE> <PRTPAGE P="251"/> <GPOTABLE CDEF="s50,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3" COLS="25" OPTS="L1(0,0),6/7"> <TTITLE>Multiple Sampling Plans \1\</TTITLE> <TTITLE>Table VI—Multiple Sampling Plans Comparable to the Indicated Single Sampling Plans</TTITLE> <ROW> <ENT I="11">Indicated single sampling plan:</ENT> </ROW> <ROW RUL="n,s"> <ENT I="02">Single sample size, <E T="03">n</E> </ENT> <ENT/> <ENT>6</ENT> <ENT/> <ENT/> <ENT>13</ENT> <ENT/> <ENT/> <ENT>21</ENT> <ENT/> <ENT/> <ENT>29</ENT> <ENT/> <ENT/> <ENT>38</ENT> <ENT/> <ENT/> <ENT>48</ENT> <ENT/> <ENT/> <ENT>60</ENT> <ENT/> <ENT/> <ENT>72</ENT> </ROW> <ROW RUL="s"> <ENT I="02">Acceptance numbers, <E T="03">c</E> </ENT> <ENT/> <ENT>1</ENT> <ENT/> <ENT/> <ENT>2</ENT> <ENT/> <ENT/> <ENT>3</ENT> <ENT/> <ENT/> <ENT>4</ENT> <ENT/> <ENT/> <ENT>5</ENT> <ENT/> <ENT/> <ENT>6</ENT> <ENT/> <ENT/> <ENT>7</ENT> <ENT/> <ENT/> <ENT>8</ENT> </ROW> <ROW> <ENT I="11">Cumulative sample sizes, <E T="03">n</E> <E T="24">c</E>, and acceptance numbers, <E T="03">c,</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> <ENT> <E T="03">n</E> <E T="24">c</E> </ENT> <ENT> <E T="03">c</E> </ENT> <ENT> <E T="03">r</E> </ENT> </ROW> <ROW> <ENT I="13">and rejection numbers, <E T="03">r,</E> for multiple sampling.</ENT> <ENT>4</ENT> <ENT>0</ENT> <ENT>2</ENT> <ENT>8</ENT> <ENT>0</ENT> <ENT>3</ENT> <ENT>10</ENT> <ENT>0</ENT> <ENT>3</ENT> <ENT>12</ENT> <ENT>0</ENT> <ENT>4</ENT> <ENT>14</ENT> <ENT>0</ENT> <ENT>4</ENT> <ENT>16</ENT> <ENT>0</ENT> <ENT>4</ENT> <ENT>18</ENT> <ENT>0</ENT> <ENT>5</ENT> <ENT>22</ENT> <ENT>0</ENT> <ENT>5</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>6</ENT> <ENT>0</ENT> <ENT>2</ENT> <ENT>10</ENT> <ENT>0</ENT> <ENT>3</ENT> <ENT>14</ENT> <ENT>1</ENT> <ENT>4</ENT> <ENT>16</ENT> <ENT>0</ENT> <ENT>4</ENT> <ENT>20</ENT> <ENT>0</ENT> <ENT>5</ENT> <ENT>24</ENT> <ENT>1</ENT> <ENT>5</ENT> <ENT>28</ENT> <ENT>1</ENT> <ENT>6</ENT> <ENT>32</ENT> <ENT>1</ENT> <ENT>7</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>8</ENT> <ENT>1</ENT> <ENT>2</ENT> <ENT>12</ENT> <ENT>1</ENT> <ENT>3</ENT> <ENT>18</ENT> <ENT>1</ENT> <ENT>4</ENT> <ENT>20</ENT> <ENT>1</ENT> <ENT>5</ENT> <ENT>26</ENT> <ENT>1</ENT> <ENT>6</ENT> <ENT>32</ENT> <ENT>2</ENT> <ENT>6</ENT> <ENT>38</ENT> <ENT>2</ENT> <ENT>7</ENT> <ENT>42</ENT> <ENT>2</ENT> <ENT>8</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT/> <ENT/> <ENT>14</ENT> <ENT>2</ENT> <ENT>3</ENT> <ENT>22</ENT> <ENT>2</ENT> <ENT>5</ENT> <ENT>24</ENT> <ENT>2</ENT> <ENT>5</ENT> <ENT>32</ENT> <ENT>2</ENT> <ENT>6</ENT> <ENT>40</ENT> <ENT>3</ENT> <ENT>8</ENT> <ENT>48</ENT> <ENT>3</ENT> <ENT>8</ENT> <ENT>52</ENT> <ENT>3</ENT> <ENT>9</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT>26</ENT> <ENT>4</ENT> <ENT>5</ENT> <ENT>28</ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>38</ENT> <ENT>3</ENT> <ENT>7</ENT> <ENT>48</ENT> <ENT>4</ENT> <ENT>8</ENT> <ENT>58</ENT> <ENT>4</ENT> <ENT>8</ENT> <ENT>62</ENT> <ENT>5</ENT> <ENT>10</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT>32</ENT> <ENT>3</ENT> <ENT>6</ENT> <ENT>44</ENT> <ENT>6</ENT> <ENT>7</ENT> <ENT>56</ENT> <ENT>7</ENT> <ENT>8</ENT> <ENT>68</ENT> <ENT>8</ENT> <ENT>9</ENT> <ENT>72</ENT> <ENT>6</ENT> <ENT>10</ENT> </ROW> <ROW> <ENT I="22"/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT>36</ENT> <ENT>5</ENT> <ENT>6</ENT> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT/> <ENT>82</ENT> <ENT>9</ENT> <ENT>10</ENT> </ROW> <TNOTE> <SU>1</SU> These multiple sampling plans may be used in lieu of the single sampling plans listed at the heading of each column.</TNOTE> </GPOTABLE> </SECTION> <SECTION> <PRTPAGE P="252"/> <SECTNO>§ 260.62</SECTNO> <SUBJECT>Issuance of certificate of sampling.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 260.63</SECTNO> <SUBJECT>Identification of lots sampled.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Fees and Charges</HD> <SECTION> <SECTNO>§ 260.69</SECTNO> <SUBJECT>Payment fees and charges.</SUBJECT> <P>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.</P> <CITA>[36 FR 21038, Nov. 3, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 260.70</SECTNO> <SUBJECT>Schedule of fees.</SUBJECT> <P>(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 <E T="04">Federal Register</E> and will be in accordance with § 260.81.</P> <P>(b) Fees are reviewed annually to ascertain that the hourly fees charged are adequate to recover the costs of the services rendered.</P> <P>(1) The TYPE I (Contract Inspection) hourly fee is determined by dividing the estimated annual costs by the estimated annual billable hours.</P> <P>(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 s