[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2001 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    50


          Parts 200 to 599

                         Revised as of October 1, 2001

Wildlife and Fisheries





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2001
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2001



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



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

  Title 50:
          Chapter II--National Marine Fisheries Service, 
          National Oceanic and Atmospheric Administration, 
          Department of Commerce                                     3
          Chapter III--International Fishing and Related 
          Activities                                               319
          Chapter IV--Joint Regulations (United States Fish 
          and Wildlife Service, Department of the Interior and 
          National Marine Fisheries Service, National Oceanic 
          and Atmospheric Administration, Department of 
          Commerce); Endangered Species Committee Regulations      379
          Chapter V--Marine Mammal Commission                      421
  Finding Aids:
      Material Approved for Incorporation by Reference........     447
      Table of CFR Titles and Chapters........................     449
      Alphabetical List of Agencies Appearing in the CFR......     467
      List of CFR Sections Affected...........................     477



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

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

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

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                               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, 2001), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). 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.

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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 or e-mail 
info@fedreg.nara.gov.

SALES

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

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    The Office of the Federal Register also offers a free service on the 
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site also contains links to GPO Access.

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

October 1, 2001.



[[Page ix]]



                               THIS TITLE

    Title 50--Fish and Wildlife is composed of three volumes. The parts 
in these volumes are arranged in the following order: Parts 1-199, parts 
200-599 and part 600 to end. The first volume (parts 1-199) contains the 
current regulations issued under chapter I--United States Fish and 
Wildlife Service, Department of the Interior. The second volume (parts 
200-599) contains the current regulations issued under chapter II--
National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Department of Commerce; chapter III--International 
Fishing and Related Activities, chapter IV--Joint Regulations (United 
States Fish and Wildlife Service, Department of the Interior and 
National Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, Department of Commerce); Endangered Species Committee 
regulations; and chapter V--Marine Mammal Commission. The third volume 
(part 600 to end) contains the current regulations issued under chapter 
VI--Fishery Conservation and Management, National Oceanic and 
Atmospheric Administration, Department of Commerce. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of October 1, 2001.

    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.

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[[Page 1]]



                    TITLE 50--WILDLIFE AND FISHERIES




                  (This book contains parts 200 to 599)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--National Marine Fisheries Service, National 
  Oceanic and Atmospheric Administration, Department of 
  Commerce..................................................         216


chapter iii--International Fishing and Related Activities...         300


chapter iv--Joint Regulations (United States Fish and 
  Wildlife Service, Department of the Interior and National 
  Marine Fisheries Service, National Oceanic and Atmospheric 
  Administration, Department of Commerce); Endangered 
  Species Committee Regulations.............................         401


chapter v--Marine Mammal Commission.........................         501


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

[[Page 3]]



                  CHAPTER II--NATIONAL MARINE FISHERIES






                      SERVICE, NATIONAL OCEANIC AND






                       ATMOSPHERIC ADMINISTRATION,






                         DEPARTMENT OF COMMERCE




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

              SUBCHAPTER A--GENERAL PROVISIONS  [RESERVED]
      SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES  [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
Part                                                                Page
216             Regulations governing the taking and 
                    importing of marine mammals.............           5
217-221         [Reserved]

222             General endangered and threatened marine 
                    species.................................          77
223             Threatened marine and anadromous species....          98
224             Endangered marine and anadromous species....         171
225             [Reserved]

226             Designated critical habitat.................         176
228             Notice and hearing on section 103(d) 
                    regulations.............................         218
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         225
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         255
     SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE  
                               [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         258
259             Capital construction fund...................         267
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         279

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261             United States Standards for Grades..........         309
                       SUBCHAPTERS H-J  [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         311

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              SUBCHAPTER A--GENERAL PROVISIONS  [RESERVED]





      SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES  [RESERVED]





                      SUBCHAPTER C--MARINE MAMMALS





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




                         Subpart A--Introduction

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

                         Subpart B--Prohibitions

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

                      Subpart C--General Exceptions

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

                      Subpart D--Special Exceptions

216.30  [Reserved]
216.31  Definitions.
216.32  Scope.
216.33  Permit application submission, review, and decision procedures.
216.34  Issuance criteria.
216.35  Permit restrictions.
216.36  Permit conditions.
216.37  Marine mammal parts.
216.38  Reporting.
216.39  Permit amendments.
216.40  Penalties and permit sanctions.
216.41  Permits for scientific research and enhancement.
216.42  Photography. [Reserved]
216.43  Public display. [Reserved]
216.44  Applicability/transition.
216.45  General Authorization for Level B harassment for scientific 
          research.
216.46  U.S. citizens on foreign flag vessels operating under the 
          International Dolphin Conservation Program.
216.47-216.49  [Reserved]

                       Subpart E--Designated Ports

216.50  Importation at designated ports.

      Subpart F--Pribilof Islands, Taking for Subsistence Purposes

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

               Subpart G--Pribilof Islands Administration

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

                  Subpart H--Dolphin Safe Tuna Labeling

216.90  Purposes.
216.91  Dolphin-safe labeling standards.
216.92  Dolphin-safe requirements for tuna harvested in the ETP by large 
          purse seine vessels.
216.93  Submission of documentation.
216.94  Tracking and verification program.
216.95  False statements or endorsements.
216.96  Official mark for ``Dolphin-safe'' tuna products.

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

216.101  Purpose.
216.102  Scope.
216.103  Definitions.

[[Page 6]]

216.104  Submission of requests.
216.105  Specific regulations.
216.106  Letter of Authorization.
216.107  Incidental harassment authorization for Arctic waters.
216.108  Requirements for monitoring and reporting under incidental 
          harassment authorizations for Arctic waters.

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

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

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

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

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

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

Subparts M--N  [Reserved]

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

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

   Subpart P--Taking of Marine Mammals Incidental to Operating A Low 
   Frequency Acoustic Source by the North Pacific Acoustic Laboratory

216.170  Specified activity and specified geographical region.
216.171  Effective dates.
216.172  Permissible methods of taking.
216.173  Prohibitions.
216.174  Mitigation.
216.175  Requirements for monitoring and reporting.
216.176  Letter of authorization.
216.177  Renewal of a letter of authorization.
216.178  Modifications to a letter of authorization.

Subpart Q  [Reserved]

   Subpart R--Taking of Marine Mammals Incidental to Construction and 
  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

216.200  Specified activity and specified geographical region.
216.201  Effective dates.
216.202  Permissible methods of taking.
216.203  Prohibitions.
216.204  Mitigation.
216.205  Measures to ensure availability of species for subsistence 
          uses.
216.206  Requirements for monitoring and reporting.
216.207  Applications for Letters of Authorization.
216.208  Letters of Authorization.
216.209  Renewal of Letters of Authorization.
216.210  Modifications to Letters of Authorization.
    Note to part 216: See also 50 CFR parts 228 and 229 for regulations 
governing certain incidental takings of marine mammals.

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

[[Page 7]]


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



                         Subpart A--Introduction



Sec. 216.1  Purpose of regulations.

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



Sec. 216.2  Scope of regulations.

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

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



Sec. 216.3  Definitions.

    In addition to definitions contained in the MMPA, and unless the 
context otherwise requires, in this part 216:
    Acts means, collectively, the Marine Mammal Protection Act of 1972, 
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973, 
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as 
amended, 16 U.S.C. 1151 et seq.
    Active sportfishing means paying passengers have their terminal 
fishing gear (lures, hooks, etc.) in the water in an attempt to catch 
fish or, in the case of fishing involving chumming, fishing is 
considered to be in progress from the instant fish have been sighted 
taking bait (boiling) during that chumming process.
    Administrator, Northeast Region means Administrator, Northeast 
Region, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930-2298.
    Administrator, Southeast Region means Administrator, Southeast 
Region, National Marine Fisheries Service, 9721 Executive Center Drive, 
St. Petersburg, FL 33702-2432.
    Administrator, Southwest Region means the Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
    Agreement on the International Dolphin Conservation Program 
(Agreement on the IDCP) means the Agreement establishing the formal 
binding IDCP that was signed in Washington, DC on May 21, 1998.
    Alaskan Native means a person defined in the Alaska Native Claims 
Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the 
United States who is of one-fourth degree or more Alaska Indian 
(including Tsimishian Indians enrolled or not enrolled in the Metlaktla 
Indian Community), Eskimo, or Aleut blood or combination thereof. The 
term includes any Native, as so defined, either or both of whose 
adoptive parents are not Natives. It also includes, in the absence of 
proof of a minimum blood quantum, any citizen of the United States who 
is regarded as an Alaska Native by the Native village or group, of which 
he claims to be a member and whose father or mother is (or, if deceased, 
was) regarded as Native by any Native village or Native group. Any such 
citizen enrolled by the Secretary of the Interior pursuant to section 5 
of the Alaska Native Claims Settlement Act shall be conclusively 
presumed to be an Alaskan Native for purposes of this part.
    Article of handicraft means items made by an Indian, Aleut or Eskimo 
from the nonedible byproducts of fur seals taken for personal or family 
consumption which--
    (1) Were commonly produced by Alaskan Natives on or before October 
14, 1983;
    (2) Are composed wholly or in some significant respect of natural 
materials, and;
    (3) Are significantly altered from their natural form and which are 
produced, decorated, or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or similar 
mass copying devices. Improved methods of production utilizing modern 
implements such as sewing machines or modern tanning techniques at a 
tannery registered pursuant to Sec. 216.23(c) may be used so long as no 
large scale mass production industry results. Traditional native 
handicrafts include, but are not

[[Page 8]]

limited to, weaving, carving, stitching, sewing, lacing, beading, 
drawing, and painting. The formation of traditional native groups, such 
as a cooperative, is permitted so long as no large scale mass production 
results.
    Assistant Administrator means the Assistant Administrator for 
Fisheries, National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Silver Spring, MD 20910, or his/her 
designee.
    Authentic native articles of handicrafts and clothing means items 
made by an Indian, Aleut or Eskimo which (a) were commonly produced on 
or before December 21, 1972, and (b) are composed wholly or in some 
significant respect of natural materials, and (c) are significantly 
altered from their natural form and which are produced, decorated, or 
fashioned in the exercise of traditional native handicrafts without the 
use of pantographs, multiple carvers, or similar mass copying devices. 
Improved methods of production utilizing modern implements such as 
sewing machines or modern tanning techniques at a tannery registered 
pursuant to Sec. 216.23(c) may be used so long as no large scale mass 
production industry results. Traditional native handicrafts include, but 
are not limited to, weaving, carving, stitching, sewing, lacing, 
beading, drawing, and painting. The formation of traditional native 
groups, such as a cooperative, is permitted so long as no large scale 
mass production results.
    Bona fide scientific research: (1) Means scientific research on 
marine mammals conducted by qualified personnel, the results of which:
    (i) Likely would be accepted for publication in a refereed 
scientific journal;
    (ii) Are likely to contribute to the basic knowledge of marine 
mammal biology or ecology. (Note: This includes, for example, marine 
mammal parts in a properly curated, professionally accredited scientific 
collection); or
    (iii) Are likely to identify, evaluate, or resolve conservation 
problems.
    (2) Research that is not on marine mammals, but that may 
incidentally take marine mammals, is not included in this definition 
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, 
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
    Carrying capacity means the Regional Director's determination of the 
maximum amount of fish that a vessel can carry in short tons based on 
the greater of the amount indicated by the builder of the vessel, a 
marine surveyor's report, or the highest amount reported landed from any 
one trip.
    Certified charter vessel means a fishing vessel of a non-U.S. flag 
nation, which is operating under the jurisdiction of the marine mammal 
laws and regulations of another, harvesting, nation by a formal 
declaration entered into by mutual agreement of the nations.
    Co-investigator means the on-site representative of a principal 
investigator.
    Commercial fishing operation means the lawful harvesting of fish 
from the marine environment for profit as part of an ongoing business 
enterprise. Such terms may include licensed commercial passenger fishing 
vessel (as defined) activities, but no other sportfishing activities, 
whether or not the fish so caught are subsequently sold.
    Commercial passenger fishing vessel means any vessel licensed for 
commercial passenger fishing purposes within the State out of which it 
is operating and from which, while under charter or hire, persons are 
legally permitted to conduct sportfishing activities.
    Custody means holding a live marine mammal pursuant to the 
conditional authority granted under the MMPA, and the responsibility 
therein for captive maintenance of the marine mammal.
    Declaration of Panama means the declaration signed in Panama City, 
Republic of Panama, on October 4, 1995.
    Director, Office of Protected Resources means Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    Dolphin Mortality Limit (DML) means the maximum allowable number of 
incidental dolphin mortalities per calendar year assigned to a vessel, 
unless a shorter time period is specified.
    Endangered Species means a species or subspecies of marine mammal 
listed as ``endangered'' pursuant to the Endangered Species Act of 1973, 
87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).

[[Page 9]]

    ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    ETP means the eastern tropical Pacific Ocean which includes the 
Pacific Ocean area bounded by 40 deg. N. latitude, 40 deg. S. latitude, 
160 deg. W. longitude and the coastlines of North, Central and South 
America.
    Facility means, in the context specific to captive marine mammals,: 
(1) One or more permanent primary enclosures used to hold marine mammals 
captive (i.e., pools, lagoons) and associated infrastructure (i.e., 
equipment and supplies necessary for the care and maintenance of marine 
mammals) where these enclosures are either located within the boundaries 
of a single contiguous parcel of land and water, or are grouped together 
within the same general area within which enclosure-to-enclosure 
transport is expected to be completed in less than one hour; or
    (2) A traveling display/exhibit, where the enclosure(s) and 
associated infrastructure is transported together with the marine 
mammals.
    Feeding is offering, giving, or attempting to give food or non-food 
items to marine mammals in the wild. It includes operating a vessel or 
providing other platforms from which feeding is conducted or supported. 
It does not include the routine discard of bycatch during fishing 
operations or the routine discharge of waste or fish byproducts from 
fish processing plants or other platforms if the discharge is otherwise 
legal and is incidental to operation of the activity.
    First exporter means the person or company that first exports the 
fish or fish product, or, in the case of shipments that are subject to 
the labeling requirements of 50 CFR part 247 and that only contain fish 
harvested by vessels of the United States, the first seller of the fish 
or fish product.
    Fisheries Certificate of Origin means NOAA Form 370, as described in 
Sec. 216.24(f)(5).
    Force majeure means forces outside the vessel operator's or vessel 
owner's control that could not be avoided by the exercise of due care.
    FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et 
seq.
    Fur seal means North Pacific fur seal, scientifically known as 
Callorhinus ursinus.
    Hard part means any bone, tooth, baleen, treated pelt, or other part 
of a marine mammal that is relatively solid or durable.
    Harvesting nation means the country under whose flag one or more 
fishing vessels are documented, or which has by formal declaration 
agreed to assert jurisdiction over one or more certified charter 
vessels, from which vessel(s) fish are caught that are a part of any 
cargo or shipment of fish to be imported into the United States, 
regardless of any intervening transshipments.
    Humane means the method of taking, import, export, or other activity 
which involves the least possible degree of pain and suffering 
practicable to the animal involved.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into, any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the Customs 
laws of the United States; except that, for the purpose of any ban 
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish 
products, the definition of ``import'' in Sec. 216.24(f)(1)(ii) shall 
apply.
    Incidental catch means the taking of a marine mammal (1) because it 
is directly interfering with commercial fishing operations, or (2) as a 
consequence of the steps used to secure the fish in connection with 
commercial fishing operations: Provided, That a marine mammal so taken 
must immediately be returned to the sea with a minimum of injury and 
further, that the taking of a marine mammal, which otherwise meets the 
requirements of this definition shall not be considered an incidental 
catch of that mammal if it is used subsequently to assist in commercial 
fishing operations.
    Intentional purse seine set means that a tuna purse seine vessel or 
associated vessels chase marine mammals and subsequently make a purse 
seine set.
    International Dolphin Conservation Program (IDCP) means the 
international program established by the

[[Page 10]]

agreement signed in La Jolla, California, in June 1992, as formalized, 
modified, and enhanced in accordance with the Declaration of Panama and 
the Agreement on the IDCP.
    International Dolphin Conservation Program Act (IDCPA) means Public 
Law 105-42, enacted into law on August 15, 1997.
    International Review Panel (IRP) means the International Review 
Panel established by the Agreement on the IDCP.
    Intrusive research means a procedure conducted for bona fide 
scientific research involving: A break in or cutting of the skin or 
equivalent, insertion of an instrument or material into an orifice, 
introduction of a substance or object into the animal's immediate 
environment that is likely either to be ingested or to contact and 
directly affect animal tissues (i.e., chemical substances), or a 
stimulus directed at animals that may involve a risk to health or 
welfare or that may have an impact on normal function or behavior (i.e., 
audio broadcasts directed at animals that may affect behavior). For 
captive animals, this definition does not include:
    (1) A procedure conducted by the professional staff of the holding 
facility or an attending veterinarian for purposes of animal husbandry, 
care, maintenance, or treatment, or a routine medical procedure that, in 
the reasonable judgment of the attending veterinarian, would not 
constitute a risk to the health or welfare of the captive animal; or
    (2) A procedure involving either the introduction of a substance or 
object (i.e., as described in this definition) or a stimulus directed at 
animals that, in the reasonable judgment of the attending veterinarian, 
would not involve a risk to the health or welfare of the captive animal.
    Label means a display of written, printed, or graphic matter on or 
affixed to the immediate container of any article.
    Land or landing means to begin offloading any fish, to arrive in 
port with the intention of offloading fish, or to cause any fish to be 
offloaded.
    Large-scale driftnet means a gillnet that is composed of a panel or 
panels of webbing, or a series of such gillnets, with a total length of 
2.5 kilometers or more that is used on the high seas and allowed to 
drift with the currents and winds for the purpose of harvesting fish by 
entangling the fish in the webbing of the net.
    Level A Harassment means any act of pursuit, torment, or annoyance 
which has the potential to injure a marine mammal or marine mammal stock 
in the wild.
    Level B Harassment means any act of pursuit, torment, or annoyance 
which has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering but which does not have the potential to injure a 
marine mammal or marine mammal stock in the wild.
    Marine environment means the oceans and the seas, including 
estuarine and brackish waters.
    Marine mammal means those specimens of the following orders, which 
are morphologically adapted to the marine environment, whether alive or 
dead, and any part thereof, including but not limited to, any raw, 
dressed or dyed fur or skin: Cetacea (whales and porpoises), Pinnipedia, 
other than walrus (seals and sea lions).
    MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 
U.S.C. 1361 et seq.
    Native village or town means any community, association, tribe, 
band, clan or group.
    Optimum sustainable population is a population size which falls 
within a range from the population level of a given species or stock 
which is the largest supportable within the ecosystem to the population 
level that results in maximum net productivity. Maximum net productivity 
is the greatest net annual increment in population numbers or biomass 
resulting from additions to the population due to reproduction and/or 
growth less losses due to natural mortality.
    Per-stock per-year dolphin mortality limit means the maximum 
allowable

[[Page 11]]

number of incidental dolphin mortalities and serious injuries from a 
specified stock per calendar year, as established under the IDCP.
    Pregnant means pregnant near term.
    Pribilovians means Indians, Aleuts, and Eskimos who live on the 
Pribilof Islands.
    Principal investigator means the individual primarily responsible 
for the taking, importation, export, and any related activities 
conducted under a permit issued for scientific research or enhancement 
purposes.
    Public display means an activity that provides opportunities for the 
public to view living marine mammals at a facility holding marine 
mammals captive.
    Regional Director means the Director, Southwest Region, NMFS, 501 W. 
Ocean Blvd., Long Beach, CA 90802, or his/her designee.
    Rehabilitation means treatment of beached and stranded marine 
mammals taken under section 109(h)(1) of the MMPA or imported under 
section 109(h)(2) of the MMPA, with the intent of restoring the marine 
mammal's health and, if necessary, behavioral patterns.
    Secretary shall mean the Secretary of Commerce or his authorized 
representative.
    Serious injury means any injury that will likely result in 
mortality.
    Sexual harassment means any unwelcome sexual advance, request for 
sexual favors, or other verbal and physical conduct of a sexual nature 
which has the purpose or effect of substantially interfering with an 
individual's work performance or creating an intimidating, hostile, or 
offensive working environment.
    Soft part means any marine mammal part that is not a hard part. Soft 
parts do not include urine or fecal material.
    South Pacific Ocean means any waters of the Pacific Ocean that lie 
south of the equator.
    Stranded or stranded marine mammal means a marine mammal specimen 
under the jurisdiction of the Secretary:
    (1) If the specimen is dead, and is on a beach or shore, or is in 
the water within the Exclusive Economic Zone of the United States; or
    (2) If the specimen is alive, and is on a beach or shore and is 
unable to return to the water, or is in the water within the Exclusive 
Economic Zone of the United States where the water is so shallow that 
the specimen is unable to return to its natural habitat under its own 
power.
    Subsistence means the use of marine mammals taken by Alaskan Natives 
for food, clothing, shelter, heating, transportation, and other uses 
necessary to maintain the life of the taker or those who depend upon the 
taker to provide them with such subsistence.
    Subsistence uses means the customary and traditional uses of fur 
seals taken by Pribilovians for direct personal or family consumption as 
food, shelter, fuel, clothing, tools or transportation; for the making 
and selling of handicraft articles out of nonedible byproducts of fur 
seals taken for personal or family consumption; and for barter, or 
sharing for personal or family consumption. As used in this definition--
    (1) Family means all persons related by blood, marriage, or 
adoption, or any person living within a household on a permanent basis.
    (2) Barter means the exchange of fur seals or their parts, taken for 
subsistence uses--
    (i) For other wildlife or fish or their parts, or
    (ii) For other food or for nonedible items other than money if the 
exchange is of a limited and noncommercial nature.
    Take means to harass, hunt, capture, collect, or kill, or attempt to 
harass, hunt, capture, collect, or kill any marine mammal. This 
includes, without limitation, any of the following: The collection of 
dead animals, or parts thereof; the restraint or detention of a marine 
mammal, no matter how temporary; tagging a marine mammal; the negligent 
or intentional operation of an aircraft or vessel, or the doing of any 
other negligent or intentional act which results in disturbing or 
molesting a marine mammal; and feeding or attempting to feed a marine 
mammal in the wild.
    Threatened species means a species of marine mammal listed as 
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 
884, Pub. L. 93-205.
    Trip means a voyage starting when a vessel leaves port with all fish 
wells

[[Page 12]]

empty of fish and ending when a vessel unloads all of its fish.
    Tuna product means any food product processed for retail sale and 
intended for human or animal consumption that contains an item listed in 
Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items with 
a shelf life of less than 3 days.
    Wasteful manner means any taking or method of taking which is likely 
to result in the killing of marine mammals beyond those needed for 
subsistence, subsistence uses, or for the making of authentic native 
articles of handicrafts and clothing, or which results in the waste of a 
substantial portion of the marine mammal and includes, without 
limitation, the employment of a method of taking which is not likely to 
assure the capture or killing of a marine mammal, or which is not 
immediately followed by a reasonable effort to retrieve the marine 
mammal.

    Editorial Note: For Federal Register citations affecting Sec. 216.3, 
see the List of Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

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



Sec. 216.4  Other laws and regulations.

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

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



Sec. 216.5  Payment of penalty.

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

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



Sec. 216.6  Forfeiture and return of seized property.

    (a) Whenever any cargo or marine mammal or marine mammal product has 
been seized pursuant to section 107 of the MMPA, the Secretary shall 
expedite any proceedings commenced under these regulations.
    (b) Whenever a civil penalty has been assessed by the Secretary 
under these regulations, any cargo, marine mammal, or marine mammal 
product seized pursuant to section 107 of the MMPA shall be subject to 
forfeiture. If respondent voluntarily forfeits any such seized property 
or the monetary value thereof without court proceedings, the Secretary 
may apply the value thereof, if any, as determined by the Secretary, 
toward payment of the civil penalty.
    (c) Whenever a civil penalty has been assessed under these 
regulations, and whether or not such penalty has been paid, the 
Secretary may request the Attorney General to institute a civil action 
in an appropriate United States District Court to compel forfeiture of 
such seized property or the monetary value thereof to the Secretary for 
disposition by him in such manner as he deems appropriate. If no 
judicial action to compel forfeiture is commenced within 30 days after 
final decision-making assessment of a civil penalty, pursuant to 
Sec. 216.60, such seized property shall immediately be returned to the 
respondent.
    (d) If the final decision of the Secretary under these regulations 
is that respondent has committed no violation of the MMPA or of any 
permit or regulations issued thereunder, any marine mammal, marine 
mammal product, or other cargo seized from respondent in connection with 
the proceedings under these regulations, or the bond or other monetary 
value substituted therefor, shall immediately be returned to the 
respondent.
    (e) If the Attorney General commences criminal proceedings pursuant 
to section 105(b) of the MMPA, and

[[Page 13]]

such proceedings result in a finding that the person accused is not 
guilty of a criminal violation of the MMPA, the Secretary may institute 
proceedings for the assessment of a civil penalty under this part: 
Provided, That if no such civil penalty proceedings have been commenced 
by the Secretary within 30 days following the final disposition of the 
criminal case, any property seized pursuant to section 107 of the MMPA 
shall be returned to the respondent.
    (f) If any seized property is to be returned to the respondent, the 
Regional Director shall issue a letter authorizing such return. This 
letter shall be dispatched to the respondent by registered mail, return 
receipt requested, and shall identify the respondent, the seized 
property, and, if appropriate, the bailee of the seized property. It 
shall also provide that upon presentation of the letter and proper 
identification, the seized property is authorized to be released. All 
charges for storage, care, or handling of the seized property accruing 5 
days or more after the date of the return receipt shall be for the 
account of the respondent: Provided, That if it is the final decision of 
the Secretary under these regulations that the respondent has committed 
the alleged violation, all charges which have accrued for the storage, 
care, or handling of the seized property shall be for the account of the 
respondent.

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



Sec. 216.7  Holding and bonding.

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

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



Sec. 216.8  Enforcement officers.

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

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



                         Subpart B--Prohibitions



Sec. 216.11  Prohibited taking.

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

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



Sec. 216.12  Prohibited importation.

    (a) Except as otherwise provided in subparts C and D of this part 
216, it is unlawful for any person to import any marine mammal or marine 
mammal product into the United States.
    (b) Regardless of whether an importation is otherwise authorized 
pursuant to subparts C and D of this part 216, it

[[Page 14]]

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

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



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

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

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



Sec. 216.14  Marine mammals taken before the MMPA.

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

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

[[Page 15]]

U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 
1972.

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

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



Sec. 216.15  Depleted species.

    The following species or population stocks have been designated by 
the Assistant Administrator as depleted under the provisions of the 
MMPA.
    (a) Hawaiian monk seal (Monachus schauinslandi).
    (b) Bowhead whale (Balaena mysticetus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock 
along the U.S. mid-Atlantic coast.
    (e) Eastern spinner dolphin (Stenella longirostris orientalis).
    (f) Northeastern offshore spotted dolphin (Stenella attenuata).
    (g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus 
leucas). The stock includes all beluga whales occurring in waters of the 
Gulf of Alaska north of 58 deg. North latitude including, but not 
limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince 
William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and 
freshwater tributaries to these waters.

[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; 65 FR 34597, May 31, 2000]



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

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

[59 FR 50376, Oct. 3, 1994]



                      Subpart C--General Exceptions



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

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

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



Sec. 216.22  Taking by State or local government officials.

    (a) A State or local government official or employee may take a 
marine mammal in the normal course of his duties as an official or 
employee, and no permit shall be required, if such taking:

[[Page 16]]

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

[[Page 17]]

    (5) Transfer without prior authorization. A person who salvages a 
marine mammal specimen under this section may transfer that specimen to 
another person if:
    (i) The person transferring the marine mammal specimen does not 
receive remuneration for the specimen;
    (ii) The person receiving the marine mammal specimen is an employee 
of the National Marine Fisheries Service, the U.S. Fish and Wildlife 
Service, or any other Federal agency with jurisdiction and conservation 
responsibilities in marine shoreline areas; is a person authorized under 
16 U.S.C. 1382(c); or is a person who has received prior authorization 
under paragraph (c)(6) of this section;
    (iii) The marine mammal specimen is transferred for the purpose of 
scientific research, for the purpose of maintenance in a properly 
curated, professionally accredited scientific collection, or for 
educational purposes;
    (iv) The unique number assigned by the National Marine Fisheries 
Service is on, marked on, or affixed to the marine mammal specimen or 
container; and
    (v) Except as provided under paragraph (c)(8) of this section, the 
person transferring the marine mammal specimen notifies the appropriate 
Regional Office of the National Marine Fisheries Service of the 
transfer, including notification of the number of the specimen 
transferred and the person to whom the specimen was transferred, within 
30 days after the transfer occurs.
    (6) Other transfers within the United States. Except as provided 
under paragraphs (c)(5) and (c)(8) of this section, a person who 
salvages a marine mammal specimen, or who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to another person within the United States unless the Regional 
Director of the appropriate Regional Office of the National Marine 
Fisheries Service grants prior written authorization for the transfer. 
The Regional Director may grant authorization for the transfer if there 
is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (7) Tranfers outside of the United States. A person who salvages a 
marine mammal specimen, or a person who has received a marine mammal 
specimen under the provisions of this section, may not transfer that 
specimen to a person outside of the United States unless the Assistant 
Administrator grants prior written authorization for the transfer. The 
Assistant Administrator may grant authorization for the transfer if 
there is evidence that the conditions listed under paragraphs (c)(5)(i), 
(c)(5)(iii), and (c)(5)(iv) of this section are met.
    (8) Exceptions to requirements for notification or prior 
authorization. A person may transfer a marine mammal specimen salvaged 
under this section without the notification required in paragraph 
(c)(5)(v) of this section or the prior authorization required in 
paragraph (c)(6) of this section if:
    (i) The transfer is a temporary transfer to a laboratory or research 
facility within the United States so that analyses can be performed for 
the person salvaging the specimen; or
    (ii) The transfer is a loan of not more than 1 year to another 
professionally accredited scientific collection within the United 
States.

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



Sec. 216.23  Native exceptions.

    (a) Taking. Notwithstanding the prohibitions of subpart B of this 
part 216, but subject to the restrictions contained in this section, any 
Indian, Aleut, or Eskimo who resides on the coast of the North Pacific 
Ocean or the Arctic Ocean may take any marine mammal without a permit, 
if such taking is:
    (1) By Alaskan Natives who reside in Alaska for subsistence, or
    (2) For purposes of creating and selling authentic native articles 
of handicraft and clothing, and
    (3) In each case, not accomplished in a wasteful manner.
    (b) Restrictions. (1) No marine mammal taken for subsistence may be 
sold or otherwise transferred to any person other than an Alaskan Native 
or delivered, carried, transported, or shipped in interstate or foreign 
commerce, unless:

[[Page 18]]

    (i) It is being sent by an Alaskan Native directly or through a 
registered agent to a tannery registered under paragraph (c) of this 
section for the purpose of processing, and will be returned directly or 
through a registered agent to the Alaskan Native; or
    (ii) It is sold or transferred to a registered agent in Alaska for 
resale or transfer to an Alaskan Native; or
    (iii) It is an edible portion and it is sold in an Alaskan Native 
village or town.
    (2) No marine mammal taken for purposes of creating and selling 
authentic native articles of handicraft and clothing may be sold or 
otherwise transferred to any person other than an Indian, Aleut or 
Eskimo, or delivered, carried, transported or shipped in interstate or 
foreign commerce, unless:
    (i) It is being sent by an Indian, Aleut or Eskimo directly or 
through a registered agent to a tannery registered under paragraph (c) 
of this section for the purpose of processing, and will be returned 
directly or through a registered agent to the Indian, Aleut or Eskimo; 
or
    (ii) It is sold or transferred to a registered agent for resale or 
transfer to an Indian, Aleut, or Eskimo; or
    (iii) It has first been transformed into an authentic native article 
of handicraft or clothing; or
    (iv) It is an edible portion and sold (A) in an Alaskan Native 
village or town, or (B) to an Alaskan Native for his consumption.
    (c) Any tannery, or person who wishes to act as an agent, within the 
jurisdiction of the United States may apply to the Director, National 
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 
20235, for registration as a tannery or an agent which may possess and 
process marine mammal products for Indians, Aleuts, or Eskimos. The 
application shall include the following information:
    (i) The name and address of the applicant;
    (ii) A description of the applicant's procedures for receiving, 
storing, processing, and shipping materials;
    (iii) A proposal for a system of bookkeeping and/or inventory 
segregation by which the applicant could maintain accurate records of 
marine mammals received from Indians, Aleuts, or Eskimos pursuant to 
this section;
    (iv) Such other information as the Secretary may request;
    (v) A certification in the following language:

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

    (vi) The signature of the applicant.

The sufficiency of the application shall be determined by the Secretary, 
and in that connection, he may waive any requirement for information, or 
require any elaboration or further information deemed necessary. The 
registration of a tannery or other agent shall be subject to such 
conditions as the Secretary prescribes, which may include, but are not 
limited to, provisions regarding records, inventory segregation, 
reports, and inspection. The Secretary may charge a reasonable fee for 
processing such applications, including an appropriate apportionment of 
overhead and administrative expenses of the Department of Commerce.
    (d) Notwithstanding the preceding provisions of this section, 
whenever, under the MMPA, the Secretary determines any species of stock 
of marine mammals to be depleted, he may prescribe regulations pursuant 
to section 103 of the MMPA upon the taking of such marine animals by any 
Indian, Aleut, or Eskimo and, after promulgation of such regulations, 
all takings of such marine mammals shall conform to such regulations.
    (e) Marking and reporting of Cook Inlet Beluga Whales. (1) 
Definitions. In addition to definitions contained in the MMPA and the 
regulations in this part:
    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.

[[Page 19]]

    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other crew on the boat) and who is the whaling captain; or 
the individual operating the boat at the time the whale is harvested or 
transported to the place of processing.
    (iii) Cook Inlet means all waters of Cook Inlet north of 59 deg. 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, 
Alaska, must remove the lower left jawbone, leaving the teeth intact and 
in place. When multiple whales are harvested during one hunting trip, 
the jawbones will be marked for identification in the field to ensure 
correct reporting of harvest information by placing a label marked with 
the date, time, and location of harvest within the container in which 
the jawbone is placed. The jawbone(s) must be retained by the whaling 
captain or vessel operator and delivered to NMFS at the Anchorage Field 
Office, 222 West 7th Avenue, Anchorage, Alaska 99513 within 
72 hours of returning from the hunt.
    (3) Reporting. Upon delivery to NMFS of a jawbone, the whaling 
captain or vessel operator must complete and mail a reporting form, 
available from NMFS, to the NMFS Anchorage Field Office within 30 days. 
A separate form is required for each whale harvested.
    (i) To be complete, the form must contain the following information: 
the date and location of kill, the method of harvest, and the coloration 
of the whale. The respondent will also be invited to report on any other 
observations concerning the animal or circumstance of the harvest.
    (ii) Data collected pursuant to paragraph (e) of this section will 
be reported on forms obtained from the Anchorage Field Office. These 
data will be maintained in the NMFS Alaska Regional Office in Juneau, 
Alaska, where such data will be available for public review.
    (4) No person may falsify any information required to be set forth 
on the reporting form as required by paragraph (e) of this section.
    (5) The Anchorage Field Office of NMFS is located in room 517 of the 
Federal Office Building, 222 West 7th Avenue; its mailing 
address is: NMFS, Box 43, Anchorage, AK. 99513.

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



Sec. 216.24  Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.

    (a)(1) No marine mammal may be taken in the course of a commercial 
fishing operation by a United States purse seine fishing vessel in the 
ETP unless the taking constitutes an incidental catch as defined in 
Sec. 216.3, and vessel and operator permits have been obtained in 
accordance with these regulations, and such taking is not in violation 
of such permits or regulations.
    (2)(i) It is unlawful for any person using a United States purse 
seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) 
carrying capacity or less to intentionally deploy a net on or to 
encircle dolphins, or to carry more than two speedboats, if any part of 
its fishing trip is in the ETP.
    (ii) It is unlawful for any person using a United States purse seine 
fishing vessel of greater than 400 short tons (362.8 mt) carrying 
capacity that does not have a valid permit obtained under these 
regulations to catch, possess, or land tuna if any part of the vessel's 
fishing trip is in the ETP.
    (iii) It is unlawful for any person subject to the jurisdiction of 
the United States to receive, purchase, or possess tuna caught, 
possessed, or landed in violation of paragraph (a)(2)(ii) of this 
section.
    (iv) It is unlawful for a person subject to the jurisdiction of the 
United States to intentionally deploy a purse seine net on, or to 
encircle, dolphins from a vessel operating in the ETP when the DML 
assigned to that vessel has been reached, or when there is not a DML 
assigned to that vessel.
    (3) Upon written request made in advance of entering the ETP, the 
limitations in paragraphs (a)(2)(i) and

[[Page 20]]

(a)(2)(ii) of this section may be waived by the Administrator, Southwest 
Region, for the purpose of allowing transit through the ETP. 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 
Administrator, Southwest Region, the vessel's date of exit from or 
subsequent entry into the permit area.
    (b) Permits--(1) Vessel permit. The owner or managing owner of a 
United States purse seine fishing vessel of greater than 400 st (362.8 
mt) carrying capacity that participates in commercial fishing operations 
in the ETP must possess a valid vessel permit issued under this 
paragraph (b) of this section. This permit is not transferable and must 
be renewed annually. If a vessel permit holder surrenders his/her permit 
to the Administrator, Southwest Region, the permit will not be returned 
and a new permit will not be issued before the end of the calendar year. 
Vessel permits are valid through December 31 of each year.
    (2) Operator permit. The person in charge of and actually 
controlling fishing operations (hereinafter referred to as the operator) 
on a United States purse seine fishing vessel engaged in commercial 
fishing operations under a vessel permit must possess a valid operator 
permit issued under paragraph (b) of this section. Such permits are not 
transferable and must be renewed annually. To receive a permit, the 
operator must have satisfactorily completed all required training under 
paragraph (c)(4) of this section. The operator's permit is valid only 
when the permit holder is on a vessel with a valid vessel permit. 
Operator permits will be valid through December 31 of each year.
    (3) Possession and display. A valid vessel permit issued pursuant to 
paragraph (b)(1) of this section must be on board the vessel while 
engaged in fishing operations, and a valid operator permit issued 
pursuant to paragraph (b)(2) of this section must be in the possession 
of the operator to whom it was issued. Permits must be shown upon 
request to NMFS enforcement agents, or to U.S. Coast Guard officers, or 
to designated agents of NMFS or the IATTC (including observers). A 
vessel owner or operator who is at sea on a fishing trip when his or her 
permit expires and to whom a permit for the next year has been issued 
may take marine mammals under the terms of the new permit without having 
to display it on board the vessel until the vessel returns to port.
    (4) Application for vessel permit. The owner or managing owner of a 
purse seine vessel may apply for a vessel permit from the Administrator, 
Southwest Region, allowing at least 45 days for processing. The 
application must be signed by the applicant and contain:
    (i) The name, official number, tonnage, carrying capacity in short 
or metric tons, maximum speed in knots, processing equipment, and type 
and quantity of gear, including an inventory of equipment required under 
paragraph (c)(2) of this section if the application is for purse seining 
involving the intentional taking of marine mammals, of the vessel that 
is to be covered under the permit;
    (ii) A statement of whether the vessel will make sets involving the 
intentional taking of marine mammals;
    (iii) The type and identification number(s) of Federal, State, and 
local commercial fishing licenses under which vessel operations are 
conducted, and the dates of expiration;
    (iv) The name(s) of the operator(s) anticipated to be used; and
    (v) The name of the applicant, whether he/she is the owner or the 
managing owner, his/her address, telephone and fax numbers, and, if 
applicable, the name, address, telephone and fax numbers of the agent or 
organization acting on behalf of the vessel.
    (5) Application for operator permit. A person wishing to operate a 
purse seine vessel may apply for an operator permit from the 
Administrator, Southwest Region, allowing at least 45 days for 
processing. The application must be signed by the applicant or the 
applicant's representative, if applicable, and contain:
    (i) The name, address, telephone and fax numbers of the applicant;
    (ii) The type and identification number(s) of any Federal, state, 
and local fishing licenses held by the applicant;

[[Page 21]]

    (iii) The name of the vessel(s) on which the applicant anticipates 
serving as an operator; and
    (iv) The date, location, and provider of any training for the 
operator permit.
    (6) Fees. (i) Vessel permit application fees. An application for a 
permit under paragraph (b)(1) of this section must include a fee for 
each vessel as specified on the application form. The Assistant 
Administrator may change the amount of this fee at any time if a 
different fee is determined in accordance with the NOAA Finance Handbook 
and specified by the Administrator, Southwest Region, on the application 
form.
    (ii) Operator permit fee. There is no fee for a operator permit 
under paragraph (b)(2) of this section. The Assistant Administrator may 
impose a fee or change the amount of this fee at any time if a different 
fee is determined in accordance with the NOAA Finance Handbook and 
specified by the Administrator, Southwest Region, on the application 
form.
    (iii) Observer placement fee. The vessel permit holder must submit 
the fee for the placement of observers, as established by the IATTC or 
other approved observer program, to the Administrator, Southwest Region, 
by September 1 of the year prior to the year in which the vessel will be 
operated in the ETP. The Administrator, Southwest Region, will forward 
all observer placement fees to the IATTC or to the applicable 
international organization approved by the Administrator, Southwest 
Region.
    (7) Application approval. The Administrator, Southwest Region, will 
determine the adequacy and completeness of an application and, upon 
determining that an application is adequate and complete, will approve 
that application and issue the appropriate permit, except for applicants 
having unpaid or overdue civil penalties, criminal fines, or other 
liabilities incurred in a legal proceeding.
    (8) Conditions applicable to all permits-- (i) General Conditions. 
Failure to comply with the provisions of a permit or with these 
regulations may lead to suspension, revocation, modification, or denial 
of a permit. The permit holder, vessel, vessel owner, operator, or 
master may be subject, jointly or severally, to the penalties provided 
for under the MMPA. Procedures governing permit sanctions and denials 
are found at subpart D of 15 CFR part 904.
    (ii) Observer placement. By obtaining a permit, the permit holder 
consents to the placement of an observer on the vessel during every trip 
involving operations in the ETP and agrees to payment of the fees for 
observer placement. No observer will be assigned to a vessel unless that 
vessel owner has submitted payment of observer fees to the 
Administrator, Southwest Region. The observers may be placed under an 
observer program of NMFS, IATTC, or another international observer 
program approved by the IDCP and the Administrator, Southwest Region.
    (iii) Explosives. The use of explosive devices is prohibited during 
all tuna purse seine operations that involve marine mammals.
    (iv) Reporting requirements. (A) The vessel permit holder of each 
permitted vessel must notify the Administrator, Southwest Region or the 
IATTC contact designated by the Administrator, Southwest Region, at 
least 5 days in advance of the vessel's departure on a fishing voyage to 
allow for observer placement on every voyage.
    (B) The vessel permit holder must notify the Administrator, 
Southwest Region, or the IATTC contact designated by the Administrator, 
Southwest Region, of any change of vessel operator at least 48 hours 
prior to departing on a trip. In the case of a change in operator due to 
an emergency, notification must be made within 72 hours of the change.
    (v) Data release. By using a permit, the permit holder authorizes 
the release to NMFS and the IATTC of all data collected by observers 
aboard purse seine vessels during fishing trips under the IATTC observer 
program or another international observer program approved by the 
Administrator, Southwest Region. The permit holder must furnish the 
international observer program with all release forms required to 
authorize the observer data to be provided to NMFS and the IATTC. Data 
obtained under such releases will be used for the same purposes as would 
data collected directly by observers placed by NMFS and will

[[Page 22]]

be subject to the same standards of confidentiality.
    (9) Mortality and serious injury reports. The Administrator, 
Southwest Region, will provide to the public periodic status reports 
summarizing the estimated incidental dolphin mortality and serious 
injury by U.S. vessels of individual species and stocks.
    (c) Purse seining by vessels with DMLs. In addition to the terms and 
conditions set forth in paragraph (b) of this section, any permit for a 
vessel to which a DML has been assigned under paragraph (c)(8) of this 
section and any operator permit when used on such a vessel are subject 
to the following terms and conditions:
    (1) A vessel may be used to chase and encircle schools of dolphins 
in the ETP only under the immediate direction of the holder of a valid 
operator's permit.
    (2) No retention of Marine Mammals. Except as otherwise authorized 
by a specific permit, marine mammals incidentally taken must be 
immediately returned to the ocean without further injury. The operator 
of a purse seine vessel 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, sacked up, or hoisted 
onto the deck during ortza retrieval.
    (3) Gear and equipment required for valid permit. A vessel 
possessing a vessel permit for purse seining involving the intentional 
taking of marine mammals may not engage in fishing operations involving 
the intentional deployment of the net on or encirclement of dolphins 
unless it is equipped with a dolphin safety panel in its purse seine, 
has the other required gear and equipment, and uses the required 
procedures.
    (i) Dolphin safety panel. The dolphin 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 that 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 dolphin safety panel must consist 
of small mesh webbing not to exceed 1 1/4 inches (3.18 centimeter (cm)) 
stretch mesh extending downward from the corkline and, if present, the 
base of the dolphin apron to a minimum depth equivalent to two strips of 
100 meshes of 4 1/4 inches (10.80 cm) 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.
    (ii) Dolphin safety panel markers. Each end of the dolphin safety 
panel and dolphin apron must be identified with an easily 
distinguishable marker.
    (iii) Dolphin safety panel hand holds. Throughout the length of the 
corkline under which the dolphin safety panel and dolphin apron are 
located, hand hold openings must be secured so that they will not allow 
the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped 
object.
    (iv) Dolphin safety panel corkline hangings. Throughout the length 
of the corkline under which the dolphin safety panel and dolphin apron 
are located, corkline hangings must be inspected by the vessel operator 
following each trip. Hangings found to have loosened to the extent that 
a cylindrical object with a 1 3/8 inch (3.50 cm) diameter can be 
inserted between the cork and corkline hangings, must be tightened so as 
not to allow the insertion of a cylindrical object with a 1 3/8 inch 
(3.50 cm) diameter.
    (v) Speedboats. A minimum of three speedboats in operating condition 
must be carried. All speedboats carried aboard purse seine vessels and 
in operating condition must be rigged with tow lines and towing bridles 
or towing posts. Speedboat hoisting bridles may not be substituted for 
towing bridles.
    (vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
    (vii) Face mask and snorkel, or view box. At least two face masks 
and snorkels or view boxes must be carried.
    (viii) Lights. The vessel must be equipped with lights capable of 
producing a minimum of 140,000 lumens of output for use in darkness to 
ensure

[[Page 23]]

sufficient light to observe that procedures for dolphin release are 
carried out and to monitor incidental dolphin mortality.
    (4) Vessel inspection--(i) Annual. At least once during each 
calendar year, purse seine nets and other gear and equipment required 
under Sec. 216.24(c)(2) must be made available for inspection and for a 
trial set/net alignment by an authorized NMFS inspector or IATTC staff 
as specified by the Administrator, Southwest Region, in order to obtain 
a vessel permit.
    (ii) Reinspection. Purse seine nets and other gear and equipment 
required by these regulations must be made available for reinspection by 
an authorized NMFS inspector or IATTC staff as specified by the 
Administrator, Southwest Region. The vessel permit holder must notify 
the Administrator, 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/net alignment is required.
    (iii) Upon failure to pass an inspection or reinspection, a vessel 
may not engage in purse seining involving the intentional taking of 
marine mammals until the deficiencies in gear or equipment are corrected 
as required by NMFS.
    (5) Operator permit holder training requirements. An operator must 
maintain proficiency sufficient to perform the procedures required 
herein, and must attend and satisfactorily complete a formal training 
session approved by the Administrator, Southwest Region, in order to 
obtain his or her permit. At the training session an attendee will be 
instructed on the relevant provisions and regulatory requirements of the 
MMPA and the IDCP, and the fishing gear and techniques that are required 
for, or will contribute to, reducing serious injury and mortality of 
dolphin 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 permit will not be 
required to attend additional formal training sessions unless there are 
substantial changes in the relevant provisions or implementing 
regulations of the MMPA or the IDCP, or in fishing gear and techniques. 
Additional training may be required for any operator who is found by the 
Administrator, Southwest Region, to lack proficiency in the required 
fishing procedures or familiarity with the relevant provisions or 
regulations of the MMPA or the IDCP.
    (6) Marine mammal release requirements. All operators must use the 
following procedures during all sets involving the incidental taking of 
marine mammals in association with the capture and landing of tuna.
    (i) Backdown procedure. Backdown must be performed following a purse 
seine set in which dolphins are captured in the course of catching tuna, 
and must be continued until it is no longer possible to remove live 
dolphins from the net by this procedure. At least one crewman must be 
deployed during backdown to aid in the release of dolphins. Thereafter, 
other release procedures required will be continued so that all live 
dolphins are released prior to the initiation of the sack-up procedure.
    (ii) Prohibited use of sharp or pointed instrument. The use of a 
sharp or pointed instrument to remove any marine mammal from the net is 
prohibited.
    (iii) Sundown sets prohibited. On every set encircling dolphin, the 
backdown procedure must be completed no later than one-half hour after 
sundown, except as provided here. For the purpose of this section, 
sundown is defined as the time at which the upper edge of the sun 
disappears below the horizon or, if the view of the sun is obscured, the 
local time of sunset calculated from tables developed by the U.S. Naval 
Observatory or other authoritative source approved by the Administrator, 
Southwest Region. A sundown set is a set in which the backdown procedure 
has not been completed and rolling the net to sack-up has not begun 
within one-half hour after sundown. Should a set extend beyond one-half 
hour after sundown, the operator must use the required marine mammal 
release procedures including the use of the high intensity lighting 
system. In the event a sundown set occurs where the seine skiff was let 
go 90 or more minutes before sundown, and an earnest effort to

[[Page 24]]

rescue dolphins is made, the International Review Panel of the IDCP may 
recommend to the United States that in the view of the International 
Review Panel, prosecution by the United States is not recommended. Any 
such recommendation will be considered by the United States in 
evaluating the appropriateness of prosecution in a particular 
circumstance.
    (iv) Dolphin safety panel. During backdown, the dolphin 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 that 
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.
    (7) Experimental fishing operations. The Administrator, Southwest 
Region, may authorize experimental fishing operations, consistent with 
the provisions of the IDCP, for the purpose of testing proposed 
improvements in fishing techniques and equipment that may reduce or 
eliminate dolphin mortality or serious injury, or do not require the 
encirclement of dolphins in the course of fishing operations. The 
Administrator, Southwest Region, may waive, as appropriate, any 
requirements of this section except DMLs and the obligation to carry an 
observer.
    (i) A vessel permit holder may apply to the Administrator, Southwest 
Region, for an experimental fishing operation waiver allowing for 
processing no less than 90 days before the date the proposed operation 
is intended to begin. An application must be signed by the permitted 
operator and contain:
    (A) The name(s) of the vessel(s) and the vessel permit holder(s) to 
participate;
    (B) 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;
    (C) A description of how the proposed modification to the gear and 
equipment or procedures is expected to reduce incidental mortality or 
serious injury of marine mammals;
    (D) A description of the applicability of this modification to other 
purse seine vessels;
    (E) The planned design, time, duration, and general area of the 
experimental operation;
    (F) The name(s) of the permitted operator(s) of the vessel(s) during 
the experiment; and
    (G) A statement of the qualifications of the individual or company 
doing the analysis of the research.
    (ii) The Administrator, Southwest Region, will acknowledge receipt 
of the application and, upon determining that it is complete, will 
publish a notice in the Federal Register summarizing the application, 
making the full application available for inspection and inviting 
comments for a minimum period of 30 days from the date of publication.
    (iii) The Administrator, Southwest Region, after considering the 
information in the application and the comments received on it, will 
either issue a waiver to conduct the experiment which includes 
restrictions or conditions deemed appropriate, or deny the application, 
giving the reasons for denial.
    (iv) A waiver 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 designated by 
the Administrator, Southwest Region, when all the terms and conditions 
of the permit are met.
    (v) The Administrator, Southwest Region, may suspend or revoke an 
experimental fishing waiver in accordance with 15 CFR part 904 if the 
terms and conditions of the waiver or the provisions of the regulations 
are not followed.
    (8) Operator permit holder performance requirements. [Reserved]
    (9) Vessel permit holder dolphin mortality limits. For purposes of 
this paragraph, the term ``vessel permit holder'' includes both the 
holder of a current vessel permit and also the holder of a vessel permit 
for the following year.
    (i) By September 1 each year, a vessel permit holder desiring a DML 
for the following year must provide to the Administrator, Southwest 
Region, the name of the United States purse seine fishing vessel(s) of 
carrying capacity

[[Page 25]]

greater than 400 st (362.8 mt) carrying capacity that the owner intends 
to use to intentionally deploy purse seine fishing nets in the ETP to 
encircle dolphins in an effort to capture tuna during the following 
year. NMFS will forward the list of purse seine vessels to the Director 
of the IATTC on or before October 1, or as otherwise required by the 
IDCP, for assignment of a DML for the following year under the 
provisions of Annex IV of the Agreement on the IDCP.
    (ii) Each vessel permit holder that desires a DML only for the 
period between July 1 to December 31 must provide the Administrator, 
Southwest Region, by September 1 of the prior year, the name of the 
United States purse seine fishing vessel(s) of greater than 400 st 
(362.8 mt) carrying capacity that the owner intends to use to 
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 October 1, or as otherwise required under the IDCP, for 
possible assignment of a DML for the 6-month period July 1 to December 
31. Under the IDCP, the DML will be calculated by the IDCP from any 
unutilized pool of DMLs in accordance with the procedure described in 
Annex IV of the Agreement on the IDCP and will not exceed one-third of 
an unadjusted full-year DML as calculated by the IDCP.
    (iii)(A) The Administrator, Southwest Region, will notify vessel 
owners of the DML assigned for each vessel for the following year, or 
the second half of the year, as applicable.
    (B) The Administrator, Southwest Region, may adjust the DMLs in 
accordance with Annex IV of the Agreement on the IDCP. All adjustments 
of full-year DMLs will be made before January 1, and the Administrator, 
Southwest Region, will notify the Director of the IATTC of any 
adjustments prior to a vessel departing on a trip using its adjusted 
DML. The notification will be no later than February 1 in the case of 
adjustments to full-year DMLs, and no later than May 1 in the case of 
adjustments to DMLs for the second half of the year.
    (C) Within the requirements of Annex IV of the Agreement on the 
IDCP, the Administrator, Southwest Region, may adjust a vessel's DML 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 will be considered a basis for adjustments.
    (iv)(A) A vessel assigned a full-year DML that does not make a set 
on dolphins by April 1 or that leaves the fishery will lose its DML for 
the remainder of the year, unless the failure to set on dolphins is due 
to force majeure or other extraordinary circumstances as determined by 
the International Review Panel.
    (B) A vessel assigned a DML for the second half of the year will be 
considered to have lost its DML if the vessel has not made a set on 
dolphins before December 31, unless the failure to set on dolphins is 
due to force majeure or extraordinary circumstances as determined by the 
International Review Panel.
    (C) Any vessel that loses its DML for 2 consecutive years will not 
be eligible to receive a DML for the following year.
    (D) NMFS will determine, based on available information, whether a 
vessel has left the fishery.
    (1) 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 covered by the DML will be determined to 
have left the fishery.
    (2) 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 given the opportunity to 
provide information on whether the vessel has left the fishery prior to 
NMFS making a final determination

[[Page 26]]

under 15 CFR part 904 and notifying the IATTC.
    (v) Any vessel that exceeds its assigned DML after any applicable 
adjustment under paragraph (c)(8)(iii) of this section will have its DML 
for the subsequent year reduced by 150 percent of the overage, unless 
another adjustment is determined by the International Review Panel.
    (vi) A vessel that is covered by a valid vessel permit and that does 
not normally fish for tuna in the ETP but desires to participate in the 
fishery on a limited basis may apply for a per-trip DML from the 
Administrator, Southwest Region, at any time, allowing at least 60 days 
for processing. The request must state the expected number of trips 
involving sets on dolphins and the anticipated dates of the trip or 
trips. The request will be forwarded to the Director of the IATTC for 
processing in accordance with Annex IV of the Agreement on the IDCP. A 
per-trip DML will be assigned if one is made available in accordance 
with the terms of Annex IV of the IDCP. If a vessel assigned a per-trip 
DML does not set on dolphins during that trip, the vessel will be 
considered to have lost its DML unless this was a result of force 
majeure or other extraordinary circumstances as determined by the 
International Review Panel. After two consecutive losses of a DML, a 
vessel will not be eligible to receive a DML for the next fishing year.
    (vii) Observers will make their records available to the vessel 
operator at any reasonable time, including after each set, in order for 
the operator to monitor the balance of the DML(s) remaining for use.
    (viii) Vessel and operator permit holders must not deploy a purse 
seine net on or encircle any school of dolphins containing individuals 
of a particular stock of dolphins:
    (A) When the applicable per-stock per-year dolphin mortality limit 
for that stock of dolphins (or for that vessel, if so assigned) has been 
reached or exceeded; or
    (B) After the time and date provided in actual notification or 
notification in the Federal Register by the Administrator, Southwest 
Region, based upon the best available evidence, stating when any 
applicable per-stock per-year dolphin mortality limit has been reached 
or exceeded, or is expected to be reached in the near future.
    (ix) If individual dolphins belonging to a stock that is prohibited 
from being taken are not reasonably observable at the time the net skiff 
attached to the net is released from the vessel at the start of a set, 
the fact that individuals of that stock are subsequently taken will not 
be cause for enforcement action provided that all procedures required by 
the applicable regulations have been followed.
    (x) Vessel and operator permit holders must not intentionally deploy 
a purse seine net on or encircle dolphins intentionally:
    (A) When the vessel's DML, as adjusted, is reached or exceeded; or
    (B) After the date and time provided in actual notification by 
letter, facsimile, radio, or electronic mail, or notice in the Federal 
Register by the Administrator, Southwest Region, based upon the best 
available evidence, that intentional sets on dolphins must cease because 
the total of the DMLs assigned to the U.S. fleet has been reached or 
exceeded, or is expected to be exceeded in the near future.
    (xi) Sanctions recommended by the International Review Panel for any 
violation of these rules will be considered by NMFS and NOAA in 
enforcement actions brought under these regulations.
    (xii) Intentionally deploying a purse seine net on, or to encircle, 
dolphins after a vessel's DML, as adjusted, has been reached will 
disqualify the vessel from consideration for a DML for the following 
year. If already assigned, the DML for the following year will be 
withdrawn, and the Director of the IATTC will be notified by NMFS that 
the DML assigned to that vessel will be unutilized. Procedures found at 
15 CFR part 904 apply to the withdrawal of the permit.
    (d) Purse seining by vessels without assigned DMLs. In addition to 
the requirements of paragraph (b) of this section, a vessel permit used 
for a trip not involving an assigned DML and the operator's permit when 
used on such a vessel are subject to the following terms and conditions: 
a permit holder

[[Page 27]]

may take marine mammals provided that such taking is an accidental 
occurrence in the course of normal commercial fishing operations and the 
vessel does not intentionally deploy its net on, or to encircle, 
dolphins; marine mammals taken incidental to such commercial fishing 
operations must be immediately returned to the environment where 
captured without further injury, using release procedures such as hand 
rescue, and aborting the set at the earliest effective opportunity; the 
use of one or more rafts and face masks or view boxes to aid in the 
rescue of dolphins is recommended.
    (e) Observers: (1) The holder of a vessel permit must allow an 
observer duly authorized by the Administrator, Southwest Region, to 
accompany the vessel on all fishing trips in the ETP for the purpose of 
conducting research and observing operations, including collecting 
information that may be used in civil or criminal penalty proceedings, 
forfeiture actions, or permit sanctions. A vessel that fails to carry an 
observer in accordance with these requirements may not engage in fishing 
operations.
    (2) Research and observation duties will be carried out in such a 
manner as to minimize interference with commercial fishing operations. 
Observers must be provided access to vessel personnel and to dolphin 
safety gear and equipment, electronic navigation equipment, radar 
displays, high powered binoculars, and electronic communication 
equipment. The navigator must provide true vessel locations by latitude 
and longitude, accurate to the nearest minute, upon request by the 
observer. Observers must be provided with adequate space on the bridge 
or pilothouse for clerical work, as well as space on deck adequate for 
carrying out observer duties. No vessel owner, master, operator, or crew 
member of a permitted vessel may impair, or in any way interfere with, 
the research or observations being carried out. Masters must allow 
observers to use vessel communication equipment to report information 
concerning the take of marine mammals and other observer collected data 
upon request of the observer.
    (3) Any marine mammals killed during fishing operations that are 
accessible to crewmen and requested from the permit holder or master by 
the observer must be brought aboard the vessel and retained for 
biological processing, until released by the observer for return to the 
ocean. Whole marine mammals or marine mammal parts designated as 
biological specimens by the observer must be retained in cold storage 
aboard the vessel until retrieved by authorized personnel of NMFS or the 
IATTC when the vessel returns to port for unloading.
    (4) 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.
    (5)(i) All observers must be provided sleeping, toilet and eating 
accommodations at least equal to that provided to a full crew member. A 
mattress or futon on the floor or a cot is not acceptable in place of a 
regular bunk. Meal and other galley privileges must be the same for the 
observer as for other crew members.
    (ii) Female observers on a vessel with an all-male crew must be 
accommodated either in a single-person cabin or, if reasonable privacy 
can be ensured by installing a curtain or other temporary divider, in a 
two-person cabin shared with a licensed officer of the vessel. If the 
cabin assigned to a female observer does not have its own toilet and 
shower facilities that can be provided for the exclusive use of the 
observer, then a schedule for time-sharing common facilities must be 
established before the placement meeting and approved by NMFS or other 
approved observer program and must be followed during the entire trip.

[[Page 28]]

    (iii) In the event there are one or more female crew members, the 
female observer must 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.
    (f) Importation, purchase, shipment, sale and transport. (1)(i) It 
is illegal to import into the United States any fish, whether fresh, 
frozen, or otherwise prepared, if the fish have been caught with 
commercial fishing technology that results in the incidental kill or 
incidental serious injury of marine mammals in excess of that allowed 
under this part for U.S. fishermen, or as specified at paragraphs (f)(7) 
through (f)(9) of this section.
    (ii) For purposes of this paragraph(f), and in applying the 
definition of an ``intermediary nation,'' an import occurs when the fish 
or fish product is released from a nation's Customs' custody and enters 
into the territory of the nation. For other purposes, ``import'' is 
defined in Sec. 216.3.
    (2)(i) HTS numbers requiring a Fisheries Certificate of Origin, 
subject to yellowfin tuna embargo. The following U.S. Harmonized Tariff 
Schedule (HTS) numbers identify yellowfin tuna or yellowfin tuna 
products that are harvested in the ETP purse seine fishery and imported 
into the United States. All shipments containing tuna or tuna products 
imported into the United States under these HTS numbers must be 
accompanied by a Fisheries Certificate of Origin (FCO), NOAA Form 370. 
Yellowfin tuna identified by any of the following HTS numbers that was 
harvested using a purse seine in the ETP may not be imported into the 
United States unless both the nation with jurisdiction over the 
harvesting vessel and the exporting nation (if different) have an 
affirmative finding under paragraph (f)(9) of this section.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(A) Frozen:
0303.42.0020                                Yellowfin tuna, whole,
                                             frozen.
0303.42.0040                                Yellowfin tuna, eviscerated,
                                             head on, frozen.
0303.42.0060                                Yellowfin tuna, other,
                                             frozen.
(B) Canned:
1604.14.1000                                Tuna, non-specific, in
                                             airtight containers, in
                                             oil.
1604.14.2040                                Tuna, other than albacore,
                                             not over 7kg, in airtight
                                             containers.
1604.14.3040                                Tuna, other than albacore,
                                             in airtight containers, not
                                             in oil, over quota.
(C) Loins:
1604.14.4000                                Tuna, not in airtight
                                             containers, not in oil,
                                             over 6.8kg.
1604.14.5000                                Tuna, other, not in airtight
                                             containers.
(D) Other (only if the product contains
 tuna):
0304.10.4099                                Other fish, fillets and
                                             other fish meat, fresh or
                                             chilled.
0304.20.2066                                Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5kg, frozen.
0304.20.6096                                Other fish, fillets, frozen.
0304.90.1089                                Other fish meat, in bulk or
                                             immediate containers, fresh
                                             or chilled.
0304.90.9091                                Other fish meat, fresh or
                                             chilled.
------------------------------------------------------------------------

    (ii) HTS numbers requiring a Fisheries Certificate of Origin, not 
subject to yellowfin tuna embargo. The following HTS numbers identify 
tuna or tuna products, other than fresh tuna or tuna identified in 
paragraph (f)(2)(i) of this section, known to be imported into the 
United States. All shipments imported into the United States under these 
HTS numbers must be accompanied by a FCO. The shipment may not be 
imported into the United States if harvested by a large-scale driftnet 
nation, unless accompanied by the official statement described in 
paragraph (f)(5)(x) of this section.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(A) Frozen:
0303.41.0000                                Albacore or longfinned
                                             tunas, frozen.
0303.43.0000                                Skipjack, frozen.
0303.49.0020                                Bluefin, frozen.
0303.49.0040                                Other tuna, frozen.
(B) Canned:
1604.14.2020                                Albacore tuna, in airtight
                                             containers, not in oil, not
                                             over 7kg, in quota.
1604.14.3020                                Albacore tuna, in airtight
                                             containers, not in oil, not
                                             in quota.
------------------------------------------------------------------------

    (iii) Exports from driftnet nations only: HTS numbers requiring a 
Fisheries Certificate of Origin and official certification. The 
following HTS numbers identify categories of fish and shellfish, other 
than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this 
section, known to have been harvested using a large-scale driftnet and 
imported into the United States. Shipments exported from a large-scale 
driftnet nation and imported into the United States under any of the HTS 
numbers listed in paragraph (f)(2) of this section must be accompanied 
by an FCO and the official

[[Page 29]]

statement described in paragraph (f)(5)(x) of this section.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(A) Frozen:
0303.10.0012                                Salmon, chinook, frozen.
0303.10.0022                                Salmon, chum, frozen.
0303.10.0032                                Salmon, pink, frozen.
0303.10.0042                                Salmon, sockeye, frozen.
0303.10.0052                                Salmon, coho, frozen.
0303.10.0062                                Salmon, Pacific, non-
                                             specific, frozen.
0303.21.0000                                Trout, frozen.
0303.22.0000                                Salmon, Atlantic and Danube,
                                             frozen.
0303.29.0000                                Salmonidae, other, frozen.
0303.70.4097                                Fish, other, frozen.
0303.75.0010                                Dogfish, frozen.
0303.75.0090                                Other sharks, frozen.
0303.79.2041                                Swordfish steaks, frozen
0303.79.2049                                Swordfish, other, frozen.
 
0304.20.2066                                Fish, fillet, skinned, in
                                             blocks frozen over 4.5kg.
0304.20.6008                                Salmonidae, salmon fillet,
                                             frozen.
0304.20.6096                                Fish, fillet, frozen.
0307.49.0010                                Squid, other, fillet,
                                             frozen.
(B) Canned:
1604.11.2020                                Salmon, pink, canned in oil,
                                             in airtight containers.
1604.11.2030                                Salmon, sockeye, canned in
                                             oil, in airtight
                                             containers.
1604.11.2090                                Salmon, other, canned in
                                             oil, in airtight
                                             containers.
1604.11.4010                                Salmon, chum, canned, not in
                                             oil.
1604.11.4020                                Salmon, pink, canned, not in
                                             oil.
1604.11.4030                                Salmon, sockeye, canned, not
                                             in oil.
1604.11.4040                                Salmon, other, canned, not
                                             in oil.
1604.11.4050                                Salmon, other, canned, not
                                             in oil.
1604.19.2000                                Fish, other, in airtight
                                             containers, not in oil.
1604.19.3000                                Fish, other, in airtight
                                             containers, in oil.
1605.90.6055                                Squid, loligo, prepared/
                                             preserved.
(C) Other:
0304.10.4099                                Other fish, fillets and
                                             other fish meat, fresh or
                                             chilled.
0304.20.2066                                Other fish, fillets,
                                             skinned, in blocks weighing
                                             over 4.5kg, frozen.
0304.20.6098                                Other fish, fillets, frozen.
0304.90.1089                                Other fish, fillets and fish
                                             meat, in bulk or in
                                             immediate containers, fresh
                                             or chilled.
0304.90.9092                                Other fish meat, fresh or
                                             chilled.
 
0305.30.6080                                Fish, non-specific, fillet.
                                             dried/salted/brine.
0305.49.4040                                Fish, non-specific, smoked.
0305.59.2000                                Shark fins.
0305.59.4000                                Fish, non-specific, dried.
0305.69.4000                                Salmon, non-specific,
                                             salted.
 
0305.69.5000                                Fish, non-specific, in
                                             immediate containers,
                                             salted, not over 6.8kg.
0305.69.6000                                Fish, non-specific, salted,
                                             other.
0307.49.0050                                Squid, non-specific, frozen/
                                             dried/salted/brine.
0307.49.0060                                Squid, non-specific, &
                                             cuttle fish frozen/dried/
                                             salted/brine.
------------------------------------------------------------------------

    (3) Imports requiring a Fisheries Certificate of Origin. Shipments 
containing the following may not be imported into the United States 
unless a completed FCO is filed with the Customs Service at the time of 
importation:
    (i) Tuna classified under an HTS number listed in paragraphs 
(f)(2)(i) or (f)(2)(ii) of this section, or
    (ii) Fish classified under an HTS number listed in paragraph (f)(2) 
of this section that was harvested by a vessel of a large-scale driftnet 
nation, as identified under paragraph (f)(8) of this section.
    (4) Disposition of Fisheries Certificates of Origin. The FCO form 
described in paragraph (f)(5) of this section may be obtained from the 
Administrator, Southwest Region, or downloaded from the Internet at 
http://swr.ucsd.edu/noaa370.htm. The FCO required under paragraph (f)(3) 
of this section must accompany the tuna or tuna products from entry into 
the United States, through final processing, and it must be endorsed at 
each change in ownership. FCOs that require multiple endorsements must 
be submitted to the Administrator, Southwest Region, by the last 
endorser when all required endorsements are completed. An invoice must 
accompany the shipment at the time of importation or, in the 
alternative, must be made available within 30 days of a request by the 
Secretary or the Administrator, Southwest Region, to produce the 
invoice.
    (5) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the first exporter of the accompanying shipment, must 
include the following information:
    (i) Customs entry identification;
    (ii) Date of entry;
    (iii) Exporter's full name and complete address;
    (iv) Importer's or consignee's full name and complete address;
    (v) Species description, product form, and HTS number;
    (vi) Total net weight of the shipment in kilograms;
    (vii) Ocean area where the fish were harvested (ETP, Western Pacific 
Ocean, South Pacific Ocean, Atlantic Ocean, Caribbean Sea, Indian Ocean, 
or other);
    (viii) Type of fishing gear used to harvest the fish (purse seine, 
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and line, 
or other);

[[Page 30]]

    (ix) Country under whose laws the harvesting vessel operated based 
upon the flag of the vessel or, if a certified charter vessel, the 
country that accepted responsibility for the vessel's fishing 
operations;
    (x) Dates on which the fishing trip began and ended;
    (xi) If the shipment includes tuna or products harvested with a 
purse seine net, the name of the harvesting vessel;
    (xii) Dolphin safe condition of the shipment;
    (xiv) For shipments harvested by vessels of a nation known to use 
large-scale driftnets, as determined by the Secretary pursuant to 
paragraph (f)(8) of this section, a statement must be included on the 
Fisheries Certificate of Origin that is dated and signed by a 
responsible government official of the harvesting nation, certifying 
that the fish or fish products were harvested by a method other than 
large-scale driftnet; and
    (xii) If the shipment contains tuna harvested in the ETP by a purse 
seine vessel of more than 400 st (362.8 mt) carrying capacity, each 
importer or processor who takes custody of the shipment must sign and 
date the form to certify that the form and attached documentation 
accurately describe the shipment of fish that they accompany.
    (6) Dolphin-safe label. Tuna or tuna products sold in or exported 
from the United States that include on the label the term ``dolphin-
safe'' or any other term or symbol that claims or suggests the tuna were 
harvested in a manner not injurious to dolphins are subject to the 
requirements of subpart H of this part.
    (7) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin 
tuna or yellowfin tuna products harvested using a purse seine in the ETP 
identified by an HTS number listed in paragraph (f)(2)(i) of this 
section may not be imported into the United States if such tuna or tuna 
products were:
    (A) Harvested on or after March 3, 1999, the effective date of 
section 4 of the IDCPA, and harvested by, or exported from, a nation 
that the Assistant Administrator has determined has purse seine vessels 
of greater than 400 st (362.8 mt) carrying capacity harvesting tuna in 
the ETP, unless the Assistant Administrator has made an affirmative 
finding required for importation for that nation under paragraph (f)(9) 
of this section;
    (B) Exported from an intermediary nation, as defined in section 3 of 
the MMPA, and a ban is currently in force prohibiting the importation 
from that nation under paragraph (f)(9)(viii) of this section; or
    (C) Harvested before March 3, 1999, the effective date of section 4 
of the IDCPA, and would have been banned from importation under section 
101(a)(2) of the MMPA at the time of harvest.
    (ii) Driftnet embargo. A shipment containing an item listed in 
paragraph (f)(2) of this section may not be imported into the United 
States if it:
    (A) Was exported from or harvested on the high seas by any nation 
determined by the Assistant Administrator to be engaged in large-scale 
driftnet fishing, unless the FCO is accompanied by an original statement 
by a responsible government official of the harvesting nation, signed 
and dated by that official, certifying that the fish or fish products 
were harvested by a method other than large-scale driftnet; or
    (B) Is identified on the FCO as having been harvested by a large-
scale driftnet.
    (8) Large-scale driftnet nation: determination. Based upon the best 
information available, the Assistant Administrator will determine which 
nations have registered vessels that engage in fishing using large-scale 
driftnets. Such determinations will be published in the Federal 
Register. A responsible government official of any such nation may 
certify to the Assistant Administrator that none of the nation's vessels 
use large-scale driftnets. Upon receipt of the certification, the 
Assistant Administrator may find, and publish such finding in the 
Federal Register, that none of that nation's vessels engage in fishing 
with large-scale driftnets.
    (9) Affirmative finding procedure for nations harvesting yellowfin 
tuna using a purse seine in the ETP. (i) The Assistant Administrator 
will determine, on an

[[Page 31]]

annual basis, whether to make an affirmative finding based upon 
documentary evidence provided by the government of the exporting nation, 
by the government of the harvesting nation, if different, or by the IDCP 
and the IATTC, and will publish the finding in the Federal Register. A 
finding will remain valid for 1 year or for such other period as the 
Assistant Administrator may determine. An affirmative finding will be 
terminated if the Assistant Administrator determines that the 
requirements of this paragraph are no longer being met. Every 5 years, 
the government of the harvesting nation, must submit such documentary 
evidence directly to the Assistant Administrator and request an 
affirmative finding. Documentary evidence needs to be submitted by the 
harvesting nation for the first affirmative finding subsequent to the 
effective date of this rule. The Assistant Administrator may require the 
submission of supporting documentation or other verification of 
statements made in connection with requests to allow importations. An 
affirmative finding applies to tuna and tuna products that were 
harvested by vessels of the nation after February 15, 1999. To make an 
affirmative finding, the Assistant Administrator must find that:
    (A) The harvesting nation participates in the IDCP and is either a 
member of the IATTC or has initiated (and within 6 months thereafter 
completed) all steps required of applicant nations, in accordance with 
article V, paragraph 3, of the Convention establishing the IATTC, to 
become a member of that organization;
    (B) The nation is meeting its obligations under the IDCP and its 
obligations of membership in the IATTC, including all financial 
obligations;
    (C)(1) The annual total dolphin mortality of the nation's purse 
seine fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the mortality 
limits assigned by the IDCP for that nation's purse seine vessels for 
the year preceding the year in which the finding would start; or
    (2)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the total dolphin mortality of the 
nation's purse seine fleet (including certified charter vessels 
operating under its jurisdiction) exceeded the aggregated total of the 
mortality limits assigned by the IDCP for that nation's purse seine 
vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate mortality of its fleet had been exceeded, the nation required 
all its vessels to cease fishing for tuna in association with dolphins 
for the remainder of the calendar year; and
    (D)(1) For calendar year 2000 and any subsequent years in which the 
parties agree to a global allocation system for per-stock per-year 
individual stock quotas, the nation responded to the notification from 
the IATTC that an individual stock quota had been reached by prohibiting 
any additional sets on the stock for which the quota had been reached;
    (2) If a per-stock per-year quota is allocated to each nation, the 
annual per-stock per-year dolphin mortality of the nation's purse seine 
fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels 
(if any) for the year preceding the year in which the finding would 
start; or
    (3)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the per-stock per-year dolphin 
mortality of the nation's purse seine fleet (including certified charter 
vessels operating under its jurisdiction) exceeded the aggregated total 
of the per-stock per-year limits assigned by the IDCP for that nation's 
purse seine vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate per-stock mortality limits of its fleet had been exceeded, the 
nation required all its vessels to cease fishing for tuna in association 
with the stocks whose limits had been exceeded, for the remainder of the 
calendar year.
    (ii) Documentary Evidence and Compliance with the IDCP.--(A) 
Documentary Evidence. The Assistant Administrator will make an 
affirmative finding under paragraph (f)(9)(i) of this section only

[[Page 32]]

if the government of the harvesting nation provides directly to the 
Assistant Administrator, or authorizes the IATTC to release to the 
Assistant Administrator, complete, accurate, and timely information that 
enables the Assistant Administrator to determine whether the harvesting 
nation is meeting the obligations of the IDCP, and whether ETP-harvested 
tuna imported from such nation comports with the tracking and 
verification regulations of subpart H of this part.
    (B) Revocation. After considering the information provided under 
paragraph (f)(9)(ii)(A) of this section, each party's financial 
obligations to the IATTC, and any other relevant information, including 
information that a nation is consistently failing to take enforcement 
actions on violations which diminish the effectiveness of the IDCP, the 
Assistant Administrator, in consultation with the Secretary of State, 
will revoke an affirmative finding issued to a nation that is not 
meeting the obligations of the IDCP.
    (iii) A harvesting nation may apply for an affirmative finding at 
any time by providing to the Assistant Administrator the information and 
authorizations required in paragraphs (f)(9)(i) and (f)(9)(ii) of this 
section, allowing at least 60 days from the submission of complete 
information to NMFS for processing.
    (iv) The Assistant Administrator will make or renew an affirmative 
finding for the period from April 1 through March 31, or portion 
thereof, if the harvesting nation has provided all the information and 
authorizations required by paragraphs (f)(9)(i) and (f)(9)(ii) of this 
section, and has met the requirements of paragraphs (f)(9)(i) and 
(f)(9)(ii) of this section.
    (v) Reconsideration of finding. The Assistant Administrator may 
reconsider a finding upon a request from, and the submission of 
additional information by, the harvesting nation, if the information 
indicates that the nation has met the requirements under paragraphs 
(f)(9)(i) and (f)(9)(ii) of this section.
    (vi) Intermediary nation. Except as authorized under this paragraph, 
no tuna or tuna products classified under one of the HTS numbers listed 
in paragraph (f)(2)(i) of this section may be imported into the United 
States from any intermediary nation. An ``intermediary nation'' is a 
nation that exports yellowfin tuna or yellowfin tuna products to the 
United States and that imports yellowfin tuna or yellowfin tuna products 
that are subject to a direct ban on importation into the United States 
pursuant to section 101(a)(2)(B) of the MMPA, unless shown not to be 
yellowfin tuna or yellowfin tuna products harvested using purse seine in 
the ETP. The Assistant Administrator will publish in the Federal 
Register a notice announcing when NMFS has determined, based on the best 
information available, that a nation is an ``intermediary nation.'' 
After the effective date of that notice, these import restrictions shall 
apply. Shipments of yellowfin tuna or yellowfin tuna products shipped 
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.
    (A) Intermediary nation determination status. Imports from an 
intermediary nation of tuna and tuna products classified under any of 
the HTS numbers in paragraph (f)(2)(i) of this section may be imported 
into the United States only if the Assistant Administrator determines 
and publishes in the Federal Register that the intermediary nation has 
provided certification and reasonable proof 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. At that time, the nation shall no 
longer be considered an ``intermediary nation'' and these import 
restrictions shall no longer apply.
    (B) Changing the status of intermediary nation determinations. The 
Assistant Administrator will review decisions under this paragraph upon 
the request of an intermediary nation. Such requests must be accompanied 
by specific and detailed supporting information or documentation 
indicating that a review or reconsideration is warranted. For purposes 
of this paragraph, the term ``certification and reasonable

[[Page 33]]

proof'' means the submission to the Assistant Administrator 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 
certification attesting that the document is accurate.
    (vii) Pelly certification. After 6 months of an embargo being in 
place against a nation under this section, that fact will 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 remains in effect.
    (viii) Coordination. The Assistant Administrator will promptly 
advise the Department of State and the Department of the Treasury of 
embargo decisions, actions and finding determinations.
    (10) Fish refused entry. If fish is denied entry under paragraph 
(f)(3) of this section, the District Director of Customs shall refuse to 
release the fish for entry into the United States and shall issue a 
notice of such refusal to the importer or consignee.
    (11) Disposition of fish refused entry into the United States; 
redelivered fish. Fish which is denied entry under paragraph (f)(3) of 
this section and which is not exported under Customs supervision within 
90 days from the date of notice of refusal of admission or date of 
redelivery shall be disposed of under Customs laws and regulations. 
Provided however, that any disposition shall not result in an 
introduction into the United States of fish caught in violation of the 
MMPA.
    (12) Market Prohibitions. It is unlawful for any person to sell, 
purchase, offer for sale, transport, or ship in the United States, any 
tuna or tuna products unless the tuna products are either:
    (i) Dolphin-safe under subpart H; or
    (ii) harvested in compliance with the IDCP by vessels under the 
jurisdiction of a nation that is a member of the IATTC or has initiated, 
and within 6 months thereafter completes, all steps required by 
applicant nations to become members of the IATTC.
    (iii) For purposes of this section, tuna or tuna products are 
``dolphin-safe'' if they are dolphin-safe under subpart H.
    (g) Penalties. Any person or vessel subject to the jurisdiction of 
the United States will be subject to the penalties provided for under 
the MMPA for the conduct of fishing operations in violation of these 
regulations.

[65 FR 48, Jan 3, 2000]



Sec. 216.25  Exempted marine mammals and marine mammal products.

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

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

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

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



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

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within \1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (b) Notwithstanding the provisions of subpart D, soft parts that are 
sloughed, excreted, or discharged naturally by a

[[Page 34]]

living marine mammal in the wild may be collected or imported for bona 
fide scientific research and enhancement, provided that collection does 
not involve the taking of a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under paragraph 
(b) of this section must be registered and identified, and may be 
transferred or otherwise possessed, in accordance with Sec. 216.22(c). 
In registering a marine mammal part collected or imported under 
paragraph (b) of this section, the person who collected or imported the 
part must also state the scientific research or enhancement purpose for 
which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur if consistent with the 
provisions at Sec. 216.37(d) under subpart D.

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



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

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

[[Page 35]]

    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (3) No later than 30 days after a marine mammal is determined 
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of 
this section, the person with authorized custody must:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (4) Notwithstanding any of the provisions of this section, the 
Office Director may require use of a rehabilitated marine mammal for any 
activity authorized under subpart D in lieu of animals taken from the 
wild.
    (5) Any rehabilitated beached or stranded marine mammal placed on 
public display following a non-releasability determination under 
paragraph (a)(1) of this section and pending disposition under paragraph 
(c) of this section, or any marine mammal imported for medical treatment 
otherwise unavailable and placed on public display pending disposition 
after such medical treatment is concluded, must be held in captive 
maintenance consistent with all requirements for public display.
    (c) Disposition for a special exception purpose. (1) Upon receipt of 
an authorization request made under paragraph (b)(3)(i) of this section, 
or release notification under (a)(2), the Office Director may authorize 
the retention or transfer of custody of the marine mammal for a special 
exception purpose authorized under subpart D.
    (2) The Office Director will first consider requests from a person 
authorized to hold the marine mammal for rehabilitation. The Office 
Director may authorize such person to retain or transfer custody of the 
marine mammal for scientific research, enhancement, or public display 
purposes.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (i) Documentation has been submitted to the Office Director that the 
person retaining the subject animal or the person receiving custody of 
the subject animal by transfer, hereinafter referred to as the 
recipient, complies with public display requirements of 16 U.S.C. 
1374(c)(2)(A) or, for purposes of scientific research and enhancement, 
holds an applicable permit, or an application for such a special 
exception permit under Sec. 216.33 or a request for a major amendment 
under Sec. 216.39 has been submitted to the Office Director and has been 
found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure is necessary in the 
interest of the health or welfare of the marine mammal;
    (B) If the major amendment or permit is denied; or
    (C) If the recipient is issued a notice of violation and assessment, 
or is subject to permit sanctions, in accordance with 15 CFR part 904.
    (4) There shall be no remuneration associated with any transfer, 
provided that, the transferee may reimburse the transferor for any and 
all costs associated with the rehabilitation and transport of the marine 
mammal.
    (5) Marine mammals undergoing rehabilitation or pending disposition 
under this section shall not be subject to public display, unless such 
activities are specifically authorized by the Regional Director or the 
Office Director, and conducted consistent with the requirements 
applicable to public display. Such marine mammals shall not be trained 
for performance or be included in any aspect of a program involving 
interaction with the public; and
    (6) Marine mammals undergoing rehabilitation shall not be subject to 
intrusive research, unless such activities are specifically authorized 
by the Office Director in consultation with the Marine Mammal Commission 
and its

[[Page 36]]

Committee of Scientific Advisors on Marine Mammals, and are conducted 
pursuant to a scientific research permit.
    (d) Reporting. In addition to the report required under 
Sec. 216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director or 
Office Director.

[61 FR 21933, May 10, 1996]



                      Subpart D--Special Exceptions



Sec. 216.30  [Reserved]



Sec. 216.31  Definitions.

    For the purpose of this subpart, the definitions set forth in 50 CFR 
part 217 shall apply to all threatened and endangered marine mammals, 
unless a more restrictive definition exists under the MMPA or part 216.

[61 FR 21935, May 10, 1996]



Sec. 216.32  Scope.

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

[61 FR 21935, May 10, 1996]



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

    (a) Application submission. Persons seeking a special exemption 
permit under this subpart must submit an application to the Office 
Director. The application must be signed by the applicant, and provide 
in a properly formatted manner all information necessary to process the 
application. Written instructions addressing information requirements 
and formatting may be obtained from the Office Director upon request.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (1) Be submitted through the Convention on International Trade in 
Endangered Fauna and Flora management authority of the foreign 
government or, if different, the appropriate agency or agencies of the 
foreign government that exercises oversight over marine mammals.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (ii) The laws and regulations of the foreign governmentinvolved 
allow enforcement of the terms and conditions of the permit, and that 
the foreign government will enforce all terms and conditions; and
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.
    (c) Initial review. (1) NMFS will notify the applicant of receipt of 
the application.
    (2) During the initial review, the Office Director will determine:
    (i) Whether the application is complete.
    (ii) Whether the proposed activity is for purposes authorized under 
this subpart.
    (iii) If the proposed activity is for enhancement purposes, whether 
the species or stock identified in the application is in need of 
enhancement for its survival or recovery and whether the proposed 
activity will likely succeed in its objectives.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as described 
in Sec. 216.35 and Sec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (A) To make an initial determination under the National 
Environmental Policy Act (NEPA) as to whether the proposed activity is 
categorically excluded from preparation of further environmental 
documentation, or whether the

[[Page 37]]

preparation of an environmental assessment (EA) or environmental impact 
statement (EIS) is appropriate or necessary; and
    (B) To prepare an EA or EIS if an initial determination is made by 
the Office Director that the activity proposed is not categorically 
excluded from such requirements.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (4) Incomplete applications will be returned with explanation. If 
the applicant fails to resubmit a complete application or correct the 
identified deficiencies within 60 days, the application will be deemed 
withdrawn. Applications that propose activities inconsistent with this 
subpart will be returned with explanation, and will not be considered 
further.
    (d) Notice of receipt and application review. (1) Upon receipt of a 
valid, complete application, and the preparation of any NEPA 
documentation that has been determined initially to be required, the 
Office Director will publish a notice of receipt in the Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (D) The location(s) in which the marine mammals will be taken, from 
which they will be imported, or to which they will be exported; and
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (iv) Include a NEPA statement that an initial determination has been 
made that the activity proposed is categorically excluded from the 
requirement to prepare an EA or EIS, that an EA was prepared resulting 
in a finding of no significant impact, or that a final EIS has been 
prepared and is available for review.
    (2) The Office Director will forward a copy of the complete 
application to the Commission for comment. If no comments are received 
within 45 days (or such longer time as the Office Director may 
establish) the Office Director will consider the Commission to have no 
objection to issuing a permit.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (5) If the Office Director deems it advisable, the Office Director 
may hold a public hearing within 60 days of publication of the notice of 
receipt in the Federal Register. Notice of the date, time, and place of 
the public hearing will be published in the Federal Register not less 
than 15 days in advance of the public hearing. Any interested person may 
appear in person or through representatives and may submit any relevant 
material, data, views, or comments. A summary record of the hearing will 
be kept.
    (6) The Office Director may extend the period during which any 
interested party may submit written comments. Notice of the extension 
must be published in the Federal Register within 60 days of publication 
of the notice of receipt in the Federal Register.
    (7) If, after publishing a notice of receipt, the Office Director 
determines on the basis of new information that an EA or EIS must be 
prepared, the Office Director must deny the permit unless an EA is 
prepared with a finding of no significant impact. If a permit is denied 
under these circumstances the application may be resubmitted with 
information sufficient to prepare an EA or EIS, and will be processed as 
a new application.
    (e) Issuance or denial procedures. (1) Within 30 days of the close 
of the public hearing or, if no public hearing is held, within 30 days 
of the close of the

[[Page 38]]

public comment period, the Office Director will issue or deny a special 
exception permit.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (3) If the permit is issued, upon receipt, the holder must date and 
sign the permit, and return a copy of the original to the Office 
Director. The permit shall be effective upon the permit holder's signing 
of the permit. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and
    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be published 
in the Federal Register within 10 days after the date of permit issuance 
or denial and shall indicate where copies of the permit, if issued, may 
be reviewed or obtained. If the permit issued involves marine mammals 
listed as endangered or threatened under the ESA, the notice shall 
include a finding by the Office Director that the permit:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (6) Under the MMPA, the Office Director may issue a permit for 
scientific research before the end of the public comment period if 
delaying issuance could result in injury to a species, stock, or 
individual, or in loss of unique research opportunities. The Office 
Director also may waive the 30-day comment period required under the ESA 
in an emergency situation where the health or life of an endangered or 
threatened marine mammal is threatened and no reasonable alternative is 
available. If a permit is issued under these circumstances, notice of 
such issuance before the end of the comment period shall be published in 
the Federal Register within 10 days of issuance.
    (7) The applicant or any party opposed to a permit may seek judicial 
review of the terms and conditions of such permit or of a decision to 
deny such permit. Review may be obtained by filing a petition for review 
with the appropriate U.S. District Court as provided for by law.

[61 FR 21935, May 10, 1996]



Sec. 216.34  Issuance criteria.

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

[[Page 39]]

parts beyond those authorized by the permit.
    (b) The opinions or views of scientists or other persons or 
organizations knowledgeable of the marine mammals that are the subject 
of the application or of other matters germane to the application will 
be considered.

[61 FR 21936, May 10, 1996]



Sec. 216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (b) The maximum period of any special exception permit issued, or 
any major amendment granted, is five years from the effective date of 
the permit or major amendment. In accordance with the provisions of 
Sec. 216.39, the period of a permit may be extended by a minor amendment 
up to 12 months beyond that established in the original permit.
    (c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals 
or marine mammal parts imported under the authority of a permit must be 
taken or imported in a humane manner, and in compliance with the Acts 
and any applicable foreign law. Importation of marine mammals and marine 
mammal parts is subject to the provisions of 50 CFR part 14.
    (d) The permit holder shall not take from the wild any marine mammal 
which at the time of taking is either unweaned or less than eight months 
old, or is a part of a mother-calf/pup pair, unless such take is 
specifically authorized in the conditions of the special exception 
permit. Additionally, the permit holder shall not import any marine 
mammal that is pregnant or lactating at the time of taking or import, or 
is unweaned or less than eight months old unless such import is 
specifically authorized in the conditions of the special exception 
permit.
    (e) Captive marine mammals shall not be released into the wild 
unless specifically authorized by the Office Director under a scientific 
research or enhancement permit.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (g) Individuals conducting activities authorized under the permit 
must possess qualifications commensurate with their duties and 
responsibilities, or must be under the direct supervision of a person 
with such qualifications;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (i) Special exception permits are not transferable or assignable to 
any other person, and a permit holder may not require any direct or 
indirect compensation from another person in return for requesting 
authorization for such person to conduct the taking, import, or export 
activities authorized under the subject permit;
    (j) The permit holder or designated agent shall possess a copy of 
the permit when engaged in a permitted activity, when the marine mammal 
is in transit incidental to such activity, and whenever marine mammals 
or marine mammal parts are in the possession of the permit holder or 
agent. A copy of the permit shall be affixed to any container, package, 
enclosure, or other means of containment, in which the marine mammals or 
marine mammal parts are placed for purposes of transit, supervision, or 
care. For marine mammals held captive and marine mammal parts in 
storage, a copy of the permit shall be kept on file in the holding or 
storage facility.

[61 FR 21936, May 10, 1996]



Sec. 216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart shall 
contain specific terms and conditions deemed appropriate by the Office 
Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (iii) The location(s) in which the marine mammals may be taken, from

[[Page 40]]

which they may be imported, or to which they may be exported, as 
applicable, and, for endangered or threatened marine mammal species to 
be imported or exported, the port of entry or export;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. In addition to the specific conditions imposed 
pursuant to paragraph (a) of this section, the Office Director shall 
specify any other permit conditions deemed appropriate.

[61 FR 21937, May 10, 1996]



Sec. 216.37  Marine mammal parts.

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

[[Page 41]]

properly curated, professionally accredited scientific collection, or 
education, provided that:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (4) If exported or reimported for educational purposes, the 
recipient is a museum, educational institution, or equivalent that will 
ensure that the part is available to the public as part of an 
educational program; and
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director under Sec. 216.38.

[61 FR 21937, May 10, 1996]



Sec. 216.38  Reporting.

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

[61 FR 21937, May 10, 1996]



Sec. 216.39  Permit amendments.

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

[61 FR 21937, May 10, 1996]

[[Page 42]]



Sec. 216.40  Penalties and permit sanctions.

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

[61 FR 21938, May 10, 1996]



Sec. 216.41  Permits for scientific research and enhancement.

    In addition to the requirements under Secs. 216.33 through 216.38, 
permits for scientific research and enhancement are governed by the 
following requirements:
    (a) Applicant. (1) For each application submitted under this 
section, the applicant shall be the principal investigator responsible 
for the overall research or enhancement activity. If the research or 
enhancement activity will involve a periodic change in the principal 
investigator or is otherwise controlled by and dependent upon another 
entity, the applicant may be the institution, governmental entity, or 
corporation responsible for supervision of the principal investigator.
    (2) For any scientific research involving captive maintenance, the 
application must include supporting documentation from the person 
responsible for the facility or other temporary enclosure.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not feasible; 
and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office Director.
    (4) The proposed research will not likely have significant adverse 
effects on any other component of the marine ecosystem of which the 
affected species or stock is a part.
    (5) For species or stocks designated or proposed to be designated as 
depleted, or listed or proposed to be listed as endangered or 
threatened:
    (i) The proposed research cannot be accomplished using a species or 
stock that is not designated or proposed to be designated as depleted, 
or listed or proposed to be listed as threatened or endangered;
    (ii) The proposed research, by itself or in combination with other 
activities will not likely have a long-term direct or indirect adverse 
impact on the species or stock;
    (iii) The proposed research will either:
    (A) Contribute to fulfilling a research need or objective identified 
in a species recovery or conservation plan, or if there is no 
conservation or recovery plan in place, a research need or objective 
identified by the Office Director in stock assessments established under 
section 117 of the MMPA;
    (B) Contribute significantly to understanding the basic biology or 
ecology of the species or stock, or to identifying, evaluating, or 
resolving conservation problems for the species or stock; or
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (i) Only living marine mammals and marine mammal parts necessary for 
enhancement of the survival, recovery, or propagation of the affected 
species or stock may be taken, imported, exported, or otherwise affected 
under the authority of an enhancement permit. Marine mammal parts would 
include in this regard clinical specimens or other biological samples 
required for the conduct of breeding programs or the diagnosis or 
treatment of disease.
    (ii) The activity will likely contribute significantly to 
maintaining or increasing distribution or abundance, enhancing the 
health or welfare of the

[[Page 43]]

species or stock, or ensuring the survival or recovery of the affected 
species or stock in the wild.
    (iii) The activity is consistent with:
    (A) An approved conservation plan developed under section 115(b) of 
the MMPA or recovery plan developed under section 4(f) of the ESA for 
the species or stock; or
    (B) If there is no conservation or recovery plan, with the Office 
Director's evaluation of the actions required to enhance the survival or 
recovery of the species or stock in light of the factors that would be 
addressed in a conservation or recovery plan.
    (iv) An enhancement permit may authorize the captive maintenance of 
a marine mammal from a threatened, endangered, or depleted species or 
stock only if the Office Director determines that:
    (A) The proposed captive maintenance will likely contribute directly 
to the survival or recovery of the species or stock by maintaining a 
viable gene pool, increasing productivity, providing necessary 
biological information, or establishing animal reserves required to 
support directly these objectives; and
    (B) The expected benefit to the species or stock outweighs the 
expected benefits of alternatives that do not require removal of marine 
mammals from the wild.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of the 
survival or recovery objectives;
    (C) The marine mammals will be held consistent with all requirements 
and standards that are applicable to marine mammals held under the 
authority of the Acts and the Animal Welfare Act, unless the Office 
Director determines that an exception is necessary to implement an 
essential enhancement activity; and
    (D) The marine mammals will be excluded from any interactive program 
and will not be trained for performance.
    (vi) The Office Director may authorize non-intrusive scientific 
research to be conducted while a marine mammal is held under the 
authority of an enhancement permit, only if such scientific research:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made available 
to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of the principal investigator or a co-investigator 
identified in the permit.
    (iv) Personnel involved in research activities shall be reasonable 
in number and limited to:
    (A) Individuals who perform a function directly supportive of and 
necessary to the permitted research activity; and
    (B) Support personnel included for the purpose of training or as 
backup personnel for persons described in paragraph (c)(1)(iv)(A).
    (v) Any marine mammal part imported under the authority of a 
scientific research permit must not have been obtained as the result of 
a lethal taking that would be inconsistent with the Acts, unless 
authorized by the Office Director.
    (vi) Marine mammals held under a permit for scientific research 
shall not be placed on public display, included in an interactive 
program or activity, or trained for performance unless such activities:
    (A) Are necessary to address scientific research objectives and have 
been specifically authorized by the Office Director under the scientific 
research permit; and
    (B) Are conducted incidental to and do not in any way interfere with 
the permitted scientific research; and

[[Page 44]]

    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized scientific 
research activity must not involve any taking of marine mammals beyond 
what is necessary to conduct the research (i.e., educational and 
commercial photography).
    (2) Any marine mammal or progeny held in captive maintenance under 
an enhancement permit shall be returned to its natural habitat as soon 
as feasible, consistent with the terms of the enhancement permit and the 
objectives of an approved conservation or recovery plan. In accordance 
with section 10(j) of the ESA, the Office Director may authorize the 
release of any population of an endangered or threatened species outside 
the current range of such species if the Office Director determines that 
such release will further the conservation of such species.

[61 FR 21938, May 10, 1996]



Sec. 216.42  Photography. [Reserved]



Sec. 216.43  Public display. [Reserved]



Sec. 216.44  Applicability/transition.

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

[61 FR 21939, May 10, 1996]



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

    (a) General Authorization. (1) Persons are authorized under section 
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B 
harassment, as defined in Sec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (i) They submit a letter of intent in accordance with the 
requirements of paragraph (b) of this section, receive confirmation that 
the General Authorization applies in accordance with paragraph (c) of 
this section, and comply with the terms and conditions of paragraph (d) 
of this section; or
    (ii) If such marine mammals are listed as endangered or threatened 
under the ESA, they have been issued a permit under Section 10(a)(1)(A) 
of the ESA and implementing regulations at 50 CFR parts 217-227, 
particularly at Sec. 222.23 through Sec. 222.28, to take marine mammals 
in the wild for the purpose of scientific research, the taking 
authorized under the permit involves such Level B harassment of marine 
mammals or marine mammal stocks, and they comply with the terms and 
conditions of that permit.
    (2) Except as provided under paragraph (a)(1)(ii) of this section, 
no taking, including harassment, of marine mammals listed as threatened 
or endangered under the ESA is authorized under the General 
Authorization. Marine mammals listed as endangered or threatened under 
the ESA may be taken for purposes of scientific research only after 
issuance of a permit for such activities pursuant to the ESA.
    (3) The following types of research activities will likely qualify 
for inclusion under the General Authorization: Photo-identification 
studies, behavioral observations, and vessel and aerial population 
surveys (except aerial surveys over pinniped rookeries at altitudes of 
less than 1,000 ft).
    (b) Letter of intent. Except as provided under paragraph (a)(1)(ii) 
of this section, any person intending to take marine mammals in the wild 
by Level B harassment for purposes of bona fide scientific research 
under the General Authorization must submit, at least 60

[[Page 45]]

days before commencement of such research, a letter of intent by 
certified return/receipt mail to the Chief, Permits Division, F/PR1, 
Office of Protected Resources, NMFS, 1335 East-West Highway, Silver 
Spring, MD 20910-3226.
    (1) The letter of intent must be submitted by the principal 
investigator (who shall be deemed the applicant). For purposes of this 
section, the principal investigator is the individual who is responsible 
for the overall research project, or the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) The letter of intent must include the following information:
    (i) The name, address, telephone number, qualifications and 
experience of the applicant and any co-investigator(s) to be conducting 
the proposed research, and a curriculum vitae for each, including a list 
of publications by each such investigator relevant to the objectives, 
methodology, or other aspects of the proposed research;
    (ii) The species or stocks of marine mammals (common and scientific 
names) that are the subject of the scientific research and any other 
species or stock of marine mammals that may be harassed during the 
conduct of the research;
    (iii) The geographic location(s) in which the research is to be 
conducted, e.g., geographic name or lat./long.;
    (iv) The period(s) of time over which the research will be conducted 
(up to five years), including the field season(s) for the research, if 
applicable;
    (v) The purpose of the research, including a description of how the 
proposed research qualifies as bona fide research as defined in 
Sec. 216.3; and
    (vi) The methods to be used to conduct the research.
    (3) The letter of intent must be signed, dated, and certified by the 
applicant as follows:

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

    (c) Confirmation that the General Authorization applies or 
notification of permit requirement.
    (1) Not later than 30 days after receipt of a letter of intent as 
described in paragraph (b) of this section, the Chief, Permits Division, 
NMFS will issue a letter to the applicant either:
    (i) Confirming that the General Authorization applies to the 
proposed scientific research as described in the letter of intent;
    (ii) Notifying the applicant that all or part of the research 
described in the letter of intent is likely to result in a taking of a 
marine mammal in the wild involving other than Level B harassment and, 
as a result, cannot be conducted under the General Authorization, and 
that a scientific research permit is required to conduct all or part of 
the subject research; or
    (iii) Notifying the applicant that the letter of intent fails to 
provide sufficient information and providing a description of the 
deficiencies, or notifying the applicant that the proposed research as 
described in the letter of intent is not bona fide research as defined 
in Sec. 216.3.
    (2) A copy of each letter of intent and letter confirming that the 
General Authorization applies or notifying the applicant that it does 
not apply will be forwarded to the Marine Mammal Commission.
    (3) Periodically, NMFS will publish a summary document in the 
Federal Register notifying the public of letters of confirmation issued.

[[Page 46]]

    (d) Terms and conditions. Persons issued letters of confirmation in 
accordance with paragraph (c) of this section are responsible for 
complying with the following terms and conditions:
    (1) Activities are limited to those conducted for the purposes, by 
the means, in the locations, and during the periods of time described in 
the letter of intent and acknowledged as authorized under the General 
Authorization in the confirmation letter sent pursuant to paragraph (c) 
of this section;
    (2) Annual reports of activities conducted under the General 
Authorization must be submitted to the Chief, Permits Division (address 
listed in paragraph (b) of this section) within 90 days of completion of 
the last field season(s) during the calendar year or, if the research is 
not conducted during a defined field season, no later than 90 days after 
the anniversary date of the letter of confirmation issued under 
paragraph (c) of this section. Annual reports must include:
    (i) A summary of research activities conducted;
    (ii) Identification of the species and number of each species taken 
by Level B harassment;
    (iii) An evaluation of the progress made in meeting the objectives 
of the research as described in the letter of intent; and
    (iv) Any incidental scientific, educational, or commercial uses of 
photographs, videotape, and film obtained as a result of or incidental 
to the research and if so, names of all photographers.
    (3) Authorization to conduct research under the General 
Authorization is for the period(s) of time identified in the letter of 
intent or for a period of 5 years from the date of the letter of 
confirmation issued under paragraph (c) of this section, whichever is 
less, unless extended by the Director or modified, suspended, or revoked 
in accordance with paragraph (e) of this section;
    (4) Activities conducted under the General Authorization may only be 
conducted under the on-site supervision of the principal investigator or 
co-investigator(s) named in the letter of intent. All personnel involved 
in the conduct of activities under the General Authorization must 
perform a function directly supportive of and necessary for the research 
being conducted, or be one of a reasonable number of support personnel 
included for the purpose of training or as back-up personnel;
    (5) The principal investigator must notify the appropriate Regional 
Director, NMFS, (Regional Director) in writing at least 2 weeks before 
initiation of on-site activities. The Regional Director shall consider 
this information in efforts to coordinate field research activities to 
minimize adverse impacts on marine mammals in the wild. The principal 
investigator must cooperate with coordination efforts by the Regional 
Director in this regard;
    (6) If research activities result in a taking which exceeds Level B 
harassment, the applicant shall:
    (i) Report the taking within 12 hours to the Director, Office of 
Protected Resources, or his designee as set forth in the letter 
authorizing research; and
    (ii) Temporarily discontinue for 72 hours all field research 
activities that resulted in the taking. During this time period, the 
applicant shall consult with NMFS as to the circumstances surrounding 
the taking and any precautions necessary to prevent future taking, and 
may agree to amend the research protocol, as deemed necessary by NMFS.
    (7) NMFS may review scientific research conducted pursuant to the 
General Authorization. If requested by NMFS, the applicant must 
cooperate with any such review and shall:
    (i) Allow any employee of NOAA or any other person designated by the 
Director, Office of Protected Resources to observe research activities; 
and
    (ii) Provide any documents or other information relating to the 
scientific research;
    (8) Any photographs, videotape, or film obtained during the conduct 
of research under the General Authorization must be identified by a 
statement that refers to the General Authorization or ESA permit number, 
and includes the file number provided by NMFS in the confirmation 
letter, the name of the photographer, and the date the image was taken. 
This statement must accompany the image(s) in all subsequent uses or 
sales. The annual report must note incidental scientific,

[[Page 47]]

educational, or commercial uses of the images, and if there are any such 
uses, the names of all photographers; and
    (9) Persons conducting scientific research under authority of the 
General Authorization may not transfer or assign any authority granted 
thereunder to any other person.
    (e) Suspension, revocation, or modification. (1) NMFS may suspend, 
revoke, or modify the authority to conduct scientific research under the 
General Authorization if:
    (i) The letter of intent included false information or statements of 
a material nature;
    (ii) The research does not constitute bona fide scientific research;
    (iii) Research activities result in takings of marine mammals other 
than by Level B harassment;
    (iv) Research activities differ from those described in the letter 
of intent submitted by the applicant and letter of confirmation issued 
by NMFS; or
    (v) The applicant violates any term or condition set forth in this 
section.
    (2) Any suspension, revocation, or modification is subject to the 
requirements of 15 CFR part 904.

[59 FR 50376, Oct. 3, 1994]



Sec. 216.46  U.S. citizens on foreign flag vessels operating under the International Dolphin Conservation Program.

    The MMPA's provisions do not apply to a citizen of the United States 
who incidentally takes any marine mammal during fishing operations in 
the ETP which are outside the U.S. exclusive economic zone (as defined 
in section 3 of the Magnuson-Stevens Fishery Conservation and Management 
Act (16 U.S.C. 1802)), while employed on a fishing vessel of a 
harvesting nation that is participating in, and in compliance with, the 
IDCP.

[65 FR 56, Jan. 3, 2000]



Secs. 216.47-216.49  [Reserved]



                       Subpart E--Designated Ports



Sec. 216.50  Importation at designated ports.

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

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

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

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

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

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



      Subpart F--Pribilof Islands, Taking for Subsistence Purposes



Sec. 216.71  Allowable take of fur seals.

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

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



Sec. 216.72  Restrictions on taking.

    (a) The harvests of seals on St. Paul and St. George Islands shall 
be treated independently for the purposes of this section. Any 
suspension, termination, or extension of the harvest is applicable only 
to the island for which it is issued.

[[Page 48]]

    (b) By April 1 of every third year, beginning April 1994, the 
Assistant Administrator will publish in the Federal Register a summary 
of the preceding 3 years of harvesting and a discussion of the number of 
seals expected to be taken annually over the next 3 years to satisfy the 
subsistence requirements of each island. This discussion will include an 
assessment of factors and conditions on St. Paul and St. George Islands 
that influence the need by Pribilof Aleuts to take seals for subsistence 
uses and an assessment of any changes to those conditions indicating 
that the number of seals that may be taken for subsistence each year 
should be made higher or lower. Following a 30-day public comment 
period, a final notification of the expected annual harvest levels for 
the next 3 years will be published.
    (c)(1) No fur seal may be taken on the Pribilof Islands before June 
23 of each year.
    (2) No fur seal may be taken except by experienced sealers using the 
traditional harvesting methods, including stunning followed immediately 
by exsanguination. The harvesting method shall include organized drives 
of subadult males to killing fields unless it is determined by the NMFS 
representatives, in consultation with the Pribilovians conducting the 
harvest, that alternative methods will not result in increased 
disturbance to the rookery or the increased accidental take of female 
seals.
    (3) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (4) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (5) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (d) The scheduling of the harvest is at the discretion of the 
Pribilovians, but must be such as to minimize stress to the harvested 
seals. The Pribilovians must give adequate advance notice of their 
harvest schedules to the NMFS representatives to allow for necessary 
monitoring activities. Scheduling must be consistent with the following 
restrictions:
    (1) St. Paul Island--Seals may only be harvested from the following 
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, 
Kitovi, and Reef. No haulout area may be harvested more than once per 
week.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for in Sec. 215.31 when:
    (i) He determines, after reasonable notice by NMFS representatives 
to the Pribilovians on the island, that the subsistence needs of the 
Pribilovians on the island have been satisfied;

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

[[Page 49]]

island have been satisfied, whichever occurs first.

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



Sec. 216.73  Disposition of fur seal parts.

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

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



Sec. 216.74  Cooperation with Federal officials.

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

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



               Subpart G--Pribilof Islands Administration



Sec. 216.81  Visits to fur seal rookeries.

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

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



Sec. 216.82  Dogs prohibited.

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

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



Sec. 216.83  Importation of birds or mammals.

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

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



Sec. 216.84  [Reserved]



Sec. 216.85  Walrus and Otter Islands.

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

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



Sec. 216.86  Local regulations.

    Local regulations will be published from time to time and will be 
brought to the attention of local residents and persons assigned to duty 
on the Islands

[[Page 50]]

by posting in public places and brought to the attention of tourists by 
personal notice.

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



Sec. 216.87  Wildlife research.

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

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



                  Subpart H--Dolphin Safe Tuna Labeling

    Authority: 16 U.S.C. 1385.

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



Sec. 216.90  Purposes.

    This subpart governs the requirements for using the official mark, 
described in Sec. 216.96, or an alternative mark that refers to 
dolphins, porpoises, or marine mammals, to label tuna or tuna products 
offered for sale in or exported from the United States using the term 
``dolphin-safe'' or suggesting the tuna were harvested in a manner not 
injurious to dolphins.

[65 FR 56, Jan. 3, 2000]



Sec. 216.91  Dolphin-safe labeling standards.

    (a) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or 
seller of any tuna products that are exported from or offered for sale 
in the United States to include on the label of those products the term 
``dolphin-safe'' or any other term or symbol that claims or suggests 
that the tuna contained in the products were harvested using a method of 
fishing that is not harmful to dolphins if the products contain tuna 
harvested:
    (1) ETP large purse seine vessel. In the ETP by a purse seine vessel 
of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) The documentation requirements for dolphin-safe tuna under 
Secs. 216.92 and 216.94 are met;
    (ii) No dolphin were killed or seriously injured during the sets in 
which the tuna were caught; or
    (iii) If the Assistant Administrator publishes notification in the 
Federal Register announcing a finding that the intentional deployment of 
purse seine nets on or encirclement of dolphins is having a significant 
adverse impact on any depleted stock:
    (A) No tuna products were caught on a trip using a purse seine net 
intentionally deployed on or to encircle dolphins; and
    (B) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught.
    (2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a 
purse seine net:
    (i) In a fishery in which the Assistant Administrator has determined 
that a

[[Page 51]]

regular and significant association occurs between dolphins and tuna 
(similar to the association between dolphins and tuna in the ETP), 
unless such products are accompanied by a written statement, executed by 
the captain of the vessel and an observer participating in a national or 
international program acceptable to the Assistant Administrator, 
certifying that no purse seine net was intentionally deployed on or used 
to encircle dolphins during the particular voyage on which the tuna were 
caught and no dolphins were killed or seriously injured in the sets in 
which the tuna were caught; or
    (ii) In any other fishery unless the products are accompanied by a 
written statement executed by the captain of the vessel certifying that 
no purse seine net was intentionally deployed on or used to encircle 
dolphins during the particular voyage on which the tuna was harvested;
    (3) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (4) Other fisheries. By a vessel in a fishery other than one 
described in paragraphs (a)(1) through(a)(3) of this section that is 
identified by the Assistant Administrator as having a regular and 
significant mortality or serious injury of dolphins, unless such product 
is accompanied by a written statement, executed by the captain of the 
vessel and an observer participating in a national or international 
program acceptable to the Assistant Administrator, that no dolphins were 
killed or seriously injured in the sets or other gear deployments in 
which the tuna were caught, provided that the Assistant Administrator 
determines that such an observer statement is necessary.
    (b) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in 
this section in a campaign or effort to mislead or deceive consumers 
about the level of protection afforded dolphins under the IDCP.
    (c) A tuna product that is labeled with the official mark, described 
in Sec. 216.96, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

[65 FR 57, Jan. 3, 2000]



Sec. 216.92  Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.

    (a) U.S. vessels. Tuna products that contain tuna harvested by U.S. 
flag purse seine vessels of greater than 400 st (362.8 mt) carrying 
capacity in the ETP may be labeled ``dolphin-safe'' if the following 
requirements are met:
    (1) ``Dolphin-safe'' Tuna Tracking Forms certified by the vessel 
captain and the observer are submitted to the Regional Administrator, 
Southwest Region, at the end of the fishing trip during which the tuna 
was harvested;
    (2) The tuna has been processed by a U.S. tuna processor in a plant 
located in one of the 50 states, Puerto Rico, or American Samoa that is 
in compliance with the tuna tracking and verification requirements of 
Sec. 216.94;
    (3) The tuna or tuna products are accompanied by a properly 
completed FCO;
    (4) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 216.91; and
    (5) The FCO is properly endorsed by each processor certifying that, 
to the best of his or her knowledge and belief, the FCO and attached 
documentation are complete and accurate.
    (b) Imported tuna. Tuna or tuna products harvested in the ETP by 
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity 
and presented for import into the United States are dolphin safe if:
    (1) The tuna was harvested by a U.S. vessel fishing in compliance 
with the requirements of the IDCP and applicable U.S. law, or by a 
vessel belonging to a nation that has obtained an affirmative finding of 
Sec. 216.24(f)(9);
    (2) The tuna or tuna products are accompanied by a properly 
completed FCO;
    (3) The tuna or tuna products are accompanied by valid documentation 
signed by a representative of the appropriate IDCP member nation, 
certifying that:
    (i) There was an IDCP approved observer on board the vessel(s) 
during the entire trip(s); and
    (ii) The tuna contained in the shipment were caught according to the 
dolphin-safe labeling standards of Sec. 216.91;

[[Page 52]]

    (4) The documentation provided in paragraph(b)(3) of this section 
includes a listing of vessel names and identifying numbers of the 
associated Tuna Tracking Forms for each trip of which tuna in the 
shipment originates; and
    (5) The FCO is properly endorsed by each exporter, importer, and 
processor certifying that, to the best of his or her knowledge and 
belief, the FCO and attached documentation are complete and accurate.

[65 FR 57, Jan. 3, 2000]



Sec. 216.93  Submission of documentation.

    (a) Requirements for the submission of documents concerning the 
activities of U.S. flag vessels with greater than 400 st carrying 
capacity fishing in the ETP are contained in Sec. 216.94.
    (b) The import documents required by Secs. 216.91 and 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:
    (1) 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
    (2) The documents are endorsed as required by Sec. 216.92(b)(4) and 
the final processor delivers the endorsed documents to the 
Administrator, Southwest Region, or to U.S. Customs as required.

[65 FR 57, Jan. 3, 2000]



Sec. 216.94  Tracking and verification program.

    The Administrator, Southwest Region, has established a national 
tracking and verification program to accurately document the ``dolphin-
safe'' condition of tuna, under the standards set forth in 
Sec. 216.91(a). The tracking program includes procedures and reports for 
use when importing tuna into the U.S. and during U.S. purse seine 
fishing, processing, and marketing in the U.S. and abroad. Verification 
of tracking system operations is attained through the establishment of 
audit and document review requirements. The tracking program is 
consistent with the international tuna tracking and verification program 
adopted by the Parties to the IDCP.
    (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the 
ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing the IATTC cruise 
number assigned to that trip, are used by the observer to record every 
set made during that trip. One TTF is used to record ``dolphin-safe'' 
sets and a second TTF is used to record ``non-dolphin-safe'' sets. The 
information entered on the TTFs following each set includes date of 
trip, set number, date of loading, name of the vessel, vessel Captain's 
name, observer's name, well number, weights by species composition, 
estimated tons loaded, and date of the set. The observer and the vessel 
engineer initial the entry for each set, and the vessel Captain and 
observer review and sign both TTFs at the end of the fishing trip 
certifying that the information on the form is accurate. The captain's 
and observer's certification of the TTF on which dolphin-safe sets are 
recorded complies with 16 U.S.C. 1385(h).
    (b) Tracking fishing operations. (1) During ETP fishing trips by 
purse seine vessels, tuna caught in sets designated as ``dolphin-safe'' 
by the vessel observer must be stored separately from tuna caught in 
``non-dolphin-safe'' sets from the time of capture through unloading, 
except as provided in paragraph (b)(2) of this section. Vessel personnel 
will decide into which wells tuna will be loaded. The observer will 
initially designate whether each set is ``dolphin-safe'' or not, based 
on his/her observation of the set. The observer will initially identify 
a vessel fish well as ``dolphin-safe'' if the first tuna loaded into the 
well during a trip was captured in a set in which no dolphin died or was 
seriously injured. The observer will initially identify a vessel fish 
well as ``non-dolphin-safe'' if the first tuna loaded into the well 
during a trip was captured in a set in which a dolphin died or was 
seriously injured. Any tuna loaded into a well previously designated 
``non-dolphin-safe'' or ``mixed well'' is considered ``non-dolphin-
safe'' tuna. Except as provided for in paragraph (b)(2)(i) of this 
section, the observer will change the designation of a ``dolphin-safe'' 
well to ``non-dolphin-safe'' if any tuna are loaded into the

[[Page 53]]

well that were captured in a set in which a dolphin died or was 
seriously injured.
    (2) Mixed wells. Only two acceptable conditions exist under which a 
``mixed'' well can be created.
    (i) In the event that a set has been designated ``dolphin-safe'' by 
the observer, but during the loading process dolphin mortality or 
serious injury is identified, the ``dolphin-safe'' designation of the 
set will change to ``non-dolphin-safe.'' If one or more of the wells 
into which the newly designated ``non-dolphin-safe'' tuna are loaded 
already contains ``dolphin-safe'' tuna loaded during a previous set, the 
observer will note in his or her trip records the well numbers and the 
estimated weight of such ``non-dolphin-safe'' tuna and designate such 
well(s) as ``mixed well(s).'' Once a well has been identified as ``non-
dolphin-safe'' or ``mixed'' all tuna subsequently loaded into that well 
will be designated as ``non-dolphin-safe.'' When the contents of such a 
``mixed well'' are received by a processor, the tuna will be weighed and 
separated according to the observer's report of the estimated weight of 
``dolphin-safe'' and ``non-dolphin-safe'' tuna contained in that well. 
In addition, 15 percent of the ``dolphin-safe'' tuna unloaded from the 
``mixed well'' will be designated as ``non-dolphin-safe.''
    (ii) Near the end of an ETP fishing trip, if the only well space 
available is in a ``non-dolphin-safe'' well, and there is an opportunity 
to make one last set, ``dolphin-safe'' tuna caught in that set may be 
loaded into the ``non-dolphin-safe'' well. The ``dolphin-safe'' tuna 
must be kept physically separate from the ``non-dolphin-safe'' tuna 
already in the well, using netting or other material.
    (3) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel returning to port from a trip, any part of which included 
fishing in the ETP, must provide at least 48 hours notice of the 
vessel's intended place of landing, arrival time, and schedule of 
unloading to the Administrator, Southwest Region.
    (4) If the trip terminates when the vessel enters port to unload 
part or all of its catch, new TTFs will be assigned to the new trip, and 
any information concerning tuna retained on the vessel will be recorded 
as the first entry on the TTFs for the new trip. If the trip is not 
terminated following a partial unloading, the vessel will retain the 
original TTFs and submit a copy of those TTFs to the Administrator, 
Southwest Region, within 5 working days. In either case, the species and 
amount unloaded will be noted on the respective originals.
    (5) Tuna offloaded to trucks, storage facilities or carrier vessels 
must be loaded or stored in such a way as to maintain and safeguard the 
identification of the ``dolphin-safe'' or ``non-dolphin-safe'' 
designation of the tuna as it left the fishing vessel.
    (6)(i) When ETP caught tuna is to be offloaded from a U.S. purse 
seiner directly to a U.S. canner within the 50 states, Puerto Rico, or 
American Samoa, or in any port and subsequently loaded aboard a carrier 
vessel for transport to a U.S. processing location, a NMFS 
representative may meet the U.S. purse seiner to receive the TTFs from 
the vessel observer and to monitor the handling of ``dolphin-safe'' and 
``non-dolphin-safe'' tuna.
    (ii) When ETP caught tuna is offloaded from an U.S. purse seiner in 
any port and subsequently loaded aboard a carrier vessel for transport 
to a cannery outside the jurisdiction of the United States, a NMFS 
representative may meet the vessel to receive copies of the TTFs from 
the observer and monitor the offloading. The U.S. caught tuna becomes 
the tracking and verification responsibility of the foreign buyer when 
it is offloaded from the U.S. vessel.
    (iii) If a NMFS representative does not meet the vessel in port at 
the time of arrival, the observer may take the signed TTFs to the IATTC 
office and mail copies to the Administrator, Southwest Region, from that 
location within 5 working days of the end of the trip.
    (iv) When ETP caught tuna is offloaded from a U.S. purse seiner 
directly to a processing facility located outside the jurisdiction of 
the United States in a country that is a party to the IDCP, the national 
authority in whose area of jurisdiction the tuna is

[[Page 54]]

to be processed will assume the responsibility for tracking and 
verification of the tuna offloaded. A representative of the national 
authority will receive copies of the TTFs from the observer, and copies 
of the TTFs will be forwarded to the Administrator, Southwest Region.
    (c) Tracking cannery operations. (1) Whenever a tuna canning company 
in the 50 states, Puerto Rico, or American Samoa is scheduled to receive 
a domestic or imported shipment of ETP caught tuna for processing, the 
company must provide at least 48 hours notice of the location and 
arrival date and time of such a shipment, to the Administrator, 
Southwest Region, so that a NMFS representative can be present to 
monitor delivery and verify that ``dolphin-safe'' and ``non-dolphin-
safe'' tuna are clearly identified and remain segregated.
    (2) At the close of delivery activities, which may include weighing, 
boxing or containerizing, and transfer to cold storage or processing, 
the company must provide a copy of the processor's receiving report to 
the NMFS representative, if present. If a NMFS representative is not 
present, the company must submit a copy of the processor's receiving 
report to the Administrator, Southwest Region, electronically, by mail, 
or by fax within 5 working days. The processor's receiving report must 
contain, at a minimum: date of delivery, catcher vessel name and flag, 
trip number and dates, storage container number(s), ``dolphin-safe'' or 
``non-dolphin-safe'' designation of each container, species, product 
description, and weight of tuna in each container.
    (3) Tuna canning companies will report on a monthly basis the 
amounts of ETP-caught tuna that are removed from cold storage. This 
report may be submitted in conjunction with the monthly report required 
in paragraph (c)(5) of this section. This report must contain:
    (i) The date of removal;
    (ii) Storage container number(s) and ``dolphin-safe'' or ``non-
dolphin-safe'' designation of each container; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (4) During canning activities, ``non-dolphin-safe'' tuna may not be 
mixed in any manner or at any time in its processing with any ``dolphin-
safe'' tuna or tuna products and may not share the same storage 
containers, cookers, conveyers, tables, or other canning and labeling 
machinery.
    (5) Canned tuna processors must submit a report to the 
Administrator, Southwest Region, of all tuna received at their 
processing facilities in each calendar month whether or not the tuna is 
actually canned or stored during that month. Monthly cannery receipt 
reports must be submitted electronically or by mail before the last day 
of the month following the month being reported. Monthly reports must 
contain the following information:
    (i) Domestic receipts: species, condition (round, loin, dressed, 
gilled and gutted, other), weight in short tons to the fourth decimal, 
ocean area of capture (eastern tropical Pacific, western Pacific, 
Indian, eastern and western Atlantic, other), catcher vessel, trip 
dates, carrier name, unloading dates, and location of unloading.
    (ii) Import receipts: In addition to the information required in 
paragraph (c)(5)(i) of this section, a copy of the FCO for each imported 
receipt must be provided.
    (d) Tracking imports. All tuna products, except fresh tuna, that are 
imported into the United States must be accompanied by a properly 
certified FCO as required by Sec. 216.24(f).
    (e) Verification requirements.--(1) Record maintenance. Any 
exporter, transshipper, importer, or processor of any tuna or tuna 
products containing tuna harvested in the ETP must maintain records 
related to that tuna for at least 3 years. These records include, but 
are not limited to: FCO and required certifications, any report required 
in paragraph (a) and (b) of this section, invoices, other import 
documents, and trip reports.
    (2) Record submission. Within 30 days of receiving a written request 
from the Administrator, Southwest Region, any exporter, transshipper, 
importer, or processor of any tuna or tuna products containing tuna 
harvested in the ETP must submit to the Administrator any record 
required to be maintained under paragraph (e)(1) of this section.

[[Page 55]]

    (3) Audits and spot-checks. Upon request of the Administrator, 
Southwest Region, any such exporter, transshipper, importer, or 
processor must provide the Administrator, Southwest Region, timely 
access to all pertinent records and facilities to allow for audits and 
spot-checks on caught, landed, and processed tuna.
    (f) Confidentiality of proprietary information. Information 
submitted to the Assistant Administrator under this section will be 
treated as confidential in accordance with NOAA Administrative Order 
216-100 ``Protection of Confidential Fisheries Statistics.''

[65 FR 57, Jan. 3, 2000]



Sec. 216.95  False statements or endorsements.

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



Sec. 216.96  Official mark for ``Dolphin-safe'' tuna products.

    (a) This is the ``official mark'' (see figure 1) designated by the 
United States Department of Commerce that may be used to label tuna 
products that meet the ``dolphin-safe'' standards set forth in the 
Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and 
implementing regulations at Secs. 216.91 through 216.94:

[[Page 56]]

[GRAPHIC] [TIFF OMITTED] TR30MY00.019

    (b) Location and size of the official mark. The official mark on 
labels must allow the consumer to identify the official mark and be 
similar in design and scale to figure 1. A full color version of the 
official mark is available at http://swr.ucsd.edu/dsl.htm.

[65 FR 34410, May 30, 2000]



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

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



Sec. 216.101  Purpose.

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



Sec. 216.102  Scope.

    The taking of small numbers of marine mammals under section 
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be 
allowed only if the National Marine Fisheries Service:
    (a) Finds, based on the best scientific evidence available, that the 
total taking by the specified activity during the specified time period 
will have a negligible impact on species or stock of marine mammal(s) 
and will not have

[[Page 57]]

an unmitigable adverse impact on the availability of those species or 
stocks of marine mammals intended for subsistence uses;
    (b) Prescribes either regulations under Sec. 216.106, or 
requirements and conditions contained within an incidental harassment 
authorization issued under Sec. 216.107, setting forth permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on the species or stock of marine mammal and its habitat 
and on the availability of the species or stock of marine mammal for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance; and
    (c) Prescribes either regulations or requirements and conditions 
contained within an incidental harassment authorization, as appropriate, 
pertaining to the monitoring and reporting of such taking. The specific 
regulations governing certain specified activities are contained in 
subsequent subparts of this part.



Sec. 216.103  Definitions.

    In addition to definitions contained in the MMPA, and in Sec. 216.3, 
and unless the context otherwise requires, in subsequent subparts to 
this part:
    Arctic waters means the marine and estuarine waters north of 60 deg. 
N. lat.
    Citizens of the United States and U.S. citizens mean individual U.S. 
citizens or any corporation or similar entity if it is organized under 
the laws of the United States or any governmental unit defined in 16 
U.S.C. 1362(13). U.S. Federal, state and local government agencies shall 
also constitute citizens of the United States for purposes of this part.
    Incidental harassment, incidental taking and incidental, but not 
intentional, taking all mean an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings that 
are infrequent, unavoidable or accidental. (A complete definition of 
``take'' is contained in Sec. 216.3).
    Negligible impact is an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates of 
recruitment or survival.
    Small numbers means a portion of a marine mammal species or stock 
whose taking would have a negligible impact on that species or stock.
    Specified activity means any activity, other than commercial 
fishing, that takes place in a specified geographical region and 
potentially involves the taking of small numbers of marine mammals.
    Specified geographical region means an area within which a specified 
activity is conducted and that has certain biogeographic 
characteristics.
    Unmitigable adverse impact means an impact resulting from the 
specified activity:
    (1) That is likely to reduce the availability of the species to a 
level insufficient for a harvest to meet subsistence needs by:
    (i) Causing the marine mammals to abandon or avoid hunting areas;
    (ii) Directly displacing subsistence users; or
    (iii) Placing physical barriers between the marine mammals and the 
subsistence hunters; and
    (2) That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.



Sec. 216.104  Submission of requests.

    (a) In order for the National Marine Fisheries Service to consider 
authorizing the taking by U.S. citizens of small numbers of marine 
mammals incidental to a specified activity (other than commercial 
fishing), or to make a finding that an incidental take is unlikely to 
occur, a written request must be submitted to the Assistant 
Administrator. All requests must include the following information for 
their activity:
    (1) A detailed description of the specific activity or class of 
activities that can be expected to result in incidental taking of marine 
mammals;
    (2) The date(s) and duration of such activity and the specific 
geographical region where it will occur;
    (3) The species and numbers of marine mammals likely to be found 
within the activity area;

[[Page 58]]

    (4) A description of the status, distribution, and seasonal 
distribution (when applicable) of the affected species or stocks of 
marine mammals likely to be affected by such activities;
    (5) The type of incidental taking authorization that is being 
requested (i.e., takes by harassment only; takes by harassment, injury 
and/or death) and the method of incidental taking;
    (6) By age, sex, and reproductive condition (if possible), the 
number of marine mammals (by species) that may be taken by each type of 
taking identified in paragraph (a)(5) of this section, and the number of 
times such takings by each type of taking are likely to occur;
    (7) The anticipated impact of the activity upon the species or stock 
of marine mammal;
    (8) The anticipated impact of the activity on the availability of 
the species or stocks of marine mammals for subsistence uses;
    (9) The anticipated impact of the activity upon the habitat of the 
marine mammal populations, and the likelihood of restoration of the 
affected habitat;
    (10) The anticipated impact of the loss or modification of the 
habitat on the marine mammal populations involved;
    (11) The availability and feasibility (economic and technological) 
of equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, their habitat, and on their availability for 
subsistence uses, paying particular attention to rookeries, mating 
grounds, and areas of similar significance;
    (12) Where the proposed activity would take place in or near a 
traditional Arctic subsistence hunting area and/or may affect the 
availability of a species or stock of marine mammal for Arctic 
subsistence uses, the applicant must submit either a plan of cooperation 
or information that identifies what measures have been taken and/or will 
be taken to minimize any adverse effects on the availability of marine 
mammals for subsistence uses. A plan must include the following:
    (i) A statement that the applicant has notified and provided the 
affected subsistence community with a draft plan of cooperation;
    (ii) A schedule for meeting with the affected subsistence 
communities to discuss proposed activities and to resolve potential 
conflicts regarding any aspects of either the operation or the plan of 
cooperation;
    (iii) A description of what measures the applicant has taken and/or 
will take to ensure that proposed activities will not interfere with 
subsistence whaling or sealing; and
    (iv) What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in the 
operation;
    (13) The suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species, 
the level of taking or impacts on populations of marine mammals that are 
expected to be present while conducting activities and suggested means 
of minimizing burdens by coordinating such reporting requirements with 
other schemes already applicable to persons conducting such activity. 
Monitoring plans should include a description of the survey techniques 
that would be used to determine the movement and activity of marine 
mammals near the activity site(s) including migration and other habitat 
uses, such as feeding. Guidelines for developing a site-specific 
monitoring plan may be obtained by writing to the Director, Office of 
Protected Resources; and
    (14) Suggested means of learning of, encouraging, and coordinating 
research opportunities, plans, and activities relating to reducing such 
incidental taking and evaluating its effects.
    (b)(1) The Assistant Administrator shall determine the adequacy and 
completeness of a request and, if determined to be adequate and 
complete, will begin the public review process by publishing in the 
Federal Register either:
    (i) A proposed incidental harassment authorization; or
    (ii) A notice of receipt of a request for the implementation or 
reimplementation of regulations governing the incidental taking.

[[Page 59]]

    (2) Through notice in the Federal Register, newspapers of general 
circulation, and appropriate electronic media in the coastal areas that 
may be affected by such activity, NMFS will invite information, 
suggestions, and comments for a period not to exceed 30 days from the 
date of publication in the Federal Register. All information and 
suggestions will be considered by the National Marine Fisheries Service 
in developing, if appropriate, the most effective regulations governing 
the issuance of letters of authorization or conditions governing the 
issuance of an incidental harassment authorization.
    (3) Applications that are determined to be incomplete or 
inappropriate for the type of taking requested, will be returned to the 
applicant with an explanation of why the application is being returned.
    (c) The Assistant Administrator shall evaluate each request to 
determine, based upon the best available scientific evidence, whether 
the taking by the specified activity within the specified geographic 
region will have a negligible impact on the species or stock and, where 
appropriate, will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses. If the 
Assistant Administrator finds that the mitigating measures would render 
the impact of the specified activity negligible when it would not 
otherwise satisfy that requirement, the Assistant Administrator may make 
a finding of negligible impact subject to such mitigating measures being 
successfully implemented. Any preliminary findings of ``negligible 
impact'' and ``no unmitigable adverse impact'' shall be proposed for 
public comment along with either the proposed incidental harassment 
authorization or the proposed regulations for the specific activity.
    (d) If, subsequent to the public review period, the Assistant 
Administrator finds that the taking by the specified activity would have 
more than a negligible impact on the species or stock of marine mammal 
or would have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses, the Assistant Administrator shall 
publish in the Federal Register the negative finding along with the 
basis for denying the request.



Sec. 216.105  Specific regulations.

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



Sec. 216.106  Letter of Authorization.

    (a) A Letter of Authorization, which may be issued only to U.S. 
citizens, is required to conduct activities pursuant to any regulations 
established under Sec. 216.105. Requests for Letters of Authorization 
shall be submitted to the Director, Office of Protected Resources. The 
information to be submitted in a request for an authorization will be 
specified in the appropriate subpart to this part or may be obtained by 
writing to the above named person.
    (b) Issuance of a Letter of Authorization will be based on a 
determination that the level of taking will be consistent with the 
findings made for the total taking allowable under the specific 
regulations.

[[Page 60]]

    (c) Letters of Authorization will specify the period of validity and 
any additional terms and conditions appropriate for the specific 
request.
    (d) Notice of issuance of all Letters of Authorization will be 
published in the Federal Register within 30 days of issuance.
    (e) Letters of Authorization shall be withdrawn or suspended, either 
on an individual or class basis, as appropriate, if, after notice and 
opportunity for public comment, the Assistant Administrator determines 
that:
    (1) The regulations prescribed are not being substantially complied 
with; or
    (2) The taking allowed is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (f) The requirement for notice and opportunity for public review in 
Sec. 216.106(e) shall not apply if the Assistant Administrator 
determines that an emergency exists that poses a significant risk to the 
wellbeing of the species or stocks of marine mammals concerned.
    (g) A violation of any of the terms and conditions of a Letter of 
Authorization or of the specific regulations shall subject the Holder 
and/or any individual who is operating under the authority of the 
Holder's Letter of Authorization to penalties provided in the MMPA.



Sec. 216.107  Incidental harassment authorization for Arctic waters.

    (a) Except for activities that have the potential to result in 
serious injury or mortality, which must be authorized under 
Sec. 216.105, incidental harassment authorizations may be issued, 
following a 30-day public review period, to allowed activities that may 
result in only the incidental harassment of a small number of marine 
mammals. Each such incidental harassment authorization shall set forth:
    (1) Permissible methods of taking by harassment;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including 
requirements for the independent peer-review of proposed monitoring 
plans where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses.
    (b) Issuance of an incidental harassment authorization will be based 
on a determination that the number of marine mammals taken by harassment 
will be small, will have a negligible impact on the species or stock of 
marine mammal(s), and will not have an unmitigable adverse impact on the 
availability of species or stocks for taking for subsistence uses.
    (c) An incidental harassment authorization will be either issued or 
denied within 45 days after the close of the public review period.
    (d) Notice of issuance or denial of an incidental harassment 
authorization will be published in the Federal Register within 30 days 
of issuance of a determination.
    (e) Incidental harassment authorizations will be valid for a period 
of time not to exceed 1 year but may be renewed for additional periods 
of time not to exceed 1 year for each reauthorization.
    (f) An incidental harassment authorization shall be modified, 
withdrawn, or suspended if, after notice and opportunity for public 
comment, the Assistant Administrator determines that:
    (1) The conditions and requirements prescribed in the authorization 
are not being substantially complied with; or
    (2) The authorized taking, either individually or in combination 
with other authorizations, is having, or may have, more than a 
negligible impact on the species or stock or, where relevant, an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses.
    (g) The requirement for notice and opportunity for public review in 
paragraph (f) of this section shall not apply if the Assistant 
Administrator determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals concerned.
    (h) A violation of any of the terms and conditions of an incidental 
harassment authorization shall subject the

[[Page 61]]

holder and/or any individual who is operating under the authority of the 
holder's incidental harassment authorization to penalties provided in 
the MMPA.



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

    (a) Holders of an incidental harassment authorization in Arctic 
waters and their employees, agents, and designees must cooperate with 
the National Marine Fisheries Service and other designated Federal, 
state, or local agencies to monitor the impacts of their activity on 
marine mammals. Unless stated otherwise within an incidental harassment 
authorization, the holder of an incidental harassment authorization 
effective in Arctic waters must notify the Alaska Regional Director, 
National Marine Fisheries Service, of any activities that may involve a 
take by incidental harassment in Arctic waters at least 14 calendar days 
prior to commencement of the activity.
    (b) Holders of incidental harassment authorizations effective in 
Arctic waters may be required by their authorization to designate at 
least one qualified biological observer or another appropriately 
experienced individual to observe and record the effects of activities 
on marine mammals. The number of observers required for monitoring the 
impact of the activity on marine mammals will be specified in the 
incidental harassment authorization. If observers are required as a 
condition of the authorization, the observer(s) must be approved in 
advance by the National Marine Fisheries Service.
    (c) The monitoring program must, if appropriate, document the 
effects (including acoustical) on marine mammals and document or 
estimate the actual level of take. The requirements for monitoring 
plans, as specified in the incidental harassment authorization, may vary 
depending on the activity, the location, and the time.
    (d) Where the proposed activity may affect the availability of a 
species or stock of marine mammal for taking for subsistence purposes, 
proposed monitoring plans or other research proposals must be 
independently peer-reviewed prior to issuance of an incidental 
harassment authorization under this subpart. In order to complete the 
peer-review process within the time frames mandated by the MMPA for an 
incidental harassment authorization, a proposed monitoring plan 
submitted under this paragraph must be submitted to the Assistant 
Administrator no later than the date of submission of the application 
for an incidental harassment authorization. Upon receipt of a complete 
monitoring plan, and at its discretion, the National Marine Fisheries 
Service will either submit the plan to members of a peer review panel 
for review or within 60 days of receipt of the proposed monitoring plan, 
schedule a workshop to review the plan. The applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an incidental harassment authorization.
    (e) At its discretion, the National Marine Fisheries Service may 
place an observer aboard vessels, platforms, aircraft, etc., to monitor 
the impact of activities on marine mammals.
    (f)(1) As specified in the incidental harassment authorization, the 
holder of an incidental harassment authorization for Arctic waters must 
submit reports to the Assistant Administrator within 90 days of 
completion of any individual components of the activity (if any), within 
90 days of completion of the activity, but no later than 120 days prior 
to expiration of the incidental harassment authorization, whichever is 
earlier. This report must include the following information:
    (i) Dates and type(s) of activity;
    (ii) Dates and location(s) of any activities related to monitoring 
the effects on marine mammals; and
    (iii) Results of the monitoring activities, including an estimate of 
the actual level and type of take, species name and numbers of each 
species observed, direction of movement of species, and any observed 
changes or modifications in behavior.
    (2) Monitoring reports will be reviewed by the Assistant 
Administrator and, if determined to be incomplete or inaccurate, will be 
returned to the

[[Page 62]]

holder of the authorization with an explanation of why the report is 
being returned. If the authorization holder disagrees with the findings 
of the Assistant Administrator, the holder may request an independent 
peer review of the report. Failure to submit a complete and accurate 
report may result in a delay in processing future authorization 
requests.
    (g) Results of any behavioral, feeding, or population studies, that 
are conducted supplemental to the monitoring program, should be made 
available to the National Marine Fisheries Service before applying for 
an incidental harassment authorization for the following year.



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

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

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



Sec. 216.111  Specified activity and specified geographical region.

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



Sec. 216.112  Effective dates.

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



Sec. 216.113  Permissible methods.

    The incidental, but not intentional, taking of ringed and bearded 
seals from January 1 through May 31 by U.S. citizens holding a Letter of 
Authorization, issued under Sec. 216.106, is permitted during the course 
of the following activities:
    (a) On-ice geophysical seismic activities involving vibrator-type, 
airgun, or other energy source equipment shown to have similar or lesser 
effects.
    (b) Operation of transportation and camp facilities associated with 
seismic activities.



Sec. 216.114  Mitigation.

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



Sec. 216.115  Requirements for monitoring and reporting.

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

[[Page 63]]

    (4) Numbers of ringed seal lairs observed and proximity to seismic 
or associated activities for each location.
    (5) Other information as required in a Letter of Authorization.



Sec. 216.116  Applications for Letters of Authorization.

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



Sec. 216.117  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 for the 
activity identified in Sec. 216.111 will be renewed annually upon:
    (1) Timely receipt of the reports required under Sec. 216.115(d), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable; and
    (2) A determination that the mitigation measures required under 
Sec. 216.114(b) and the Letter of Authorization have been undertaken.
    (b) A notice of issuance of a Letter of Authorization or of a 
renewal of a Letter of Authorization will be published in the Federal 
Register within 30 days of issuance.



Sec. 216.118  Modifications to Letters of Authorization.

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



Sec. 216.119  [Reserved]



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

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

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

[[Page 64]]



Sec. 216.120  Specified activity and specified geographical region.

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



Sec. 216.121  Effective dates.

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



Sec. 216.122  Permissible methods of taking.

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



Sec. 216.123  Prohibitions.

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



Sec. 216.124  Mitigation.

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

[[Page 65]]

changes must be made through modification to a Letter of Authorization, 
prior to conducting the next launch under that Letter of Authorization.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec. 216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. 216.106 for activities described in Sec. 216.120(a) are required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify the 
Administrator, Southwest Region, National Marine Fisheries Service, by 
letter or telephone, at least 2 weeks prior to activities possibly 
involving the taking of marine mammals.
    (b) Holders of Letters of Authorization must designate qualified on-
site individuals, as specified in the Letter of Authorization, to:
    (1) Conduct observations on harbor seal, elephant seal, and sea lion 
activity in the vicinity of the rookery nearest the launch platform or, 
in the absence of pinnipeds at that location, at another nearby haulout, 
for at least 72 hours prior to any planned launch and continue for a 
period of time not less than 48 hours subsequent to launching,
    (2) Monitor haulout sites on the Northern Channel Islands if it is 
determined that a sonic boom could impact those areas (this 
determination will be made in consultation with the National Marine 
Fisheries Service),
    (3) As required under a Letter of Authorization, investigate the 
potential for spontaneous abortion, disruption of effective female-
neonate bonding, and other reproductive dysfunction,
    (4) Supplement observations on Vandenberg and on the Northern 
Channel Islands, if indicated, with video-recording of mother-pup seal 
responses for daylight launches during the pupping season, and
    (5) Conduct acoustic measurements of those launch vehicles not 
having sound pressure level measurements made previously.
    (c) Holders of Letters of Authorization must conduct additional 
monitoring as required under an annual Letter of Authorization.
    (d) The Holder of the Letter of Authorization must submit a report 
to the Southwest Administrator, National Marine Fisheries Service within 
90 days after each launch. This report must contain the following 
information:
    (1) Date(s) and time(s) of the launch,
    (2) Design of the monitoring program, and
    (3) Results of the monitoring programs, including, but not 
necessarily limited to:
    (i) Numbers of pinnipeds present on the haulout prior to 
commencement of the launch,
    (ii) Numbers of pinnipeds that may have been harassed as noted by 
the number of pinnipeds estimated to have entered the water as a result 
of launch noise,
    (iii) The length of time(s) pinnipeds remained off the haulout or 
rookery,
    (iv) The numbers of pinniped adults or pups that may have been 
injured or killed as a result of the launch, and
    (v) Behavioral modifications by pinnipeds noted that were likely the 
result of launch noise or the sonic boom.
    (e) An annual report must be submitted that describes any incidental 
takings not reported under paragraph (d) of this section.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported all 
previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impact on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s) location(s) and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.

[[Page 66]]



Sec. 216.126  Applications for Letters of Authorization.

    (a) To incidentally take harbor seals and other marine mammals 
pursuant to these regulations, either the U.S. citizen (see definition 
at Sec. 216.103) conducting the activity or the 30th Space Wing on 
behalf of the U.S. citizen conducting the activity, must apply for and 
obtain a Letter of Authorization in accordance with Sec. 216.106.
    (b) The application must be submitted to the National Marine 
Fisheries Service at least 30 days before the activity is scheduled to 
begin.
    (c) Applications for Letters of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) A description of the activity, the dates of the activity, and 
the specific location of the activity, and
    (3) Plans to monitor the behavior and effects of the activity on 
marine mammals.
    (d) A copy of the Letter of Authorization must be in the possession 
of the persons conducting activities that may involve incidental takings 
of seals and sea lions.



Sec. 216.127  Renewal of Letters of Authorization.

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



Sec. 216.128  Modifications of Letters of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.120(b) or that 
significantly and detrimentally alters the scheduling of launches, a 
Letter of Authorization issued pursuant to Sec. 216.106 may be 
substantively modified without a prior notice and an opportunity for 
public comment. A notice will be published in the Federal Register 
subsequent to the action.



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

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

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



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

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



Sec. 216.131  Effective dates.

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

[[Page 67]]



Sec. 216.132  Permissible methods of taking.

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



Sec. 216.133  Prohibitions.

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



Sec. 216.134  Mitigation requirements.

    The holder of the Letter of Authorization is required to report, 
within 6 months from the issuance of a final rule, to the Administrator, 
Northeast Region, NMFS, on possible mitigation measures effecting the 
least practicable adverse impact on the seals specified in Sec. 216.130. 
The report shall also include a recommendation of which measures, if 
any, the holder could feasibly implement. A description of any 
mitigation measures that Seabrook Station has considered, but determined 
would not be feasible, must be included as well. After submission of 
such report, NMFS shall determine whether the holder of the Letter of 
Authorization must implement measures to effect the least practicable 
adverse impact on the seals. If NMFS determines that such measures must 
be implemented then NMFS shall specify, after consultation with the 
holder of the Letter of Authorization, the schedule and other conditions 
for implementation of the measures. Implementation of such measures must 
be completed no later than 42 months after the date of issuance of the 
final rule. Failure of the holder of the Letter of Authorization to 
implement such measures in accordance with the NMFS specifications may 
be grounds to invalidate the Letter of Authorization.



Sec. 216.135  Monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with NMFS and any other Federal, state, or local agency 
monitoring the impacts of the activity on harbor, gray, harp, or hooded 
seals.
    (b) The holder of the Letter of Authorization must designate a 
qualified individual or individuals capable of identifying any seal or 
seal parts or marine mammal or marine mammal parts, that occur in the 
intake circulating system, including the intake transition structure, 
both forebays, and any marine mammal or marine mammal parts observed as 
a result of screen washings conducted.
    (c) The holder of the Letter of Authorization must conduct at least 
two daily visual inspections of the circulating water and service water 
forebays during the period specified in the Letter of Authorization.
    (d) The holder of the Letter of Authorization must conduct at least 
daily inspections of the intake transition structure from April 1 
through December, unless weather conditions prevent safe access to the 
structure.
    (e) The holder of the Letter of Authorization must conduct screen 
washings at least daily during the months of higher incidents of 
observed takes and this period will be specified in the Letter of 
Authorization. During the months not specified in the LOA, screen 
washings will be conducted twice a week. Examination of the debris must 
be conducted to determine if any seal remains are present.
    (f) The holder of the Letter of Authorization must report orally to 
the Northeast Regional Administrator, NMFS, by telephone or other 
acceptable means, any marine mammals or marine mammal parts found in the 
locations specified in Sec. 216.135(b) through (e). Such oral reports 
must be made by the close of the next business day following the finding 
of any marine mammal or marine mammal parts.

[[Page 68]]

    (g) The holder of the Letter of Authorization must arrange to have a 
necropsy examination performed by qualified individuals on any marine 
mammal or marine mammal parts recovered through monitoring as specified 
under Sec. 216.135(b) through (e).
    (h) The holder of the Letter of Authorization must also provide 
written notification to the Administrator, Northeast Region, NMFS, of 
such marine mammal or marine mammal parts found within 30 days from the 
time of the discovery. This report must contain the results of any 
examinations or necropsies of the marine mammals in addition to any 
other information relating to the circumstances of the take.
    (i) An annual report, identifying mitigation measures implemented to 
effect the least practicable adverse impact on the seals and/or are 
being considered for implementation pursuant to the requirements 
specified at Sec. 216.134, must be submitted to the Administrator, 
Northeast Region, NMFS, within 30 days prior to the expiration date of 
the issuance of the Letter of Authorization.



Sec. 216.136  Renewal of the Letter of Authorization.

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



Sec. 216.137  Modifications to the Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment. For purposes of this paragraph, renewal 
of a Letter of Authorization under Sec. 216.136, without modification, 
is not considered a substantive modification.
    (b) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in Sec. 216.130, the Letter of Authorization issued 
pursuant to this section may be substantively modified without prior 
notice and an opportunity for public comment. Notification will be 
published in the Federal Register subsequent to the action.



Secs. 216.138-216.140  [Reserved]

Subparts M--N  [Reserved]



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

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

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

[[Page 69]]



Sec. 216.161  Specified activity, geographical region, and incidental take levels.

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



Sec. 216.162  Effective dates.

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



Sec. 216.163  Permissible methods of taking; mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec. 216.106, 
the U.S. Navy may incidentally, but not intentionally, take marine 
mammals by harassment, injury or mortality in the course detonating five 
4,536 kg (10,000 lb) conventional explosive charges within the area 
described in Sec. 216.161(a), provided all terms, conditions, and 
requirements of these regulations and such Letter of Authorization are 
complied with.
    (b) The activity identified in paragraph (a) of this section must be 
conducted in a manner that minimizes, to the greatest extent possible, 
adverse impacts on marine mammals and their habitat. When detonating 
explosives, the following mitigation measures must be utilized:
    (1) If marine mammals are observed within the designated safety zone 
prescribed in the Letter of Authorization, or within the buffer zone 
prescribed in the Letter of Authorization and on a course that will put 
them within the safety zone prior to detonation, detonation must be 
delayed until marine mammals are either no longer within the safety zone 
or are on a course within the buffer zone that is taking them away from 
the safety zone, except that no detonation will occur if a marine mammal 
listed as threatened or endangered under Sec. 17.11 of this title is 
detected within the buffer zone and subsequently cannot be detected 
until such time as sighting and acoustic teams have searched the area 
for 2.5 hours (approximately 3 times the typical large whale dive 
duration). If a northern right whale is seen within the safety or buffer 
zone, detonation must not occur until the animal is positively 
reacquired outside the buffer zone and at least one additional aerial 
monitoring of the safety range and buffer

[[Page 70]]

zone shows that no other right whales are present.
    (2) If weather and/or sea conditions as described in the Letter of 
Authorization preclude adequate aerial surveillance, detonation must be 
delayed until conditions improve sufficiently for aerial surveillance to 
be undertaken.
    (3) If post-test surveys determine that an injurious or lethal take 
of a marine mammal has occurred, or if any marine mammals are observed 
in the safety range immediately after a detonation, the test procedure 
and the monitoring methods must be reviewed by NMFS in consultation with 
the Navy and appropriate changes made prior to conducting the next 
detonation.



Sec. 216.164  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.161(b) and by a 
Letter of Authorization issued under Sec. 216.106, the following 
activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this part or a Letter of Authorization 
issued under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified in this subpart.



Sec. 216.165  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. The holder must notify the Administrator, Southeast 
Region at least 2 weeks prior to activities involving the detonation of 
explosives in order to satisfy paragraph (g) of this section.
    (b) The holder of the Letter of Authorization must designate 
qualified on-site individuals, as specified in the Letter of 
Authorization, to record the effects of explosives detonation on marine 
mammals that inhabit the Atlantic Ocean test area.
    (c) The Atlantic Ocean test area must be surveyed by marine mammal 
biologists and other trained individuals, and the marine mammal 
populations monitored, approximately 3 weeks prior to detonation, 48-72 
hours prior to a scheduled detonation, on the day of detonation, and for 
a period of time specified in the Letter of Authorization after each 
detonation. Monitoring shall include, but not necessarily be limited to, 
aerial, shipboard, and acoustic surveillance sufficient to ensure that 
no marine mammals are within the designated safety zone nor are likely 
to enter the designated safety zone immediately prior to, or at the time 
of, detonation.
    (d) Under the direction of a certified marine mammal veterinarian, 
examination and recovery of any dead or injured marine mammals will be 
conducted. Necropsies will be performed and tissue samples taken from 
any dead animals. After completion of the necropsy, animals not retained 
for shoreside examination will be tagged and returned to the sea. The 
occurrence of live marine mammals will also be documented.
    (e) The holder of the Letter of Authorization is required to measure 
during the first detonation, and provide a report on, prior to the 
second detonation, the attenuation of the sound pressure levels of the 
HBX1 explosive charge. Measurements must be made at a number of 
distances from the detonation sufficient to verify the model predictions 
for the 3.7 km (2 nm) safety zone. Based upon the results of this test, 
the monitoring and safety zones described in the Letter of 
Authorization, may be modified accordingly.
    (f) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, or in the Letter of Authorization issued under 
Sec. 216.106, including the retention of marine mammals, may be 
conducted without the need for a separate scientific research permit. 
The use of retained marine mammals for scientific research other than 
shoreside examination must be authorized pursuant to subpart D of this 
part.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place observer(s)

[[Page 71]]

on any ship or aircraft involved in marine mammal reconnaissance, or 
monitoring either prior to, during, or after explosives detonation in 
order to monitor the impact on marine mammals.
    (h) A final report must be submitted to the Administrator, Southeast 
Region, no later than 120 days after completion of shock testing the USS 
SEAWOLF. This report must contain the following information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A description of all pre-detonation and post-detonation 
activities related to mitigating and monitoring the effects of 
explosives detonation on marine mammal populations.
    (3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the 
detonation and numbers that may have been harassed due to presence 
within the designated safety zone.
    (4) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.
    (i) A final report on results of necropsies of stranded marine 
mammals funded by the U.S. Navy must be submitted to the Director, 
Office of Protected Resources, no later than 18 months after completion 
of shock testing the USS SEAWOLF.



Sec. 216.166  Modifications to the Letter of Authorization.

    (a) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (b) of this section, no substantive 
modification, including withdrawal or suspension, to the Letter of 
Authorization issued pursuant to Sec. 216.106 and subject to the 
provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.161(b), or that 
significantly and detrimentally alters the scheduling of explosives 
detonation within the area specified in Sec. 216.161(a), the Letter of 
Authorization issued pursuant to Sec. 216.106 may be substantively 
modified without prior notice and an opportunity for public comment. A 
notice will be published in the Federal Register subsequent to the 
action.



Secs. 216.167-216.169  [Reserved]



   Subpart P--Taking of Marine Mammals Incidental to Operating A Low 
   Frequency Acoustic Source by the North Pacific Acoustic Laboratory

    Source: 66 FR 43458, Aug. 17, 2001, unless otherwise noted.

    Effective Date Note: At 66 FR 43458, Aug. 17, 2001, subpart P was 
added, effective Sept. 17, 2001 to Sept. 17, 2006.



Sec.  216.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of small numbers of marine mammals specified in paragraph (b) of this 
section by U.S. citizens engaged in conducting acoustic research using a 
moored, low-frequency acoustic source by the North Pacific Acoustic 
Laboratory off Kauai, Hawaii.
    (b) The incidental harassment of marine mammals under the activity 
identified in paragraph (a) of this section is limited to small numbers 
of the following species: humpback whales (Megaptera novaengliae), fin 
whales (Balaenoptera physalus), blue whales (B. musculus), Bryde's 
whales (B. edeni), minke whales (B. acutorostrata), North Pacific right 
whales (Balaena japonicus), sperm whales (Physeter macrocephalus), 
short-finned pilot whales (Globicephala macrorhynchus), beaked whales 
(Ziphius cavirostris, Berardius bairdi, and Mesoplodon spp.), spinner 
dolphins (Stenella longirostris), spotted dolphins (Stenella attenuata), 
striped dolphins (Stenella coeruleoalba), bottlenose dolphins (Tursiops 
truncatus), rough-toothed dolphins (Steno bredanensis), pygmy sperm 
whales (Kogia breviceps), dwarf sperm whales (Kogia simus), killer 
whales (Orcinus orca), false killer whales (Pseudorca crassidens), pygmy 
killer whales (Feresa attenuata), and melon-headed whales (Peponocephala 
electra).

[[Page 72]]

and Hawaiian monk seals (Monachus schauinslandi).



Sec.  216.171  Effective dates.

    Regulations in this subpart are effective from September 17, 2001, 
through September 17, 2006.



Sec.  216.172  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Secs.  
216.106 and 216.176, the Holder of this Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by harassment 
within the area described in Sec.  216.170(a), provided the activity is 
in compliance with all terms, conditions, and requirements of these 
regulations and the Letter of Authorization.
    (b) The activities identified in Sec.  216.170(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.



Sec.  216.173  Prohibitions.

    Notwithstanding takings authorized by Sec.  216.170(b) and by a 
Letter of Authorization issued under Secs.  216.106 and 216.176, no 
person in connection with the activities described in Sec.  216.170(a) 
shall:
    (a) Take any marine mammal not specified in Sec.  216.170(b);
    (b) Take any marine mammal specified in Sec.  216.170(b) other than 
by incidental, unintentional harassment;
    (c) Take any marine mammal specified in Sec.  216.170(b) if such 
take results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Secs.  216.106 and 216.176.



Sec.  216.174  Mitigation.

    As described in the Letter of Authorization issued under Secs.  
216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic 
source must:
    (a) Operate at the minimum duty cycle necessary for conducting 
large-scale acoustic thermometry and long-range propagation objectives.
    (b) Not increase the duty cycle during the months of January through 
April.
    (c) Operate at the minimum power level necessary for conducting 
large-scale acoustic thermometry and long-range propagation objectives, 
but no more than 260 Watts.
    (d) Precede all transmissions from the acoustic source by a 5-minute 
ramp-up of the acoustic source's power.



Sec.  216.175  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. The holder must notify the Southwest Regional 
Administrator at least 2 weeks prior to commencing monitoring 
activities.
    (b) The Holder of this Authorization must conduct a minimum of eight 
surveys each year from February through early April in the area off the 
north shore of Kauai, Hawaii, as specified in the Letter of 
Authorization issued under Secs.  216.106 and 216.176.
    (c) The Holder of this Authorization must, through coordination with 
marine mammal stranding networks in Hawaii, monitor strandings of marine 
mammals to detect long-term trends in stranding and the potential 
relationship to the North Pacific Acoustic Laboratory acoustic source.
    (d) Activities related to the monitoring described in paragraphs (b) 
and (c) of this section, or in the Letter of Authorization issued under Secs.  
216.106 and 216.176 may be conducted without the need for a separate 
scientific research permit.
    (e) In coordination and compliance with marine mammal researchers 
operating under this subpart, at its discretion, the National Marine 
Fisheries Service may place an observer on any aircraft involved in 
marine mammal surveys in order to monitor the impact on marine mammals.
    (f) The holder of a Letter of Authorization must annually submit a 
report to the Director, Office of Protected Resources, National Marine 
Fisheries Service, no later than 120 days after

[[Page 73]]

the conclusion of the humpback whale aerial survey monitoring program. 
This report must contain all the information required by the Letter of 
Authorization, including the results, if any, of coordination with 
coastal marine mammal stranding networks.
    (g) A final comprehensive report must be submitted to the Director, 
Office of Protected Resources, National Marine Fisheries Service no 
later than 240 days after completion of the final year of humpback whale 
aerial survey monitoring conducted under Sec.  216.175. This report must 
contain all the information required by the Letter of Authorization.



Sec.  216.176  Letter of authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter of Authorization but 
may not exceed the period of validity of this subpart.
    (b) A Letter of Authorization with a period of validity less than 
the period of validity of this subpart may be renewed subject to renewal 
conditions in Sec.  216.177.
    (c) A Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic area for taking;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (4) Requirements for monitoring and reporting incidental takes.
    (d) Issuance of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
will be small, and that the number of marine mammals taken by the 
activity, specified in Sec.  216.170(b), as a whole, will have no more 
than a negligible impact on the species or stocks of affected marine 
mammal(s).
    (e) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec.  216.177  Renewal of a letter of authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.176 for the activity identified in Sec.  216.170(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
submitted under Sec.  216.176 will be undertaken and that there will not 
be a substantial modification to the described work, mitigation, or 
monitoring undertaken during the upcoming season;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.175, which have been reviewed by the National Marine Fisheries 
Service and determined to be acceptable;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring, and reporting measures required under Secs.  
216.174 and 216.175 and the Letter of Authorization were undertaken and 
will be undertaken during the upcoming period of validity of a renewed 
Letter of Authorization; and
    (4) Renewal of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
continues to be small and that the number of marine mammals taken by the 
activity, specified in Sec.  216.170(b), will have no more than a 
negligible impact on the species or stock of affected marine mammal(s).
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec.  216.178  Modifications to a letter of authorization.

    (a) In addition to complying with the provisions of Secs.  216.106 
and 216.176, except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued pursuant to Secs.  216.106 and 216.176 
and subject to the provisions of this subpart shall be made by the 
National Marine Fisheries Service until after a notification and an 
opportunity for public comment has been provided. For purposes of this 
paragraph, a renewal

[[Page 74]]

of a Letter of Authorization under Sec.  216.177 without modification, 
except for the period of validity, is not considered a substantive 
modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec.  216.170(b), a Letter of 
Authorization issued pursuant to Secs.  216.106 and 216.176 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

Subpart Q  [Reserved]



   Subpart R--Taking of Marine Mammals Incidental to Construction and 
  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

    Source: 65 FR 34030, May 25, 2000, unless otherwise noted.

    Effective Date Note: At 65 FR 34030, May 25, 2000, subpart R was 
added, effective May 25, 2000, to May 25, 2005.



Sec. 216.200  Specified activity and specified geographical region.

    Regulations in this subpart apply only to the incidental taking of 
those marine mammal species specified in paragraph (b) of this section 
by U.S. citizens engaged in oil and gas development activities in areas 
within state and/or Federal waters in the U.S. Beaufort Sea specified in 
paragraph (a) of this section. The authorized activities as specified in 
a Letter of Authorization issued under Secs. 216.106 and 216.208 
include, but may not be limited to, site construction, including ice 
road and pipeline construction, vessel and helicopter activity; and oil 
production activities, including ice road construction, and vessel and 
helicopter activity, but excluding seismic operations.
    (a)(1) Northstar Oil and Gas Development; and
    (2) [Reserved]
    (b) The incidental take by harassment, injury or mortality of marine 
mammals under the activity identified in this section is limited to the 
following species: bowhead whale (Balaena mysticetus), gray whale 
(Eschrichtius robustus), beluga whale (Delphinapterus leucas), ringed 
seal (Phoca hispida), spotted seal (Phoca largha) and bearded seal 
(Erignathus barbatus).



Sec. 216.201  Effective dates.

    Regulations in this subpart are effective from May 25, 2000, until 
May 25, 2005.



Sec. 216.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Secs. 216.106 
and 216.208, the Holder of the Letter of Authorization may incidentally, 
but not intentionally, take marine mammals by harassment, injury, and 
mortality within the area described in Sec. 216.200(a), provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec. 216.200 must be conducted in a 
manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals, their habitat, and on the availability of 
marine mammals for subsistence uses.



Sec. 216.203  Prohibitions.

    Notwithstanding takings authorized by Sec. 216.200 and by a Letter 
of Authorization issued under Secs. 216.106 and 216.208, no person in 
connection with the activities described in Sec. 216.200 shall:
    (a) Take any marine mammal not specified in Sec. 216.200(b);
    (b) Take any marine mammal specified in Sec. 216.200(b) other than 
by incidental, unintentional harassment, injury or mortality;
    (c) Take a marine mammal specified in Sec. 216.200(b) if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of the regulations in this subpart or a Letter of 
Authorization issued under Sec. 216.106.

[[Page 75]]



Sec. 216.204  Mitigation.

    The activity identified in Sec. 216.200(a) must be conducted in a 
manner that minimizes, to the greatest extent possible, adverse impacts 
on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.200, the mitigation measures contained in the 
Letter of Authorization issued under Secs. 216.106 and 216.208 must be 
utilized.



Sec. 216.205  Measures to ensure availability of species for subsistence uses.

    When applying for a Letter of Authorization pursuant to 
Sec. 216.207, or a renewal of a Letter of Authorization pursuant to 
Sec. 216.209, the applicant must submit a Plan of Cooperation 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:
    (a) A statement that the applicant has notified and met with the 
affected subsistence communities to discuss proposed activities and to 
resolve potential conflicts regarding timing and methods of operation;
    (b) A description of what measures the applicant has taken and/or 
will take to ensure that oil development activities will not interfere 
with subsistence whaling or sealing;
    (c) What plans the applicant has to continue to meet with the 
affected communities to notify the communities of any changes in 
operation.



Sec. 216.206  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Secs. 216.106 and 216.208 for activities described in Sec. 216.200 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, Alaska Region, National Marine Fisheries Service, or his/
her designee, by letter or telephone, at least 2 weeks prior to 
initiating new activities potentially involving the taking of marine 
mammals.
    (b) Holders of Letters of Authorization must designate qualified on-
site individuals, approved in advance by the National Marine Fisheries 
Service, to conduct the mitigation, monitoring and reporting activities 
specified in the Letter of Authorization issued pursuant to Sec. 216.106 
and Sec. 216.208.
    (c) Holders of Letters of Authorization must conduct all monitoring 
and/or research required under the Letter of Authorization.
    (d) Unless specified otherwise in the Letter of Authorization, the 
Holder of that Letter of Authorization must submit interim reports to 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, no later than 90 days after completion of the winter monitoring 
season (approximately September 15th), and 90 days after the open water 
monitoring season (approximately February 1st). This report 
must contain all information required by the Letter of Authorization.
    (e) A draft annual comprehensive report must be submitted by May 
1st of the year following the issuance of a LOA;
    (f) A final annual comprehensive report must be submitted within the 
time period specified in the governing Letter of Authorization.
    (g) A final comprehensive report on all marine mammal monitoring and 
research conducted during the effective period of the regulations in 
this subpart must be submitted to the Director, Office of Protected 
Resources, National Marine Fisheries Service at least 240 days prior to 
expiration of these regulations or 240 days after the expiration of 
these regulations if renewal of the regulations will not be requested.



Sec. 216.207  Applications for Letters of Authorization.

    (a) To incidentally take bowhead whales and other marine mammals 
pursuant to the regulations in this subpart, the U.S. citizen (see 
definition at Sec. 216.103) conducting the activity identified in 
Sec. 216.200, must apply for and obtain either an initial Letter of 
Authorization in accordance with

[[Page 76]]

Sec. Sec. 216.106 and 216.208, or a renewal under Sec. 216.209.
    (b) The application for an initial Letter of Authorization must be 
submitted to the National Marine Fisheries Service at least 180 days 
before the activity is scheduled to begin.
    (c) Applications for initial Letters of Authorization must include 
all information items identified in Sec. 216.104(a).
    (d) NMFS will review an application for an initial Letter of 
Authorization in accordance with Sec. 216.104(b) and, if adequate and 
complete, will publish a notice of receipt of a request for incidental 
taking and, in accordance with Administrative Procedure Act 
requirements, a proposed amendment to Sec. 216.200(a). In conjunction 
with amending Sec. 216.200(a), the National Marine Fisheries Service 
will provide a minimum of 45 days for public comment on the application 
for an initial Letter of Authorization.
    (e) Upon receipt of a complete application for an initial Letter of 
Authorization, and at its discretion, the National Marine Fisheries 
Service may submit the monitoring plan to members of a peer review panel 
for review and/or schedule a workshop to review the plan. Unless 
specified in the Letter of Authorization, the applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an initial Letter of Authorization.



Sec. 216.208  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended, revoked or not 
renewed, will be valid for a period of time not to exceed the period of 
validity of this subpart, but must be renewed annually subject to annual 
renewal conditions in Sec. 216.209.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including any 
requirements for the independent peer-review of proposed monitoring 
plans.
    (c) Issuance and renewal of each Letter of Authorization will be 
based on a determination that the number of marine mammals taken by the 
activity will be small, that the total number of marine mammals taken by 
the activity as a whole will have no more than a negligible impact on 
the species or stock of affected marine mammal(s), and will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.209  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and 
Sec. 216.208 for the activity identified in Sec. 216.200 will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 216.207 will 
be undertaken and that there will not be a substantial modification to 
the described work, mitigation or monitoring undertaken during the 
upcoming season;
    (2) Timely receipt of the monitoring reports required under 
Sec. 216.205, and the Letter of Authorization issued under Sec. 216.208, 
which have been reviewed by the National Marine Fisheries Service and 
determined to be acceptable, and the Plan of Cooperation required under 
Sec. 216.205; and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under 
Sec. 216.204 and the Letter of Authorization issued under Secs. 216.106 
and 216.208, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Secs. 216.106 and 216.208 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the National Marine Fisheries 
Service will provide the public a minimum of 30 days for review and 
comment on the request. Review

[[Page 77]]

and comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data that indicates that the 
determinations made in this subpart are in need of reconsideration,
    (2) The Plan of Cooperation, and
    (3) The proposed monitoring plan.
    (c) A notice of issuance or denial of a Renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.210  Modifications to Letters of Authorization.

    (a) In addition to complying with the provisions of Secs. 216.106 
and 216.208, except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by the National Marine Fisheries Service, issued 
pursuant to Secs. 216.106 and 216.208 and subject to the provisions of 
this subpart shall be made until after notification and an opportunity 
for public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec. 216.209, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.200(b), a Letter of 
Authorization issued pursuant to Secs. 216.106 and 216.208 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

                         PARTS 217-221[RESERVED]



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




             Subpart A--Introduction and General Provisions

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

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

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

                  Subpart C--General Permit Procedures

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

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

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



             Subpart A--Introduction and General Provisions



Sec. 222.101  Purpose and scope of regulations.

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

[[Page 78]]

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



Sec. 222.102  Definitions.

    Accelerator funnel means a device used to accelerate the flow of 
water through a shrimp trawl net.
    Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    Adequately covered means, with respect to species listed pursuant to 
section 4 of the Act, that a proposed conservation plan has satisfied 
the permit issuance criteria under section 10(a)(2)(B) of the Act for 
the species covered by the plan and, with respect to unlisted species, 
that a proposed conservation plan has satisfied the permit issuance 
criteria under section 10(a)(2)(B) of the Act that would otherwise apply 
if the unlisted species covered by the plan were actually listed. For 
the Services to cover a species under a conservation plan, it must be 
listed on the section 10(a)(1)(B) permit.
    Alaska Regional Administrator means the Regional Administrator for 
the Alaska Region of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, U.S. Department of Commerce, or 
their authorized representative. Mail sent to the Alaska Regional 
Administrator should be addressed: Alaska Regional Administrator, F/AK, 
Alaska Regional Office, National Marine Fisheries Service, NOAA, P.O. 
Box 21668 Juneau, AK 99802-1668.
    Approved turtle excluder device (TED) means a device designed to be 
installed in a trawl net forward of the cod end for the purpose of 
excluding sea turtles from the net, as described in 50 CFR 223.207.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, U.S. Department of Commerce, or his 
authorized representative. Mail sent to the Assistant Administrator 
should be addressed: Assistant Administrator for Fisheries, National 
Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring, 
MD 20910.
    Atlantic Area means all waters of the Atlantic Ocean south of 
36 deg.33'00.8" N. lat. (the line of the North Carolina/Virginia border) 
and adjacent seas, other than waters of the Gulf Area, and all waters 
shoreward thereof (including ports).
    Atlantic Shrimp Fishery--Sea Turtle Conservation Area (Atlantic 
SFSTCA) means the inshore and offshore waters extending to 10 nautical 
miles (18.5 km) offshore along the coast of the States of Georgia and 
South Carolina from the Georgia-Florida border (defined as the line 
along 30 deg.42'45.6" N. lat.) to the

[[Page 79]]

North Carolina-South Carolina border (defined as the line extending in a 
direction of 135 deg.34'55" from true north from the North Carolina-
South Carolina land boundary, as marked by the border station on Bird 
Island at 33 deg.51'07.9" N. lat., 078 deg.32'32.6" W. long.).
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard;
    (2) Any special agent or enforcement officer of the National Marine 
Fisheries Service;
    (3) Any officer designated by the head of a Federal or state agency 
that has entered into an agreement with the Secretary or the Commandant 
of the Coast Guard to enforce the provisions of the Act; or
    (4) Any Coast Guard personnel accompanying and acting under the 
direction of any person described in paragraph (1) of this definition.
    Bait shrimper means a shrimp trawler that fishes for and retains its 
shrimp catch alive for the purpose of selling it for use as bait.
    Beam trawl means a trawl with a rigid frame surrounding the mouth 
that is towed from a vessel by means of one or more cables or ropes.
    Certificate of exemption means any document so designated by the 
National Marine Fisheries Service and signed by an authorized official 
of the National Marine Fisheries Service, including any document which 
modifies, amends, extends or renews any certificate of exemption.
    Changed circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that can 
reasonably be anticipated by plan developers and NMFS and that can be 
planned for (e.g., the listing of new species, or a fire or other 
natural catastrophic event in areas prone to such events).
    Commercial activity means all activities of industry and trade, 
including, but not limited to, the buying or selling of commodities and 
activities conducted for the purpose of facilitating such buying and 
selling: Provided, however, that it does not include the exhibition of 
commodities by museums or similar cultural or historical organizations.
    Conservation plan means the plan required by section 10(a)(2)(A) of 
the Act that an applicant must submit when applying for an incidental 
take permit. Conservation plans also are known as ``habitat conservation 
plans'' or ``HCPs.''
    Conserved habitat areas means areas explicitly designated for 
habitat restoration, acquisition, protection, or other conservation 
purposes under a conservation plan.
    Cooperative Agreement means an agreement between a state(s) and the 
National Marine Fisheries Service, NOAA, Department of Commerce, which 
establishes and maintains an active and adequate program for the 
conservation of resident species listed as endangered or threatened 
pursuant to section 6(c)(1) of the Endangered Species Act.
    Fishing, or to fish, means:
    (1) The catching, taking, or harvesting of fish or wildlife;
    (2) The attempted catching, taking, or harvesting of fish or 
wildlife;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish or wildlife; or
    (4) Any operations on any waters in support of, or in preparation 
for, any activity described in paragraphs (1) through (3) of this 
definition.
    Footrope means a weighted rope or cable attached to the lower lip 
(bottom edge) of the mouth of a trawl net along the forward most 
webbing.
    Footrope length means the distance between the points at which the 
ends of the footrope are attached to the trawl net, measured along the 
forward-most webbing.
    Foreign commerce includes, among other things, any transaction 
between persons within one foreign country, or between persons in two or 
more foreign countries, or between a person within the United States and 
a person in one or more foreign countries, or between persons within the 
United States, where the fish or wildlife in question are moving in any 
country or countries outside the United States.
    Four-seam, straight-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two

[[Page 80]]

side panels of webbing. The upper and lower edges of the side panels of 
webbing are parallel over the entire length.
    Four-seam, tapered-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing converge toward the rear of the trawl.
    Gulf Area means all waters of the Gulf of Mexico west of 81 deg. W. 
long. (the line at which the Gulf Area meets the Atlantic Area) and all 
waters shoreward thereof (including ports).
    Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means 
the offshore waters extending to 10 nautical miles (18.5 km) offshore 
along the coast of the States of Texas and Louisiana from the South Pass 
of the Mississippi River (west of 89 deg.08.5' W. long.) to the U.S.-
Mexican border.
    Habitat restoration activity means an activity that has the sole 
objective of restoring natural aquatic or riparian habitat conditions or 
processes.
    Harm in the definition of ``take'' in the Act means an act which 
actually kills or injures fish or wildlife. Such an act may include 
significant habitat modification or degradation which actually kills or 
injures fish or wildlife by significantly impairing essential behavioral 
patterns, including, breeding, spawning, rearing, migrating, feeding or 
sheltering.
    Headrope means a rope that is attached to the upper lip (top edge) 
of the mouth of a trawl net along the forward-most webbing.
    Headrope length means the distance between the points at which the 
ends of the headrope are attached to the trawl net, measured along the 
forward-most webbing.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into, or introduce into any place subject to the 
jurisdiction of the United States, whether or not such landing, 
bringing, or introduction constitutes an importation within the meaning 
of the tariff laws of the United States.
    Inshore means marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Leatherback conservation zone means that portion of the Atlantic 
Area lying north of a line along 28 deg.24.6' N. lat. (Cape Canaveral, 
FL).
    Northeast Regional Administrator means the Regional Administrator 
for the Northeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northeast 
Regional Administrator should be addressed: Northeast Regional 
Administrator, F/NE, Northeast Regional Office, National Marine 
Fisheries Service, NOAA, One Blackburn Drive, Gloucester, MA 01930-2298.
    Northwest Regional Administrator means the Regional Administrator 
for the Northwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northwest 
Regional Administrator should be addressed: Northwest Regional 
Administrator, F/NW, Northwest Regional Office, National Marine 
Fisheries Service, NOAA, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
    Office of Enforcement means the national fisheries enforcement 
office of the National Marine Fisheries Service. Mail sent to the Office 
of Enforcement should be addressed: Office of Enforcement, F/EN, 
National Marine Fisheries Service, NOAA, 8484 Suite 415, Georgia Ave., 
Silver Spring, MD 20910.
    Office of Protected Resources means the national program office of 
the endangered species and marine mammal programs of the National Marine 
Fisheries Service. Mail sent to the Office of Protected Resources should 
be addressed: Office of Protected Resources, F/PR, National Marine 
Fisheries Service, NOAA, 1315 East West Highway, Silver Spring, MD 
20910.

[[Page 81]]

    Offshore means marine and tidal waters seaward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Operating conservation program means those conservation management 
activities which are expressly agreed upon and described in a 
Conservation Plan or its Implementing Agreement. These activities are to 
be undertaken for the affected species when implementing an approved 
Conservation Plan, including measures to respond to changed 
circumstances.
    Permit means any document so designated by the National Marine 
Fisheries Service and signed by an authorized official of the National 
Marine Fisheries Service, including any document which modifies, amends, 
extends, or renews any permit.
    Person means an individual, corporation, partnership, trust, 
association, or any other private entity, or any officer, employee, 
agent, department, or instrumentality of the Federal government of any 
state or political subdivision thereof or of any foreign government.
    Possession means the detention and control, or the manual or ideal 
custody of anything that may be the subject of property, for one's use 
and enjoyment, either as owner or as the proprietor of a qualified right 
in it, and either held personally or by another who exercises it in 
one's place and name. Possession includes the act or state of possessing 
and that condition of facts under which persons can exercise their power 
over a corporeal thing at their pleasure to the exclusion of all other 
persons. Possession includes constructive possession that which means 
not an actual but an assumed existence one claims to hold by virtue of 
some title, without having actual custody.
    Pre-Act endangered species part means any sperm whale oil, including 
derivatives and products thereof, which was lawfully held within the 
United States on December 28, 1973, in the course of a commercial 
activity; or any finished scrimshaw product, if such product or the raw 
material for such product was lawfully held within the United States on 
December 28, 1973, in the course of a commercial activity.
    Properly implemented conservation plan means any conservation plan, 
implementing agreement, or permit whose commitments and provisions have 
been or are being fully implemented by the permittee.
    Pusher-head trawl (chopsticks) means a trawl that is spread by two 
poles suspended from the bow of the trawler in an inverted ``V'' 
configuration.
    Resident species means, for purposes of entering into cooperative 
agreements with any state pursuant to section 6(c) of the Act, a species 
that exists in the wild in that state during any part of its life.
    Right whale means, as used in part 224 of this chapter, any whale 
that is a member of the western North Atlantic population of the 
northern right whale species (Eubalaena glacialis).
    Roller trawl means a variety of beam trawl that is used, usually by 
small vessels, for fishing over uneven or vegetated sea bottoms.
    Scrimshaw product means any art form which involves the substantial 
etching or engraving of designs upon, or the substantial carving of 
figures, patterns, or designs from any bone or tooth of any marine 
mammal of the order Cetacea. For purposes of this part, polishing or the 
adding of minor superficial markings does not constitute substantial 
etching, engraving, or carving.
    Secretary means the Secretary of Commerce or an authorized 
representative.
    Shrimp means any species of marine shrimp (Order Crustacea) found in 
the Atlantic Area or the Gulf Area, including, but not limited to:
    (1) Brown shrimp (Penaeus aztecus).
    (2) White shrimp (Penaeus setiferus).
    (3) Pink shrimp (Penaeus duorarum).
    (4) Rock shrimp (Sicyonia brevirostris).
    (5) Royal red shrimp (Hymenopenaeus robustus).
    (6) Seabob shrimp (Xiphopenaeus kroyeri).
    Shrimp trawler means any vessel that is equipped with one or more 
trawl nets and that is capable of, or used for, fishing for shrimp, or 
whose on-board or

[[Page 82]]

landed catch of shrimp is more than 1 percent, by weight, of all fish 
comprising its on-board or landed catch.
    Skimmer trawl means a trawl that is fished along the side of the 
vessel and is held open by a rigid frame and a lead weight. On its 
outboard side, the trawl is held open by one side of the frame extending 
downward and, on its inboard side, by a lead weight attached by cable or 
rope to the bow of the vessel.
    Southeast Regional Administrator means the Regional Administrator 
for the Southeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southeast 
Regional Administrator should be addressed: Southeast Regional 
Administrator, F/SE, Southeast Regional Office, National Marine 
Fisheries Service, NOAA, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702-2432.
    Southwest Regional Administrator means the Regional Administrator 
for the Southwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southwest 
Regional Administrator should be addressed: Southwest Regional 
Administrator, F/SW, Southwest Regional Office, National Marine 
Fisheries Service, NOAA, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 
90802-4213.
    Stretched mesh size means the distance between the centers of the 
two opposite knots in the same mesh when pulled taut.
    Summer flounder means the species Paralichthys dentatus.
    Summer flounder fishery-sea turtle protection area means all 
offshore waters, bounded on the north by a line along 37 deg.05' N. lat. 
(Cape Charles, VA) and bounded on the south by a line extending in a 
direction of 135 deg.34'55" from true north from the North Carolina-
South Carolina land boundary, as marked by the border station on Bird 
Island at 33 deg.51'07.9" N. lat., 078 deg.32'32.6" W. long.(the North 
Carolina-South Carolina border).
    Summer flounder trawler means any vessel that is equipped with one 
or more bottom trawl nets and that is capable of, or used for, fishing 
for flounder or whose on-board or landed catch of flounder is more than 
100 lb (45.4 kg).
    Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect.
    Taper, in reference to the webbing used in trawls, means the angle 
of a cut used to shape the webbing, expressed as the ratio between the 
cuts that reduce the width of the webbing by cutting into the panel of 
webbing through one row of twine (bar cuts) and the cuts that extend the 
length of the panel of webbing by cutting straight aft through two 
adjoining rows of twine (point cuts). For example, sequentially cutting 
through the lengths of twine on opposite sides of a mesh, leaving an 
uncut edge of twines all lying in the same line, produces a relatively 
strong taper called ``all-bars''; making a sequence of 4-bar cuts 
followed by 1-point cut produces a more gradual taper called ``4 bars to 
1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts 
followed by 1-point cut produces a still more gradual taper called 
``2b1p''; and making a sequence of cuts straight aft does not reduce the 
width of the panel and is called a ``straight'' or ``all-points'' cut.
    Taut means a condition in which there is no slack in the net 
webbing.
    Test net, or try net, means a net pulled for brief periods of time 
just before, or during, deployment of the primary net(s) in order to 
test for shrimp concentrations or determine fishing conditions (e.g., 
presence or absence of bottom debris, jellyfish, bycatch, seagrasses, 
etc.).
    Tongue means any piece of webbing along the top, center, leading 
edge of a trawl, whether lying behind or ahead of the headrope, to which 
a towing bridle can be attached for purposes of pulling the trawl net 
and/or adjusting the shape of the trawl.
    Transportation means to ship, convey, carry or transport by any 
means whatever, and deliver or receive for such shipment, conveyance, 
carriage, or transportation.

[[Page 83]]

    Triple-wing trawl means a trawl with a tongue on the top, center, 
leading edge of the trawl and an additional tongue along the bottom, 
center, leading edge of the trawl.
    Two-seam trawl means a design of shrimp trawl in which the main body 
of the trawl is formed from a top and a bottom panel of webbing that are 
directly attached to each other down the sides of the trawl.
    Underway with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
    Unforeseen circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that could not 
reasonably have been anticipated by plan developers and NMFS at the time 
of the conservation plan's negotiation and development, and that result 
in a substantial and adverse change in the status of the covered 
species.
    Vessel means a vehicle used, or capable of being used, as a means of 
transportation on water which includes every description of watercraft, 
including nondisplacement craft and seaplanes.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
    Wildlife means any member of the animal kingdom, including without 
limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or parts 
thereof.
    Wing net (butterfly trawl) means a trawl that is fished along the 
side of the vessel and that is held open by a four-sided, rigid frame 
attached to the outrigger of the vessel.

[64 FR 14054, Mar. 23, 1999, as amended at 64 FR 60731, Nov. 8, 1999]



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

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

[[Page 84]]

    (c) Financial assistance and payments. (1) A state must enter into a 
Cooperative Agreement before financial assistance is approved by the 
Assistant Administrator for endangered or threatened species projects. 
Specifically, the Agreement must contain the actions that are to be 
taken by the Assistant Administrator and/or by the state, the benefits 
to listed species expected to be derived from these actions, and the 
estimated cost of these actions.
    (2) Subsequent to such Agreement, the Assistant Administrator may 
further agree with a state to provide financial assistance in the 
development and implementation of acceptable projects for the 
conservation of endangered and threatened species. Documents to provide 
financial assistance will consist of an application for Federal 
assistance and an award or a contract. The availability of Federal funds 
shall be contingent upon the continued existence of the Cooperative 
Agreement and compliance with all applicable Federal regulations for 
grant administration and cost accounting principles.
    (3)(i) The payment of the Federal share of costs incurred when 
conducting activities included under a contract or award shall not 
exceed 75 percent of the program costs as stated in the agreement. 
However, the Federal share may be increased to 90 percent when two or 
more states having a common interest in one or more endangered or 
threatened resident species, the conservation of which may be enhanced 
by cooperation of such states, jointly enter into an agreement with the 
Assistant Administrator.
    (ii) The state share of program costs may be in the form of cash or 
in-kind contributions, including real property, subject to applicable 
Federal regulations.
    (4) Payments of funds, including payment of such preliminary costs 
and expenses as may be incurred in connection with projects, shall not 
be made unless all necessary or required documents are first submitted 
to and approved by the Assistant Administrator. Payments shall only be 
made for expenditures reported and certified by the state agency. 
Payments shall be made only to the state office or official designated 
by the state agency and authorized under the laws of the state to 
receive public funds for the state.



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



Sec. 222.201  General requirements.

    (a) The Assistant Administrator may exempt any pre-Act endangered 
species part from the prohibitions of sections 9(a)(1)(A), 9(a)(1)(E), 
or 9(a)(1)(F) of the Act.
    (1) No person shall engage in any activities identified in such 
sections of the Act that involve any pre-Act endangered species part 
without a valid Certificate of Exemption issued pursuant to this subpart 
B.
    (2) No person may export, deliver, receive, carry, transport or ship 
in interstate or foreign commerce in the course of a commercial 
activity; or sell or offer for sale in interstate or foreign commerce 
any pre-Act finished scrimshaw product unless that person has been 
issued a valid Certificate of Exemption and the product or the raw 
material for such product was held by such certificate holder on October 
13, 1982.
    (3) Any person engaged in activities otherwise prohibited under the 
Act or regulations shall bear the burden of proving that the exemption 
or certificate is applicable, was granted, and was valid and in force at 
the time of the otherwise prohibited activity.
    (b) Certificates of Exemption issued under this subpart are no 
longer available to new applicants. However, the Assistant Administrator 
may renew or modify existing Certificates of Exemptions as authorized by 
the provisions set forth in this subpart.
    (c) Any person granted a Certificate of Exemption, including a 
renewal, under this subpart, upon a sale of any exempted pre-Act 
endangered species part, must provide the purchaser in writing with a 
description (including full identification number) of the part sold and 
must inform the purchaser in writing of the purchaser's obligation under 
paragraph (b) of this section, including the address given in the 
certificate to which the purchaser's report is to be sent.

[[Page 85]]

    (d) Any purchaser of pre-Act endangered species parts included in a 
valid Certificate of Exemption, unless an ultimate user, within 30 days 
after the receipt of such parts, must submit a written report to the 
address given in the certificate. The report must specify the quantity 
of such parts or products received, the name and address of the seller, 
a copy of the invoice or other document showing the serial numbers, 
weight, and descriptions of the parts or products received, the date on 
which such parts or products were received, and the intended use of such 
parts by the purchaser. The term ``ultimate user'', for purposes of this 
paragraph, means any person who acquired such endangered species part or 
product for his or her own consumption or for other personal use 
(including gifts) and not for resale.



Sec. 222.202  Certificate renewal.

    (a) Any person to whom a Certificate of Exemption has been issued by 
the National Marine Fisheries Service may apply to the Assistant 
Administrator for renewal of such certificate. Any person holding a 
valid Certificate of Exemption which was renewed after October 13, 1982, 
and was in effect on March 31, 1988, may apply to the Secretary for one 
renewal for a period not to exceed 5 years.
    (b) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of paragraph 
(c) of this section. At least 15 days should be allowed for processing. 
When an application for a renewal has been received and deemed 
sufficient, the Assistant Administrator shall issue a Certificate of 
Renewal to the applicant as soon as practicable.
    (c) The following information will be used as the basis for 
determining whether an application for renewal of a Certificate of 
Exemption is complete:
    (1) Title: Application for Renewal of Certificate of Exemption.
    (2) The date of application.
    (3) The identity of the applicant, including complete name, original 
Certificate of Exemption number, current address, and telephone number. 
If the applicant is a corporation, partnership, or association, set 
forth the details.
    (4) The period of time for which a renewal of the Certificate of 
Exemption is requested. However, no renewal of Certificate of Exemption, 
or right claimed thereunder, shall be effective after the close of the 
5-year period beginning on the date of the expiration of the previous 
renewal of the certificate of exemption.
    (5)(i) A complete and detailed updated inventory of all pre-Act 
endangered species parts for which the applicant seeks exemption. Each 
item on the inventory must be identified by the following information: A 
unique serial number; the weight of the item to the nearest whole gram; 
and a detailed description sufficient to permit ready identification of 
the item. Small lots, not exceeding five pounds (2,270 grams), of scraps 
or raw material, which may include or consist of one or more whole raw 
whale teeth, may be identified by a single serial number and total 
weight. All finished scrimshaw items subsequently made from a given lot 
of scrap may be identified by the lot serial number plus additional 
digits to signify the piece number of the individual finished item. 
Identification numbers will be in the following format: 00-000000-0000. 
The first two digits will be the last two digits of the appropriate 
certificate of exemption number; the next six digits, the serial number 
of the individual piece or lot of scrap or raw material; and the last 
four digits, where applicable, the piece number of an item made from a 
lot of scrap or raw material. The serial numbers for each certificate 
holder's inventory must begin with 000001, and piece numbers, where 
applicable, must begin with 0001 for each separate lot.
    (ii) Identification numbers may be affixed to inventory items by any 
means, including, but not limited to, etching the number into the item, 
attaching a label or tag bearing the number to the item, or sealing the 
item in a plastic bag, wrapper or other container bearing the number. 
The number must remain affixed to the item until the item is sold to an 
ultimate user, as defined in Sec. 222.201(d).
    (iii) No renewals will be issued for scrimshaw products in excess of 
any

[[Page 86]]

quantities declared in the original application for a Certificate of 
Exemption.
    (6) A Certification in the following language: I hereby certify that 
the foregoing information is complete, true, and correct to the best of 
my knowledge and belief. I understand that this information is submitted 
for the purpose of obtaining a renewal of my Certificate of Exemption 
under the Endangered Species Act, as amended, and the Department of 
Commerce regulations issued thereunder, and that any false statement may 
subject me to the criminal penalties of 18 U.S.C. 1001, or to the 
penalties under the Act.
    (7) Signature of the applicant.
    (d) Upon receipt of an incomplete or improperly executed application 
for renewal, the applicant shall be notified of the deficiency in the 
application for renewal. If the application for renewal is not corrected 
and received by the Assistant Administrator within 30 days following the 
date of receipt of notification, the application for renewal shall be 
considered abandoned.



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

    (a) When circumstances have changed so that an applicant or 
certificate holder desires to have any material, term, or condition of 
the application or certificate modified, the applicant or certificate 
holder must submit in writing full justification and supporting 
information in conformance with the provisions of this part.
    (b) All certificates are issued subject to the condition that the 
Assistant Administrator reserves the right to amend the provisions of a 
Certificate of Exemption for just cause at any time. Such amendments 
take effect on the date of notification, unless otherwise specified.
    (c) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a condition of the certificate 
may subject the certificate holder to penalties provided in the Act and 
to suspension, revocation, or modification of the Certificate of 
Exemption, as provided in subpart D of 15 CFR part 904.



Sec. 222.204  Administration of certificates.

    (a) The Certificate of Exemption covers the business or activity 
specified in the Certificate of Exemption at the address described 
therein. No Certificate of Exemption is required to cover a separate 
warehouse facility used by the certificate holder solely for storage of 
pre-Act endangered species parts, if the records required by this 
subpart are maintained at the address specified in the Certificate of 
Exemption served by the warehouse or storage facility.
    (b) Certificates of Exemption issued under this subpart are not 
transferable. However, in the event of the lease, sale, or other 
transfer of the operations or activity authorized by the Certificate of 
Exemption, the successor is not required to obtain a new Certificate of 
Exemption prior to commencing such operations or activity. In such case, 
the successor will be treated as a purchaser and must comply with the 
record and reporting requirements set forth in Sec. 222.201(d).
    (c) The Certificate of Exemption holder must notify the Assistant 
Administrator, in writing, of any change in address, in trade name of 
the business, or in activity specified in the certificate. The Assistant 
Administrator must be notified within 10 days of a change of address, 
and within 30 days of a change in trade name. The certificate with the 
change of address or in trade name must be endorsed by the Assistant 
Administrator, who shall provide an amended certificate to the person to 
whom it was issued. A certificate holder who seeks amendment of a 
certificate may continue all authorized activities while awaiting action 
by the Assistant Administrator.
    (d) A Certificate of Exemption issued under this subpart confers no 
right or privilege to conduct a business or an activity contrary to 
state or other law. Similarly, compliance with the provisions of any 
state or other law affords no immunity under any Federal laws or 
regulations of any other Federal agency.
    (e) Any person authorized to enforce the Act may enter the premises 
of any Certificate of Exemption holder or of any purchaser during 
business hours,

[[Page 87]]

including places of storage, for the purpose of inspecting or of 
examining any records or documents and any endangered species parts.
    (f) The records pertaining to pre-Act endangered species parts 
prescribed by this subpart shall be in permanent form and shall be 
retained at the address shown on the Certificate of Exemption or at the 
principal address of a purchaser in the manner prescribed by this 
subpart.
    (g)(1) Holders of Certificates of Exemption must maintain records of 
all pre-Act endangered species parts they receive, sell, transfer, 
distribute or dispose of otherwise. Purchasers of pre-Act endangered 
species parts, unless ultimate users, as defined in Sec. 222.201(d), 
must similarly maintain records of all such parts or products they 
receive.
    (2) Such records referred to in paragraph (g)(1) of this section may 
consist of invoices or other commercial records, which must be filed in 
an orderly manner separate from other commercial records maintained and 
be readily available for inspection. Such records must show the name and 
address of the purchaser, seller, or other transferor; show the type, 
quantity, and identity of the part or product; show the date of such 
sale or transfer; and be retained, in accordance with the requirements 
of this subpart, for a period of not less than 3 years following the 
date of sale or transfer. Each pre-Act endangered species part will be 
identified by its number on the updated inventory required to renew a 
Certificate of Exemption.
    (i) Each Certificate of Exemption holder must submit a quarterly 
report (to the address given in the certificate) containing all record 
information required by paragraph (g)(2) of this section, on all 
transfers of pre-Act endangered species parts made in the previous 
calendar quarter, or such other record information the Assistant 
Administrator may specify from time to time.
    (ii) Quarterly reports are due on January 15, April 15, July 15, and 
October 15.
    (3) The Assistant Administrator may authorize the record information 
to be submitted in a manner other than that prescribed in paragraph 
(g)(2) of this section when the record holder demonstrates that an 
alternate method of reporting is reasonably necessary and will not 
hinder the effective administration or enforcement of this subpart.



Sec. 222.205  Import and export requirements.

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

[[Page 88]]

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

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



                  Subpart C--General Permit Procedures



Sec. 222.301  General requirements.

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

[[Page 89]]

importation, exportation, or of any other act and during the period of 
any transit incident to such taking, importation, exportation, or to any 
other act.
    (2) A duplicate copy of the issued permit must be physically 
attached to the tank, container, package, enclosure, or other means of 
containment, in which the animal is placed for purposes of storage, 
transit, supervision, or care.
    (e) The authorizations on the face of a permit setting forth 
specific times, dates, places, methods of taking, numbers and kinds of 
fish or wildlife, location of activity, authorize certain circumscribed 
transactions, or otherwise permit a specifically limited matter, are to 
be strictly construed and shall not be interpreted to permit similar or 
related matters outside the scope of strict construction.
    (f) Permits shall not be altered, erased, or mutilated, and any 
permit which has been altered, erased, or mutilated shall immediately 
become invalid.
    (g) Any permit issued under parts 222, 223, and 224 of this chapter 
shall be displayed for inspection, upon request, to an authorized 
officer, or to any other person relying upon its existence.
    (h) Permittees may be required to file reports of the activities 
conducted under the permit. Any such reports shall be filed not later 
than March 31 for the preceding calendar year ending December 31, or any 
portion thereof, during which a permit was in force, unless the 
regulations of parts 222, 223, or 224 of this chapter or the provisions 
of the permit set forth other reporting requirements.
    (i) From the date of issuance of the permit, the permittee shall 
maintain complete and accurate records of any taking, possession, 
transportation, sale, purchase, barter, exportation, or importation of 
fish or wildlife pursuant to such permit. Such records shall be kept 
current and shall include the names and addresses of persons with whom 
any fish or wildlife has been purchased, sold, bartered, or otherwise 
transferred, and the date of such transaction, and such other 
information as may be required or appropriate. Such records, unless 
otherwise specified, shall be entered in books, legibly written in the 
English language. Such records shall be retained for 5 years from the 
date of issuance of the permit.
    (j) Any person holding a permit pursuant to parts 222, 223, and 224 
of this chapter shall allow the Assistant Administrator to enter the 
permit holder's premises at any reasonable hour to inspect any fish or 
wildlife held or to inspect, audit, or copy any permits, books, or 
records required to be kept by these regulations or by the Act. Such 
person shall display any permit issued pursuant to these regulations or 
to the Act upon request by an authorized officer or by any other person 
relying on its existence.



Sec. 222.302  Procedure for obtaining permits.

    (a) Applications must be submitted to the Assistant Administrator, 
by letter containing all necessary information, attachments, 
certification, and signature, as specified by the regulations in parts 
222, 223, and 224 of this chapter, or by the Act. In no case, other than 
for emergencies pursuant to Sec. 222.301(a)(2), will applications be 
accepted either orally or by telephone.
    (b) Applications must be received by the Assistant Administrator at 
least 90 calendar days prior to the date on which the applicant desires 
to have the permit made effective, unless otherwise specified in the 
regulations or guidelines pertaining to a particular permit. The 
National Marine Fisheries Service will attempt to process applications 
deemed sufficient in the shortest possible time, but does not guarantee 
that the permit will be issued 90 days after notice of receipt of the 
application is published in the Federal Register.
    (c)(1) Upon receipt of an insufficiently or improperly executed 
application, the applicant shall be notified of the deficiency in the 
application. If the applicant fails to supply the deficient information 
or otherwise fails to correct the deficiency within 60 days following 
the date of notification, the application shall be considered abandoned.
    (2) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the

[[Page 90]]

requirements of this part. The Assistant Administrator, however, may 
waive any requirement for information or require any elaboration or 
further information deemed necessary.



Sec. 222.303  Issuance of permits.

    (a)(1) No permit may be issued prior to the receipt of a written 
application unless an emergency pursuant to Sec. 222.301(a)(2) exists, 
and a written variation from the requirements is recorded by the 
National Marine Fisheries Service.
    (2) No representation of an employee or agent of the United States 
shall be construed as a permit unless it meets the requirements of a 
permit defined in Sec. 222.102.
    (3) Each permit shall bear a serial number. Upon renewal, such a 
number may be reassigned to the permittee to whom issued so long as the 
permittee maintains continuity of renewal.
    (b) When an application for a permit received by the Assistant 
Administrator is deemed sufficient, the Assistant Administrator shall, 
as soon as practicable, publish a notice in the Federal Register. 
Information received by the Assistant Administrator as a part of the 
application shall be available to the public as a matter of public 
record at every stage of the proceeding. An interested party, within 30 
days after the date of publication of such notice, may submit to the 
Assistant Administrator written data, views, or arguments with respect 
to the taking, importation, or to other action proposed in the 
application, and may request a hearing in connection with the action to 
be taken thereon.
    (c) If a request for a hearing is made within the 30-day period 
referred to in paragraph (b) of this section, or if the Assistant 
Administrator determines that a hearing would otherwise be advisable, 
the Assistant Administrator may, within 60 days after the date of 
publication of the notice referred to in paragraph (b) of this section, 
afford to such requesting party or parties an opportunity for a hearing. 
Such hearing shall also be open to participation by any interested 
members of the public. Notice of the date, time, and place of such 
hearing shall be published in the Federal Register not less than 15 days 
in advance of such hearing. Any interested person may appear at the 
hearing in person or through a representative and may submit any 
relevant material, data, views, comments, arguments, or exhibits. A 
summary record of the hearing shall be kept.
    (d) Except as provided in subpart D to 15 CFR part 904, as soon as 
practicable but not later than 30 days after the close of the hearing. 
If no hearing is held, as soon as practicable but not later than 30 days 
from the publication of the notice in the Federal Register, the 
Assistant Administrator shall issue or deny issuance of the permit. 
Notice of the decision of the Assistant Administrator shall be published 
in the Federal Register within 10 days after the date of the issuance or 
denial and indicate where copies of the permit, if issued, may be 
obtained.
    (e)(1) The Assistant Administrator shall issue the permit unless:
    (i) Denial of the permit has been made pursuant to subpart D to 15 
CFR part 904;
    (ii) The applicant has failed to disclose material or information 
required, or has made false statements as to any material fact, in 
connection with the application;
    (iii) The applicant has failed to demonstrate a valid justification 
for the permit or a showing of responsibility;
    (iv) The authorization requested potentially threatens a fish or 
wildlife population; or
    (v) The Assistant Administrator finds through further inquiry or 
investigation, or otherwise, that the applicant is not qualified.
    (2) The applicant shall be notified in writing of the denial of any 
permit request, and the reasons thereof. If authorized in the notice of 
denial, the applicant may submit further information or reasons why the 
permit should not be denied. Such further information shall not be 
considered a new application. The final action by the Assistant 
Administrator shall be considered the final administrative decision of 
the Department of Commerce.
    (f) If a permit is issued under Sec. 222.308, the Assistant 
Administrator shall publish notice thereof in the Federal

[[Page 91]]

Register, including the Assistant Administrator's finding that such 
permit--
    (1) Was applied for in good faith;
    (2) Will not operate to the disadvantage of such endangered species; 
and
    (3) Will be consistent with the purposes and policy set forth in 
section 2 of the Act.
    (g) The Assistant Administrator may waive the 30-day period in an 
emergency situation where the health or life of an endangered animal is 
threatened and no reasonable alternative is available to the applicant. 
Notice of any such waiver shall be published by the Assistant 
Administrator in the Federal Register within 10 days following the 
issuance of the permit.



Sec. 222.304  Renewal of permits.

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



Sec. 222.305  Rights of succession and transfer of permits.

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

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



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

    (a) When circumstances have changed so that an applicant or a 
permittee desires to have any term or condition of the application or 
permit modified, the applicant or permittee must submit in writing full 
justification and supporting information in conformance with the 
provisions of this part and the part under which the permit has been 
issued or requested. Such applications for modification are subject to 
the same issuance criteria as original applications.
    (b) Notwithstanding the requirements of paragraph (a) of this 
section, a permittee may change the mailing address or trade name under 
which business is conducted without obtaining a new permit or being 
subject to the same issuance criteria as original permits. The permittee 
must notify the Assistant Administrator, in writing within 30 days, of 
any change in address or of any change in the trade

[[Page 92]]

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 amended permit to the 
person to whom it was issued.
    (c) All permits are issued subject to the condition that the 
National Marine Fisheries Service reserves the right to amend the 
provisions of a permit for just cause at any time during its term. Such 
amendments take effect on the date of notification, unless otherwise 
specified.
    (d) When any permittee discontinues the permitted activity, the 
permittee shall, within 30 days thereof, mail the permit and a request 
for cancellation to the issuing officer, and the permit shall be deemed 
void upon receipt. No refund of any part of an amount paid as a permit 
fee shall be made when the operations of the permittee are, for any 
reason, discontinued during the tenure of an issued permit.
    (e) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a term or condition of the 
permit may subject the permittee to both the penalties provided in the 
Act and suspension, revocation, or amendment of the permit, as provided 
in subpart D to 15 CFR part 904.



Sec. 222.307  Permits for incidental taking of species.

    (a) Scope. (1) The Assistant Administrator may issue permits to take 
endangered and threatened species incidentally to an otherwise lawful 
activity under section 10(a)(1)(B) of the Act. The regulations in this 
section apply to all endangered species, and those threatened species 
for which the prohibitions of section 9(a)(1) of the Act, under the 
jurisdiction of the Secretary of Commerce, apply.
    (2) If the applicant represents an individual or a single entity, 
such as a corporation, the Assistant Administrator will issue an 
individual incidental take permit. If the applicant represents a group 
or organization whose members conduct the same or a similar activity in 
the same geographical area with similar impacts on listed species for 
which a permit is required, the Assistant Administrator will issue a 
general incidental take permit. To be covered by a general incidental 
take permit, each individual conducting the activity must have a 
certificate of inclusion issued under paragraph (f) of this section.
    (b) Permit application procedures. Applications should be sent to 
the Assistant Administrator. The Assistant Administrator shall determine 
the sufficiency of the application in accordance with the requirements 
of this section. At least 120 days should be allowed for processing. 
Each application must be signed and dated and must include the 
following:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Act; or
    (ii) Application for a General Incidental Take Permit under the Act;
    (2) The name, address, and telephone number of the applicant. If the 
applicant is a partnership or a corporate entity or is representing a 
group or an organization, the applicable details;
    (3) The species or stocks, by common and scientific name, and a 
description of the status, distribution, seasonal distribution, habitat 
needs, feeding habits and other biological requirements of the affected 
species or stocks;
    (4) A detailed description of the proposed activity, including the 
anticipated dates, duration, and specific location. If the request is 
for a general incidental take permit, an estimate of the total level of 
activity expected to be conducted;
    (5) A conservation plan, based on the best scientific and commercial 
data available, which specifies the following:
    (i) The anticipated impact (i.e., amount, extent, and type of 
anticipated taking) of the proposed activity on the species or stocks;
    (ii) The anticipated impact of the proposed activity on the habitat 
of the species or stocks and the likelihood of restoration of the 
affected habitat;
    (iii) The steps (specialized equipment, methods of conducting 
activities, or other means) that will be taken to monitor, minimize, and 
mitigate such impacts, and the funding available to implement such 
measures;

[[Page 93]]

    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used; and
    (v) A list of all sources of data used in preparation of the plan, 
including reference reports, environmental assessments and impact 
statements, and personal communications with recognized experts on the 
species or activity who may have access to data not published in current 
literature.
    (c) Issuance criteria. (1) In determining whether to issue a permit, 
the Assistant Administrator will consider the following:
    (i) The status of the affected species or stocks;
    (ii) The potential severity of direct, indirect, and cumulative 
impacts on the species or stocks and habitat as a result of the proposed 
activity;
    (iii) The availability of effective monitoring techniques;
    (iv) The use of the best available technology for minimizing or 
mitigating impacts; and
    (v) The views of the public, scientists, and other interested 
parties knowledgeable of the species or stocks or other matters related 
to the application.
    (2) To issue the permit, the Assistant Administrator must find 
that--
    (i) The taking will be incidental;
    (ii) The applicant will, to the maximum extent practicable, monitor, 
minimize, and mitigate the impacts of such taking;
    (iii) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (iv) The applicant has amended the conservation plan to include any 
measures (not originally proposed by the applicant) that the Assistant 
Administrator determines are necessary or appropriate; and
    (v) There are adequate assurances that the conservation plan will be 
funded and implemented, including any measures required by the Assistant 
Administrator.
    (d) Permit conditions. In addition to the general conditions set 
forth in this part, every permit issued under this section will contain 
such terms and conditions as the Assistant Administrator deems necessary 
and appropriate, including, but not limited to the following:
    (1) Reporting requirements or rights of inspection for determining 
whether the terms and conditions are being complied with;
    (2) The species and number of animals covered;
    (3) The authorized method of taking;
    (4) The procedures to be used to handle or dispose of any animals 
taken; and
    (5) The payment of an adequate fee to the National Marine Fisheries 
Service to process the application.
    (e) Duration of permits. The duration of permits issued under this 
section will be such as to provide adequate assurances to the permit 
holder to commit funding necessary for the activities authorized by the 
permit, including conservation activities. In determining the duration 
of a permit, the Assistant Administrator will consider the duration of 
the proposed activities, as well as the possible positive and negative 
effects on listed species associated with issuing a permit of the 
proposed duration, including the extent to which the conservation plan 
is likely to enhance the habitat of the endangered species or to 
increase the long-term survivability of the species.
    (f) Certificates of inclusion. (1) Any individual who wishes to 
conduct an activity covered by a general incidental take permit must 
apply to the Assistant Administrator for a Certificate of Inclusion. 
Each application must be signed and dated and must include the 
following:
    (i) The general incidental take permit under which the applicant 
wants coverage;
    (ii) The name, address, and telephone number of the applicant. If 
the applicant is a partnership or a corporate entity, the applicable 
details;
    (iii) A description of the activity the applicant seeks to have 
covered under the general incidental take permit, including the 
anticipated dates, duration, and specific location; and
    (iv) A signed certification that the applicant has read and 
understands the general incidental take permit and the conservation 
plan, will comply with their terms and conditions, and will

[[Page 94]]

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

[[Page 95]]

a private entity, from taking additional actions at his or her own 
expense to protect or conserve a species included in a conservation 
plan.



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

    (a) Scope. The Assistant Administrator may issue permits for 
scientific purposes or for the enhancement of the propagation or 
survival of the affected endangered or threatened species in accordance 
with the regulations in parts 222, 223, and 224 of this chapter and 
under such terms and conditions as the Assistant Administrator may 
prescribe, authorizing the taking, importation, or other acts otherwise 
prohibited by section 9 of the Act. Within the jurisdication of a State, 
more restrictive state laws or regulations in regard to endangered 
species shall prevail in regard to taking. Proof of compliance with 
applicable state laws will be required before a permit will be issued.
    (b) Application procedures. Any person desiring to obtain such a 
permit may make application therefor to the Assistant Administrator. 
Permits for marine mammals shall be issued in accordance with the 
provisions of part 216, subpart D of this chapter. Permits relating to 
sea turtles may involve the Fish and Wildlife Service, in which case the 
applicant shall follow the procedures set out in Sec. 222.309. The 
following information will be used as the basis for determining whether 
an application is complete and whether a permit for scientific purposes 
or for enhancement of propagation or survival of the affected species 
should be issued by the Assistant Administrator. An application for a 
permit shall provide the following information and such other 
information that the Assistant Administrator may require:
    (1) Title, as applicable, either--
    (i) Application for permit for scientific purposes under the Act; or
    (ii) Application for permit for the enhancement of the propagation 
or survival of the endangered species Under the Act.
    (2) The date of the application.
    (3) The identity of the applicant including complete name, address, 
and telephone number. If the applicant is a partnership or a corporate 
entity, set forth the details. If the endangered species is to be 
utilized by a person other than the applicant, set forth the name of 
that person and such other information as would be required if such 
person were an applicant.
    (4) A description of the purpose of the proposed acts, including the 
following:
    (i) A detailed justification of the need for the endangered species, 
including a discussion of possible alternatives, whether or not under 
the control of the applicant; and
    (ii) A detailed description of how the species will be used.
    (5) A detailed description of the project, or program, in which the 
endangered species is to be used, including the following:
    (i) The period of time over which the project or program will be 
conducted;
    (ii) A list of the names and addresses of the sponsors or 
cooperating institutions and the scientists involved;
    (iii) A copy of the formal research proposal or contract if one has 
been prepared;
    (iv) A statement of whether the proposed project or program has 
broader significance than the individual researcher's goals. For 
example, does the proposed project or program respond directly or 
indirectly to recommendation of any national or international scientific 
body charged with research or management of the endangered species? If 
so, how?; and
    (v) A description of the arrangements, if any, for the disposition 
of any dead specimen or its skeleton or other remains in a museum or 
other institutional collection for the continued benefit to science.
    (6) A description of the endangered species which is the subject of 
the application, including the following:
    (i) A list of each species and the number of each, including the 
common and scientific name, the subspecies (if applicable), population 
group, and range;
    (ii) A physical description of each animal, including the age, size, 
and sex;
    (iii) A list of the probable dates of capture or other taking, 
importation, exportation, and other acts which require a permit for each 
animal and the

[[Page 96]]

location of capture or other taking, importation, exportation, and other 
acts which require a permit, as specifically as possible;
    (iv) A description of the status of the stock of each species 
related insofar as possible to the location or area of taking;
    (v) A description of the manner of taking for each animal, including 
the gear to be used;
    (vi) The name and qualifications of the persons or entity which will 
capture or otherwise take the animals; and
    (vii) If the capture or other taking is to be done by a contractor, 
a statement as to whether a qualified member of your staff (include 
name(s) and qualifications) will supervise or observe the capture or 
other taking. Accompanying such statement shall be a copy of the 
proposed contract or a letter from the contractor indicating agreement 
to capture or otherwise take the animals, should a permit be granted.
    (7) A description of the manner of transportation for any live 
animal taken, imported, exported, or shipped in interstate commerce, 
including the following:
    (i) Mode of transportation;
    (ii) Name of transportation company;
    (iii) Length of time in transit for the transfer of the animal(s) 
from the capture site to the holding facility;
    (iv) Length of time in transit for any planned future move or 
transfer of the animals;
    (v) The qualifications of the common carrier or agent used for 
transportation of the animals;
    (vi) A description of the pen, tank, container, cage, cradle, or 
other devices used to hold the animal at both the capture site and 
during transportation;
    (vii) Special care before and during transportation, such as salves, 
antibiotics, moisture; and
    (viii) A statement as to whether the animals will be accompanied by 
a veterinarian or by another similarly qualified person, and the 
qualifications of such person.
    (8) Describe the contemplated care and maintenance of any live 
animals sought, including a complete description of the facilities where 
any such animals will be maintained including:
    (i) The dimensions of the pools or other holding facilities and the 
number, sex, and age of animals by species to be held in each;
    (ii) The water supply, amount, and quality;
    (iii) The diet, amount and type, for all animals;
    (iv) Sanitation practices used;
    (v) Qualifications and experience of the staff;
    (vi) A written certification from a licensed veterinarian or from a 
recognized expert who are knowledgeable on the species (or related 
species) or group covered in the application. The certificate shall 
verify that the veterinarian has personally reviewed the amendments for 
transporting and maintaining the animal(s) and that, in the 
veterinarian's opinion, they are adequate to provide for the well-being 
of the animal; and
    (vii) The availability in the future of a consulting expert or 
veterinarian meeting paragraph requirements of (b)(8)(vi) in this 
section.
    (9) A statement of willingness to participate in a cooperative 
breeding program and maintain or contribute data to a stud book.
    (10) A statement of how the applicant's proposed project or program 
will enhance or benefit the wild population.
    (11) For the 5 years preceding the date of application, the 
applicant shall provide a detailed description of all mortalities 
involving species under the control of or utilized by the applicant and 
are either presently listed as endangered species or are taxonomically 
related within the Order to the species which is the subject of this 
application, including:
    (i) A list of all endangered species and related species that are 
the subject of this application that have been captured, transported, 
maintained, or utilized by the applicant for scientific purposes or for 
the enhancement of propagation or survival of the affected species, and/
or of related species that are captured, transported, maintained, or 
utilized by the applicant for scientific purposes or for enhancement of 
propagation or survival of the affected species;

[[Page 97]]

    (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;
    (iii) The cause(s) of any such mortality; and
    (iv) The steps which have been taken by applicant to avoid or 
decrease any such mortality.
    (12) A certification in the following language: I hereby certify 
that the foregoing information is complete, true, and correct to the 
best of my knowledge and belief. I understand that this information is 
submitted for the purpose of obtaining a permit under the Endangered 
Species Act, as amended, and regulations promulgated thereunder, and 
that any false statement may subject me to the criminal penalties of 18 
U.S.C. 1001, or to penalties under the Act.
    (13) The applicant and/or an officer thereof must sign the 
application.
    (14) Assistance in completing this application may be obtained by 
writing Chief, Endangered Species Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or 
calling the Office of Protected Resources at 301-713-1401. Allow at 
least 90 days for processing.
    (c) Issuance criteria. In determining whether to issue a permit for 
scientific purposes or to enhance the propagation or survival of the 
affected endangered species, the Assistant Administrator shall 
specifically consider, among other application criteria, the following:
    (1) Whether the permit was applied for in good faith;
    (2) Whether the permit, if granted and exercised, will not operate 
to the disadvantage of the endangered species;
    (3) Whether the permit would be consistent with the purposes and 
policy set forth in section 2 of the Act;
    (4) Whether the permit would further a bona fide and necessary or 
desirable scientific purpose or enhance the propagation or survival of 
the endangered species, taking into account the benefits anticipated to 
be derived on behalf of the endangered species;
    (5) The status of the population of the requested species and the 
effect of the proposed action on the population, both direct and 
indirect;
    (6) If a live animal is to be taken, transported, or held in 
captivity, the applicant's qualifications for the proper care and 
maintenance of the species and the adequacy of the applicant's 
facilities;
    (7) Whether alternative non-endangered species or population stocks 
can and should be used;
    (8) Whether the animal was born in captivity or was (or will be) 
taken from the wild;
    (9) Provision for disposition of the species if and when the 
applicant's project or program terminates;
    (10) How the applicant's needs, program, and facilities compare and 
relate to proposed and ongoing projects and programs;
    (11) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to successfully accomplish the 
objectives stated in the application; and
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable about the species which is the subject of 
the application or of other matters germane to the application.
    (d) Terms and conditions. Permits applied for under this section 
shall contain terms and conditions as the Assistant Administrator may 
deem appropriate, including but not limited to the following:
    (1) The number and kind of species covered;
    (2) The location and manner of taking;
    (3) Port of entry or export;
    (4) The methods of transportation, care, and maintenance to be used 
with live species;
    (5) Any requirements for reports or rights of inspections with 
respect to any activities carried out pursuant to the permit;
    (6) The transferability or assignability of the permit;
    (7) The sale or other disposition of the species, its progeny, or 
the species product; and
    (8) A reasonable fee covering the costs of issuance of such permit, 
including reasonable inspections and an appropriate apportionment of 
overhead

[[Page 98]]

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.



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

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



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




                      Subpart A--General Provisions

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

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

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

Figure 1 to Part 223--NMFS TED
Figure 2 to Part 223--Cameron TED
Figure 3 to Part 223--Matagorda TED
Figure 4 to Part 223--Georgia TED
Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
          Soft TED
Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
Figures 7-9b to Part 223  [Reserved]
Figure 10 to Part 223--Flounder TED
Figure 11 to Part 223--Jones TED
Figure 12a to Part 223--Attachment of the Exit Hole Cover
Figure 12b to Part 223--Grid TED Leatherback Modification
Figure 13 to Part 223--Single Grid Hard TED Escape Opening
Figure 14a to Part 223--Maximum Angle of Deflector Bars With Straight 
          Bars Attached to the Bottom of the Frame
Figure 14b to Part 223--Maximum Angle of Deflector Bars With Bent Bars 
          Attached to the Bottom of the Frame
Figure 15 to Part 223--Maximum Angle of Deflector Bars With Bars 
          Unattached to the Bottom of the Frame
Figure 16 to Part 223--Escape Opening and Flap Dimensions for the Double 
          Cover Flap TED

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also issued 
under 16 U.S.C. 1361 et seq.

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

[[Page 99]]



                      Subpart A--General Provisions



Sec. 223.101  Purpose and scope.

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

[64 FR 14068, Mar. 23, 1999]



Sec. 223.102  Enumeration of threatened marine and anadromous species.

    The species determined by the Secretary of Commerce to be threatened 
pursuant to section 4(a) of the Act, as well as species listed under the 
Endangered Species Conservation of Act of 1969 by the Secretary of the 
Interior and currently under the jurisdiction of the Secretary of 
Commerce, are the following:
    (a) Marine and anadromous fish. (1) Snake River spring/summer 
chinook salmon (Oncorhynchus tshawytscha). Includes all natural 
population(s) of spring/summer chinook salmon in the mainstem Snake 
River and any of the following subbasins: Tucannon River, Grande Ronde 
River, Imnaha River, and Salmon River.
    (2) Snake River fall chinook salmon (Oncorhynchus tshawytscha). 
Includes all natural population(s) of fall chinook in the mainstem Snake 
River and any of the following subbasins: Tucannon River, Grande Ronde 
River, Imnaha River, Salmon River, and Clearwater River.
    (3) Central California Coast Coho Salmon (Oncorhynchus kisutch). 
Includes all coho salmon naturally reproduced in streams between Punta 
Gorda in Humboldt County, CA, and the San Lorenzo River in Santa Cruz 
County, CA.
    (4) Southern Oregon/Northern California Coast coho salmon 
(Oncorhynchus kisutch). Includes all coho salmon naturally reproduced in 
streams between Cape Blanco in Curry County, OR, and Punta Gorda in 
Humboldt County, CA.
    (5) Central California Coast steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in streams from the Russian River to Aptos Creek, Santa Cruz 
County, California (inclusive), and the drainages of San Francisco and 
San Pablo Bays eastward to the Napa River (inclusive), Napa County, 
California. Excludes the Sacramento-San Joaquin River Basin of the 
Central Valley of California.
    (6) South-Central California Coast steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in streams from the Pajaro River (inclusive), located in Santa 
Cruz County, California, to (but not including) the Santa Maria River.
    (7) Snake River Basin steelhead (Oncorhynchus mykiss). Includes all 
naturally spawned populations of steelhead (and their progeny) in 
streams in the Snake River Basin of southeast Washington, northeast 
Oregon, and Idaho.
    (8) Lower Columbia River steelhead (Oncorhynchus mykiss). Includes 
all naturally spawned populations of steelhead (and their progeny) in 
streams and tributaries to the Columbia River between the Cowlitz and 
Wind Rivers, Washington, inclusive, and the Willamette and Hood Rivers, 
Oregon, inclusive. Excluded are steelhead in the upper Willamette River 
Basin above Willamette Falls and steelhead from the Little and Big White 
Salmon Rivers in Washington;
    (9) Central Valley, California steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in the Sacramento and San Joaquin Rivers and their tributaries. 
Excluded are steelhead from San Francisco and San Pablo Bays and their 
tributaries.
    (10) Oregon Coast coho salmon (Oncorhynchus kisutch). Includes all 
naturally spawned populations of coho

[[Page 100]]

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

[64 FR 14068, Mar. 23, 1999, as amended at 64 FR 14328, Mar. 24, 1999; 
64 FR 14517, 14528, 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999; 
65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, 2000]

[[Page 101]]



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



Sec. 223.201  Guadalupe fur seal.

    (a) Prohibitions. The prohibitions of section 9 of the Act (16 
U.S.C. 1538) relating to endangered species apply to the Guadalupe fur 
seal except as provided in paragraph (b) of this section.
    (b) Exceptions. (1) The Assistant Administrator may issue permits 
authorizing activities which would otherwise be prohibited under 
paragraph (a) of this section in accordance with the subject to the 
provisions of part 222 subpart C--General Permit Procedures.
    (2) Any Federal, State or local government official, employee, or 
designated agent may, in the course of official duties, take a stranded 
Guadalupe fur seal without a permit if such taking:
    (i) Is accomplished in a humane manner;
    (ii) Is for the protection or welfare of the animal, is for the 
protection of the public health or welfare, or is for the salvage or 
disposal of a dead specimen;
    (iii) Includes steps designed to ensure the return of the animal to 
its natural habitat, if feasible; and
    (iv) Is reported within 30 days to the Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802.
    (3) Any animal or specimen taken under paragraph (b)(2) of this 
section may only be retained, disposed of, or salvaged in accordance 
with directions from the Director, Southwest Region.

[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, 
Mar. 23, 1999]



Sec. 223.202  Steller sea lion.

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

                       Table 1 to Sec.  223.202--Listed Steller Sea Lion Rookery Sites \1\
----------------------------------------------------------------------------------------------------------------
                                            From                    To
              Island              ---------------------------------------------- NOAA chart         Notes
                                      Lat.        Long.       Lat.      Long.
----------------------------------------------------------------------------------------------------------------
1. Outer I.......................  59 deg.20.  150 deg.23  59 deg.21  150 deg.2      16681   S quadrant.
                                    5 N         .0 W        .0 N       4.5 W
2. Sugarloaf I...................  58 deg.53.  152 deg.02                            16580   Whole island.
                                    0 N         .0 W
3. Marmot I......................  58 deg.14.  151 deg.47  58 deg.10  151 deg.5      16580   SE quadrant.
                                    5 N         .5 W        .0 N       1.0 W
4. Chirikof I....................  55 deg.46.  155 deg.39  55 deg.46  155 deg.4      16580   S quadrant.
                                    5 N         .5 W        .5 N       3.0 W
5. Chowiet I.....................  56 deg.00.  156 deg.41  56 deg.00  156 deg.4      16013   S quadrant.
                                    5 N         .5 W        .5 N       2.0 W
6. Atkins I......................  55 deg.03.  159 deg.18                            16540   Whole island.
                                    5 N         .5 W
7. Chernabura I..................  54 deg.47.  159 deg.31  54 deg.45  159 deg.3      16540   SE corner.
                                    5 N         .0 W        .5 N       3.5 W
8. Pinnacle Rock.................  54 deg.46.  161 deg.46                            16540   Whole island.
                                    0 N         .0 W
9. Clubbing Rks (N)..............  54 deg.43.  162 deg.26                            16540   Whole island.
                                    0 N         .5 W
Clubbing Rks (S).................  54 deg.42.  162 deg.26                            16540   Whole Island.
                                    0 N         .5 W
10. Sea Lion Rks.................  55 deg.28.  163 deg.12                            16520   Whole island.
                                    0 N         .0 W

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11. Ugamak I.....................  54 deg.14.  164 deg.48  54 deg.13  164 deg.4      16520   E end of island.
                                    0 N         .0 W        .0 N       8.0 W
12. Akun I.......................  54 deg.18.  165 deg.32  54 deg.18  165 deg.3      16547   Billings Head
                                    0N          .5W         .0N        1.5W                   Bight.
13. Akutan I.....................  54 deg.03.  166 deg.00  54 deg.05  166 deg.0      16520   SW corner, Cape
                                    5 N         .0 W        .5 N       5.0 W                  Morgan.
14. Bogoslof I...................  53 deg.56.  168 deg.02                            16500   Whole island.
                                    0 N         .0 W
15. Ogchul I.....................  53 deg.00.  168 deg.24                            16500   Whole island.
                                    0 N         .0 W
16. Adugak I.....................  52 deg.55.  169 deg.10                            16500   Whole island.
                                    0 N         .5 W
17. Yunaska I....................  52 deg.42.  170 deg.38  52 deg.41  170 deg.3      16500   NE end.
                                    0 N         .5 W        .0 N       4.5 W
18. Seguam I.....................  52 deg.21.  172 deg.35  52 deg.21  172 deg.3      16480   N coast,
                                    0 N         .0 W        .0 N       3.0 W                  Saddleridge Pt.
19. Agligadak I..................  52 deg.06.  172 deg.54                            16480   Whole island.
                                    5 N         .0 W
20. Kasatochi I..................  52 deg.10.  175 deg.31  52 deg.10  175 deg.2      16480   N half of island.
                                    0N          .5W         .5N        9.0W
21. Adak I.......................  51 deg.36.  176 deg.59  51 deg.38  176 deg.5      16460   SW Point, Lake
                                    5N          .0W         .0N        9.5W                   Point.
22. Gramp rock...................  51 deg.29.  178 deg.20                            16460   Whole island.
                                    0 N         .5 W
23. Tag I........................  51 deg.33.  178 deg.34                            16460   Whole island.
                                    5 N         .5 W
24. Ulak I.......................  51 deg.20.  178 deg.57  51 deg.18  178 deg.5      16460   SE corner, Hasgox
                                    0 N         .0 W        .5 N       9.5 W                  Pt.
25. Semisopochnoi................  51 deg.58.  179 deg.45  51 deg.57  179 deg.4      16440   E quadrant, Pochnoi
                                    5 N         .5 E        .0 N       6.0 E                  Pt.
Semisopochnoi....................  52 deg.01.  179 deg.37  52 deg.01  179 deg.3      16440   N quadrant, Petrel
                                    5 N         .5 E        .5 N       9.0 E                  Pt.
26. Amchitka I...................  51 deg.22.  179 deg.28  51 deg.21  179 deg.2      16440   East Cape.
                                    5N          .0E         .5N        5.0E
27. Amchitka I...................  51 deg.32.  178 deg.49  .........  .........      16440   Column Rocks.
                                    5N          .5E
28. Ayugadak Pt..................  51 deg.45.  178 deg.24                            16440   SE coast of Rat
                                    5 N         .5 E                                          Island.
29. Kiska I......................  51 deg.57.  177 deg.21  51 deg.56  177 deg.2      16440   W central, Lief
                                    5 N         .0 E        .5 N       0.0 E                  Cove.
30. Kiska I......................  51 deg.52.  177 deg.13  51 deg.53  177 deg.1      16440   Cape St. Stephen.
                                    5 N         .0 E        .5 N       2.0 E
31. Walrus I.....................  57 deg.11.  169 deg.56                            16380   Whole island.
                                    0 N         .0 W
32. Buldir I.....................  52 deg.20.  175 deg.57  52 deg.23  175 deg.5      16420   Se point to NW
                                    5 N         .0 E        .5 N       1.0 E                  point.
33. Agattu I.....................  52 deg.24.  173 deg.21                            16420   Gillion Point.
                                    0 N         .5 E
34. Agattu I.....................  52 deg.23.  173 deg.43  52 deg.22  173 deg.4      16420   Cape Sabak.
                                    5 N         .5 E        .0 N       1.0 E
35. Attu I.......................  52 deg.54.  172 deg.28  52 deg.57  172 deg.3      16681   S Quadrant.
                                    5N          .5E         .5N        1.5E
----------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline
  at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is
  listed, the site extends around the entire shoreline of the island at mean lower low water.


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

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

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

[55 FR 49210, Nov. 26, 1990, as amended at 56 FR 42542, Aug. 28, 1991; 
56 FR 58184, Nov. 18, 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, 
53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; 62 FR 24355, May 5, 
1997. Redesignated and amended at 64 FR 14068-14069, Mar. 23, 1999]



Sec. 223.203  Anadromous fish.

    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538(a)(1)) relating to endangered species apply to the 
threatened species of salmonids listed in Sec. 223.102(a)(1) through 
(a)(10), and (a)(12) through (a)(19), except as provided in paragraph 
(b) of this section and Sec. 223.209(a).
    (b) Limits on the prohibitions. (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 
salmonids listed in Sec. 223.102(a)(1)

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through (a)(10), and (a)(12) through (a)(19).
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to activities 
specified in an application for a permit for scientific purposes or to 
enhance the conservation or survival of the species, provided that the 
application has been received by the Assistant Administrator for 
Fisheries, NOAA (AA), no later than October 10, 2000. The prohibitions 
of paragraph (a) of this section apply to these activities upon the AA's 
rejection of the application as insufficient, upon issuance or denial of 
a permit, or March 7, 2001, whichever occurs earliest.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(4) through 
(a)(10), and (a)(12) through (a)(19) do not apply to any employee or 
designee of NMFS, the United States Fish and Wildlife Service, any 
Federal land management agency, the Idaho Department of Fish and Game 
(IDFG), Washington Department of Fish and Wildlife (WDFW), the Oregon 
Department of Fish and Wildlife (ODFW), California Department of Fish 
and Game (CDFG), or of any other governmental entity that has co-
management authority for the listed salmonids, when the employee or 
designee, acting in the course of his or her official duties, takes a 
threatened salmonid without a permit if such action is necessary to:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) Dispose of a dead salmonid, or
    (iii) Salvage a dead salmonid which may be useful for scientific 
study.
    (iv) Each agency acting under this limit on the take prohibitions of 
paragraph (a) of this section is to report to NMFS the numbers of fish 
handled and their status, on an annual basis. A designee of the listed 
entities is any individual the Federal or state fishery agency or other 
co-manager has authorized in writing to perform the listed functions.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to fishery harvest 
activities provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved Fishery 
Management and Evaluation Plan (FMEP) and implemented in accordance with 
a letter of concurrence from NMFS. NMFS will approve an FMEP only if it 
clearly defines its intended scope and area of impact and sets forth the 
management objectives and performance indicators for the plan. The plan 
must adequately address the following criteria:
    (A) Define populations within affected listed ESUs, taking into 
account spatial and temporal distribution, genetic and phenotypic 
diversity, and other appropriate identifiably unique biological and life 
history traits. Populations may be aggregated for management purposes 
when dictated by information scarcity, if consistent with survival and 
recovery of the listed ESU. In identifying management units, the plan 
shall describe the reasons for using such units in lieu of population 
units, describe how the management units are defined, given biological 
and life history traits, so as to maximize consideration of the 
important biological diversity contained within the listed ESU, respond 
to the scale and complexity of the ESU, and help ensure consistent 
treatment of listed salmonids across a diverse geographic and 
jurisdictional range.
    (B) Utilize the concepts of ``viable'' and ``critical'' salmonid 
population thresholds, consistent with the concepts contained in the 
technical document entitled ``Viable Salmonid Populations (NMFS, 
2000b).'' The VSP paper provides a framework for identifying the 
biological requirements of listed salmonids, assessing the effects of 
management and conservation actions, and ensuring that such actions 
provide for the survival and recovery of listed species. Proposed 
management actions must recognize the significant differences in risk 
associated with viable and critical population threshold states and 
respond accordingly to minimize the long-term risks to population 
persistence. Harvest actions impacting populations that are functioning 
at or

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above the viable threshold must be designed to maintain the population 
or management unit at or above that level. For populations shown with a 
high degree of confidence to be above critical levels but not yet at 
viable levels, harvest management must not appreciably slow the 
population's achievement of viable function. Harvest actions impacting 
populations that are functioning at or below critical threshold must not 
be allowed to appreciably increase genetic and demographic risks facing 
the population and must be designed to permit the population's 
achievement of viable function, unless the plan demonstrates that the 
likelihood of survival and recovery of the entire ESU in the wild would 
not be appreciably reduced by greater risks to that individual 
population.
    (C) Set escapement objectives or maximum exploitation rates for each 
management unit or population based on its status and on a harvest 
program that assures that those rates or objectives are not exceeded. 
Maximum exploitation rates must not appreciably reduce the likelihood of 
survival and recovery of the ESU. Management of fisheries where 
artificially propagated fish predominate must not compromise the 
management objectives for commingled naturally spawned populations.
    (D) Display a biologically based rationale demonstrating that the 
harvest management strategy will not appreciably reduce the likelihood 
of survival and recovery of the ESU in the wild, over the entire period 
of time the proposed harvest management strategy affects the population, 
including effects reasonably certain to occur after the proposed actions 
cease.
    (E) Include effective monitoring and evaluation programs to assess 
compliance, effectiveness, and parameter validation. At a minimum, 
harvest monitoring programs must collect catch and effort data, 
information on escapements, and information on biological 
characteristics, such as age, fecundity, size and sex data, and 
migration timing.
    (F) Provide for evaluating monitoring data and making any revisions 
of assumptions, management strategies, or objectives that data show are 
needed.
    (G) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Include restrictions on resident and anadromous species 
fisheries that minimize any take of listed species, including time, 
size, gear, and area restrictions.
    (I) Be consistent with plans and conditions established within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its fisheries and provides to NMFS on a regular basis, as 
defined in NMFS' letter of concurrence for the FMEP, a report 
summarizing this information, as well as the implementation and 
effectiveness of the FMEP. The state shall provide NMFS with access to 
all data and reports prepared concerning the implementation and 
effectiveness of the FMEP.
    (iii) The state confers with NMFS on its fishing regulation changes 
affecting listed ESUs to ensure consistency with the approved FMEP. 
Prior to approving a new or amended FMEP, NMFS will publish notification 
in the Federal Register announcing its availability for public review 
and comment. Such an announcement will provide for a comment period on 
the draft FMEP of not less than 30 days.
    (iv) NMFS provides written concurrence of the FMEP which specifies 
the implementation and reporting requirements. NMFS' approval of a plan 
shall be a written approval by NMFS Southwest or Northwest Regional 
Administrator, as appropriate. On a regular basis, NMFS will evaluate 
the effectiveness of the program in protecting and achieving a level of 
salmonid productivity commensurate with conservation of the listed 
salmonids. If it is not, NMFS will identify ways in which the program 
needs to be altered or strengthened. If the responsible agency does not 
make changes to respond adequately to the new information, NMFS will 
publish notification in the Federal Register announcing its

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

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maintain population health and diversity, and to avoid hatchery-
influenced selection or domestication.
    (H) Adequate monitoring and evaluation exist to detect and evaluate 
the success of the hatchery program and any risks potentially impairing 
the recovery of the listed ESU.
    (I) The HGMP provides for evaluating monitoring data and making any 
revisions of assumptions, management strategies, or objectives that data 
show are needed;
    (J) NMFS provides written concurrence of the HGMP which specifies 
the implementation and reporting requirements. For Federally operated or 
funded hatcheries, the ESA section 7 consultation will achieve this 
purpose.
    (K) The HGMP is consistent with plans and conditions set within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its hatchery program and provides to NMFS on a regular 
basis a report summarizing this information, and the implementation and 
effectiveness of the HGMP as defined in NMFS' letter of concurrence. The 
state shall provide NMFS with access to all data and reports prepared 
concerning the implementation and effectiveness of the HGMP.
    (iii) The state confers with NMFS on a regular basis regarding 
intended collections of listed broodstock to ensure congruity with the 
approved HGMP.
    (iv) Prior to final approval of an HGMP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment for a period of at least 30 days.
    (v) NMFS' approval of a plan shall be a written approval by NMFS 
Southwest or Northwest Regional Administrator, as appropriate.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of the 
HGMP in protecting and achieving a level of salmonid productivity 
commensurate with the conservation of the listed salmonids. If the HGMP 
is not effective, the NMFS will identify to the jurisdiction ways in 
which the program needs to be altered or strengthened. If the 
responsible agency does not make changes to respond adequately to the 
new information, NMFS will publish notification in the Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that program. Such an announcement will provide for a comment 
period of no less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions, 
likeall other activity not within a limit, would then apply to that 
program. A template for developing HGMPs is available from NMFS 
Northwest Region's website (www.nwr.noaa.gov).
    (6) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8), 
(a)(10), and (a)(12) through (a)(19) do not apply to actions undertaken 
in compliance with a resource management plan developed jointly by the 
States of Washington, Oregon and/or Idaho and the Tribes (joint plan) 
within the continuing jurisdiction of United States v. Washington or 
United States v. Oregon, the on-going Federal court proceedings to 
enforce and implement reserved treaty fishing rights, provided that:
    (i) The Secretary has determined pursuant to 50 CFR 223.209 and the 
government-to-government processes therein that implementing and 
enforcing the joint tribal/state plan will not appreciably reduce the 
likelihood of survival and recovery of affected threatened ESUs.
    (ii) The joint plan will be implemented and enforced within the 
parameters set forth in United States v. Washington orUnited States v. 
Oregon.
    (iii) In making that determination for a joint plan, the Secretary 
has taken comment on how any fishery management plan addresses the 
criteria in Sec. 223.203(b)(4), or on how any hatchery and genetic 
management plan addresses the criteria in Sec. 223.203(b)(5).
    (iv) The Secretary shall publish notice in the Federal Register of 
any determination whether or not a joint plan, will appreciably reduce 
the likelihood of survival and recovery of affected threatened ESUs, 
together with a discussion of the biological analysis underlying that 
determination.

[[Page 137]]

    (v) On a regular basis, NMFS will evaluate the effectiveness of the 
joint plan in protecting and achieving a level of salmonid productivity 
commensurate with conservation of the listed salmonids. If the plan is 
not effective, then NMFS will identify to the jurisdiction ways in which 
the joint plan needs to be altered or strengthened. If the responsible 
agency does not make changes to respond adequately to the new 
information, NMFS will publish notification in the Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that joint plan. Such an announcement will provide for a comment 
period of no less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions 
would then apply to that joint plan as to all other activity not within 
a limit.
    (7) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to scientific research 
activities provided that:
    (i) Scientific research activities involving purposeful take is 
conducted by employees or contractors of the ODFW, WDFW (Agencies), 
IDFG, or CDFG (Agencies), or as a part of a monitoring and research 
program overseen by or coordinated with that Agency.
    (ii) The Agencies provide for NMFS' review and approval a list of 
all scientific research activities involving direct take planned for the 
coming year, including an estimate of the total direct take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the techniques 
to be used, and a point of contact.
    (iii) The Agencies annually provide to NMFS the results of 
scientific research activities directed at threatened salmonids, 
including a report of the direct take resulting from the studies and a 
summary of the results of such studies.
    (iv) Scientific research activities that may incidentally take 
threatened salmonids are either conducted by agency personnel, or are in 
accord with a permit issued by the Agency.
    (v) The Agencies provide NMFS annually, for its review and approval, 
a report listing all scientific research activities it conducts or 
permits that may incidentally take threatened salmonids during the 
coming year. Such reports shall also contain the amount of incidental 
take of threatened salmonids occurring in the previous year's scientific 
research activities and a summary of the results of such research.
    (vi) Electrofishing in any body of water known or suspected to 
contain threatened salmonids is conducted in accordance with NMFS 
``Guidelines for Electrofishing Waters Containing Salmonids Listed Under 
the Endangered Species Act'' (NMFS, 2000a).
    (vii) NMFS' approval of a research program shall be a written 
approval by NMFS Northwest or Southwest Regional Administrator.
    (8) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(10), and (a)(12), through (a)(19) do not apply to habitat 
restoration activities, as defined in paragraph (b)(8)(iv) of this 
section, provided that the activity is part of a watershed conservation 
plan, and:
    (i) The watershed conservation plan has been certified by the State 
of Washington, Oregon, Idaho, or California (State) to be consistent 
with the state's watershed conservation plan guidelines.
    (ii) The State's watershed conservation plan guidelines have been 
found by NMFS to provide for plans that:
    (A) Take into account the potential severity of direct, indirect, 
and cumulative impacts of proposed activities in light of the status of 
affected species and populations.
    (B) Will not reduce the likelihood of either survival or recovery of 
listed species in the wild.
    (C) Ensure that any taking will be incidental.
    (D) Minimize and mitigate any adverse impacts.
    (E) Provide for effective monitoring and adaptive management.

[[Page 138]]

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

[[Page 139]]

equivalent to the ODOT program, or of any amendments, shall be a written 
approval by NMFS Northwest or Southwest Regional Administrator, 
whichever is appropriate. Any jurisdiction desiring its routine road 
maintenance activities to be within this limit must first commit in 
writing to apply management practices that result in protections 
equivalent to or better than those provided by the ODOT Guide, detailing 
how it will assure adequate training, tracking, and reporting, and 
describing in detail any dust abatement practices it requests to be 
covered.
    (ii) NMFS finds the routine road maintenance activities of any 
state, city, county, or port to be consistent with the conservation of 
listed salmonids' habitat when it contributes, as does the ODOT Guide, 
to the attainment and maintenance of properly functioning condition 
(PFC). NMFS defines PFC as the sustained presence of natural habitat-
forming processes that are necessary for the long-term survival of 
salmonids through the full range of environmental variation. Actions 
that affect salmonid habitat must not impair properly functioning 
habitat, appreciably reduce the functioning of already impaired habitat, 
or retard the long-term progress of impaired habitat toward PFC. 
Periodically, NMFS will evaluate an approved program for its 
effectiveness in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify to the jurisdiction ways in which the program needs 
to be altered or strengthened. Changes may be identified if the program 
is not protecting desired habitat functions, or where even with the 
habitat characteristics and functions originally targeted, habitat is 
not supporting population productivity levels needed to conserve the 
ESU. If any jurisdiction within the limit does not make changes to 
respond adequately to the new information in the shortest amount of time 
feasible, but not longer than one year, NMFS will publish notification 
in the Federal Register announcing its intention to withdraw the limit 
so that take prohibitions would then apply to the program as to all 
other activity not within a limit. Such an announcement will provide for 
a comment period of no less than 30 days, after which NMFS will make a 
final determination whether to subject the activities to the ESA section 
9(a)(1) prohibitions.
    (iii) Prior to implementing any changes to a program within this 
limit the jurisdiction provides NMFS a copy of the proposed change for 
review and approval as within this limit.
    (iv) Prior to approving any state, city, county, or port program as 
within this limit, or approving any substantive change in a program 
within this limit, NMFS will publish notification in the Federal 
Register announcing the availability of the program or the draft changes 
for public review and comment. Such an announcement will provide for a 
comment period of not less than 30 days.
    (v) Pesticide and herbicide spraying is not included within this 
limit, even if in accord with the ODOT guidance.
    (11) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to activities within 
the City of Portland, Oregon Parks and Recreation Department's (PP&R) 
Pest Management Program (March 1997), including its Waterways Pest 
Management Policy updated December 1, 1999, provided that:
    (i) Use of only the following chemicals is included within this 
limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant 
LI-700, Napropamide, Cutrine Plus, and Aquashade.
    (ii) Any chemical use is initiated in accord with the priorities and 
decision processes of the Department's Pest Management Policy, including 
the Waterways Pest Management Policy, updated December 1, 1999.
    (iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with 
the buffer application constraints contained in PP&R's Waterways Pest 
Management Policy (update December 1, 1999).
    (iv) Prior to implementing any changes to this limit, the PP&R 
provides NMFS with a copy of the proposed change for review and approval 
as within this limit.

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    (v) Prior to approving any substantive change in a program within 
this limit, NMFS will publish notification in the Federal Register 
announcing the availability of the program or the draft changes for 
public review and comment. Such an announcement will provide for a 
comment period of no less than 30 days.
    (vi) NMFS' approval of amendments shall be a written approval by 
NMFS Northwest Regional Administrator.
    (vii) NMFS finds the PP&R Pest Management Program activities to be 
consistent with the conservation of listed salmonids' habitat by 
contributing to the attainment and maintenance of properly functioning 
condition (PFC). NMFS defines PFC as the sustained presence of a 
watershed's natural habitat-forming processes that are necessary for the 
long-term survival of salmonids through the full range of environmental 
variation. Actions that affect salmonid habitat must not impair properly 
functioning habitat, appreciably reduce the functioning of already 
impaired habitat, or retard the long-term progress of impaired habitat 
toward PFC. Periodically, NMFS will evaluate the effectiveness of an 
approved program in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify to the jurisdiction ways in which the program needs 
to be altered or strengthened. Changes may be identified if the program 
is not protecting desired habitat functions, or where even with the 
habitat characteristics and functions originally targeted, habitat is 
not supporting population productivity levels needed to conserve the 
ESU. If any jurisdiction within the limit does not make changes to 
respond adequately to the new information in the shortest amount of time 
feasible, but not longer than 1 year, NMFS will publish notification in 
the Federal Register announcing its intention to withdraw the limit so 
that take prohibitions would then apply to the program as to all other 
activity not within a limit. Such an announcement will provide for a 
comment period of no less than 30 days, after which NMFS will make a 
final determination whether to subject the activities to the ESA section 
9(a)(1) prohibitions.
    (12) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to municipal, 
residential, commercial, and industrial (MRCI) development (including 
redevelopment) activities provided that:
    (i) Such development occurs pursuant to city, county, or regional 
government ordinances or plans that NMFS has determined are adequately 
protective of listed species; or within the jurisdiction of the Metro 
regional government in Oregon and pursuant to ordinances that Metro has 
found comply with its Urban Growth Management Functional Plan 
(Functional Plan) following a determination by NMFS that the Functional 
Plan is adequately protective. NMFS approval or determinations about any 
MRCI development ordinances or plans, including the Functional Plan, 
shall be a written approval by NMFS Northwest or Southwest Regional 
Administrator, whichever is appropriate. NMFS will apply the following 
12 evaluation considerations when reviewing MRCI development ordinances 
or plans to assess whether they adequately conserve listed salmonids by 
maintaining and restoring properly functioning habitat conditions:
    (A) MRCI development ordinance or plan ensures that development will 
avoid inappropriate areas such as unstable slopes, wetlands, areas of 
high habitat value, and similarly constrained sites.
    (B) MRCI development ordinance or plan adequately avoids stormwater 
discharge impacts to water quality and quantity or to the hydrograph of 
the watershed, including peak and base flows of perennial streams.
    (C) MRCI development ordinance or plan provides adequately 
protective riparian area management requirements to attain or maintain 
PFC around all rivers, estuaries, streams, lakes, deepwater habitats, 
and intermittent streams. Compensatory mitigation is provided, where 
necessary, to offset unavoidable damage to PFC due to MRCI

[[Page 141]]

development impacts to riparian management areas.
    (D) MRCI development ordinance or plan avoids stream crossings by 
roads, utilities, and other linear development wherever possible, and, 
where crossings must be provided, minimize impacts through choice of 
mode, sizing, and placement.
    (E) MRCI development ordinance or plan adequately protects 
historical stream meander patterns and channel migration zones and 
avoids hardening of stream banks and shorelines.
    (F) MRCI development ordinance or plan adequately protects wetlands 
and wetland functions, including isolated wetlands.
    (G) MRCI development ordinance or plan adequately preserves the 
hydrologic capacity of permanent and intermittent streams to pass peak 
flows.
    (H) MRCI development ordinance or plan includes adequate provisions 
for landscaping with native vegetation to reduce need for watering and 
application of herbicides, pesticides, and fertilizer.
    (I) MRCI development ordinance or plan includes adequate provisions 
to prevent erosion and sediment run-off during construction.
    (J) MRCI development ordinance or plan ensures that water supply 
demands can be met without impacting flows needed for threatened 
salmonids either directly or through groundwater withdrawals and that 
any new water diversions are positioned and screened in a way that 
prevents injury or death of salmonids.
    (K) MRCI development ordinance or plan provides necessary 
enforcement, funding, reporting, and implementation mechanisms and 
formal plan evaluations at intervals that do not exceed 5 years.
    (L) MRCI development ordinance and plan complies with all other 
state and Federal environmental and natural resource laws and permits.
    (ii) The city, county or regional government provides NMFS with 
annual reports regarding implementation and effectiveness of the 
ordinances, including: any water quality monitoring information the 
jurisdiction has available; aerial photography (or some other graphic 
display) of each MRCI development or MRCI expansion area at sufficient 
detail to demonstrate the width and vegetation condition of riparian 
set-backs; information to demonstrate the success of stormwater 
management and other conservation measures; and a summary of any flood 
damage, maintenance problems, or other issues.
    (iii) NMFS finds the MRCI development activity to be consistent with 
the conservation of listed salmonids' habitat when it contributes to the 
attainment and maintenance of PFC. NMFS defines PFC as the sustained 
presence of a watershed's habitat-forming processes that are necessary 
for the long-term survival of salmonids through the full range of 
environmental variation. Actions that affect salmonid habitat must not 
impair properly functioning habitat, appreciably reduce the functioning 
of already impaired habitat, or retard the long-term progress of 
impaired habitat toward PFC. Periodically, NMFS will evaluate an 
approved program for its effectiveness in maintaining and achieving 
habitat function that provides for conservation of the listed salmonids. 
Whenever warranted, NMFS will identify to the jurisdiction ways in which 
the program needs to be altered or strengthened. Changes may be 
identified if the program is not protecting desired habitat functions, 
or where even with the habitat characteristics and functions originally 
targeted, habitat is not supporting population productivity levels 
needed to conserve the ESU. If any jurisdiction within the limit does 
not make changes to respond adequately to the new information in the 
shortest amount of time feasible, but not longer than 1 year, NMFS will 
publish notification in the Federal Register announcing its intention to 
withdraw the limit so that take prohibitions would then apply to the 
program as to all other activity not within a limit. Such an 
announcement will provide for a comment period of no less than 30 days, 
after which NMFS will make a final determination whether to subject the 
activities to the ESA section 9(a)(1) prohibitions.
    (iv) Prior to approving any city, county, or regional government 
ordinances or plans as within this limit, or approving any substantive 
change in

[[Page 142]]

an ordinance or plan within this limit, NMFS will publish notification 
in the Federal Register announcing the availability of the ordinance or 
plan or the draft changes for public review and comment. Such an 
announcement will provide for a comment period of no less than 30 days.
    (13) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(12), (a)(13), 
(a)(16), (a)(17), and (a) (19) do not apply to non-Federal forest 
management activities conducted in the State of Washington provided 
that:
    (i) The action is in compliance with forest practice regulations 
adopted and implemented by the Washington Forest Practices Board that 
NMFS has found are at least as protective of habitat functions as are 
the regulatory elements of the Forests and Fish Report dated April 29, 
1999, and submitted to the Forest Practices Board by a consortium of 
landowners, tribes, and state and Federal agencies.
    (ii) All non-regulatory elements of the Forests and Fish Report are 
being implemented.
    (iii) Actions involving use of herbicides, pesticides, or fungicides 
are not included within this limit.
    (iv) Actions taken under alternative plans are included in this 
limit provided that the Washington Department of Natural Resources 
(WDNR) finds that the alternate plans protect physical and biological 
processes at least as well as the state forest practices rules and 
provided that NMFS, or any resource agency or tribe NMFS designates, has 
the opportunity to review the plan at every stage of the development and 
implementation. A plan may be excluded from this limit if, after such 
review, WDNR determines that the plan is not likely to adequately 
protect listed salmon.
    (v) Prior to determining that regulations adopted by the Forest 
Practice Board are at least as protective as the elements of the Forests 
and Fish Report, NMFS will publish notification in the Federal Register 
announcing the availability of the Report and regulations for public 
review and comment.
    (vi) NMFS finds the activities to be consistent with the 
conservation of listed salmonids' habitat by contributing to the 
attainment and maintenance of PFC. NMFS defines PFC as the sustained 
presence of a watershed's natural habitat-forming processes that are 
necessary for the long-term survival of salmonids through the full range 
of environmental variation. Actions that affect salmonid habitat must 
not impair properly functioning habitat, appreciably reduce the 
functioning of already impaired habitat, or retard the long-term 
progress of impaired habitat toward PFC. Programs must meet this 
biological standard in order for NMFS to find they qualify for a 
habitat-related limit. NMFS uses the best available science to make 
these determinations. NMFS may review and revise previous findings as 
new scientific information becomes available. NMFS will evaluate the 
effectiveness of the program in maintaining and achieving habitat 
function that provides for conservation of the listed salmonids. If the 
program is not adequate, NMFS will identify to the jurisdiction ways in 
which the program needs to be altered or strengthened. Changes may be 
identified if the program is not protecting desired habitat functions or 
where even with the habitat characteristics and functions originally 
targeted, habitat is not supporting population productivity levels 
needed to conserve the ESU. If Washington does not make changes to 
respond adequately to the new information, NMFS will publish 
notification in the Federal Register announcing its intention to 
withdraw the limit on activities associated with the program. Such an 
announcement will provide for a comment period of no less than 30 days, 
after which NMFS will make a final determination whether to subject the 
activities to the ESA section 9(a)(1) take prohibitions.
    (vii) NMFS approval of regulations shall be a written approval by 
NMFS Northwest Regional Administrator.
    (c) Affirmative defense. In connection with any action alleging a 
violation of the prohibitions of paragraph (a) of this section with 
respect to the threatened species of salmonids listed in Sec. 223.102 
(a)(5) through (a)(10), and (a)(12) through (a)(19), any person claiming 
the benefit of any limit listed in paragraph (b) of this section or

[[Page 143]]

Sec. 223.209(a) shall have a defense where the person can demonstrate 
that the limit is applicable and was in force, and that the person fully 
complied with the limit at the time of the alleged violation. This 
defense is an affirmative defense that must be raised, pleaded, and 
proven by the proponent. If proven, this defense will be an absolute 
defense to liability under section (a)(1)(G) of the ESA with respect to 
the alleged violation.
    (d) Severability. The provisions of this section and the various 
applications thereof are distinct and severable from one another. If any 
provision or the application thereof to any person or circumstances is 
stayed or determined to be invalid, such stay or invalidity shall not 
affect other provisions, or the application of such provisions to other 
persons or circumstances, which can be given effect without the stayed 
or invalid provision or application.

[65 FR 42475, July 10, 2000]



Sec. 223.204  Exceptions to prohibitions relating to anadromous fish.

    (a) The following exceptions to the prohibitions of Sec. 223.203(a) 
of this part apply to the Southern Oregon/Northern California Coast 
(SONCC) coho salmon.
    (1) Take of SONCC coho salmon within 3 miles (approximately 5 km) of 
the coast, and in the bay, estuarine or freshwater fisheries regulated 
under the sole authority of the State of Oregon is not prohibited, if 
the take results from a fisheries harvest program conducted in 
accordance with the Oregon Coastal Salmon Restoration Initiative of 
March 1997 (OCSRI). NMFS must have issued a written concurrence that the 
fisheries regulations are consistent with the OCSRI, using information 
provided through the April 1997 Memorandum of Agreement (MOA) between 
the State of Oregon and NMFS.
    (2) Incidental take of SONCC coho salmon in ocean fisheries within 3 
miles (approximately 5 km) of the coast that are regulated under the 
sole authority of the State of California is not prohibited, provided 
that the ocean salmon fishing regulations adopted by the California Fish 
and Game Commission and CDFG for recreational and commercial fisheries 
within 3 miles (approximately 5 km) of the coast are consistent with the 
Pacific Fishery Management Council's Fishery Management Plan for Ocean 
Salmon Fisheries and the annual ocean salmon fishing regulations issued 
by the Secretary of Commerce for the Federal EEZ.
    (3) Take of SONCC coho salmon in a hatchery program regulated under 
the sole authority of the State of Oregon is not prohibited, if the take 
results from a hatchery program conducted in accordance with the OCSRI, 
and the take is counted against the total allocation of harvest-related 
mortality as specified in the OCSRI. NMFS must have issued a written 
concurrence stating that the hatchery program is consistent with the 
OCSRI including the hatchery and genetic management plan adopted 
pursuant to the OCSRI, using information provided through the MOA.
    (4) Take of SONCC coho salmon in fisheries research and monitoring 
activities conducted in California and Oregon is not prohibited provided 
that:
    (i) Research and monitoring involving directed take of coho salmon 
is conducted by CDFG personnel (in California) and ODFW personnel (in 
Oregon);
    (ii) The CDFG and ODFW, respectively, provide NMFS with a list of 
all research and monitoring activities involving coho salmon directed 
take planned for the coming year for NMFS' review and approval. This 
report shall include an estimate of the total directed take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the techniques 
to be used, and a point of contact;
    (iii) The CDFG and ODFW, respectively, provide NMFS annually with 
the results of research and monitoring studies directed at SONCC coho 
salmon, including a report of the directed take resulting from the 
studies;
    (iv) The CDFG and ODFW, provide NMFS annually with a list of all 
research and monitoring studies permitted that may allow incidental take 
of listed coho salmon during the coming year and report the level of 
incidental take of listed coho salmon from the previous year's research 
and monitoring activities, for NMFS' review and approval.

[[Page 144]]

    (v) The research and monitoring activities do not include the use of 
electrofishing in any body of water known or suspected to contain coho 
salmon.
    (5) Incidental take of the SONCC coho salmon in Oregon resulting 
from a habitat restoration activity is not prohibited, provided that:
    (i) The activity is conducted pursuant to a watershed action or 
restoration plan that has been affirmed by the state in writing as 
consistent with NMFS' approved state watershed plan guidelines set forth 
in Sec. 222.307(c) of this chapter. NMFS shall also concur in writing 
that the plan is consistent with the state watershed plan guidelines; or
    (ii) Until a watershed action or restoration plan is approved by 
both Oregon and NMFS as described in paragraph (a)(5)(i) of this 
section, or until August 18, 1999, whichever occurs first, the ODFW has 
made a written finding that the activity is consistent with state 
restoration activity guidelines that NMFS has agreed, in writing, meet 
the standards set forth in Sec. 222.307(c) of this chapter.
    (6) Incidental take of the SONCC coho salmon in California resulting 
from a habitat restoration activity, as defined in paragraph (a)(6)(iii) 
of this section, is not prohibited, provided that California has a 
program in effect that NMFS finds will assure technically supported 
watershed assessments and coordinated long-term monitoring strategies 
for watershed protection plans and activities and:
    (i) The activity is conducted pursuant to a watershed protection 
plan that CDFG has affirmed, in writing, is consistent with NMFS' 
approved state watershed plan guidelines set forth in Sec. 222.307(c) of 
this chapter for California's Watershed Protection Program. NMFS must 
concur, in writing, that the plan is consistent with those guidelines; 
or
    (ii) Until a watershed protection or restoration plan is certified 
by the State of California and NMFS as described in paragraph (a)(6)(i) 
of this section, or until August 18, 1999, whichever occurs first, when 
NMFS has made a written finding that the activity is consistent with 
State of California conservation guidelines previously found to meet the 
standards set forth in Sec. 222.307(c) of this chapter by NMFS.

[64 FR 14069, Mar. 23, 1999]



Sec. 223.205  Sea turtles.

    (a) The prohibitions of section 9 of the Act (16 U.S.C. 1538) 
relating to endangered species apply to threatened species of sea 
turtle, except as provided in Sec. 223.206.
    (b) Except as provided in Sec. 223.206, it is unlawful for any 
person subject to the jurisdiction of the United States to do any of the 
following:
    (1) Own, operate, or be on board a vessel, except if that vessel is 
in compliance with all applicable provisions of Sec. 223.206(d);
    (2) Fish for, catch, take, harvest, or possess, fish or wildlife 
while on board a vessel, except if that vessel is in compliance with all 
applicable provisions of Sec. 223.206(d);
    (3) Fish for, catch, take, harvest, or possess, fish or wildlife 
contrary to any notice of tow-time or other restriction specified in, or 
issued under, Sec. 223.206(d)(3) or (d)(4);
    (4) Possess fish or wildlife taken in violation of paragraph (b) of 
this section;
    (5) Fail to follow any of the sea turtle handling and resuscitation 
requirements specified in Sec. 223.206(d)(1);
    (6) Possess a sea turtle in any manner contrary to the handling and 
resuscitation requirements of Sec. 223.206(d)(1);
    (7) Fail to comply immediately, in the manner specified at 
Sec. 600.730 (b) through (d) of this Title, with instructions and 
signals specified therein issued by an authorized officer, including 
instructions and signals to haul back a net for inspection;
    (8) Refuse to allow an authorized officer to board a vessel, or to 
enter an area where fish or wildlife may be found, for the purpose of 
conducting a boarding, search, inspection, seizure, investigation, or 
arrest in connection with enforcement of this section;
    (9) Destroy, stave, damage, or dispose of in any manner, fish or 
wildlife, gear, cargo, or any other matter after a communication or 
signal from an authorized officer, or upon the approach of such an 
officer or of an enforcement vessel or aircraft, before the officer has

[[Page 145]]

an opportunity to inspect same, or in contravention of directions from 
the officer;
    (10) Assault, resist, oppose, impede, intimidate, threaten, 
obstruct, delay, prevent, or interfere with an authorized officer in the 
conduct of any boarding, search, inspection, seizure, investigation, or 
arrest in connection with enforcement of this section;
    (11) Interfere with, delay, or prevent by any means, the 
apprehension of another person, knowing that such person committed an 
act prohibited by this section;
    (12) Resist a lawful arrest for an act prohibited by this section;
    (13) Make a false statement, oral or written, to an authorized 
officer or to the agency concerning the fishing for, catching, taking, 
harvesting, landing, purchasing, selling, or transferring fish or 
wildlife, or concerning any other matter subject to investigation under 
this section by such officer, or required to be submitted under this 
part 223;
    (14) Sell, barter, trade or offer to sell, barter, or trade, a TED 
that is not an approved TED; or
    (15) Attempt to do, solicit another to do, or cause to be done, any 
of the foregoing.
    (c) In connection with any action alleging a violation of this 
section, any person claiming the benefit of any exemption, exception, or 
permit under this subpart B has the burden of proving that the 
exemption, exception, or permit is applicable, was granted, and was 
valid and in force at the time of the alleged violation. Further, any 
person claiming that a modification made to a TED that is the subject of 
such an action complies with the requirements of Sec. 223.207 (c) or (d) 
has the burden of proving such claim.

[64 FR 14069, Mar. 23, 1999]



Sec. 223.206  Exceptions to prohibitions relating to sea turtles.

    (a) Permits--(1) Scientific research, education, zoological 
exhibition, or species enhancement permits. The Assistant Administrator 
may issue permits authorizing activities which would otherwise be 
prohibited under Sec. 223.205(a) for scientific or educational purposes, 
for zoological exhibition, or to enhance the propagation or survival of 
threatened species of sea turtles, in accordance with and subject to the 
conditions of part 222, subpart C--General Permit Procedures.
    (2) Incidental-take permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
Sec. 223.205(a) in accordance with section 10(a)(1)(B) of the Act (16 
U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to, the 
implementing regulations in part 222 of this chapter. Such permits may 
be issued for the incidental taking of threatened and endangered species 
of sea turtles.
    (b) Exception for injured, dead, or stranded specimens. If any 
member of any threatened species of sea turtle is found injured, dead, 
or stranded, any agent or employee of the National Marine Fisheries 
Service, the Fish and Wildlife Service, the U.S. Coast Guard, or any 
other Federal land or water management agency, or any agent or employee 
of a state agency responsible for fish and wildlife who is designated by 
his or her agency for such purposes, may, when acting in the course of 
his or her official duties, take such specimens without a permit if such 
taking is necessary to aid a sick, injured, or stranded specimen or 
dispose of a dead specimen or salvage a dead specimen which may be 
useful for scientific study. Whenever possible, live specimens shall be 
returned to their aquatic environment as soon as possible. Every action 
shall be reported in writing to the Assistant Administrator within 30 
days, and reports of further occurrence shall be made as deemed 
appropriate by the Assistant Administrator until the specimen is either 
returned to its environment or disposed of. Reports shall be mailed by 
registered or certified mail, return receipt requested, to the Assistant 
Administrator and shall contain the following information:
    (1) Name and position of the official or employee involved;
    (2) Description of the specimen(s) involved;
    (3) Date and location of disposal;
    (4) Circumstances requiring the action;
    (5) Method of disposal;
    (6) Disposition of the specimen(s), including, where the specimen(s) 
has

[[Page 146]]

been retained in captivity, a description of the place and means of 
confinement, and the measures taken for its maintenance and care; and
    (7) Such other information as the Assistant Administrator may 
require.
    (c) Exception for research or conservation. Any employee or agent of 
the National Marine Fisheries Service, the Fish and Wildlife Service, or 
a state fish and wildlife agency operating a conservation program 
pursuant to the terms of a Cooperative Agreement with the National 
Marine Fisheries Service or the Fish and Wildlife Service in accordance 
with section 6(c) of the Act, designated by his or her agency for such 
purposes, may, when acting in the course of his or her official duties, 
take any threatened species to carry out scientific research or 
conservation programs. All such takings shall be reported within 30 days 
of the taking to the Assistant Administrator who may request additional 
reports of the taking and research at the Assistant Administrator's 
discretion.
    (d) Exception for incidental taking. The prohibitions against taking 
in Sec. 223.205(a) do not apply to the incidental take of any member of 
a threatened species of sea turtle (i.e., a take not directed toward 
such member) during fishing or scientific research activities, to the 
extent that those involved are in compliance with all applicable 
requirements of paragraphs (d)(1) through (d)(5) of this section, or in 
compliance with the terms and conditions of an incidental take permit 
issued pursuant to paragraph (a)(2) of this section.
    (1) Handling and resuscitation requirements. (i) Any specimen taken 
incidentally during the course of fishing or scientific research 
activities must be handled with due care to prevent injury to live 
specimens, observed for activity, and returned to the water according to 
the following procedures:
    (A) Sea turtles that are dead or actively moving must be released 
over the stern of the boat. In addition, they must be released only when 
trawls are not in use, when the engine gears are in neutral position, 
and in areas where they are unlikely to be recaptured or injured by 
vessels.
    (B) Resuscitation must be attempted on sea turtles that are comatose 
or inactive but not dead by:
    (1) Placing the turtle on its back (carapace) and pumping its 
breastplate (plastron) with hand or foot; or
    (2) Placing the turtle on its breastplate (plastron) and elevating 
its hindquarter several inches for a period of 1 up to 24 hours. The 
amount of the elevation depends on the size of the turtle; greater 
elevations are needed for larger turtles. Sea turtles being resuscitated 
must be shaded and kept wet or moist. Those that revive and become 
active must be released over the stern of the boat only when trawls are 
not in use, when the engine gears are in neutral position, and in areas 
where they are unlikely to be recaptured or injured by vessels. 
Similarly, sea turtles that fail to move within several hours (up to 24, 
if possible) must be returned to the water in the same manner.
    (ii) Any specimen taken incidentally during the course of fishing or 
scientific research activities must not be consumed, sold, landed, 
offloaded, transshipped, or kept below deck.
    (2) Gear requirements--(i) TED requirement for shrimp trawlers. Any 
shrimp trawler that is in the Atlantic Area or Gulf Area must have an 
approved TED installed in each net that is rigged for fishing. A net is 
rigged for fishing if it is in the water, or if it is shackled, tied, or 
otherwise connected to any trawl door or board, or to any tow rope, 
cable, pole or extension, either on board or attached in any manner to 
the shrimp trawler. Exceptions to the TED requirement for shrimp 
trawlers are provided in paragraph (d)(2)(ii) of this section.
    (ii) Exemptions from the TED requirement--(A) Alternative tow-time 
restrictions. A shrimp trawler is exempt from the TED requirements of 
paragraph (d)(2)(i) of this section if it complies with the alternative 
tow-time restrictions in paragraph (d)(3)(i) of this section and if it:
    (1) Has on board no power or mechanical-advantage trawl retrieval 
system (i.e., any device used to haul any part of the net aboard);
    (2) Is a bait shrimper that retains all live shrimp on board in a 
container with a circulating seawater system, if

[[Page 147]]

it does not possess more than 32 pounds (14.5 kg) of dead shrimp on 
board, and if it has on board a valid original state bait-shrimp license 
(if in a state that requires such a license);
    (3) Has only a pusher-head trawl, skimmer trawl, or wing net rigged 
for fishing; and
    (4) Is in an area during a period for which tow-time restrictions 
apply under paragraphs (d)(3) (ii) or (iii) of this section, if it 
complies with all applicable provisions imposed under those paragraphs.
    (B) Exempted gear or activities. The following fishing gear or 
activities are exempted from the TED requirements of paragraph (d)(2)(i) 
of this section:
    (1) A single test net (try net) with a headrope length of 12 ft (3.6 
m) or less and with a footrope length of 15 ft (4.6 m) or less, if it is 
either pulled immediately in front of another net or is not connected to 
another net in any way, if no more than one test net is used at a time, 
and if it is not towed as a primary net;
    (2) A beam or roller trawl, if the frame is outfitted with rigid 
vertical bars, and if none of the spaces between the bars, or between 
the bars and the frame, exceeds 4 inches (10.2 cm); and
    (3) A shrimp trawler fishing for, or possessing, royal red shrimp, 
if royal red shrimp constitutes at least 90 percent (by weight) of all 
shrimp either found on board, or offloaded from that shrimp trawler.
    (iii) Gear requirement--summer flounder trawlers--(A) TED 
requirement. (1) 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.
    (2) Any approved hard TED or special hard TED installed in a summer 
flounder trawl must be installed in a TED extension. The TED extension 
is a cylindrical piece of webbing distinct from the main trawl's body, 
wings, codend, and any other net extension(s). The TED extension must be 
constructed of webbing no larger than 3.5 inch (8.9 cm) stretched mesh. 
The TED extension must extend at least 24 inches (61.0 cm) but not more 
than 36 inches (91.4 cm) forward of the leading edge of the TED and aft 
of the trailing edge of the grid.
    (B) Exemptions from the TED requirement. Any summer flounder trawler 
north of 35 deg.46.1' N. lat. (Oregon Inlet, NC) from January 15 through 
March 15 annually is exempt from the TED requirement of paragraph 
(d)(2)(iii)(A) of this section, unless the Assistant Administrator 
determines that TED use is necessary to protect sea turtles or ensure 
compliance, pursuant to the procedures of paragraph (d)(4) of this 
section.
    (C) Monitoring. Summer flounder trawlers must carry onboard a NMFS-
approved observer if requested by the Southeast Regional Administrator 
or the Northeast Regional Administrator. A written notification will be 
sent to the address specified for the vessel in either the NMFS or state 
fishing permit application, or to the address specified for registration 
or documentation purposes, or upon written notification otherwise served 
on the owner or operator of the vessel. Owners and operators must comply 
with the terms and conditions specified in such written notification. 
All NMFS-approved observers will report any violations of this section, 
or other applicable regulations and laws. Information collected by 
observers may be used for enforcement purposes.
    (D) Additional sea turtle conservation measures. The Assistant 
Administrator may impose other such restrictions upon summer flounder 
trawlers as the Assistant Administrator deems necessary or appropriate 
to protect sea turtles and ensure compliance, pursuant to the procedures 
of paragraph (d)(4) of this section. Such measures may include, but are 
not limited to, a requirement to use TEDs in areas other than summer 
flounder fishery-sea turtle protection area, a requirement to use 
limited tow-times, and closure of the fishery.

[[Page 148]]

    (iv) Gear requirement--leatherback conservation zone--(A) 
Leatherback surveys. From January 1 through June 30 of each year, weekly 
aerial surveys will be conducted in the leatherback conservation zone by 
NMFS or state agents, contingent upon weather conditions. If sighting 
rates of greater than 10 leatherback turtles per 50 nautical miles (92.6 
km) of trackline are observed, the aerial surveys of that area will be 
replicated within 24 hours, or as soon as practicable thereafter.
    (B) TED requirements and registration. If surveys pursuant to 
paragraph (d)(2)(iv)(A) of this section indicate a sighting rate within 
the leatherback conservation zone of greater than 10 leatherback sea 
turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close an 
area of the leatherback conservation zone encompassing all, or a portion 
of, inshore waters and offshore waters 10 nautical miles (18.5 km) 
seaward of the COLREGS demarcation line, bounded by 1 deg. lat. 
coinciding with the trackline, within the leatherback conservation zone. 
This closure will be for a 2-week period. Within such a closed area, 
fishing by any shrimp trawler required to have a NMFS-approved TED in 
each net rigged for fishing is prohibited, unless the TED installed is 
one described at Sec.  223.207(a)(7)(ii)(B) or Sec.  
223.207(c)(1)(iv)(B), and the owner or operator of the shrimp trawl has 
notified the Southeast Regional Administrator of his or her intention to 
fish in that area, in accordance with the procedure provided in 
paragraph (d)(5) of this section. If requested in writing from the 
Southeast Regional Administrator, owners and operators of shrimp 
trawlers in the leatherback conservation zone must carry NMFS-approved 
observers aboard such vessel(s). A shrimp trawler in the leatherback 
conservation zone must comply with the terms and conditions specified in 
such written request, as well as provide information on trawling hours, 
gear modifications, and turtle captures.
    (C) Notification. NMFS will immediately announce specific area 
closures on the NOAA weather radio channel, in newspapers, and other 
media. Specific area closures will be effective upon filing for public 
inspection at the Office of the Federal Register. Owners and operators 
of shrimp trawl vessels in the leatherback conservation zone are 
responsible for monitoring the NOAA weather radio channel for closure 
announcements. Shrimp trawlers may also call the Southeast Regional 
Office at (813) 570-5312 to receive updated area closure information.
    (3) Tow-time restrictions--(i) Duration of tows. If tow-time 
restrictions are utilized pursuant to paragraph (d)(2)(ii), (d)(3)(ii), 
or (d)(3)(iii) of this section, a shrimp trawler must limit tow times. 
The tow time is measured from the time that the trawl door enters the 
water until it is removed from the water. For a trawl that is not 
attached to a door, the tow time is measured from the time the codend 
enters the water until it is removed from the water. Tow times may not 
exceed:
    (A) 55 minutes from April 1 through October 31; and
    (B) 75 minutes from November 1 through March 31.
    (ii) Alternative--special environmental conditions. The Assistant 
Administrator may allow compliance with tow-time restrictions, as an 
alternative to the TED requirement of paragraph (d)(2)(i) of this 
section, if the Assistant Administrator determines that the presence of 
algae, seaweed, debris or other special environmental conditions in a 
particular area makes trawling with TED-equipped nets impracticable.
    (iii) Substitute--ineffectiveness of TEDs. The Assistant 
Administrator may require compliance with tow-time restrictions, as a 
substitute for the TED requirement of paragraph (d)(2)(i) of this 
section, if the Assistant Administrator determines that TEDs are 
ineffective in protecting sea turtles.
    (iv) Notice; applicability; conditions. The Assistant Administrator 
will publish notification concerning any tow-time restriction imposed 
under paragraph (d)(3)(ii) or (iii) of this section in the Federal 
Register and will announce it in summary form on channel 16 of the 
marine VHF radio. A notification of tow-time restrictions will include 
findings in support of these restrictions as an alternative to, or as 
substitute for, the TED requirements. The notification will specify the 
effective dates, the geographic area where

[[Page 149]]

tow-time restrictions apply, and any applicable conditions or 
restrictions that the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance, including, 
but not limited to, a requirement to carry observers, to register 
vessels in accordance with procedures at paragraph (d)(5) of this 
section, or for all shrimp trawlers in the area to synchronize their tow 
times so that all trawl gear remains out of the water during certain 
times. A notification withdrawing tow-time restrictions will include 
findings in support of that action.
    (v) Procedures. The Assistant Administrator will consult with the 
appropriate fishery officials (state or Federal) where the affected 
shrimp fishery is located in issuing a notification concerning tow-time 
restrictions. An emergency notification can be effective for a period of 
up to 30 days and may be renewed for additional periods of up to 30 days 
each if the Assistant Administrator finds that the conditions 
necessitating the imposition of tow-time restrictions continue to exist. 
The Assistant Administrator may invite comments on such an action, and 
may withdraw or modify the action by following procedures similar to 
those for implementation. The Assistant Administrator will implement any 
permanent tow-time restriction through rulemaking.
    (4) Limitations on incidental takings during fishing activities--(i) 
Limitations. The exemption for incidental takings of sea turtles in 
paragraph (d) of this section does not authorize incidental takings 
during fishing activities if the takings:
    (A) Would violate the restrictions, terms, or conditions of an 
incidental take statement or biological opinion;
    (B) Would violate the restrictions, terms, or conditions of an 
incidental take permit; or
    (C) May be likely to jeopardize the continued existence of a species 
listed under the Act.
    (ii) Determination; restrictions on fishing activities. The 
Assistant Administrator may issue a determination that incidental 
takings during fishing activities are unauthorized. Pursuant thereto, 
the Assistant Administrator may restrict fishing activities in order to 
conserve a species listed under the Act, including, but not limited to, 
restrictions on the fishing activities of vessels subject to paragraph 
(d)(2) of this section. The Assistant Administrator will take such 
action if the Assistant Administrator determines that restrictions are 
necessary to avoid unauthorized takings that may be likely to jeopardize 
the continued existence of a listed species. The Assistant Administrator 
may withdraw or modify a determination concerning unauthorized takings 
or any restriction on fishing activities if the Assistant Administrator 
determines that such action is warranted.
    (iii) Notice; applicability; conditions. The Assistant Administrator 
will publish a notification of a determination concerning unauthorized 
takings or a notification concerning the restriction of fishing 
activities in the Federal Register. The Assistant Administrator will 
provide as much advance notice as possible, consistent with the 
requirements of the Act, and will announce the notification in summary 
form on channel 16 of the marine VHF radio. Notification of a 
determination concerning unauthorized takings will include findings in 
support of that determination; specify the fishery, including the target 
species and gear used by the fishery, the area, and the times, for which 
incidental takings are not authorized; and include such other conditions 
and restrictions as the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. 
Notification of restriction of fishing activities will include findings 
in support of the restriction, will specify the time and area where the 
restriction is applicable, and will specify any applicable conditions or 
restrictions that the Assistant Administrator determines are necessary 
or appropriate to protect sea turtles and ensure compliance. Such 
conditions and restrictions may include, but are not limited to, 
limitations on the types of fishing gear that may be used, tow-time 
restrictions, alteration or extension of the periods of time during 
which particular tow-time requirements apply, requirements to

[[Page 150]]

use TEDs, registration of vessels in accordance with procedures at 
paragraph (d)(5) of this section, and requirements to provide observers. 
Notification of withdrawal or modification will include findings in 
support of that action.
    (iv) Procedures. The Assistant Administrator will consult with the 
appropriate fisheries officials (state or Federal) where the fishing 
activities are located in issuing notification of a determination 
concerning unauthorized takings or notification concerning the 
restriction of fishing activities. An emergency notification will be 
effective for a period of up to 30 days and may be renewed for 
additional periods of up to 30 days each. The Assistant Administrator 
may invite comments on such action, and may withdraw or modify the 
action by following procedures similar to those for implementation. The 
Assistant Administrator will implement any permanent determination or 
restriction through rulemaking.
    (5) Registration. If the Assistant Administrator imposes 
restrictions under paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), or 
(d)(4)(ii) of this section, the Assistant Administrator may require the 
owner and operator of a vessel to register before entering an area 
where, and during the time when, the restrictions apply. If registration 
is required, the vessel's owner and operator must submit the following 
information to the NMFS Regional Office:
    (i) The name and official number (or registration number) of the 
vessel;
    (ii) The names, mailing and street addresses, and telephone numbers 
of the vessel owner and operator;
    (iii) The permit number or other identification of relevant state or 
Federal fishing permit(s);
    (iv) Where and when the vessel intends to fish;
    (v) Where and when the vessel will depart on any fishing trip, with 
sufficient specificity to allow for an observer to embark on the trip; 
and
    (vi) Any changes in the information submitted under paragraphs 
(d)(5)(i) through (d)(5)(v) of this section. Failure to do so 
immediately will void the registration, rendering unlawful any 
subsequent entry of the fishing vessel into the area where and during 
the time when the restrictions apply.
    (6) Restrictions applicable to the California/Oregon drift gillnet 
fishery--(i) Pacific leatherback conservation area. No person may fish 
with, set, or haul back drift gillnet gear in U.S. waters of the Pacific 
Ocean from August 15 through November 15 in the area bounded by straight 
lines connecting the following coordinates in the order listed:
    (A) Point Sur (36 deg.18.5' N) to 34 deg.27' N 123 deg.35' W';
    (B) 34 deg.27' N 123 deg.35' W to 34 deg.27' N 129 deg. W;
    (C) 34 deg.27' N 129 deg. W to 45 deg. N 129 deg. W;
    (D) 45 deg. N 129 deg. W to the point 45 deg. N intersects the 
Oregon coast.
    (ii) [Reserved]

[64 FR 14070, Mar. 23, 1999, as amended at 64 FR 55863, Oct. 15, 1999; 
66 FR 1603, Jan. 9, 2001; 66 FR 44551, Aug. 24, 2001]

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



Sec. 223.207  Approved TEDs.

    Any netting, webbing, or mesh that may be measured to determine 
compliance with this section is subject to measurement, regardless of 
whether it is wet or dry. Any such measurement will be of the stretched 
mesh size.
    (a) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and are 
categorized as ``hooped hard TEDs,'' such as the NMFS and Cameron TEDs 
(Figures 1 & 2 to this part), or ``single-grid hard TEDs,'' such as the 
Matagorda and Georgia TEDs (Figures 3 & 4 to this part). Hard TEDs 
complying with the following generic design criteria are approved TEDs:
    (1) Construction materials. A hard TED must be constructed of one or 
a combination of the following materials, with minimum dimensions as 
follows:
    (i) Solid steel rod with a minimum outside diameter of \1/4\ inch 
(0.64 cm);
    (ii) Fiberglass or aluminum rod with a minimum outside diameter of 
\1/2\ inch (1.27 cm); or
    (iii) Steel or aluminum tubing with a minimum outside diameter of 
\1/2\ inch

[[Page 151]]

(1.27 cm) and a minimum wall thickness of \1/8\ inch (0.32 cm) (also 
known as schedule 40 tubing).
    (2) Method of attachment. A hard TED must be sewn into the trawl 
around the entire circumference of the TED with heavy twine.
    (3) Angle of deflector bars. (i) The angle of the deflector bars 
must be between 30 deg. and 55 deg. from the normal, horizontal flow 
through the interior of the trawl, except as provided in paragraph 
(a)(3)(ii) of this section.
    (ii) For any shrimp trawler fishing in the Gulf SFSTCA or the 
Atlantic SFSTCA, a hard TED with the position of the escape opening at 
the bottom of the net when the net is in its deployed position, the 
angle of the deflector bars from the normal, horizontal flow through the 
interior of the trawl, at any point, must not exceed 55 deg., and:
    (A) If the deflector bars that run from top to bottom are attached 
to the bottom frame of the TED, the angle of the bottom-most 4 inches 
(10.2 cm) of each deflector bar, measured along the bars, must not 
exceed 45 deg. (Figures 14a and 14b to this part);
    (B) If the deflector bars that run from top to bottom are not 
attached to the bottom frame of the TED, the angle of the imaginary 
lines connecting the bottom frame of the TED to the bottom end of each 
deflector bar which runs from top to bottom must not exceed 45 deg. 
(Figure 15 to this part).
    (4) Space between bars. The space between deflector bars and between 
the deflector bars and the frame must not exceed 4 inches (10.2 cm).
    (5) Direction of bars. The deflector bars must run from top to 
bottom of the TED, as the TED is positioned in the net, except that up 
to four of the bottom bars and two of the top bars, including the frame, 
may run from side to side of the TED.
    (6) Position of escape opening. The entire width of the escape 
opening from the trawl must be centered on and immediately forward of 
the frame at either the top or bottom of the net when the net is in its 
deployed position. The escape opening must be at the top of the net when 
the slope of the deflector bars from forward to aft is upward, and must 
be at the bottom when such slope is downward. For a single-grid TED, the 
escape opening must be cut horizontally along the same plane as the TED, 
and may not be cut in a fore-and-aft direction.
    (7) Size of escape opening--(i) Hooped hard TED. On a hooped hard 
TED, the escape opening must not be smaller than 25 inches by 25 inches 
(63.5 cm by 63.5 cm) in the Gulf Area, or 30 inches by 30 inches (76.2 
cm by 76.2 cm) in the Atlantic Area. A door frame may not be used over 
the escape opening; however, a webbing flap may be used as provided in 
paragraph (e)(4)(iv)(C) of this section.
    (ii) Single-grid hard TED--(A) Escape opening for standard single-
grid hard TED. On a single-grid hard TED, the cut in the trawl webbing 
for the escape opening cannot be narrower than the outside width of the 
grid minus 4 inches (10.2 cm) on both sides of the grid, when measured 
as a straight line width. (Figure 13 to this part illustrates the 
dimensions of this cut.) The resulting escape opening in the net webbing 
must measure at least 32 inches (81.3 cm) in horizontal taut length and, 
simultaneously, 10 inches (25.4 cm) in vertical taut height in the Gulf 
Area; or 35 inches (88.9 cm) in horizontal taut length and, 
simultaneously, 12 inches (30.5 cm) in vertical taut height in the 
Atlantic Area. The vertical measurement must be taken at the midpoint of 
the horizontal measurement.
    (B) Escape opening for leatherback turtles--(1) Standard leatherback 
opening. A single-grid hard TED escape opening shall be enlarged to 
allow leatherback turtles to escape by cutting an exit hole in the 
extension forward of the TED frame 26 inches (66 cm) deep, on each side, 
by 83 inches (211 cm) across (Figures 12a and 12b to this part). Excess 
webbing is removed by cutting across \1/2\ mesh forward of the TED 
frame. The exit hole cover is made by cutting a 133-inch (388 cm) by 58-
inch (148 cm) piece of webbing no smaller than 1\1/2\ inch (4 cm) 
stretch mesh and no larger than 1 \5/8\ inch (4.2 cm) stretch mesh. The 
133-inch (338 cm) edge of the cover is attached to the forward edge of 
the opening (83-inch (211 cm) edge) with a sewing sequence of 3:2. The 
cover must overlap 5 inches (13 cm) of the exit hole on each side. The 
side of the

[[Page 152]]

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 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 have a minimum circumference of 142 inches 
(361 cm).
    (2) Double cover flap TED opening. 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 20 inches 
(51 cm) deep, on each side, by 56 inches (142 cm) across. Excess webbing 
is removed by cutting across 1/2 mesh forward of the TED frame. The exit 
hole cover is made by cutting two equal size rectangular panels of 
webbing with mesh sizes no smaller than 1\1/2\ inch (4 cm) stretch mesh 
and no larger than 1 \5/8\ inch (4.2 cm) stretch mesh. Each panel must 
be no less than 58 inches (147 cm) wide. The 58-inch (147 cm) edges of 
each panel are attached to the forward edge of the opening (56-inch (142 
cm) edge) with a sewing sequence of 3:2. When both panels are attached, 
they may overlap each other by no more than 15 inches (38 cm). The 
panels may only be sewn together along the leading edge of the cut. The 
panels may not overlap the escape hole cut by more than 3 meshes on 
either side. The outer edges of the panels may be attached in the same 
row of meshes forward and aft. The end of each panel may not extend more 
than 6 inches (15 cm) past the posterior edge of the grid. Accelerator 
funnels and chafing webbing may not be used with this TED. (Figure 16 of 
this part illustrates the escape opening and flap dimensions for the 
double cover flap TED.)
    (8) Size of hoop or grid--(i) Hooped hard TED. (A) An oval front 
hoop on a hard TED must have an inside horizontal measurement of at 
least 32 inches (81.3 cm) and an inside vertical measurement of at least 
20 inches (50.8 cm) in the Gulf Area, or an inside horizontal 
measurement of at least 35 inches (88.9 cm) and an inside vertical 
measurement of at least 30 inches (76.2 cm) in the Atlantic Area.
    (B) A circular front hoop on a hard TED must have an inside diameter 
of at least 32 inches (81.3 cm) in the Gulf Area or 35 inches (88.9 cm) 
in the Atlantic Area.
    (ii) Single-grid hard TED. A single-grid hard TED must have an 
inside horizontal and vertical measurement of at least 28 inches (71.1 
cm) in the Gulf Area or 30 inches (76.2 cm) in the Atlantic Area. The 
required inside measurements must be at the mid-point of the deflector 
grid.
    (9) Flotation. Floats must be attached to the top one-half of all 
hard TEDs with bottom escape openings. The floats may be attached either 
outside or inside the net, but not to a flap. Floats attached inside the 
net must be behind the rear surface of the TED. Floats must be attached 
with heavy twine or rope. Floats must be constructed of aluminum, hard 
plastic, expanded polyvinyl chloride, or expanded ethylene vinyl acetate 
unless otherwise specified. The requirements of this paragraph may be 
satisfied by compliance with either the dimension requirements of 
paragraph (a)(9)(i) of this section, or the buoyancy requirements of 
paragraph (a)(9)(ii) of this section, or the buoyancy-dimension 
requirements of paragraph (a)(9)(iii) of this section. If roller gear is 
used pursuant to paragraph (d)(5) of this section, the roller gear must 
be included in the circumference measurement of the TED or the total 
weight of the TED.
    (i) Float dimension requirements. (A) For hard TEDs with a 
circumference of 120 inches (304.8 cm) or more, a minimum of either one 
round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0 
cm) in diameter, or two expanded polyvinyl chloride or expanded ethylene 
vinyl acetate floats, each no smaller than 6.75 inches (17.2 cm) in 
diameter by 8.75 inches (22.2 cm) in length, must be attached.
    (B) For hard TEDs with a circumference of less than 120 inches 
(304.8 cm), a minimum of either one round, aluminum or hard plastic 
float, no

[[Page 153]]

smaller than 9.8 inches (25.0 cm) in diameter, or one expanded polyvinyl 
chloride or expanded ethylene vinyl acetate float, no smaller than 6.75 
inches (17.2 cm) in diameter by 8.75 inches (22.2 cm) in length, must be 
attached.
    (ii) Float buoyancy requirements. Floats of any size and in any 
combination must be attached such that the combined buoyancy of the 
floats, as marked on the floats, equals or exceeds the weight of the 
hard TED, as marked on the TED. The buoyancy of the floats and the 
weight of the TED must be clearly marked on the floats and the TED as 
follows:
    (A) Float buoyancy markings. Markings on floats must be made in 
clearly legible raised or recessed lettering by the original 
manufacturer. The marking must identify the buoyancy of the float in 
water, expressed in grams or kilograms, and must include the metric unit 
of measure. The marking may additionally include the buoyancy in English 
units. The marking must identify the nominal buoyancy for the 
manufactured float.
    (B) TED weight markings. The marking must be made by the original 
TED manufacturer and must be permanent and clearly legible. The marking 
must identify the in-air, dry weight of the TED, expressed in grams or 
kilograms, and must include the metric unit of measure. The marking may 
additionally include the weight in English units. The marked weight must 
represent the actual weight of the individual TED as manufactured. 
Previously manufactured TEDs may be marked upon return to the original 
manufacturer. Where a TED is comprised of multiple detachable 
components, the weight of each component must be separately marked.
    (iii) Buoyancy-dimension requirements. Floats of any size and in any 
combination, provided that they are marked pursuant to paragraph 
(a)(9)(ii)(A) of this section, must be attached such that the combined 
buoyancy of the floats equals or exceeds the following values:
    (A) For floats constructed of aluminum or hard plastic, regardless 
of the size of the TED grid, the combined buoyancy must equal or exceed 
14 lb (6.4 kg);
    (B) For floats constructed of expanded polyvinyl chloride or 
expanded ethylene vinyl acetate, where the circumference of the TED is 
120 inches (304.8 cm) or more, the combined buoyancy must equal or 
exceed 20 lb (9.1 kg); or
    (C) For floats constructed of expanded polyvinyl chloride or 
expanded ethylene vinyl acetate, where the circumference of the TED is 
less than 120 inches (304.8 cm), the combined buoyancy must equal or 
exceed 10 lb (4.5 kg).
    (b) Special Hard TEDs. Special hard TEDs are hard TEDs which do not 
meet all of the design and construction criteria of the generic 
standards specified in paragraph (a) of this section. The following 
special hard TEDs are approved TEDs:
    (1) Flounder TED (Figure 10 to this part). The Flounder TED is 
approved for use only in the Atlantic summer flounder bottom trawl 
fishery. The Flounder TED is not an approved TED for use by shrimp 
trawlers. The Flounder TED must be constructed of at least 1\1/4\ inch 
(3.2 cm) outside diameter aluminum or steel pipe with a wall thickness 
of at least \1/8\ inch (0.3 cm). It must have a rectangular frame with 
outside dimensions which can be no less than 51 inches (129.5 cm) in 
length and 32 inches (81.3 cm) in width. It must have at least five 
vertical deflector bars, with bar spacings of no more than 4 inches 
(10.2 cm). The vertical bars must be connected to the top of the frame 
and to a single horizontal bar near the bottom. The horizontal bar must 
be connected at both ends to the sides of the frame and parallel to the 
bottom bar of the frame. There must be a space no larger than 10 inches 
(25.4 cm) between the horizontal bar and the bottom bar of the frame. 
One or more additional vertical bars running from the bottom bar to the 
horizontal bar must divide the opening at the bottom into two or more 
rectangles, each with a maximum height of 10 inches (25.4 cm) and a 
maximum width of 14\1/2\ inches (36.8 cm). This TED must comply with 
paragraphs (a)(2), (a)(3), (a)(6), and (a)(7)(ii) of this section with 
respect to the method of attachment, the angle of the deflector bars, 
the position of the escape opening, and the

[[Page 154]]

size of the escape opening, except that the deflector bars must be 
positioned in the net to deflect turtles to the escape opening in the 
top of the trawl. This TED may not be configured with a bottom escape 
opening. Installation of an accelerator funnel is not permitted with 
this TED.
    (2) Jones TED (Figure 11 to this part). The Jones TED must be 
constructed of at least 1\1/4\ inch (3.2 cm) outside diameter aluminum 
or steel pipe, and the pipe must have a wall thickness of at least \1/8\ 
inch (0.3 cm). It must be generally oval in shape with a flattened 
bottom. The deflector bars must be attached to the frame at a 45 deg. 
angle from the horizontal positioning downward and each bar must be 
attached at only one end to the frame. The deflector bars must be 
attached and lie in the same plane as the frame. The space between the 
ends of the bottom deflector bars and the bottom frame bar must be no 
more than 3 inches (7.6 cm). The spacing between the bottom three 
deflector bars on each side must be no greater than 2\1/2\ inches (6.4 
cm). The spacing between all other deflector bars must not exceed 3\1/2\ 
inches (8.9 cm) and spacing between ends of opposing deflector bars also 
must not exceed 3\1/2\ inches (8.9 cm). This TED must comply with 
paragraphs (a)(2), (a)(3), (a)(6), (a)(7)(ii), (a)(8)(ii), and (a)(9) of 
this section with respect to the method of attachment, the angle of the 
deflector bars, the position of the escape opening, the size of the 
escape opening, the size of the grid, and flotation.
    (c) Soft TEDs. Soft TEDs are TEDs with deflector panels made from 
polypropylene or polyethylene netting. The following soft TEDs are 
approved TEDs:
    (1) Parker TED. The Parker TED is a soft TED, consisting of a single 
triangular panel, composed of webbing of two different mesh sizes, that 
forms a complete barrier inside a trawl and that angles toward an escape 
opening in the top of the trawl.
    (i) Excluder Panel. (Figure 5 to this part) The excluder panel of 
the Parker TED must be constructed of a single triangular piece of 8-
inch (20.3 cm) stretched mesh webbing and two trapezoidal pieces of 4-
inch (10.2-cm) stretched mesh webbing. The webbing must consist of 
number 48 (3-mm thick) or larger polypropylene or polyethylene webbing 
that is heat-set knotted or braided. The leading edge of the 8-inch 
(20.3-cm) mesh panel must be 36 meshes wide. The 8-inch (20.3-cm) mesh 
panel must be tapered on each side with all-bar cuts to converge on an 
apex, such that the length of each side is 36 bars. The leading edges of 
the 4-inch (10.2-cm) mesh panels must be 8 meshes wide. The edges of the 
4-inch (10.2-cm) mesh panels must be cut with all-bar cuts running 
parallel to each other, such that the length of the inner edge is 72 
bars and the length of the outer edge is 89 bars and the resulting fore-
and-aft edge is 8 meshes deep. The two 4-inch (10.2-cm) mesh panels must 
be sewn to the 8-inch (20.3-cm) mesh panel to create a single triangular 
excluder panel. The 72-bar edge of each 4-inch (10.2-cm) mesh panel must 
be securely joined with twine to one of the 36-bar edges of the 8-inch 
(20.3-cm) mesh panel, tied with knots at each knot of the 4-inch (10.2-
cm) webbing and at least two wraps of twine around each bar of 4-inch 
(10.2-cm) mesh and the adjoining bar of the 8-inch (20.3-cm) mesh. The 
adjoining fore-and-aft edges of the two 4-inch (10.2-cm) mesh panels 
must be sewn together evenly.
    (ii) Limitations on which trawls may have a Parker TED installed. 
The Parker TED must not be installed or used in a two-seam trawl with a 
tongue, nor in a triple-wing trawl (a trawl with a tongue along the 
headrope and a second tongue along the footrope). The Parker TED may be 
installed and used in any other trawl if the taper of the body panels of 
the trawl does not exceed 4b1p and if it can be properly installed in 
compliance with paragraph (c)(1)(iii) of this section.
    (iii) Panel installation--(A) Leading edge attachment. The leading 
edge of the excluder panel must be attached to the inside of the bottom 
of the trawl across a straight row of meshes. For a two-seam trawl or a 
four-seam, tapered-wing trawl, the row of meshes for attachment to the 
trawl must run the entire width of the bottom body panel, from seam to 
seam. For a four-seam, straight-wing trawl, the row of meshes for 
attachment to the trawl must run the entire width of the bottom body

[[Page 155]]

panel and half the height of each wing panel of the trawl. Every mesh of 
the leading edge of the excluder panel must be evenly sewn to this row 
of meshes; meshes may not be laced to the trawl. The row of meshes for 
attachment to the trawl must contain the following number of meshes, 
depending on the stretched mesh size used in the trawl:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 152-168 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 161-178 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 171-189 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 182-202 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 196-216 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 228-252 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 249-275 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 274-302 meshes.
    (B) Apex attachment. The apex of the triangular excluder panel must 
be attached to the inside of the top body panel of the trawl at the 
centerline of the trawl. The distance, measured aft along the centerline 
of the top body panel from the same row of meshes for attachment of the 
excluder panel to the bottom body panel of the trawl, to the apex 
attachment point must contain the following number of meshes, depending 
on the stretched mesh size used in the trawl:
    (1) For a mesh size of 2\1/4\ inches (5.7 cm), 78-83 meshes;
    (2) For a mesh size of 2\1/8\ inches (5.4 cm), 83-88 meshes;
    (3) For a mesh size of 2 inches (5.1 cm), 87-93 meshes;
    (4) For a mesh size of 1\7/8\ inches (4.8 cm), 93-99 meshes;
    (5) For a mesh size of 1\3/4\ inches (4.4 cm), 100-106 meshes;
    (6) For a mesh size of 1\5/8\ inches (4.1 cm), 107-114 meshes;
    (7) For a mesh size of 1\1/2\ inches (3.8 cm), 114-124 meshes;
    (8) For a mesh size of 1\3/8\ inches (3.5 cm), 127-135 meshes; and
    (9) For a mesh size of 1\1/4\ inches (3.2 cm), 137-146 meshes.
    (C) Side attachment. The sides of the excluder panel must be 
attached evenly to the inside of the trawl from the outside attachment 
points of the excluder panel's leading edge to the apex of the excluder 
panel. Each side must be sewn with the same sewing sequence, and, if the 
sides of the excluder panel cross rows of bars in the trawl, the 
crossings must be distributed evenly over the length of the side 
attachment.
    (iv) Escape opening. The escape opening for the Parker soft TED must 
match one of the following specifications:
    (A) Longitudinal cut. A slit at least 56 inches (1.4 m) in taut 
length must be cut along the centerline of the top body panel of the 
trawl net immediately forward of the apex of the panel webbing. The slit 
must not be covered or closed in any manner. The edges and end points of 
the slit must not be reinforced in any way; for example, by attaching 
additional rope or webbing or by changing the orientation of the 
webbing.
    (B) Leatherback escape opening. A horizontal cut extending from the 
attachment of one side of the deflector panel to the trawl to the 
attachment of the other side of the deflector panel to the trawl must be 
made in a single row of meshes across the top of the trawl and measure 
at least 96 inches (244 cm) in taut width. All trawl webbing above the 
deflector panel between the 96-inch (244-cm) cut and edges of the 
deflector panel must be removed. A rectangular flap of nylon webbing not 
larger than 2-inch (5.1-cm) stretched mesh may be sewn to the forward 
edge of the escape opening. The width of the flap must not be larger 
than the width of the forward edge of the escape opening. The flap must 
not extend more than 12 inches (30.4 cm) beyond the rear point of the 
escape opening. The sides of the flap may be attached to the top of the 
trawl but must not be attached farther aft than the row of meshes 
through the rear point of the escape opening. One row of steel chain not 
larger than \3/16\ inch (4.76 mm) may be sewn evenly to the back edge of 
the flap. The stretched length of the chain must not exceed 96 inches 
(244 cm). A Parker TED using the escape opening described in this

[[Page 156]]

paragraph meets the requirements of Sec. 223.206(d)(2)(iv)(B).
    (2) [Reserved]
    (d) Allowable modifications to hard TEDs and special hard TEDs. 
Unless otherwise prohibited in paragraph (b) of this section, only the 
following modifications may be made to an approved hard TED or an 
approved special hard TED:
    (1) Floats. In addition to floats required pursuant to paragraph 
(a)(9) of this section, floats may be attached to the top one-half of 
the TED, either outside or inside the net, but not to a flap. Floats 
attached inside the net must be behind the rear surface at the top of 
the TED.
    (2) Accelerator funnel. An accelerator funnel may be installed in 
the trawl, if it is made of net webbing material with a stretched mesh 
size not greater than 1\5/8\ inches (4.1 cm), if it has an inside 
horizontal opening of at least 39 inches (99.1 cm) when measured in a 
taut position, if it is inserted in the net immediately forward of the 
TED, and if its rear edge does not extend past the bars of the TED. The 
trailing edge of the accelerator funnel may be attached to the TED on 
the side opposite the escape opening if not more than \1/3\ of the 
circumference of the funnel is attached, and if the inside horizontal 
opening of at least 39 inches (99.1 cm) is maintained. In a bottom-
opening TED, only the top \1/3\ of the circumference of the funnel may 
be attached to the TED. In a top-opening TED, only the bottom \1/3\ of 
the circumference of the funnel may be attached to the TED.
    (3) Webbing flap. A webbing flap may be used to cover the escape 
opening under the following conditions: No device holds it closed or 
otherwise restricts the opening; it is constructed of webbing with a 
stretched mesh size no larger than 1\5/8\ inches (4.1 cm); it lies on 
the outside of the trawl; it is attached along its entire forward edge 
forward of the escape opening; it is not attached on the sides beyond 
the row of meshes that lies 6 inches (15.2 cm) behind the posterior edge 
of the grid; and it does not extend more than 24 inches (61.0 cm) beyond 
the posterior edge of the grid, except for trawlers fishing in the Gulf 
SFSTCA or Atlantic SFSTCA with a hard TED with the position of the 
escape opening at the bottom of the net when the net is in its deployed 
position, in which case the webbing flap must not extend beyond the 
posterior edge of the grid.
    (4) Chafing webbing. A single piece of nylon webbing, with a twine 
size no smaller than size 36 (2.46 mm in diameter), may be attached 
outside of the escape opening webbing flap to prevent chafing on bottom 
opening TEDs. This webbing may be attached along its leading edge only. 
This webbing may not extend beyond the trailing edge or sides of the 
existing escape opening webbing flap, and it must not interfere or 
otherwise restrict the turtle escape opening.
    (5) Roller gear. Roller gear may be attached to the bottom of a TED 
to prevent chafing on the bottom of the TED and the trawl net. When a 
webbing flap is used in conjunction with roller gear, the webbing flap 
must be of a length such that no part of the webbing flap can touch or 
come in contact with any part of the roller gear assembly or the means 
of attachment of the roller gear assembly to the TED, when the trawl net 
is in its normal, horizontal position. Roller gear must be constructed 
according to one of the following design criteria:
    (i) A single roller consisting of hard plastic shall be mounted on 
an axle rod, so that the roller can roll freely about the axle. The 
maximum diameter of the roller shall be 6 inches (15.24 cm), and the 
maximum width of the axle rod shall be 12 inches (30.4 cm). The axle rod 
must be attached to the TED by two support rods. The maximum clearance 
between the roller and the TED shall not exceed 1 inch (2.5 cm) at the 
center of the roller. The support rods and axle rod must be made from 
solid steel or solid aluminum rod no larger than \1/2\ inch (1.28 cm) in 
diameter. The attachment of the support rods to the TED shall be such 
that there are no protrusions (lips, sharp edges, burrs, etc.) on the 
front face of the grid. The axle rod and support rods must lie entirely 
behind the plane of the face of the TED grid.
    (ii) A single roller consisting of hard plastic tubing shall be 
tightly tied to the back face of the TED grid with rope

[[Page 157]]

or heavy twine passed through the center of the roller tubing. The 
roller shall lie flush against the TED. The maximum outside diameter of 
the roller shall be 3\1/2\ inches (8.0 cm), the minimum outside diameter 
of the roller shall be 2 inches (5.1 cm), and the maximum length of the 
roller shall be 12 inches (30.4 cm). The roller must lie entirely behind 
the plane of the face of the grid.
    (e) Revision of generic design criteria, and approval of TEDs, of 
allowable modifications of hard TEDs, and of special hard TEDs. (1) The 
Assistant Administrator may revise the generic design criteria for hard 
TEDs set forth in paragraph (a) of this section, may approve special 
hard TEDs in addition to those listed in paragraph (b) of this section, 
may approve allowable modifications to hard TEDs in addition to those 
authorized in paragraph (d) of this section, or may approve other TEDs, 
by regulatory amendment, if, according to a NMFS-approved scientific 
protocol, the TED demonstrates a sea turtle exclusion rate of 97 percent 
or greater (or an equivalent exclusion rate). Two such protocols have 
been published by NMFS (52 FR 24262, June 29, 1987; and 55 FR 41092, 
October 9, 1990) and will be used only for testing relating to hard TED 
designs. Testing under any protocol must be conducted under the 
supervision of the Assistant Administrator, and shall be subject to all 
such conditions and restrictions as the Assistant Administrator deems 
appropriate. Any person wishing to participate in such testing should 
contact the Director, Southeast Fisheries Science Center, NMFS, 75 
Virginia Beach Dr., Miami, FL 33149-1003.
    (2) Upon application, the Assistant Administrator may issue permits, 
subject to such conditions and restrictions as the Assistant 
Administrator deems appropriate, authorizing public or private 
experimentation aimed at improving shrimp retention efficiency of 
existing approved TEDs and at developing additional TEDs, or conducting 
fishery research, that would otherwise be subject to Sec. 223.206(d)(2). 
Applications should be made to the Southeast Regional Administrator (see 
Sec. 222.102 definition of ``Southeast Regional Administrator'').

[64 FR 14073, Mar. 23, 1999, as amended at 64 FR 55438, Oct. 13, 1999; 
66 FR 1603, Jan. 9, 2001; 66 FR 24288, May 14, 2001]

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



Sec. 223.209  Tribal plans.

    (a) Limits on the prohibitions. The prohibitions of Sec. 223.203(a) 
of this subpart relating to threatened species of salmonids listed in 
Sec. 223.102 do not apply to any activity undertaken by a tribe, tribal 
member, tribal permittee, tribal employee, or tribal agent in compliance 
with a Tribal resource management plan (Tribal Plan), provided that the 
Secretary determines that implementation of such Tribal Plan will not 
appreciably reduce the likelihood of survival and recovery of the listed 
salmonids. In making that determination the Secretary shall use the best 
available biological data (including any tribal data and analysis) to 
determine the Tribal Plan's impact on the biological requirements of the 
species, and will assess the effect of the Tribal Plan on survival and 
recovery, consistent with legally enforceable tribal rights and with the 
Secretary's trust responsibilities to tribes.
    (b) Consideration of a Tribal Plan. (1) A Tribal Plan may include 
but is not limited to plans that address fishery harvest, artificial 
production, research, or water or land management, and may be developed 
by one tribe or jointly with other tribes. The Secretary will consult on 
a government-to-government basis with any tribe that so requests and 
will provide to the maximum extent practicable technical assistance in 
examining impacts on listed salmonids and other salmonids as tribes 
develop Tribal resource management plans that meet the management 
responsibilities and needs of the tribes. A Tribal Plan must specify the 
procedures by which the tribe will enforce its provisions.
    (2) Where there exists a Federal court proceeding with continuing 
jurisdiction over the subject matter of a Tribal Plan, the plan may be 
developed and

[[Page 158]]

implemented within the ongoing Federal Court proceeding. In such 
circumstances, compliance with the Tribal Plan's terms shall be 
determined within that Federal Court proceeding.
    (3) The Secretary shall seek comment from the public on the 
Secretary's pending determination whether or not implementation of a 
Tribal Plan will appreciably reduce the likelihood of survival and 
recovery of the listed salmonids.
    (4) The Secretary shall publish notification in the Federal Register 
of any determination regarding a Tribal Plan and the basis for that 
determination.

[65 FR 42485, July 10, 2000]
[GRAPHIC] [TIFF OMITTED] TC01JY91.045

                     Figure 1 to Part 223--NMFS TED

[60 FR 15519, Mar. 24, 1995]
[GRAPHIC] [TIFF OMITTED] TC01JY91.046


[[Page 159]]



                    Figure 2 to Part 223--Cameron TED

[52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
[GRAPHIC] [TIFF OMITTED] TC01JY91.047

                   Figure 3 to Part 223--Matagorda TED

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

[[Page 160]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.048

                    Figure 4 to Part 223--Georgia TED

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

[[Page 161]]

[GRAPHIC] [TIFF OMITTED] TR13AP98.001

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

[63 FR 17958, Apr. 13, 1998]

[[Page 162]]

[GRAPHIC] [TIFF OMITTED] TR15OC99.001

      Figure 6 to Part 223--TED Extension in Summer Flounder Trawl

[64 FR 55864, Oct. 15, 1999]

                  Figures 7-9b to Part 223  [Reserved]

[[Page 163]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.056

                   Figure 10 to Part 223--Flounder TED

[58 FR 54069, Oct. 20, 1993]

[[Page 164]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.057

                    Figure 11 to Part 223--Jones TED

[58 FR 54070, Oct. 20, 1993]

[[Page 165]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.058

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

[59 FR 25830, May 18, 1994]

[[Page 166]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.059

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

[59 FR 25831, May 18, 1994]

[[Page 167]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.060

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

[60 FR 15520, Mar. 24, 1995]

[[Page 168]]

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

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

[61 FR 66946, Dec. 19, 1996]

[[Page 169]]

[GRAPHIC] [TIFF OMITTED] TR19DE96.003

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

[61 FR 66947, Dec. 19, 1996]

[[Page 170]]

       Figure 16 to Part 223--Escape Opening and Flap Dimensions 
                     for the Double Cover Flap TED
    [GRAPHIC] [TIFF OMITTED] TR14MY01.006
    
[66 FR 24289, May 14, 2001]

[[Page 171]]



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




Sec.
224.101  Enumeration of endangered marine and anadromous species.
224.102  Permits for endangered marine and anadromous species.
224.103  Special prohibitions for endangered marine mammals.
224.104  Special requirements for fishing activities to protect 
          endangered sea turtles.

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

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



Sec. 224.101  Enumeration of endangered marine and anadromous species.

    The marine and anadromous species determined by the Secretary of 
Commerce to be endangered pursuant to section 4(a) of the Act, as well 
as species listed under the Endangered Species Conservation Act of 1969 
by the Secretary of the Interior and currently under the jurisdiction of 
the Secretary of Commerce, are the following:
    (a) Marine and anadromous fish. The following table lists the common 
and scientific names of endangered species, the locations where they are 
listed, and the citations for the listings and critical habitat 
designations.

[[Page 172]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Species\1\
-------------------------------------------------------------------------------               Where listed                            When listed                      Critical habitat
             Common name                           Scientific Name
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shortnose sturgeon                    Acipenser brevirostrum                    U.S.A., northwestern Atlantic, in river             32 FR 4001, Mar. 11,1967                                  NA
                                                                                 systems from the Saint John River in
                                                                                 New Brunswick, Canada, to the St. Johns
                                                                                 River, Florida
Southern California steelhead         Oncorhynchus mykiss                       U.S.A., CA, including all naturally               62 FR 43937, Aug. 18, 1997            64 FR 5740, Feb. 5, 1999
                                                                                 spawned populations of steelhead (and
                                                                                 their progeny) in streams from the
                                                                                 Santa Maria River, San Luis Obispo
                                                                                 County, California (inclusive) to
                                                                                 Malibu Creek, Los Angeles County,
                                                                                 California (inclusive)
Upper Columbia River steelhead        Oncorhynchus mykiss                       U.S.A., WA, including the Wells Hatchery          62 FR 43937, Aug. 18, 1997            64 FR 5740, Feb. 5, 1999
                                                                                 stock and all naturally spawned
                                                                                 populations of steelhead (and their
                                                                                 progeny) in streams in the Columbia
                                                                                 River Basin upstream from the Yakima
                                                                                 River, Washington, to the U.S.--Canada
                                                                                 Border
Snake River sockeye salmon            Oncorhynchus nerka                        U.S.A., ID, Snake River                           56 FR 58619, Nov. 20, 1991          58 FR 68543, Dec. 28, 1993
Upper Columbia River spring-run       Oncorhynchus tshawytscha                  U.S.A., WA, including all naturally               64 FR 14308, Mar. 24, 1999           65 FR 7764, Feb. 16, 2000
 chinook salmon                                                                  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   Oncorhynchus tshawytscha                  U.S.A., CA, Sacramento River                      59 FR 13836, Mar. 23, 1994          58 FR 33212, Jun. 16, 1993
 salmon

[[Page 173]]

 
Salmon, Atlantic                      Salmo salar                               U.S.A., ME Gulf of Maine Atlantic Salmon                                                                      NA
                                                                                 Distinct Population Segment, which
                                                                                 includes all naturally reproducing wild
                                                                                 populations and those river-specific
                                                                                 hatchery populations of Atlantic salmon
                                                                                 having historical, river-specific
                                                                                 characteristics found north of and
                                                                                 including tributaries of the lower
                                                                                 Kennebec River to, but not including,
                                                                                 the mouth of the St. Croix River at the
                                                                                 U.S.-Canada border. To date, the
                                                                                 Services have determined that these
                                                                                 populations are found in the Dennys,
                                                                                 East Machias, Machias, Pleasant,
                                                                                 Narraguagus, Sheepscot, and Ducktrap
                                                                                 Rivers and in Cove Brook, Maine.
Totoaba                               Cynoscion macdonaldi                      Mexico, Gulf of CA                                 44 FR 29480, May 21, 1979                                 NA
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units
  (ESUs)(for a policy statement, see 56 FR 58612, November 20, 1991)


[[Page 174]]

    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); Indus 
River dolphin (Platanista minor); Mediterranean monk seal (Monachus 
monachus); Right whales (Eubalaena spp.); Saimaa seal (Phoca hispida 
saimensis); Sei whale (Balaenoptera borealis); Sperm whale (Physeter 
catodon); Western North Pacific (Korean) gray whale (Eschrichtius 
robustus); Steller sea lion, western population, (Eumetopias jubatus), 
which consists of Stellar sea lions from breeding colonies located west 
of 144 deg. W. longitude.
    (c) Sea turtles. Green turtle (Chelonia mydas) breeding colony 
populations in Florida and on the Pacific coast of Mexico; Hawksbill 
turtle (Eretmochelys imbricata); Kemp's ridley turtle (Lepidochelys 
kempii); Leatherback turtle (Dermochelys coriacea); Olive ridley turtle 
(Lepidochelys olivacea) breeding colony population on the Pacific coast 
of Mexico.

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

[64 FR 14066, Mar. 23, 1999, as amended 64 FR 14328, Mar. 24, 1999; 65 
FR 20918, Apr. 19, 2000; 65 FR 69481, Nov. 17, 2000; 66 FR 29055, May 
29, 2001]



Sec. 224.102  Permits for endangered marine and anadromous species.

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



Sec. 224.103  Special prohibitions for endangered marine mammals.

    (a) Approaching humpback whales in Hawaii. Except as provided in 
part 222, subpart C, of this chapter (General Permit Procedures), it is 
unlawful for any person subject to the jurisdiction of the United States 
to commit, to attempt to commit, to solicit another to commit, or to 
cause to be committed, within 200 nautical miles (370.4 km) of the 
Islands of Hawaii, any of the following acts with respect to humpback 
whales (Megaptera novaeangliae):
    (1) Operate any aircraft within 1,000 feet (300 m) of any humpback 
whale;
    (2) Approach, by any means, within 100 yard (90 m) of any humpback 
whale;
    (3) Cause a vessel or other object to approach within 100 yd (90 m) 
of a humpback whale; or
    (4) Disrupt the normal behavior or prior activity of a whale by any 
other act or omission. A disruption of normal behavior may be manifested 
by, among other actions on the part of the whale, a rapid change in 
direction or speed; escape tactics such as prolonged diving, underwater 
course changes, underwater exhalation, or evasive swimming patterns; 
interruptions of breeding, nursing, or resting activities, attempts by a 
whale to shield a calf from a vessel or human observer by tail swishing 
or by other protective movement; or the abandonment of a previously 
frequented area.
    (b) Approaching humpback whales in Alaska--(1) Prohibitions. Except 
as provided under paragraph (b)(2) of this section, 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 Alaska, or within 
inland waters of the state, any of the acts in paragraphs (b)(1)(i) 
through (b)(1)(iii) of this section with respect to humpback whales 
(Megaptera novaeangliae):
    (i) Approach, by any means, including by interception (i.e., placing 
a vessel in the path of an oncoming humpback whale so that the whale 
surfaces within 100 yards (91.4 m) of the vessel), within 100 yards 
(91.4 m) of any humpback whale;

[[Page 175]]

    (ii) Cause a vessel or other object to approach within 100 yards 
(91.4 m) of a humpback whale; or
    (iii) Disrupt the normal behavior or prior activity of a whale by 
any other act or omission, as described in paragraph (a)(4) of this 
section.
    (2) Exceptions. The following exceptions apply to this paragraph 
(b), but any person who claims the applicability of an exception has the 
burden of proving that the exception applies:
    (i) Paragraph (b)(1) of this section does not apply if an approach 
is authorized by the National Marine Fisheries Service through a permit 
issued under part 222, subpart C, of this chapter (General Permit 
Procedures) or through a similar authorization.
    (ii) Paragraph (b)(1) 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)(1) of this section.
    (iii) Paragraph (b)(1) of this section does not apply to commercial 
fishing vessels lawfully engaged in actively setting, retrieving or 
closely tending commercial fishing gear. For purposes of this paragraph 
(b), commercial fishing means taking or harvesting fish or fishery 
resources to sell, barter, or trade. Commercial fishing does not include 
commercial passenger fishing operations (i.e. charter operations or 
sport fishing activities).
    (iv) Paragraph (b)(1) of this section does not apply to state, 
local, or Federal government vessels operating in the course of official 
duty.
    (v) Paragraph (b)(1) of this section does not affect the rights of 
Alaska Natives under 16 U.S.C. 1539(e).
    (vi) These regulations shall not take precedence over any more 
restrictive conflicting Federal regulation pertaining to humpback 
whales, including the regulations at 36 CFR 13.65 that pertain 
specifically to the waters of Glacier Bay National Park and Preserve.
    (3) General measures. Notwithstanding the prohibitions and 
exceptions in paragraphs (b)(1) and (2) of this section, to avoid 
collisions with humpback whales, vessels must operate at a slow, safe 
speed when near a humpback whale. ``Safe speed'' has the same meaning as 
the term is defined in 33 U.S.C. 2006 and the International Regulations 
for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect 
to avoiding collisions with humpback whales.
    (c) Approaching North Atlantic right whales--(1) Prohibitions. 
Except as provided under paragraph (b)(3) of this section, it is 
unlawful for any person subject to the jurisdiction of the United States 
to commit, attempt to commit, to solicit another to commit, or cause to 
be committed any of the following acts:
    (i) Approach (including by interception) within 500 yards (460 m) of 
a right whale by vessel, aircraft, or any other means;
    (ii) Fail to undertake required right whale avoidance measures 
specified under paragraph (b)(2) of this section.
    (2) Right whale avoidance measures. Except as provided under 
paragraph (b)(3) of this section, the following avoidance measures must 
be taken if within 500 yards (460 m) of a right whale:
    (i) If underway, a vessel must steer a course away from the right 
whale and immediately leave the area at a slow safe speed.
    (ii) An aircraft must take a course away from the right whale and 
immediately leave the area at a constant airspeed.
    (3) Exceptions. The following exceptions apply to this section, but 
any person who claims the applicability of an exception has the burden 
of proving that the exception applies:
    (i) Paragraphs (b)(1) and (b)(2) of this section do not apply if a 
right whale approach is authorized by the National Marine Fisheries 
Service through a permit issued under part 222, subpart C, of this 
chapter (General Permit Procedures) or through a similar authorization.
    (ii) Paragraphs (b)(1) and (b)(2) of this section do not apply where 
compliance would create an imminent and serious threat to a person, 
vessel, or aircraft.
    (iii) Paragraphs (b)(1) and (b)(2) of this section do not apply when 
approaching to investigate a right whale entanglement or injury, or to 
assist in the disentanglement or rescue of a right whale, provided that 
permission

[[Page 176]]

is received from the National Marine Fisheries Service or designee prior 
to the approach.
    (iv) Paragraphs (b)(1) and (b)(2) of this section do not apply to an 
aircraft unless the aircraft is conducting whale watch activities.
    (v) Paragraph (b)(2) of this section does not apply to the extent 
that a vessel is restricted in her ability to maneuver and, because of 
the restriction, cannot comply with paragraph (b)(2) of this section.
    (d) Special prohibitions relating to endangered Steller sea lion 
protection. The regulatory provisions set forth in part 223 of this 
chapter, which govern threatened Steller sea lions, shall also apply to 
the western population of Steller sea lions, which consists of all 
Steller sea lions from breeding colonies located west of 144 deg. W. 
long.

[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 29509, May 31, 2001]



Sec. 224.104   Special requirements for fishing activities to protect endangered sea turtles.

    (a) Shrimp fishermen in the southeastern United States and the Gulf 
of Mexico who comply with rules for threatened sea turtles specified in 
Sec. 223.206 of this chapter will not be subject to civil penalties 
under the Act for incidental captures of endangered sea turtles by 
shrimp trawl gear.
    (b) Summer flounder fishermen in the Summer flounder fishery-sea 
turtle protection area who comply with rules for threatened sea turtles 
specified in Sec. 223.206 of this chapter will not be subject to civil 
penalties under the Act for incidental captures of endangered sea 
turtles by summer flounder gear.
    (c) Special prohibitions relating to leatherback sea turtles are 
provided at Sec. 223.206 (d)(2)(iv) and Sec. 223.206 (d)(6) of this 
chapter.

[64 FR 14066, Mar. 23, 1999, as amended at 66 FR 44552, Aug. 24, 2001]

                          PART 225  [RESERVED]



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




Sec.
226.101  Purpose and scope.
226.201  Critical habitat for Hawaiian monk seals.
226.202  Critical habitat for Steller sea lions.
226.203  Critical habitat for Northern right whales.
226.204  Critical habitat for Sacramento winter-run chinook salmon.
226.205  Critical habitat for Snake River sockeye salmon, Snake River 
          fall chinook salmon, and Snake River spring/summer chinook 
          salmon.
226.206  [Reserved]
226.207  Critical habitat for leatherback turtle.
226.208  Critical habitat for green turtle.
226.209  Critical habitat for hawksbill turtle.
226.210  Central California Coast Coho Salmon (Oncorhynchus kisutch), 
          Southern Oregon/Northern California Coasts Coho Salmon 
          (Oncorhynchus kisutch).
226.212  Critical habitat designation for 19 evolutionary significant 
          units of salmon and steelhead in Washington, Oregon, Idaho, 
          and California.
226.213  Critical habitat for Johnson's seagrass.

Table 1 to Part 226--Major Steller Sea Lion Rookery Sites
Table 2 to Part 226--Major Steller Sea Lion Haulout Sites in Alaska
Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for 
          Snake River Sockeye Salmon and Snake River Spring/Summer and 
          Fall Chinook Salmon
Table 4 to Part 226  [Reserved]
Table 5 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Central California Coast Coho Salmon, Tribal Lands 
          Within the Range of the ESU, and Dams/Reservoirs Representing 
          the Upstream Extent of Critical Habitat
Table 6 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Southern Oregon/Northern California Coasts Coho 
          Salmon, Tribal Lands Within the Range of the ESU, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat
Table 7 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Puget Sound Chinook Salmon, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 8 to Part 226 --Hydrologic Units and Counties Containing Critical 
          Habitat for Lower Columbia River Chinook Salmon, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 9 to Part 226 --Hydrologic Units and Counties Containing Critical 
          Habitat for Upper Willamette River Chinook Salmon, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.

[[Page 177]]

Table 10 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Upper Columbia River Spring-run Chinook Salmon, 
          and Dams/Reservoirs Representing the Upstream Extent of 
          Critical Habitat.
Table 11 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Central Valley California Spring-run Chinook 
          Salmon, and Dams/Reservoirs Representing the Upstream Extent 
          of Critical Habitat.
Table 12 to Part 226 --Hydrologic Units and Counties Containing Critical 
          Habitat for California Coastal Chinook Salmon, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 13 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Hood Canal Summer-run Chum Salmon, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 14 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Columbia River Chum Salmon, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 15 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Oregon Coast Coho Salmon, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 16 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Southern California Steelhead, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 17 to Part 226.--Hydrologic Units and Counties Containing Critical 
          Habitat for South-Central California Coast Steelhead, and 
          Dams/Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 18 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Central California Coast Steelhead, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 19 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Central Valley Steelhead, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 20 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Upper Columbia River Steelhead, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 21 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Snake River Basin Steelhead, and Dams/Reservoirs 
          Representing the Upstream Extent of Critical Habitat.
Table 22 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Lower Columbia River Steelhead, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 23 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Upper Willamette River Steelhead, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.
Table 24 to Part 226--Hydrologic Units and Counties Containing Critical 
          Habitat for Middle Columbia River Steelhead, and Dams/
          Reservoirs Representing the Upstream Extent of Critical 
          Habitat.

    Authority: 16 U.S.C. 1533.



Sec. 226.101  Purpose and scope.

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

[64 FR 14067, Mar. 23, 1999]



Sec. 226.201  Critical habitat for Hawaiian monk seals.

                           Hawaiian Monk Seal

                        (Monachus schauinslandi)

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

Kure Atoll (28 deg.24' N, 178 deg.20' W)

[[Page 178]]

Midway Islands, except Sand Island and its harbor (28 deg.14' N, 
177 deg.22' W)
Pearl and Hermes Reef (27 deg.55' N, 175 deg. W)
Lisianski Island (26 deg.46' N, 173 deg.58' W)
Laysan Island (25 deg.46' N, 171 deg.44' W)
Maro Reef (25 deg.25' N, 170 deg.35' W)
Gardner Pinnacles (25 deg.00' N, 168 deg.00' W)
French Frigate Shoals (23 deg.45' N, 166 deg.00' W)
Necker Island (23 deg.34' N, 164 deg.42' W)
Nihoa Island (23 deg.03.5' N, 161 deg.55.5' W).
[GRAPHIC] [TIFF OMITTED] TC01JY91.000


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[GRAPHIC] [TIFF OMITTED] TC01JY91.001


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[GRAPHIC] [TIFF OMITTED] TC01JY91.002


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[GRAPHIC] [TIFF OMITTED] TC01JY91.003


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[GRAPHIC] [TIFF OMITTED] TC01JY91.004


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[GRAPHIC] [TIFF OMITTED] TC01JY91.005


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[GRAPHIC] [TIFF OMITTED] TC01JY91.006


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[GRAPHIC] [TIFF OMITTED] TC01JY91.007

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

[[Page 186]]



Sec. 226.202  Critical habitat for Stellar sea lions.

                  Steller Sea Lion (Eumetopias jubatus)

    (a) Alaska rookeries, haulouts, and associated areas. In Alaska, all 
major Steller sea lion rookeries identified in Table 1 and major 
haulouts identified in Table 2 and associated terrestrial, air, and 
aquatic zones. Critical habitat includes a terrestrial zone that extends 
3,000 feet (0.9 km) landward from the baseline or base point of each 
major rookery and major haulout in Alaska. Critical habitat includes an 
air zone that extends 3,000 feet (0.9 km) above the terrestrial zone of 
each major rookery and major haulout in Alaska, measured vertically from 
sea level. Critical habitat includes an aquatic zone that extends 3,000 
feet (0.9 km) seaward in State and Federally managed waters from the 
baseline or basepoint of each major rookery and major haulout in Alaska 
that is east of 144 deg. W. longitude. Critical habitat includes an 
aquatic zone that extends 20 nm (37 km) seaward in State and Federally 
managed waters from the baseline or basepoint of each major rookery and 
major haulout in Alaska that is west of 144 deg. W. longitude.
    (b) California and Oregon rookeries and associated areas. In 
California and Oregon, all major Steller sea lion rookeries identified 
in Table 1 and associated air and aquatic zones. Critical habitat 
includes an air zone that extends 3,000 feet (0.9 km) above areas 
historically occupied by sea lions at each major rookery in California 
and Oregon, measured vertically from sea level. Critical habitat 
includes an aquatic zone that extends 3,000 feet (0.9 km) seaward in 
State and Federally managed waters from the baseline or basepoint of 
each major rookery in California and Oregon.
    (c) Three special aquatic foraging areas in Alaska. Three special 
aquatic foraging areas in Alaska, including the Shelikof Strait area, 
the Bogoslof area, and the Seguam Pass area.
    (1) Critical habitat includes the Shelikof Strait area in the Gulf 
of Alaska and consists of the area between the Alaska Peninsula and 
Tugidak, Sitkinak, Aiaktilik, Kodiak, Raspberry, Afognak and Shuyak 
Islands (connected by the shortest lines); bounded on the west by a line 
connecting Cape Kumlik (56 deg.38"/157 deg.27'W) and the southwestern 
tip of Tugidak Island (56 deg.24'N/154 deg.41'W) and bounded in the east 
by a line connecting Cape Douglas (58 deg.51'N/153 deg.15'W) and the 
northernmost tip of Shuyak Island (58 deg.37'N/152 deg.22'W).
    (2) Critical habitat includes the Bogoslof area in the Bering Sea 
shelf and consists of the area between 170 deg.00'W and 164 deg.00'W, 
south of straight lines connecting 55 deg.00'N/170 deg.00'W and 
55 deg.00'N/168 deg.00'W; 55 deg.30'N/168 deg.00'W and 55 deg.30'N/
166 deg.00'W; 56 deg.00'N/166 deg.00'W and 56 deg.00'N/164 deg.00'W and 
north of the Aleutian Islands and straight lines between the islands 
connecting the following coordinates in the order listed:
52 deg.49.2'N/169 deg.40.4'W
52 deg.49.8'N/169 deg.06.3'W
53 deg.23.8'N/167 deg.50.1'W
53 deg.18.7'N/167 deg.51.4'W
53 deg.59.0'N/166 deg.17.2'W
54 deg.02.9'N/166 deg.03.0'W
54 deg.07.7'N/165 deg.40.6'W
54 deg.08.9'N/165 deg.38.8'W
54 deg.11.9'N/165 deg.23.3'W
54 deg.23.9'N/164 deg.44.0'W

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

[58 FR 45278, Aug. 27, 1993. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.203  Critical habitat for Northern right whales.

               Northern Right Whale (Eubalaena glacialis)

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

[[Page 187]]

30 deg.15' N and 28 deg.00' N from the coast out 5 nautical miles 
(Figure 8 to part 226).

[59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



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

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

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



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

    The following areas consisting of the water, waterway bottom, and 
adjacent riparian zone of specified lakes and river reaches in 
hydrologic units presently or historically accessible to listed Snake 
River salmon (except reaches above impassable natural falls, and 
Dworshak and Hells Canyon Dams). Adjacent riparian zones are defined as 
those areas within a horizontal distance of 300 feet (91.4 m) from the 
normal line of high water of a stream channel (600 feet or 182.8 m, when 
both sides of the stream channel are included) or from the shoreline of 
a standing body of water. The complete text delineating critical habitat 
for each species follows. Hydrologic units (table 3) are those defined 
by the Department of the Interior (DOI), U.S. Geological Survey (USGS) 
publication, ``Hydrologic Unit Maps, United States Geological Survey 
Water Supply Paper 2294, 1987'', and the following DOI, USGS, 1:500,000 
scale hydrologic unit map: State of Oregon, 1974; State of Washington, 
1974; State of Idaho, 1974, which are incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of 
the USGS publication and maps may be obtained from the USGS, Map Sales, 
Box 25286, Denver, CO 80225. Copies may be inspected at NMFS, Endangered 
Species Branch, Environmental and Technical Services Division, 911 NE. 
11th Avenue, room 620, Portland, OR 97232, NMFS, Office of Protected 
Resources, 1335 East-West Highway, Silver Spring, MD 20910, or at the 
Office of the Federal Register, 800 North Capitol Street, NW., suite 
700, Washington, DC.
    (a) Snake River Sockeye Salmon (Oncorhynchus nerka). The Columbia 
River from a straight line connecting the west end of the Clatsop jetty 
(south jetty, Oregon side) and the west end of the Peacock jetty (north 
jetty, Washington side) and including all Columbia River estuarine areas 
and river reaches upstream to the confluence of the Columbia and Snake 
Rivers; all Snake River reaches from the confluence of the Columbia 
River upstream to the confluence of the Salmon River; all Salmon River 
reaches from the confluence of the Snake River upstream to Alturas Lake 
Creek; Stanley, Redfish, Yellow Belly, Pettit, and Alturas Lakes 
(including their inlet and outlet creeks); Alturas Lake Creek, and that 
portion of Valley Creek between Stanley Lake Creek and the Salmon River. 
Critical habitat is comprised of all river lakes and reaches presently 
or historically accessible (except reaches above impassable natural 
falls, and Dworshak and Hells Canyon Dams) to Snake River sockeye salmon 
in the following hydrologic units: Lower Salmon, Lower Snake, Lower 
Snake-Asotin, Lower Snake-Tucannon, Middle Salmon-Chamberlain, Middle 
Salmon-Panther, and Upper Salmon. Critical habitat borders on or passes 
through the following counties in Oregon: Clatsop, Columbia, Gillium, 
Hood River, Morrow, Multnomah, Sherman, Umatilla, Wallowa, Wasco; the 
following counties in Washington: Asotin, Benton, Clark, Columbia, 
Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, Wahkiakum, 
Walla, Whitman; and the following counties in Idaho: Blaine,

[[Page 188]]

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

[58 FR 68551, Dec. 28, 1993, as amended at 63 FR 1393, Jan. 9, 1998. 
Redesignated and amended at 64 FR 14067, Mar. 23, 1999; 64 FR 57403, 
Oct. 25, 1999]



Sec. 226.206  [Reserved]



Sec. 226.207  Critical habitat for leatherback turtle.

              Leatherback Sea Turtle (dermochelys coriacea)

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

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



Sec. 226.208  Critical habitat for green turtle.

    (a) Culebra Island, Puerto Rico--Waters surrounding the island of 
Culebra

[[Page 189]]

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

[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



Sec. 226.209  Critical habitat for hawksbill turtle.

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

[63 FR 46701, Sept. 2, 1998. Redesignated and amended at 64 FR 14067, 
Mar. 23, 1999]



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

    Critical habitat is designated to include all river reaches 
accessible to listed coho within the range of the ESUs listed, except 
for reaches on Indian lands defined in Tables 5 and 6 to this part. 
Critical habitat consists of the water, substrate, and adjacent riparian 
zone of estuarine and riverine reaches in hydrologic units and counties 
identified in Tables 5 and 6 to this part for all of the coho ESUs 
listed in this section. Accessible reaches are those within the 
historical range of the ESUs that can still be occupied by any life 
stage of coho salmon. Inaccessible reaches are those above longstanding, 
naturally impassable barriers (i.e., natural waterfalls in existence for 
at least several hundred years) and specific dams within the historical 
range of each ESU identified in Tables 5 and 6 to this part. Hydrologic 
units are those defined by the Department of the Interior (DOI), U.S. 
Geological Survey (USGS) publication, ``Hydrologic Unit Maps,'' Water 
Supply Paper 2294, 1987, and the following DOI, USGS, 1:500,000 scale 
hydrologic unit maps: State of Oregon, 1974 and State of California, 
1978 which are incorporated by reference. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the USGS 
publication and maps may be obtained from the USGS, Map Sales, Box 
25286, Denver, CO 80225. Copies may be inspected at NMFS, Protected 
Resources Division, 525 NE Oregon Street--Suite 500, Portland, OR 97232-
2737, or NMFS, Office of Protected Resources, 1315 East-West Highway, 
Silver Spring, MD 20910, or at the Office of the Federal Register, 800 
North Capitol Street, NW., Suite 700, Washington, DC.
    (a) Central California Coast Coho Salmon (Oncorhynchus kisutch). 
Critical habitat is designated to include all river reaches accessible 
to listed coho salmon from Punta Gorda in northern California south to 
the San Lorenzo River in central California, including Arroyo Corte 
Madera Del Presidio and Corte Madera Creek, tributaries to San Francisco 
Bay. Critical habitat consists of the water, substrate, and adjacent 
riparian zone of estuarine and riverine reaches (including off-channel 
habitats) in hydrologic units and counties identified in Table 5 of this 
part. Accessible reaches are those within the historical range of the 
ESU that can still be occupied by any life stage of coho salmon. 
Inaccessible reaches are those above specific dams identified in Table 5 
of this part or above longstanding, naturally impassable barriers (i.e., 
natural waterfalls in existence for at least several hundred years).
    (b) Southern Oregon/Northern California Coasts Coho Salmon 
(Oncorhynchus kisutch). Critical habitat is designated to include all 
river reaches accessible to listed coho salmon between Cape Blanco, 
Oregon, and Punta Gorda, California. Critical habitat consists of the 
water, substrate, and adjacent riparian zone of estuarine and riverine 
reaches (including off-channel habitats) in hydrologic units and 
counties identified in Table 6 of this part. Accessible reaches are 
those within the historical range of the ESU that can still be occupied 
by any life stage of coho salmon. Inaccessible reaches are those above 
specific dams identified in Table 6 of this part or

[[Page 190]]

above longstanding, naturally impassable barriers (i.e., natural 
waterfalls in existence for at least several hundred years).

[64 FR 24061, May 5, 1999]



Sec. 226.212  Critical habitat designation for 19 evolutionary significant units of salmon and steelhead in Washington, Oregon, Idaho, and California.

    Critical habitat is designated to include all river reaches 
accessible to listed salmon or steelhead within the range of the ESUs 
listed, except for reaches on Indian lands. Critical habitat consists of 
the water, substrate, and adjacent riparian zone of estuarine and 
riverine reaches in hydrologic units and counties identified in Tables 7 
through 24 to this part for all of the salmon and steelhead ESUs listed 
in this section. Accessible reaches are those within the historical 
range of the ESUs that can still be occupied by any life stage of salmon 
or steelhead. 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 7 through 24 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), State of 
Washington (1974), State of California (1978), and State of Idaho 
(1981), 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 
publicaion and maps may be obtained from the USGS, Map Sales, Box 25286, 
Denver, CO 80225. Copies may be inspected at NMFS, Protected Resources 
Division, 525 NE Oregon Street-Suite 500, Portland, OR 97232-2737, or 
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, or at the Office of the Federal Register, 800 North 
Capitol Street, NW., Suite 700, Washington, DC.
    (a) Puget Sound Chinook Salmon (Oncorhynchus tshawytscha) geographic 
boundaries. Critical habitat is designated to include all marine, 
estuarine and river reaches accessible to listed chinook salmon in Puget 
Sound. Puget Sound marine areas include South Sound, Hood Canal, and 
North Sound to the international boundary at the outer extent of the 
Strait of Georgia, Haro Strait, and the Strait of Juan De Fuca to a 
straight line extending north from the west end of Freshwater Bay, 
inclusive. Excluded are areas above specific dams identified in Table 7 
to this part or above longstanding, naturally impassable barriers (i.e., 
natural waterfalls in existence for at least several hundred years).
    (b) Lower Columbia River Chinook Salmon (Oncorhynchus tshawytscha) 
geographic boundaries. Critical habitat is designated to include all 
river reaches accessible to listed chinook salmon in Columbia River 
tributaries between the Grays and White Salmon Rivers in Washington and 
the Willamette and Hood Rivers in Oregon, inclusive. Also included are 
river reaches and estuarine areas in 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 the Dalles Dam. Excluded are areas above specific dams 
identified in Table 8 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (c) Upper Willamette River chinook salmon (Oncorhynchus tshawytscha) 
geographic boundaries. Critical habitat is designated to include all 
river reaches accessible to listed chinook salmon in the Clackamas River 
and the Willamette River and its tributaries above Willamette Falls. 
Also included are river reaches and estuarine areas in 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, and including, the Willamette River 
in Oregon. Excluded are areas above specific dams identified in Table 9 
to this part or above longstanding, naturally

[[Page 191]]

impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (d) Upper Columbia River Spring-run Chinook salmon (Oncorhynchus 
tshawytscha) geographic boundaries. Critical habitat is designated to 
include all river reaches accessible to listed chinook salmon in 
Columbia River tributaries upstream of the Rock Island Dam and 
downstream of Chief Joseph Dam in Washington, excluding the Okanogan 
River. Also included are river reaches and estuarine areas in 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. Excluded are areas above specific dams identified in Table 
10 to this part or above longstanding, naturally impassable barriers 
(i.e., natural waterfalls in existence for at least several hundred 
years).
    (e) Central Valley Spring-run chinook salmon (Oncorhynchus 
tshawytscha) geographic boundaries. Critical habitat is designated to 
include all river reaches accessible to listed chinook salmon in the 
Sacramento River and its tributaries in California. Also included are 
river reaches and estuarine areas 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. Excluded are areas above specific 
dams identified in Table 11 to this part or above longstanding, 
naturally impassable barriers (i.e., natural waterfalls in existence for 
at least several hundred years).
    (f) California Coastal Chinook Salmon (Oncorhynchus tshawytscha) 
geographic boundaries. Critical habitat is designated to include all 
river reaches and estuarine areas accessible to listed chinook salmon 
from Redwood Creek (Humboldt County, California) to the Russian River 
(Sonoma County, California), inclusive. Excluded are areas above 
specific dams identified in Table 12 to this part or above longstanding, 
naturally impassable barriers (i.e., natural waterfalls in existence for 
at least several hundred years).
    (g) Hood Canal Summer-run Chum Salmon (Oncorhynchus keta) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed chum salmon (including estuarine areas and 
tributaries) draining into Hood Canal as well as Olympic Peninsula 
rivers between and including Hood Canal and Dungeness Bay, Washington. 
Also included are estuarine/marine areas of Hood Canal, Admiralty Inlet, 
and the Straits of Juan De Fuca to the international boundary and as far 
west as a straight line extending north from Dungeness Bay. Excluded are 
areas above specific dams identified in Table 13 to this part or above 
longstanding, naturally impassable barriers (i.e., natural waterfalls in 
existence for at least several hundred years).
    (h) Columbia River Chum Salmon (Oncorhynchus keta) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed chum salmon (including estuarine areas and 
tributaries) in the Columbia River downstream from Bonneville Dam, 
excluding Oregon tributaries upstream of Milton Creek at river km 144 
near the town of St. Helens. Excluded are areas above specific dams 
identified in Table 14 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (i) Ozette Lake Sockeye Salmon (Oncorhynchus nerka) geographic 
boundaries. Critical habitat is designated to include all lake areas and 
river reaches accessible to listed sockeye salmon in Ozette Lake, 
located in Clallam County, Washington. Excluded are areas above 
longstanding, naturally impassable barriers (i.e., natural waterfalls in 
existence for at least several hundred years).
    (j) Oregon Coast coho salmon (Oncorhynchus kisutch) geographic 
boundaries. Critical habitat is designated to include all river reaches 
and estuarine areas accessible to listed coho salmon from coastal 
streams south of the Columbia River and north

[[Page 192]]

of Cape Blanco, Oregon. Excluded are areas above specific dams 
identified in Table 15 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (k) Southern California steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
and estuarine areas accessible to listed steelhead in coastal river 
basins from the Santa Maria River to Malibu Creek, California 
(inclusive). Excluded are areas above specific dams identified in Table 
16 to this part or above longstanding, naturally impassable barriers 
(i.e., natural waterfalls in existence for at least several hundred 
years).
    (l) South-Central California Coast steelhead (Oncorhynchus mykiss) 
geographic boundaries. Critical habitat is designated to include all 
river reaches and estuarine areas accessible to listed steelhead in 
coastal river basins from the Pajaro River (inclusive) to, but not 
including, the Santa Maria River, California. Excluded are areas above 
specific dams identified in Table 17 to this part or above longstanding, 
naturally impassable barriers (i.e., natural waterfalls in existence for 
at least several hundred years).
    (m) Central California Coast steelhead (Oncorhynchus mykiss) 
geographic boundaries. Critical habitat is designated to include all 
river reaches and estuarine areas accessible to listed steelhead in 
coastal river basins from the Russian River to Aptos Creek, California 
(inclusive), and the drainages of San Francisco and San Pablo Bays. Also 
included are all waters of San Pablo Bay westward of the Carquinez 
Bridge and all waters of San Francisco Bay from San Pablo Bay to the 
Golden Gate Bridge. Excluded is the Sacramento-San Joaquin River Basin 
of the California Central Valley as well as areas above specific dams 
identified in Table 18 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (n) Central Valley steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed steelhead in the Sacramento and San Joaquin Rivers 
and their tributaries in California. Also included are river reaches and 
estuarine areas 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. Excluded are areas of the San Joaquin River 
upstream of the Merced River confluence and areas above specific dams 
identified in Table 19 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (o) Upper Columbia River steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed steelhead in Columbia River tributaries upstream of 
the Yakima River, Washington, and downstream of Chief Joseph Dam. Also 
included are river reaches and estuarine areas in 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. Excluded 
are areas above specific dams identified in Table 20 to this part or 
above longstanding, naturally impassable barriers (i.e., natural 
waterfalls in existence for at least several hundred years).
    (p) Snake River Basin steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed steelhead in the Snake River and its tributaries in 
Idaho, Oregon, and Washington. Also included are river reaches and 
estuarine areas in 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 
the confluence with the Snake River. Excluded are areas above specific 
dams identified in Table 21 to this part or above longstanding,

[[Page 193]]

naturally impassable barriers (i.e., Napias Creek Falls and other 
natural waterfalls in existence for at least several hundred years).
    (q) Lower Columbia River steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed steelhead in Columbia River tributaries between the 
Cowlitz and Wind Rivers in Washington and the Willamette and Hood Rivers 
in Oregon, inclusive. Also included are river reaches and estuarine 
areas in 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 the Hood River 
in Oregon. Excluded are areas above specific dams identified in Table 22 
to this part or above longstanding, naturally impassable barriers (i.e., 
natural waterfalls in existence for at least several hundred years).
    (r) Upper Willamette River steelhead (Oncorhynchus mykiss) 
geographic boundaries. Critical habitat is designated to include all 
river reaches accessible to listed steelhead in the Willamette River and 
its tributaries above Willamette Falls upstream to, and including, the 
Calapooia River. Also included are river reaches and estuarine areas in 
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, and including, the 
Willamette River in Oregon. Excluded are areas above specific dams 
identified in Table 23 to this part or above longstanding, naturally 
impassable barriers (i.e., natural waterfalls in existence for at least 
several hundred years).
    (s) Middle Columbia River steelhead (Oncorhynchus mykiss) geographic 
boundaries. Critical habitat is designated to include all river reaches 
accessible to listed steelhead in Columbia River tributaries (except the 
Snake River) between Mosier Creek in Oregon and the Yakima River in 
Washington (inclusive). Also included are river reaches and estuarine 
areas in 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 the Yakima 
River in Washington. Excluded are areas above specific dams identified 
in Table 24 to this part or above longstanding, naturally impassable 
barriers (i.e., natural waterfalls in existence for at least several 
hundred years).

[65 FR 7777, Feb. 16, 2000]



Sec. 226.213  Critical habitat for Johnson's seagrass.

    Critical habitat is designated to include substrate and water in the 
following ten portions of the Indian River Lagoon and Biscayne Bay 
within the current range of Johnson's seagrass.
    (a) A portion of the Indian River, Florida, north of Sebastian Inlet 
Channel, defined by the following coordinates:

    Northwest corner: 27 deg.51'15.03"N, 80 deg.27'55.49"W
    Northeast corner: 27 deg.51'16.57"N, 80 deg.27'53.05"W
    Southwest corner: 27 deg.51'08.85"N, 80 deg.27'50.48"W
    Southeast corner: 27 deg.51'11.58"N, 80 deg.27'47.35"W

    (b) A portion of the Indian River, Florida, south of the Sebastian 
Inlet Channel, defined by the following coordinates:

    Northwest corner: 27 deg.51'01.32"N, 80 deg.27'46.10"W
    Northeast corner: 27 deg.51'02.69"N, 80 deg.27'45.27"W
    Southwest corner: 27 deg.50'59.08"N, 80 deg.27'41.84"W
    Southeast corner: 27 deg.51'01.07"N, 80 deg.27'40.50"W

    (c) A portion of the Indian River Lagoon in the vicinity of the Fort 
Pierce Inlet. This site is located on the north side of the entrance 
channel just west of a small mangrove vegetated island where the main 
entrance channel bifurcates to the north. The area is defined by the 
following coordinates:

    Northwest corner: 27 deg.28'06.00"N, 80 deg.18'48.89"W
    Northeast corner: 27 deg.28'04.43"N, 80 deg.18'42.25"W
    Southwest corner: 27 deg.28'02.86"N, 80 deg.18'49.06"W
    Southeast corner: 27 deg.28'01.46"N, 80 deg.18'42.42"W

    (d) A portion of the Indian River Lagoon, Florida, north of the St. 
Lucie Inlet, from South Nettles Island to the

[[Page 194]]

Florida Oceanographic Institute, defined by the following coordinates 
and excluding the Federally-marked navigation channel of the 
Intracoastal Waterway (ICW):

    Northwest corner: 27 deg.16'44.04"N, 80 deg.14'00.00"W
    Northeast corner: 27 deg.16'44.04"N, 80 deg.12'51.33"W
    Southwest corner: 27 deg.12'49.70"N, 80 deg.11'46.80"W
    Southeast corner: 27 deg.12'49.70"N, 80 deg.11'02.50"W

    (e) Hobe Sound beginning at State Road 708 (27 deg.03'49.90"N, 
80 deg.07'20.57"W) and extending south to 27 deg.00'00.00"N, 
80 deg.05'32.54"W and excluding the federally-marked navigation channel 
of the ICW.
    (f) Jupiter Inlet at a site located just west of the entrance to 
Zeek's Marina on the south side of Jupiter Inlet and defined by the 
following coordinates (note a south central point was included to better 
define the shape of the southern boundary):

    Northwest corner: 26 deg.56'43.34"N, 80 deg.04'47.84"W
    Northeast corner: 26 deg.56'40.93"N, 80 deg.04'42.61"W
    Southwest corner: 26 deg.56'40.73"N, 80 deg.04'48.65"W
    South central point: 26 deg.56'38.11"N, 80 deg.04'45.83"W
    Southeast corner: 26 deg.56'38.31"N, 80 deg.04'42.41"W

    (g) A portion of Lake Worth, Florida, just north of Bingham Island 
defined by the following coordinates and excluding the Federally-marked 
navigation channel of the ICW:

    Northwest corner: 26 deg.40'44.00"N, 80 deg.02'39.00"W
    Northeast corner: 26 deg.40'40.00"N, 80 deg.02'34.00"W
    Southwest corner: 26 deg.40'32.00"N, 80 deg.02'44.00"W
    Southeast corner: 26 deg.40'33.00"N, 80 deg.02'35.00"W

    (h) A portion of Lake Worth Lagoon, Florida, located just north of 
the Boynton Inlet, on the west side of the ICW, defined by the following 
coordinates and excluding the Federally-marked navigation channel of the 
ICW:

    Northwest corner: 26 deg.33'28.00"N, 80 deg.02'54.00"W
    Northeast corner: 26 deg.33'30.00"N, 80 deg.03'04.00"W
    Southwest corner: 26 deg.32'50.00"N, 80 deg.03'11.00"W
    Southeast corner: 26 deg.32'50.00"N, 80 deg.02'58.00"W

    (i) A portion of northeast Lake Wyman, Boca Raton, Florida, defined 
by the following coordinates and excluding the Federally-marked 
navigation channel of the ICW:

    Northwest corner: 26 deg.22'27.00"N, 80 deg.04'23.00"W
    Northeast corner: 26 deg.22'27.00"N, 80 deg.04'18.00"W
    Southwest corner: 26 deg.22'05.00"N, 80 deg.04'16.00"W
    Southeast corner: 26 deg.22'05.00"N, 80 deg.04'18.00"W

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

[[Page 195]]

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[65 FR 17795, Apr. 5, 2000]

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

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

[[Page 204]]



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

[58 FR 45278, Aug. 27, 1993]

[[Page 205]]

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

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

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

[[Page 206]]

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

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

Table 3 to Part 226--Hydrologic Units Containing Critical Habitat for Snake River Sockeye Salmon and Snake River
                                      Spring/Summer and Fall Chinook Salmon
----------------------------------------------------------------------------------------------------------------
                                                               Hydrologic unit number
                                   -----------------------------------------------------------------------------
       Hydrologic unit name                                     Spring/summer chinook
                                         Sockeye salmon                salmon              Fall chinook salmon
----------------------------------------------------------------------------------------------------------------
Hells Canyon......................  ........................                 17060101                  17060101

[[Page 207]]

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

[58 FR 68552, Dec. 28, 1993]

                           Table 4  [Reserved]

Table 5 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central California Coast Coho
    Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the Upstream Extent of
                                                Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                      Counties and tribal lands
                                        Hydrologic   contained in hydrologic unit
        Hydrologic  unit name            unit No.    and within the range of ESU1        Dams (reservoirs)
                                                                  2
----------------------------------------------------------------------------------------------------------------
San Lorenzo-Soquel...................     18060001  Santa Cruz (CA), San Mateo     Newell Dam (Loch Lomond).
                                                     (CA).
San Francisco Coastal South..........     18050006  San Mateo (CA)...............
San Pablo Bay........................     18050002  Marin (CA), Napa (CA)........  Phoenix Dam (Phoenix Lake).
Tomales-Drake Bays...................     18050005  Marin (CA), Sonoma (CA)......  Peters Dam (Kent Lake);
                                                                                    Seeger Dam (Nicasio
                                                                                    Reservoir).
Bodega Bay...........................     18010111  Marin (CA), Sonoma (CA)......
Russian..............................     18010110  Sonoma (CA), Mendocino (CA)--  Warm Springs Dam (Lake
                                                     Cloverdale Rancheria; Coyote   Sonoma); Coyote Dam (Lake
                                                     Valley Rancheria; Dry Creek    Mendocino).
                                                     Rancheria; Guidiville
                                                     Rancheria; Hopland
                                                     Rancheria; Lytton Rancheria;
                                                     Pinoleville Rancheria;
                                                     Stewarts Point Rancheria.
Gualala-Salmon.......................     18010109  Sonoma (CA), Mendocino (CA)..
Big-Navarro-Garcia...................     18010108  Mendocino (CA)--Manchester/
                                                     Point Arena Rancheria;.
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
  habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
  basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.

[64 FR 24061, May 5, 1999]

[[Page 208]]


   Table 6 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Southern Oregon/Northern
  California Coasts Coho Salmon, Tribal Lands Within the Range of the ESU, and Dams/Reservoirs Representing the
                                       Upstream Extent of Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                      Counties and tribal lands
                                        Hydrologic   contained in hydrologic unit
         Hydrologic unit name            unit No.    and within the range of ESU1        Dams (reservoirs)
                                                                  2
----------------------------------------------------------------------------------------------------------------
Mattole..............................     18010107  Humboldt (CA), Mendocino (CA)
South Fork Eel.......................     18010106  Mendocino (CA), Humboldt
                                                     (CA)--Laytonville Rancheria;
                                                     Sherwood Valley Rancheria.
Lower Eel............................     18010105  Mendocino (CA), Humboldt
                                                     (CA), Trinity (CA).
Middle Fork Eel......................     18010104  Mendocino (CA), Trinity (CA),
                                                     Glenn (CA), Lake (CA)--Round
                                                     Valley Reservation.
Upper Eel............................     18010103  Mendocino (CA), Glenn (CA),    Scott Dam (Lake Pillsbury).
                                                     Lake (CA).
Mad-Redwood..........................     18010102  Humboldt (CA), Trinity (CA)--
                                                     Big Lagoon Rancheria; Blue
                                                     Lake Rancheria.
Smith................................     18010101  Del Norte (CA), Curry (OR)--
                                                     Elk Valley Rancheria; Smith
                                                     River Rancheria.
South Fork Trinity...................     18010212  Humboldt (CA), Trinity (CA)..
Trinity..............................     18010211  Humboldt (CA), Trinity (CA)--  Lewiston Dam (Lewiston
                                                     Hoopa Valley Reservation.      Reservoir).
Salmon...............................     18010210  Siskiyou (CA)................
Lower Klamath........................     18010209  Del Norte (CA), Humboldt
                                                     (CA), Siskiyou (CA)--Karuk
                                                     Reservation; Resighini
                                                     Rancheria; Yurok Reservation.
Scott................................     18010208  Siskiyou (CA)--Quartz Valley
                                                     Reservation.
Shasta...............................     18010207  Siskiyou (CA)................  Dwinnell Dam (Dwinnell
                                                                                    Reservoir).
Upper Klamath........................     18010206  Siskiyou (CA), Jackson (OR)..  Irongate Dam (Irongate
                                                                                    Reservoir).
Chetco...............................     17100312  Curry (OR), Del Norte (CA)...
Illinois.............................     17100311  Curry (OR), Josephine (OR),    Selmac Lake Dam (Lake
                                                     Del Norte (CA).                Selmac).
Lower Rogue..........................     17100310  Curry (OR), Josephine (OR),
                                                     Jackson (OR).
Applegate............................     17100309  Josephine (OR), Jackson (OR),  Applegate Dam (Applegate
                                                     Siskiyou (CA).                 Reservoir).
Middle Rogue.........................     17100308  Josephine (OR), Jackson (OR).  Emigrant Lake Dam (Emigrant
                                                                                    Lake).
Upper Rogue..........................     17100307  Jackson (OR), Klamath (OR),    Agate Lake Dam (Agate Lake);
                                                     Douglas (OR).                  Fish Lake Dam (Fish Lake);
                                                                                    Willow Lake Dam (Willow
                                                                                    Lake); Lost Creek Dam (Lost
                                                                                    Creek Reservoir).
Sixes................................     17100306  Curry (OR)...................
----------------------------------------------------------------------------------------------------------------
1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical
  habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and
  basin boundaries.
2 Tribal lands are specifically excluded from critical habitat for this ESU.

[64 FR 24061, May 5, 1999]

 Table 7 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Puget Sound Chinook Salmon,
                    and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Strait of Georgia........................     17110002  Skagit (WA), Whatcom (WA)..
Sand Juan Islands........................     17110003  San Juan (WA)..............
Nooksack.................................     17110004  Skagit (WA), Whatcom (WA)..
Upper Skagit.............................     17110005  Skagit (WA), Whatcom (WA)..
Sauk.....................................     17110006  Snohomish (WA), Skagit (WA)
Lower Skagit.............................     17110007  Skagit (WA), Snohomish (WA)
Stillaguamish............................     17110008  Snohomish (WA), Skagit (WA)
Skykomish................................     17110009  King (WA), Snohomish (WA)..
Snoqualmie...............................     17110010  King (WA), Snohomish (WA)..  Tolt Dam
Snohomish................................     17110011  Snohomish (WA).............
Lake Washington..........................     17110012  King (WA), Snohomish (WA)..  Landsburg Diversion
Duwamish.................................     17110013  King (WA)..................
Puyallup.................................     17110014  King (WA), Pierce (WA).....
Nisqually................................     17110015  Pierce (WA), Thurston (WA).  Alder Dam
Deschutes................................     17110016  Lewis (WA), Thurston (WA)..

[[Page 209]]

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

[65 FR 7779, Feb. 16, 2000]

Table 8 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River Chinook
                Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Middle Columbia-Hood.....................     17070105  Hood River (OR), Klickitat   Condit Dam, The Dalles Dam
                                                         (WA), Skamania (WA), Wasco
                                                         (OR).
Lower Columbia-Sandy.....................     17080001  Clackamas (OR), Clark (WA),  Bull Run Dam 2
                                                         Multnomah (OR), Skamania
                                                         (WA).
Lewis....................................     17080002  Clark (WA), Cowlitz (WA),    Merwin Dam
                                                         Skamania (WA).
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (OR), Cowlitz (WA), Lewis
                                                         (WA), Skamania (WA),
                                                         Wahkiakum (WA).
Upper Cowlitz............................     17080004  Lewis (WA), Pierce (WA),
                                                         Skamania (WA), Yakima (WA).
Lower Cowlitz............................     17080005  Cowlitz (WA), Lewis (WA),
                                                         Skamania (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Clackamas................................     17090011  Clackamas (OR), Marion (OR)
Lower Willamette.........................     17090012  Clackamas (OR), Columbia
                                                         (OR), Multnomah (OR),
                                                         Washington (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7780, Feb. 16, 2000]

   Table 9 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River
            Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia-Sandy.....................     17080001  Clark (WA).................
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (OR), Cowlitz (WA),
                                                         Wahkiakum (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Middle Fork Willamette...................     17090001  Douglas (OR), Lane (OR)....
Coast Fork Willamette....................     17090002  Douglas (OR), Lane (OR)....  Cottage Grove Dam, Dorena
                                                                                      Dam
Upper Willamette.........................     17090003  Benton (OR), Lane (OR),      Fern Ridge Dam
                                                         Lincoln (OR), Linn (OR),
                                                         Polk (OR).
McKenzie.................................     17090004  Lane (OR), Linn (OR).......  Blue River Dam

[[Page 210]]

 
North Santiam............................     17090005  Clackamas (OR), Linn (OR)    Big Cliff Dam
                                                         Marion (OR).
South Santiam............................     17090006  Linn (OR)..................  Green Peter Dam
Middle Willamette........................     17090007  Clackamas (OR), Marion
                                                         (OR), Polk (OR),
                                                         Washington (OR), Yamhill
                                                         (OR).
Yamhill..................................     17090008  Lincoln (OR), Polk (OR),
                                                         Tillamook (OR), Yamhill
                                                         (OR).
Molalla-Pudding..........................     17090009  Clackamas (OR), Marion (OR)
Tualatin.................................     17090010  Clackamas (OR), Columbia
                                                         (OR), Multnomah (OR),
                                                         Tillamook (OR), Washington
                                                         (OR), Yamhill (OR).
Clackamas................................     17090011  Clackamas (OR), Marion (OR)
Lower Willamette.........................     17090012  Clackamas (OR), Columbia
                                                         (OR), Multnomah (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7780, Feb. 16, 2000]

Table 10 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River Spring-
          run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Chief Joseph.............................     17020005  Chelan (WA), Douglas (WA),   Chief Joseph
                                                         Okanogan (WA).
Similkameen..............................     17020007  Okanogan (WA)..............
Methow...................................     17020008  Okanogan (WA)..............
Upper Columbia-Entiat....................     17020010  Chelan (WA), Douglas (WA),
                                                         Grant (WA), Kittitas (WA).
Wenatchee................................     17020011  Chelan (WA)................
Upper Columbia-Priest Rapids.............     17020016  Benton (WA), Grant (WA),
                                                         Franklin (WA), Kittitas
                                                         (WA), Yakima (WA).
Middle Columbia-Lake Wallula.............     17070101  Benton (WA), Gilliam (OR),
                                                         Klickitat (WA), Morrow
                                                         (OR), Sherman (OR),
                                                         Umatilla (OR), Walla Walla
                                                         (WA).
Middle Columbia-Hood.....................     17070105  Hood River (OR), Klickitat
                                                         (WA), Sherman (OR),
                                                         Skamania (WA), Wasco (OR).
Lower Columbia-Sandy.....................     17080001  Clark (WA), Multnomah (OR),
                                                         Skamania (WA).
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (OR), Cowlitz (WA),
                                                         Wahkiakum (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Lower Willamette.........................     17090012  Columbia (OR), Multnomah
                                                         (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7781, Feb. 16, 2000]

  Table 11 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central Valley California
      Spring-run Chinook Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Sacramento-Lower Cow-Lower Clear.........     18020101  Shasta (CA), Tehama (CA)...

[[Page 211]]

 
Lower Cottonwood.........................     18020102  Shasta (CA), Tehama (CA)...
Sacramento-Lower Thomes..................     18020103  Butte (CA), Glenn (CA),      Black Butte Dam
                                                         Tehama (CA).
Sacramento-Stone Corral..................     18020104  Butte (CA), Colusa (CA),
                                                         Glenn (CA), Sutter (CA),
                                                         Yolo (CA).
Lower Butte..............................     18020105  Butte (CA), Colusa (CA),     Centerville Dam
                                                         Glenn (CA), Sutter (CA).
Lower Feather............................     18020106  Butte (CA), Sutter (CA),     Oroville Dam
                                                         Yuba (CA).
Lower Yuba...............................     18020107  Yuba (CA)..................
Lower Bear...............................     18020108  Placer (CA), Sutter (CA),    Camp Far West Dam
                                                         Yuba (CA).
Lower Sacramento.........................     18020109  Sacramento (CA), Solano
                                                         (CA), Sutter (CA), Placer
                                                         (CA), Yolo (CA).
Sacramento-Upper Clear...................     18020112  Shasta (CA)................  Keswick Dam, Whiskeytown
                                                                                      Dam
Upper Elder-Upper Thomes.................     18020114  Tehama (CA)................
Upper Cow-Battle.........................     18020118  Shasta (CA), Tehama (CA)...
Mill-Big Chico...........................     18020119  Butte (CA), Shasta (CA),
                                                         Tehama (CA).
Upper Butte..............................     18020120  Butte (CA), Tehama (CA)....
Upper Yuba...............................     18020125  Nevada (CA), Yuba (CA).....  Englebright Dam
Suisun Bay...............................     18050001  Contra Costa (CA), Napa
                                                         (CA), Solano (CA).
San Pablo Bay............................     18050002  Alameda (CA), Contra Costa
                                                         (CA), Marin (CA), Napa
                                                         (CA), San Mateo (CA),
                                                         Solano (CA), Sonoma (CA).
San Francisco Bay........................     18050004  Alameda (CA), Contra Costa
                                                         (CA), Marin (CA), San
                                                         Francisco (CA), San Mateo
                                                         (CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7781, Feb. 16, 2000]

 Table 12 to Part 226 --Hydrologic Units and Counties Containing Critical Habitat for California Coastal Chinook
                Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Mad-Redwood..............................     18010102  Humboldt (CA), Trinity (CA)
Upper Eel................................     18010103  Glenn (CA), Lake (CA),       Scott Dam
                                                         Mendocino (CA), Trinity
                                                         (CA).
Middle Fork Eel..........................     18010104  Humboldt (CA), Mendocino
                                                         (CA), Trinity (CA).
Lower Eel................................     18010105  Humboldt (CA), Mendocino
                                                         (CA).
South Fork Eel...........................     18010106  Humboldt (CA), Mendocino
                                                         (CA).
Mattole..................................     18010107  Humboldt (CA), Mendocino
                                                         (CA).
Big-Navarro-Garcia.......................     18010108  Mendocino (CA).............
Gualala-Salmon...........................     18010109  Mendocino (CA), Sonoma (CA)
Russian..................................     18010110  Mendocino (CA), Sonoma (CA)  Coyote Dam, Warm Springs
                                                                                      Dam
Bodega Bay...............................     18010111  Marin (CA), Sonoma (CA)....
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7782, Feb. 16, 2000]

[[Page 212]]


 Table 13 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Hood Canal Summer-run Chum
                Salmon, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Skokomish................................     17110017  Mason (WA).................  Cushman Dam
Hood Canal...............................     17110018  Clallam (WA), Jefferson
                                                         (WA), Kitsap (WA), Mason
                                                         (WA).
Puget Sound..............................     17110019  Island (WA), Jefferson
                                                         (WA), Kitsap (WA).
Dungeness-Elwha..........................     17110020  Clallam (WA), Jefferson
                                                         (WA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7782, Feb. 16, 2000]

 Table 14 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Columbia River Chum Salmon,
                    and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia - Sandy...................     17080001  Clark (WA), Skamania (WA),   Bonneville Dam
                                                         Multnomah (OR).
Lewis....................................     17080002  Cowlitz (WA), Clark (WA),    Merwin Dam
                                                         Skamania (WA).
Lower Columbia - Clatskanie..............     17080003  Wahkiakum (WA), Lewis (WA),
                                                         Cowlitz (WA), Skamania
                                                         (WA), Clatsop (OR),
                                                         Columbia (OR).
Lower Cowlitz............................     17080005  Cowlitz (WA), Lewis (WA),
                                                         Skamania (WA).
Lower Columbia...........................     17080006  Pacific (WA), Wahkiakum
                                                         (WA), Lewis (WA), Clatsop
                                                         (OR).
Lower Willamette.........................     17090012  Columbia (OR), Multnomah
                                                         (OR), Washington (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7782, Feb. 16, 2000]

  Table 15 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Oregon Coast Coho Salmon,
                    and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic   Unit and within the range         Dams/Reservoirs
                                           Unit number            of ESUX
----------------------------------------------------------------------------------------------------------------
Necanicum................................     17100201  Clatsop (OR), Tillamook
                                                         (OR).
Nehalem..................................     17100202  Clatsop (OR), Columbia
                                                         (OR), Tillamook (OR),
                                                         Washington (OR).
Wilson-Trask-Nestucca....................     17100203  Lincoln (OR), Polk (OR),     McGuire Dam
                                                         Tillamook (OR), Washington
                                                         (OR), Yamhill (OR).
Siletz-Yaquina...........................     17100204  Benton (OR), Lincoln (OR),
                                                         Polk (OR), Tillamook (OR).
Alsea....................................     17100205  Benton (OR), Lane (OR),
                                                         Lincoln (OR).
Siuslaw..................................     17100206  Benton (OR), Douglas (OR),
                                                         Lane (OR).
Siltcoos.................................     17100207  Douglas (OR), Lane (OR)....
North Umpqua.............................     17100301  Douglas (OR), Lane (OR)....  Cooper Creek Dam, Soda
                                                                                      Springs Dam
South Umpqua.............................     17100302  Coos (OR), Douglas (OR),     Ben Irving Dam, Galesville
                                                         Josephine (OR).              Dam, Win Walker Reservoir
Umpqua...................................     17100303  Coos (OR), Douglas (OR),
                                                         Lane (OR).
Coos.....................................     17100304  Coos (OR), Douglas (OR)....  Lower Pony Creek Dam

[[Page 213]]

 
Coquille.................................     17100305  Coos (OR), Curry (OR),
                                                         Douglas (OR).
Sixes....................................     17100306  Coos (OR), Curry (OR)......
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7782, Feb. 16, 2000]

     Table 16 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Southern California
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Cuyama...................................     18060007  San Luis Obispo (CA), Santa
                                                         Barbara (CA).
Santa Maria..............................     18060008  San Luis Obispo (CA), Santa  Vaquero Dam
                                                         Barbara (CA).
San Antonio..............................     18060009  Santa Barbara (CA).........
Santa Ynez...............................     18060010  Santa Barbara (CA).........  Bradbury Dam
Santa Barbara Coastal....................     18060013  Santa Barbara (CA), Ventura
                                                         (CA).
Ventura..................................     18070101  Santa Barbara (CA), Ventura  Casitas Dam, Robles Dam
                                                         (CA).
Santa Clara..............................     18070102  Los Angeles (CA), Santa      Santa Felicia Dam
                                                         Barbara (CA), Ventura (CA).
Santa Monica Bay.........................     18070104  Los Angeles (CA), Ventura    Rindge Dam
                                                         (CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7783, Feb. 16, 2000]

  Table 17 to Part 226.--Hydrologic Units and Counties Containing Critical Habitat for South-Central California
           Coast Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Pajaro...................................     18060002  Monterey (CA), San Benito    Chesbro Reservoir, North
                                                         (CA), Santa Clara (CA),      Fork Pacheco Reservoir
                                                         Santa Cruz (CA).
Estrella.................................     18060004  Monterey (CA), San Luis
                                                         Obispo (CA).
Salinas..................................     18060005  Monterey (CA), San Benito    Nacimiento Reservoir,
                                                         (CA), San Luis Obispo (CA).  Salinas Dam, San Antonio
                                                                                      Reservoir
Central Coastal..........................     18060006  Monterey (CA), San Luis      Lopez Dam, Whale Rock
                                                         Obispo (CA).                 Reservoir
Alisal-Elkhorn Sloughs...................     18060011  Monterey (CA), San Benito
                                                         (CA).
Carmel...................................     18060012  Monterey (CA)..............
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7783, Feb. 16, 2000]

[[Page 214]]


  Table 18 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central California Coast
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Russian..................................     18010110  Mendocino (CA), Sonoma (CA)  Coyote Dam, Warm Springs
                                                                                      Dam
Bodega Bay...............................     18010111  Marin (CA), Sonoma (CA)....
Suisun Bay...............................     18050001  Contra Costa (CA), Napa
                                                         (CA), Solano (CA).
San Pablo Bay............................     18050002  Alameda (CA), Contra Costa   Phoenix Dam, San Pablo Dam
                                                         (CA), Marin (CA), Napa
                                                         (CA), San Francisco (CA),
                                                         Solano (CA), Sonoma (CA).
Coyote...................................     18050003  Alameda (CA), San Mateo      Almaden Reservoir, Anderson
                                                         (CA), Santa Clara (CA).      Reservoir, Calero
                                                                                      Reservoir, Guadalupe
                                                                                      Reservoir, Searsville
                                                                                      Lake, Stevens Creek
                                                                                      Reservoir, Vasona
                                                                                      Reservoir
San Francisco Bay........................     18050004  Alameda (CA), Contra Costa   Calaveras Reservoir, Chabot
                                                         (CA), San Francisco (CA),    Dam, Crystal Springs
                                                         San Mateo (CA), Santa        Reservoir, Del Valle
                                                         Clara (CA).                  Reservoir, San Antonio
                                                                                      Reservoir
Tomales-Drake Bays.......................     18050005  Marin (CA), Sonoma (CA)....  Peters Dam, Seeger Dam,
                                                                                      Soulejule Dam
San Francisco Coastal South..............     18050006  San Mateo (CA).............  Pilarcitos Dam
San Lorenzo-Soquel.......................     18060001  San Mateo (CA), Santa Cruz   Newell Dam
                                                         (CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7783, Feb. 16, 2000]

  Table 19 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Central Valley Steelhead,
                    and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Sacramento-Lower Cow-Lower Clear.........     18020101  Shasta (CA), Tehama (CA)...
Lower Cottonwood.........................     18020102  Shasta (CA), Tehama (CA)...
Sacramento-Lower Thomes..................     18020103  Butte (CA), Glenn (CA),      Black Butte Dam
                                                         Tehama (CA).
Sacramento-Stone Corral..................     18020104  Butte (CA), Colusa (CA),
                                                         Glenn (CA), Sutter (CA),
                                                         Yolo (CA).
Lower Butte..............................     18020105  Butte (CA), Colusa (CA),     Centerville Dam
                                                         Glenn (CA), Sutter (CA).
Lower Feather............................     18020106  Butte (CA), Sutter (CA),     Oroville Dam
                                                         Yuba (CA).
Lower Yuba...............................     18020107  Yuba (CA)..................
Lower Bear...............................     18020108  Placer (CA), Sutter (CA),    Camp Far West Dam
                                                         Yuba (CA).
Lower Sacramento.........................     18020109  Placer (CA), Sacramento      Monticello Dam
                                                         (CA), Solano (CA), Sutter
                                                         (CA), Yolo (CA).
Lower Cache..............................     18020110  Yolo (CA)..................
Lower American...........................     18020111  Placer (CA), Sacramento      Nimbus Dam
                                                         (CA), Sutter (CA).
Sacramento-Upper Clear...................     18020112  Shasta (CA)................  Keswick Dam, Whiskeytown
                                                                                      Dam
Cottonwood Headwaters....................     18020113  Shasta (CA), Tehama (CA)...
Upper Elder-Upper Thomes.................     18020114  Tehama (CA)................
Upper Cow-Battle.........................     18020118  Shasta (CA), Tehama (CA)...
Mill-Big Chico...........................     18020119  Butte (CA), Shasta (CA),
                                                         Tehama (CA).
Upper Butte..............................     18020120  Butte (CA), Tehama (CA)....
Honcut Headwaters........................     18020124  Butte (CA), Yuba (CA)......
Upper Yuba...............................     18020125  Yuba (CA), Nevada (CA).....  Englebright Dam
Upper Coon-Upper Auburn..................     18020127  Placer (CA)................
Middle San Joaquin-Lower Merced-Lower         18040002  Calaveras (CA), Merced       Crocker Diversion Dam, La
 Stanislaus.                                             (CA), San Joaquin (CA),      Grange Dam
                                                         Stanislaus (CA).
San Joaquin Delta........................     18040003  Alameda (CA), Contra Costa
                                                         (CA), Sacramento (CA), San
                                                         Joaquin (CA).
Lower Calaveras-Mormon Slough............     18040004  Calaveras (CA), San Joaquin
                                                         (CA), Stanislaus (CA).

[[Page 215]]

 
Lower Consumnes-Lower Mokelumne..........     18040005  Amador (CA), Sacramento      Comanche Dam
                                                         (CA), San Joaquin (CA).
Upper Stanislaus.........................     18040010  Calaveras (CA), San Joaquin  Goodwin Dam
                                                         (CA), Tuolumne (CA).
Upper Calaveras..........................     18040011  Calaveras (CA).............  New Hogan Dam
Panoche-San Luis Reservoir...............     18040014  San Joaquin (CA),
                                                         Stanislaus (CA).
Suisun Bay...............................     18050001  Contra Costa (CA), Solano
                                                         (CA).
San Pablo Bay............................     18050002  Contra Costa (CA), Marin
                                                         (CA), San Francisco (CA),
                                                         Solano (CA), Sonoma (CA).
San Francisco Bay........................     18050004  Alameda (CA), Contra Costa
                                                         (CA), San Francisco (CA),
                                                         San Mateo (CA).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7784, Feb. 16, 2000]

    Table 20 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Columbia River
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Chief Joseph.............................     17020005  Chelan (WA), Douglas (WA),   Chief Joseph Dam
                                                         Okanogan (WA).
Okanogan.................................     17020006  Okanogan (WA)..............
Similkameen..............................     17020007  Okanogan (WA)..............
Methow...................................     17020008  Okanogan (WA)..............
Upper Columbia-Entiat....................     17020010  Chelan (WA), Douglas (WA),
                                                         Grant (WA), Kittitas (WA).
Wenatchee................................     17020011  Chelan (WA)................
Moses Coulee.............................     17020012  Douglas (WA), Grant (WA)...
Upper Columbia-Priest Rapids.............     17020016  Benton (WA), Franklin (WA),
                                                         Grant (WA), Kittitas (WA),
                                                         Yakima (WA).
Middle Columbia-Lake Wallula.............     17070101  Benton (WA), Gilliam (OR),
                                                         Klickitat (WA), Morrow
                                                         (OR), Sherman (OR),
                                                         Umatilla (OR), Walla Walla
                                                         (WA).
Middle Columbia-Hood.....................     17070105  Hood River (OR), Klickitat
                                                         (WA), Sherman (OR),
                                                         Skamania (WA), Wasco (OR).
Lower Columbia-Sandy.....................     17080001  Clark (WA), Multnomah (OR),
                                                         Skamania (WA).
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (WA), Cowlitz (WA),
                                                         Wahkiakum (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Lower Willamette.........................     17090012  Columbia (OR), Multnomah
                                                         (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7784, Feb. 16, 2000]

[[Page 216]]


Table 21 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Snake River Basin Steelhead,
                    and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Hells Canyon.............................     17060101  Adams (ID), Idaho (ID),      Hells Canyon Dam
                                                         Wallowa (OR).
Imnaha...................................     17060102  Baker (OR), Union (OR),
                                                         Wallowa (OR).
Lower Snake-Asotin.......................     17060103  Asotin (WA), Garfield (WA),
                                                         Nez Perce (ID), Wallowa
                                                         (OR).
Upper Grande Ronde.......................     17060104  Umatilla (OR), Union (OR),
                                                         Wallowa (OR).
Wallowa..................................     17060105  Union (OR), Wallowa (OR)...
Lower Grande Ronde.......................     17060106  Asotin (WA), Columbia (WA),
                                                         Garfield (WA), Union (OR),
                                                         Wallowa (OR).
Lower Snake-Tucannon.....................     17060107  Asotin (WA), Columbia (WA),
                                                         Garfield (WA), Whitman
                                                         (WA).
Palouse..................................     17060108  Franklin (WA), Whitman (WA)
Lower Snake..............................     17060110  Columbia (WA), Franklin
                                                         (WA), Walla Walla (WA).
Upper Salmon.............................     17060201  Blaine (ID), Custer (ID),
                                                         Lemhi (ID).
Pahsimeroi...............................     17060202  Custer (ID), Lemhi (ID)....
Middle Salmon-Panther....................     17060203  Custer (ID), Lemhi (ID)....
Lemhi....................................     17060204  Lemhi (ID).................
Upper Middle Fork Salmon.................     17060205  Boise (ID), Custer (ID),
                                                         Lemhi (ID), Valley (ID).
Lower Middle Fork Salmon.................     17060206  Idaho (ID), Lemhi (ID),
                                                         Valley (ID).
Middle Salmon-Chamberlain................     17060207  Idaho (ID), Lemhi (ID),
                                                         Valley (ID).
South Fork Salmon........................     17060208  Idaho (ID), Valley (ID)....
Lower Salmon.............................     17060209  Idaho (ID), Lewis (ID), Nez
                                                         Perce (ID).
Little Salmon............................     17060210  Adams (ID), Idaho (ID).....
Upper Selway.............................     17060301  Idaho (ID).................
Lower Selway.............................     17060302  Idaho (ID).................
Lochsa...................................     17060303  Clearwater (ID), Idaho (ID)
Middle Fork Clearwater...................     17060304  Idaho (ID).................
South Fork Clearwater....................     17060305  Idaho (ID).................
Clearwater...............................     17060306  Clearwater (ID), Idaho
                                                         (ID), Latah (ID), Lewis
                                                         (ID), Nez Perce (ID),
                                                         Whitman (WA).
Lower North Fork Clearwater..............     17060308  Clearwater (ID)............  Dworshak Dam
Middle Columbia-Lake Wallula.............     17070101  Benton (WA), Gilliam (OR),
                                                         Klickitat (WA), Morrow
                                                         (OR), Sherman (OR),
                                                         Umatilla (OR), Walla Walla
                                                         (WA).
Middle Columbia-Hood.....................     17070105  Hood River (OR), Klickitat
                                                         (WA), Sherman (OR),
                                                         Skamania (WA), Wasco (OR).
Lower Columbia-Sandy.....................     17080001  Clark (WA), Multnomah (OR),
                                                         Skamania (WA).
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (WA), Cowlitz (WA),
                                                         Wahkiakum (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Lower Willamette.........................     17090012  Columbia (OR), Multnomah
                                                         (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7785, Feb. 16, 2000]

    Table 22 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Lower Columbia River
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Middle Columbia-Hood.....................     17070105  Hood River (OR), Skamania
                                                         (WA).

[[Page 217]]

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

[65 FR 7786, Feb. 16, 2000]

   Table 23 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Upper Willamette River
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Lower Columbia-Sandy.....................     17080001  Clark (WA).................
Lower Columbia-Clatskanie................     17080003  Clatsop (OR), Columbia
                                                         (WA), Cowlitz (WA),
                                                         Wahkiakum (WA).
Lower Columbia...........................     17080006  Clatsop (OR), Pacific (WA),
                                                         Wahkiakum (WA).
Upper Willamette.........................     17090003  Benton (OR), Linn (OR),
                                                         Polk (OR).
North Santiam............................     17090005  Clackamas (OR), Linn (OR),   Big Cliff Dam
                                                         Marion (OR).
South Santiam............................     17090006  Linn (OR)..................  Green Peter Dam
Middle Willamette........................     17090007  Clackamas (OR), Marion
                                                         (OR), Polk (OR),
                                                         Washington (OR), Yamhill
                                                         (OR).
Yamhill..................................     17090008  Lincoln (OR), Polk (OR),
                                                         Tillamook (OR), Yamhill
                                                         (OR).
Molalla-Pudding..........................     17090009  Clackamas (OR), Marion (OR)
Tualatin.................................     17090010  Clackamas (OR), Columbia
                                                         (OR), Multnomah (OR),
                                                         Tillamook (OR), Washington
                                                         (OR), Yamhill (OR).
Lower Willamette.........................     17090012  Clackamas (OR), Columbia
                                                         (OR), Multnomah (OR).
----------------------------------------------------------------------------------------------------------------
\1\ Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as
  critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific
  county and basin boundaries.

[65 FR 7786, Feb. 16, 2000]

    Table 24 to Part 226--Hydrologic Units and Counties Containing Critical Habitat for Middle Columbia River
              Steelhead, and Dams/Reservoirs Representing the Upstream Extent of Critical Habitat.
----------------------------------------------------------------------------------------------------------------
                                                        Counties1 within Hydrologic
           Hydrologic Unit name             Hydrologic    Unit and within range of         Dams/Reservoirs
                                           Unit number              ESU
----------------------------------------------------------------------------------------------------------------
Upper Columbia-Priest Rapids.............     17020016  Benton (WA), Franklin (WA).
Upper Yakima.............................     17030001  Kittitas (WA), Yakima (WA).
Naches...................................     17030002  Kittitas (WA), Yakima (WA).

[[Page 218]]

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

[65 FR 7786, Feb. 16, 2000]



PART 228--NOTICE AND HEARING ON SECTION 103(d) REGULATIONS--Table of Contents




Sec.
228.1  Basis and purpose.
228.2  Definitions.
228.3  Scope of regulations.
228.4  Notice of hearing.
228.5  Notification by interested persons.
228.6  Presiding officer.
228.7  Direct testimony submitted as written documents.
228.8  Mailing address.
228.9  Inspection and copying of documents.
228.10  Ex parte communications.
228.11  Prehearing conference.
228.12  Final agenda of the hearing.
228.13  Determination to cancel the hearing.
228.14  Rebuttal testimony and new issues of fact in final agenda.
228.15  Waiver of right to participate.
228.16  Conduct of the hearing.
228.17  Direct testimony.
228.18  Cross-examination.
228.19  Oral and written arguments.
228.20  Recommended decision, certification of the transcript and 
          submission of comments on the recommended decision.
228.21  Assistant Administrator's decision.

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

    Source: 65 FR 39560, June 27, 2000, unless otherwise noted.



Sec. 228.1  Basis and purpose.

    (a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine 
Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 
1371(b)) and these regulations authorize the Assistant Administrator of 
the National Marine Fisheries Service, to:

[[Page 219]]

    (1) Impose regulations governing the taking of marine mammals 
incidental to commercial fishing operations;
    (2) Waive the moratorium and to adopt regulations with respect to 
the taking and importing of animals from each species of marine mammals 
under the Assistant Administrator's jurisdiction;
    (3) Prescribe regulations governing the taking of depleted marine 
mammals by any Indian, Aleut or Eskimo, respectively. In prescribing 
regulations to carry out the provisions of said sections, the Act refers 
the Assistant Administrator to section 103 (16 U.S.C. 1373). In 
accordance with section 103(d), regulations must be made on the record 
after opportunity for an agency hearing on such regulations and, in the 
case of a waiver, on the determination by the Assistant Administrator to 
waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 
U.S.C. 1371(a)(3)(A)).
    (b) The purpose of this part is to establish rules of practice and 
procedure for all hearings conducted pursuant to section 103(d) of the 
Act.



Sec. 228.2  Definitions.

    (a) Party means, for the purposes of this subpart:
    (1) The Assistant Administrator or the Assistant Administrator's 
representative;
    (2) A person who has notified the Assistant Administrator by 
specified dates of his or her intent to participate in the hearing 
pursuant to Secs. 228.5 and 228.14(b).
    (b) Witness means, for the purpose of this part, any person who 
submits written direct testimony on the proposed regulations. A person 
may be both a party and a witness.



Sec. 228.3  Scope of regulations.

    The procedural regulations in this part govern the practice and 
procedure in hearings held under section 103(d) of the Act. These 
hearings will be governed by the provisions of 5 U.S.C. 556 and section 
557 of the Administrative Procedure Act. The regulations shall be 
construed to secure the just, speedy and inexpensive determination of 
all issues raised with respect to any waiver or regulation proposed 
pursuant to section 103(d) of the Act with full protection for the 
rights of all persons affected thereby.



Sec. 228.4  Notice of hearing.

    (a) A notice of hearing on any proposed regulations shall be 
published in the Federal Register, together with the Assistant 
Administrator's proposed determination to waive the moratorium pursuant 
to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where 
applicable.
    (b) The notice shall state:
    (1) The nature of the hearing;
    (2) The place and date of the hearing. The date shall not be less 
than 60 days after publication of notice of the hearing;
    (3) The legal authority under which the hearing is to be held;
    (4) The proposed regulations and waiver, where applicable, and a 
summary of the statements required by section 103(d) of the Act (16 
U.S.C. 1373(d));
    (5) Issues of fact which may be involved in the hearing;
    (6) If a draft Environmental Impact Statement is required, the date 
of publication of the draft and the place(s) where the draft and 
comments thereon may be viewed and copied;
    (7) Any written advice received from the Marine Mammal Commission;
    (8) The place(s) where records and submitted direct testimony will 
be kept for public inspection;
    (9) The final date for filing with the Assistant Administrator a 
notice of intent to participate in the hearing pursuant to Sec. 228.5;
    (10) The final date for submission of direct testimony on the 
proposed regulations and waiver, if applicable, and the number of copies 
required;
    (11) The docket number assigned to the case which shall be used in 
all subsequent proceedings; and
    (12) The place and date of the pre-hearing conference.



Sec. 228.5  Notification by interested persons.

    Any person desiring to participate as a party shall notify the 
Assistant Administrator, by certified mail, on or before the date 
specified in the notice.

[[Page 220]]



Sec. 228.6  Presiding officer.

    (a) Upon publication of the notice of hearing pursuant to 
Sec. 228.4, the Assistant Administrator shall appoint a presiding 
officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of 
interest, financial or otherwise, shall serve as presiding officer in 
such proceeding.
    (b) The presiding officer, in any proceeding under this subpart, 
shall have power to:
    (1) Change the time and place of the hearing and adjourn the 
hearing;
    (2) Evaluate direct testimony submitted pursuant to these 
regulations, make a preliminary determination of the issues, conduct a 
prehearing conference to determine the issues for the hearing agenda, 
and cause to be published in the Federal Register a final hearing 
agenda;
    (3) Rule upon motions, requests and admissibility of direct 
testimony;
    (4) Administer oaths and affirmations, question witnesses and direct 
witnesses to testify;
    (5) Modify or waive any rule (after notice) when determining that no 
party will be prejudiced;
    (6) Receive written comments and hear oral arguments;
    (7) Render a recommended decision; and
    (8) Do all acts and take all measures, including regulation of media 
coverage, for the maintenance of order at and the efficient conduct of 
the proceeding.
    (c) In case of the absence of the original presiding officer or the 
original presiding officer's inability to act, the powers and duties to 
be performed by the original presiding officer under this subpart in 
connection with a proceeding may, without abatement of the proceeding, 
be assigned to any other presiding officer unless otherwise ordered by 
the Assistant Administrator.
    (d) The presiding officer may upon the presiding officer's own 
motion withdraw as presiding officer in a proceeding if the presiding 
officer deems himself or herself to be disqualified.
    (e) A presiding officer may be requested to withdraw at any time 
prior to the recommended decision. Upon the filing by an interested 
person in good faith of a timely and sufficient affidavit alleging the 
presiding officer's personal bias, malice, conflict of interest or other 
basis which might result in prejudice to a party, the hearing shall 
recess. The Assistant Administrator shall immediately determine the 
matter as a part of the record and decision in the proceeding, after 
making such investigation or holding such hearings, or both, as the 
Assistant Administrator may deem appropriate in the circumstances.



Sec. 228.7  Direct testimony submitted as written documents.

    (a) Unless otherwise specified, all direct testimony, including 
accompanying exhibits, must be submitted to the presiding officer in 
writing no later than the dates specified in the notice of the hearing 
(Sec. 228.4), the final hearing agenda (Sec. 228.12), or within 15 days 
after the conclusion of the prehearing conference (Sec. 228.14) as the 
case may be. All direct testimony shall be in affidavit form and 
exhibits constituting part of such testimony, referred to in the 
affidavit and made a part thereof, must be attached to the affidavit. 
Direct testimony submitted with exhibits must state the issue to which 
the exhibit relates; if no such statement is made, the presiding officer 
shall determine the relevance of the exhibit to the issues published in 
the Federal Register.
    (b) The direct testimony submitted shall contain:
    (1) A concise statement of the witness' interest in the proceeding 
and his position regarding the issues presented. If the direct testimony 
is presented by a witness who is not a party, the witness shall state 
the witness' relationship to the party; and
    (2) Facts that are relevant and material.
    (c) The direct testimony may propose issues of fact not defined in 
the notice of the hearing and the reason(s) why such issues should be 
considered at the hearing.
    (d) Ten copies of all direct testimony must be submitted unless the 
notice of the hearing specifies otherwise.
    (e) Upon receipt, direct testimony shall be assigned a number and 
stamped with that number and the docket number.

[[Page 221]]

    (f) Contemporaneous with the publication of the notice of hearing, 
the Assistant Administrator's direct testimony in support of the 
proposed regulations and waiver, where applicable, shall be available 
for public inspection as specified in the notice of hearing. The 
Assistant Administrator may submit additional direct testimony during 
the time periods allowed for submission of such testimony by witnesses.



Sec. 228.8  Mailing address.

    Unless otherwise specified in the notice of hearing, all direct 
testimony shall be addressed to the Presiding Officer, c/o Assistant 
Administrator, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. All affidavits and exhibits shall be 
clearly marked with the docket number of the proceedings.



Sec. 228.9  Inspection and copying of documents.

    Any document in a file pertaining to any hearing authorized by this 
subpart or any document forming part of the record of such a hearing may 
be inspected and/or copied in the Office of the Assistant Administrator, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-unless the file is in the care and custody of the 
presiding officer, in which case the presiding officer shall notify the 
parties as to where and when the record may be inspected.



Sec. 228.10  Ex parte communications.

    (a) After notice of a hearing is published in the Federal Register, 
all communications, whether oral or written, involving any substantive 
or procedural issue and directed either to the presiding officer or to 
the Assistant Administrator, Deputy Assistant Administrator, or Chief of 
the Marine Mammal Division, National Marine Fisheries Service, without 
reference to these rules of procedure, shall be deemed ex parte 
communications and are not to be considered part of the record for 
decision.
    (b) A record of oral conversations shall be made by the persons who 
are contacted. All communications shall be available for public viewing 
at the place(s) specified in the notice of hearing.
    (c) The presiding office shall not consult any person or party on 
any fact in issue or on the merits of the matter unless notice and 
opportunity is given for all parties to participate.



Sec. 228.11  Prehearing conference.

    (a) After an examination of all the direct testimony submitted 
pursuant to Sec. 228.7, the presiding officer shall make a preliminary 
determination of issues of fact which may be addressed at the hearing.
    (b) The presiding officer's preliminary determination shall be made 
available at the place or places provided in the notice of the hearing 
(Sec. 228.4(b)(8)) at least 5 days before the prehearing conference.
    (c) The purpose of the prehearing conference shall be to enable the 
presiding officer to determine, on the basis of the direct testimony 
submitted and prehearing discussions:
    (1) Whether the presiding officer's preliminary determination of 
issues of fact for the hearing has omitted any significant issues;
    (2) What facts are not in dispute;
    (3) Which witnesses may appear at the hearing; and
    (4) The nature of the interest of each party and which parties' 
interests are adverse.
    (d) Only parties may participate in the hearing conference and a 
party may appear in person or be represented by counsel.
    (e) Parties who do not appear at the prehearing conference shall be 
bound by the conference's determinations.



Sec. 228.12  Final agenda of the hearing.

    (a) After the prehearing conference, the presiding officer shall 
prepare a final agenda which shall be published in the Federal Register 
within 10 days after the conclusion of the conference. A copy of the 
final agenda shall be mailed to all parties.
    (b) The final agenda shall list:
    (1) All the issues which the hearing shall address, the order in 
which those issues shall be presented, and the direct testimony 
submitted which bears on the issues; and

[[Page 222]]

    (2) A final date for submission of direct testimony on issues of 
fact not included in the notice of hearing if such issues are presented. 
The final agenda may also specify a final date for submission of direct 
testimony to rebut testimony previously submitted during the time 
specified in the notice of the hearing.
    (c) The presiding officer shall publish with the final agenda a list 
of witnesses who may appear at the hearing, a list of parties, the 
nature of the interest of each party, and which parties' interests are 
adverse on the issues presented.



Sec. 228.13  Determination to cancel the hearing.

    (a) If the presiding officer concludes that no issues of fact are 
presented by the direct testimony submitted, the presiding officer shall 
publish such conclusion and notice in the Federal Register that a 
hearing shall not be held and shall also publish a date for filing 
written comments on the proposed regulations. Written comments may 
include proposed findings and conclusions, arguments or briefs.
    (b) A person need not be a party to submit any written comments.
    (c) Promptly after expiration of the period for receiving written 
comments, the presiding officer shall make a recommended decision based 
on the record, which in this case shall consist of the direct testimony 
and written comments submitted. He shall transfer to the Assistant 
Administrator his recommended decision, the record and a certificate 
stating that the record contains all the written direct testimony and 
comments submitted. The Assistant Administrator shall then make a final 
decision in accordance with these regulations (Sec. 228.21).



Sec. 228.14  Rebuttal testimony and new issues of fact in final agenda.

    (a) Direct testimony to rebut testimony offered during the time 
period specified in the notice of hearing may be submitted pursuant to 
these regulations within fifteen days after the conclusion of the 
prehearing conference unless the presiding officer otherwise specifies 
in the final agenda.
    (b) If the final agenda presents issues not included in the notice 
of the hearing published pursuant to Sec. 228.4:
    (1) Any person interested in participating at the hearing on such 
issues presented shall notify the Assistant Administrator by certified 
mail of an intent to participate not later than 10 days after 
publication of the final agenda. Such person may present direct 
testimony or cross-examine witnesses only on such issues presented 
unless that person previously notified the Assistant Administrator 
pursuant to Sec. 228.5; and
    (2) Additional written direct testimony concerning such issues may 
be submitted within the time provided in the final agenda. Such direct 
testimony will comply with the requirements of Sec. 228.7.



Sec. 228.15  Waiver of right to participate.

    Persons who fail to notify the Assistant Administrator pursuant to 
Secs. 228.5 and 228.14 shall be deemed to have waived their right to 
participate as parties in any part of the hearing.



Sec. 228.16  Conduct of the hearing.

    (a) The hearing shall be held at the time and place fixed in the 
notice of the hearing, unless the presiding officer changes the time or 
place. If a change occurs, the presiding officer shall publish the 
change in the Federal Register and shall expeditiously notify all 
parties by telephone or by mail: Provided, that if that change in time 
or place of hearing is made less than 5 days before the date previously 
fixed for the hearing, the presiding officer shall also announce, or 
cause to be announced, the change at the time and place previously fixed 
for the hearing.
    (b) The presiding officer shall, at the commencement of the hearing, 
introduce into the record: the notice of hearing as published in the 
Federal Register; all subsequent documents published in the Federal 
Register; the draft Environmental Impact Statement if it is required and 
the comments thereon and agency responses to the comments; and a list of 
all parties. Direct testimony shall then be received with respect to the 
matters specified in the final agenda in such order as the presiding 
officer shall announce. With

[[Page 223]]

respect to direct testimony submitted as rebuttal testimony or in 
response to new issues presented by the prehearing conference, the 
presiding officer shall determine the relevancy of such testimony.
    (c) The hearing shall be publicly conducted and reported verbatim by 
an official reporter.
    (d) If a party objects to the admission or rejection of any direct 
testimony or to any other ruling of the presiding officer during the 
hearing, he or she shall state briefly the grounds of such objection, 
whereupon an automatic exception will follow if the objection is 
overruled by the presiding officer. The transcript shall not include 
argument or debate thereon except as ordered by the presiding officer. 
The ruling by the presiding officer on any objection shall be a part of 
the transcript and shall be subject to review at the same time and in 
the same manner as the Assistant Administrator's final decision. Only 
objections made before the presiding officer may subsequently be relied 
upon in the proceedings.
    (e) All motions and requests shall be addressed to, and ruled on by, 
the presiding officer, if made prior to his certification of the 
transcript or by the Assistant Administrator if made thereafter.



Sec. 228.17  Direct testimony.

    (a) Only direct testimony submitted by affidavit as provided in 
these regulations and introduced at the hearing by a witness shall be 
considered part of the record. Such direct testimony shall not be read 
into evidence but shall become a part of the record subject to exclusion 
of irrelevant and immaterial parts thereof;
    (b) The witness introducing direct testimony shall:
    (1) State his or her name, address and occupation;
    (2) State qualifications for introducing the direct testimony. If an 
expert, the witness shall briefly state the scientific or technical 
training which qualifies the witness as an expert;
    (3) Identify the direct testimony previously submitted in accordance 
with these regulations; and
    (4) Submit to appropriate cross and direct examination. Cross-
examination shall be by a party whose interests are adverse on the issue 
presented, to the witness', if the witness is a party, or to the 
interests of the party who presented the witness.
    (c) A party shall be deemed to have waived the right to introduce 
direct testimony if such party fails to present a witness to introduce 
the direct testimony.
    (d) Official notice may be taken of such matters as are judicially 
noticed by the courts of the United States: Provided, that parties shall 
be given adequate notice, by the presiding officer, at the hearing, of 
matters so noticed and shall be given adequate opportunity to show that 
such facts are inaccurate or are erroneously noticed.



Sec. 228.18  Cross-examination.

    (a) The presiding officer may:
    (1) Require the cross-examiner to outline the intended scope of the 
cross-examination;
    (2) Prohibit parties from cross-examining witnesses unless the 
presiding officer has determined that the cross-examiner has an adverse 
interest on the facts at issue to the party-witness or the party 
presenting the witness. For the purposes of this subsection, the 
Assistant Administrator's or his or her representative's interest shall 
be considered adverse to all parties;
    (3) Limit the number of times any party or parties having a common 
interest may cross-examine an ``adverse'' witness on the same matter; 
and
    (4) Exclude cross-examination questions that are immaterial, 
irrelevant or unduly repetitious.
    (b) Any party shall be given an opportunity to appear, either in 
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or 
counsel shall state his or her name, address and occupation. If counsel 
cross-examines the witness, counsel shall state for the record the 
authority to act as counsel. Cross-examiners shall be assumed to be 
familiar with the direct testimony.
    (c) Any party or party's counsel who fails to appear at the hearing 
to cross-examine an ``adverse'' witness shall be deemed to have waived 
the right to cross-examine that witness.

[[Page 224]]

    (d) Scientific, technical or commercial publications may only be 
utilized for the limited purposes of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance 
with these regulations.



Sec. 228.19  Oral and written arguments.

    (a) The presiding officer may, in his or her discretion, provide for 
oral argument at the end of the hearing. Such argument, when permitted, 
may be limited by the presiding officer to the extent necessary for the 
expeditious disposition of the proceeding.
    (b) The presiding officer shall announce at the hearing a reasonable 
period of time within which any interested person may file with the 
presiding officer any written comments on the proposed regulations and 
waiver, including proposed findings and conclusions and written 
arguments or briefs, which are based upon the record and citing where 
practicable the relevant page or pages of the transcript. If a party 
filing a brief desires the presiding officer to reconsider any objection 
made by such party to a ruling of the presiding officer, the party shall 
specifically identify such rulings by reference to the pertinent pages 
of the transcript and shall state their arguments thereon as a part of 
the brief.
    (c) Oral or written arguments shall be limited to issues arising 
from direct testimony on the record.



Sec. 228.20  Recommended decision, certification of the transcript and submission of comments on the recommended decision.

    (a) Promptly after expiration of the period for receiving written 
briefs, the presiding officer shall make a recommended decision based on 
the record and transmit the decision to the Assistant Administrator. The 
recommended decision shall include:
    (1) A statement containing a description of the history of the 
proceedings;
    (2) Findings on the issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.
    (b) The presiding officer shall also transmit to the Assistant 
Administrator the transcript of the hearing, the original and all copies 
of the direct testimony, and written comments. The presiding officer 
shall attach to the original transcript of the hearing a certificate 
stating that, to the best of his knowledge and belief, the transcript is 
a true transcript of the testimony given at the hearing except in such 
particulars as are specified.
    (c) Immediately after receipt of the recommended decision, the 
Assistant Administrator shall give notice thereof in the Federal 
Register, send copies of the recommended decision to all parties, and 
provide opportunity for the submission of comments. The recommended 
decision may be reviewed and/or copied in the office of the Assistant 
Administrator, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    (d) Within 20 days after the notice of receipt of the recommended 
decision has been published in the Federal Register, any interested 
person may file with the Assistant Administrator any written comments on 
the recommended decision. All comments, including recommendations from 
or consultation with the Marine Mammal Commission, must be submitted 
during the 20-day period to the Assistant Administrator at the 
previously mentioned address.



Sec. 228.21  Assistant Administrator's decision.

    (a) Upon receipt of the recommended decision and transcript and 
after the 20-day period for receiving written comments on the 
recommended decision has passed, the Assistant Administrator shall make 
a final decision on the proposed regulations and waiver, where 
applicable. The Assistant Administrator's decision may affirm, modify, 
or set aside, in whole or in part, the recommended findings, conclusions 
and decision of the presiding officer. The Assistant Administrator may 
also remand the hearing record to the presiding officer for a fuller 
development of the record.
    (b) The Assistant Administrator's decision shall include:
    (1) A statement containing a description of the history of the 
proceeding;
    (2) Findings on the issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.

[[Page 225]]

    (4) The Assistant Administrator's decision shall be published in the 
Federal Register. If the waiver is approved, the final adopted 
regulations shall be promulgated with the decision.



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




                      Subpart A--General Provisions

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

      Subpart B--Takes of Endangered and Threatened Marine Mammals

229.20  Issuance of permits.

  Subpart C--Take Reduction Plan Regulations and Emergency Regulations

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

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

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

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



                      Subpart A--General Provisions



Sec. 229.1  Purpose and scope.

    (a) The regulations in this part implement sections 101(a)(5)(E) and 
118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 
1371(a)(5)(E) and 1387) that provide for exceptions for the taking of 
marine mammals incidental to certain commercial fishing operations from 
the Act's general moratorium on the taking of marine mammals.
    (b) Section 118 of the Act, rather than sections 103 and 104, 
governs the incidental taking of marine mammals in the course of 
commercial fishing operations by persons using vessels of the United 
States, other than vessels fishing for yellowfin tuna in the eastern 
tropical Pacific Ocean purse seine fishery, and vessels that have valid 
fishing permits issued in accordance with section 204(b) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1824(b)).
    (c) The regulations of Subpart B also govern the incidental taking 
by commercial fishers of marine mammals from species or stocks 
designated under the Act as depleted on the basis of their listing as 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.).
    (d) The regulations of this part do not apply to the incidental 
taking of California sea otters or to Northwest treaty Indian tribal 
members exercising treaty fishing rights.
    (e) Authorizations under subpart A of this part are exemptions only 
from the taking prohibitions under the Act and not those under the 
Endangered Species Act of 1973. To be exempt from the taking 
prohibitions under the Endangered Species Act, specific authorization 
under subpart B of this part is required.
    (f) Authorizations under this part do not apply to the intentional 
lethal taking of marine mammals in the course of commercial fishing 
operations except as provided for under Secs. 229.4(k) and 229.5(f).
    (g) The purposes of the regulations in this part are to:
    (1) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial fishing operations below 
the potential biological removal level for a particular stock, and
    (2) Reduce the incidental mortality or serious injury of marine 
mammals occurring in the course of commercial

[[Page 226]]

fishing operations to insignificant levels approaching a zero mortality 
and serious injury rate by the statutory deadline of April 30, 2001.

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



Sec. 229.2  Definitions.

    In addition to the definitions contained in the Act and Sec. 216.3 
of this chapter, and unless the context otherwise requires, in this part 
229:
    Act or MMPA means the Marine Mammal Protection Act of 1972, as 
amended (16 U.S.C. 1361 et seq.).
    American lobster or lobster means Homarus americanus.
    Anchored gillnet means any gillnet gear, including a sink gillnet or 
stab net, that is set anywhere in the water column and which is 
anchored, secured or weighted to the bottom of the sea. Also called a 
set gillnet.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Oceanic and Atmospheric Administration.
    Authorization Certificate means a document issued by the Assistant 
Administrator, or designee, under the authority of section 118 of the 
Act that authorizes the incidental, but not intentional, taking of 
marine mammals in Category I or II fisheries.
    Breaking strength means the highest tensile force which an object 
can withstand before breaking.
    Bridle means the lines connecting a gillnet to an anchor or buoy 
line.
    Buoy line means a line connecting fishing gear in the water to a 
buoy at the surface of the water.
    Category I fishery means a commercial fishery determined by the 
Assistant Administrator to have frequent incidental mortality and 
serious injury of marine mammals. A commercial fishery that frequently 
causes mortality or serious injury of marine mammals is one that is by 
itself responsible for the annual removal of 50 percent or more of any 
stock's potential biological removal level.
    Category II fishery means a commercial fishery determined by the 
Assistant Administrator to have occasional incidental mortality and 
serious injury of marine mammals. A commercial fishery that occasionally 
causes mortality or serious injury of marine mammals is one that, 
collectively with other fisheries, is responsible for the annual removal 
of more than 10 percent of any marine mammal stock's potential 
biological removal level and that is by itself responsible for the 
annual removal of between 1 and 50 percent, exclusive, of any stock's 
potential biological removal level. In the absence of reliable 
information indicating the frequency of incidental mortality and serious 
injury of marine mammals by a commercial fishery, the Assistant 
Administrator will determine whether the incidental serious injury or 
mortality is ``occasional'' by evaluating other factors such as fishing 
techniques, gear used, methods used to deter marine mammals, target 
species, seasons and areas fished, qualitative data from logbooks or 
fisher reports, stranding data, and the species and distribution of 
marine mammals in the area, or at the discretion of the Assistant 
Administrator. Eligible commercial fisheries not specifically identified 
in the list of fisheries are deemed to be Category II fisheries until 
the next list of fisheries is published.
    Category III fishery means a commercial fishery determined by the 
Assistant Administrator to have a remote likelihood of, or no known 
incidental mortality and serious injury of marine mammals. A commercial 
fishery that has a remote likelihood of causing incidental mortality and 
serious injury of marine mammals is one that collectively with other 
fisheries is responsible for the annual removal of:
    (1) Ten percent or less of any marine mammal stock's potential 
biological removal level, or
    (2) More than 10 percent of any marine mammal stock's potential 
biological removal level, yet that fishery by itself is responsible for 
the annual removal of 1 percent or less of that stock's potential 
biological removal level. In the absence of reliable information 
indicating the frequency of incidental mortality and serious injury of 
marine mammals by a commercial fishery, the Assistant Administrator will 
determine whether the incidental serious injury or mortality is 
``remote'' by evaluating other factors such as fishing techniques, gear 
used, methods

[[Page 227]]

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.
    Commercial fishing operation means the catching, taking, or 
harvesting of fish from the marine environment (or other areas where 
marine mammals occur) that results in the sale or barter of all or part 
of the fish harvested. The term includes licensed commercial passenger 
fishing vessel (as defined in Sec. 216.3 of this chapter) activities and 
aquaculture activities.
    Depleted species means any species or population that has been 
designated as depleted under the Act and is listed in Sec. 216.15 of 
this chapter or part 18, subpart E of this title, or any endangered or 
threatened species of marine mammal.
    Driftnet, drift gillnet, or drift entanglement gear means a gillnet 
or gillnets that is/are unattached to the ocean bottom and not anchored, 
secured or weighted to the bottom, regardless of whether attached to a 
vessel.
    Fisher or fisherman means the vessel owner or operator, or the owner 
or operator of gear in a nonvessel fishery.
    Fishery has the same meaning as in section 3 of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1802).
    Fishing trip means any time spent away from port actively engaged in 
commercial fishing operations. The end of a fishing trip will be the 
time of a fishing vessel's return to port or the return of a fisher from 
tending gear in a nonvessel fishery.
    Fishing vessel or vessel means any vessel, boat, ship, or other 
craft that is used for, equipped to be used for, or of a type normally 
used for, fishing.
    Float-line means the rope at the top of a gillnet from which the 
mesh portion of the net is hung.
    Gillnet means fishing gear consisting of a wall of webbing (meshes) 
or nets, designed or configured so that the webbing (meshes) or nets are 
placed in the water column, usually held approximately vertically, and 
are designed to capture fish by entanglement, gilling, or wedging. The 
term ``gillnet'' includes gillnets of all types, including but not 
limited to sink gillnets, other anchored gillnets (e.g. stab and set 
nets), and drift gillnets. Gillnets may or may not be attached to a 
vessel.
    Groundline, with reference to lobster trap gear, means a line 
connecting lobster traps in a lobster trap trawl, and, with reference to 
gillnet gear, means a line connecting a gillnet or gillnet bridle to an 
anchor or buoy line.
    Incidental means, with respect to an act, a non-intentional or 
accidental act that results from, but is not the purpose of, carrying 
out an otherwise lawful action.
    Injury means a wound or other physical harm. Signs of injury to a 
marine mammal include, but are not limited to, visible blood flow, loss 
of or damage to an appendage or jaw, inability to use one or more 
appendages, asymmetry in the shape of the body or body position, 
noticeable swelling or hemorrhage, laceration, puncture or rupture of 
eyeball, listless appearance or inability to defend itself, inability to 
swim or dive upon release from fishing gear, or signs of equilibrium 
imbalance. Any animal that ingests fishing gear, or any animal that is 
released with fishing gear entangling, trailing or perforating any part 
of the body will be considered injured regardless of the absence of any 
wound or other evidence of an injury.
    Interaction means coming in contact with fishing gear or catch. An 
interaction may be characterized by a marine mammal entangled, hooked, 
or otherwise trapped in fishing gear, regardless of whether injury or 
mortality occurs, or situations where marine mammals are preying on 
catch. Catch means fish or shellfish that has been hooked, entangled, 
snagged, trapped or otherwise captured by commercial fishing gear.
    Large mesh gillnet means a gillnet constructed with a mesh size of 7 
inches (17.78 cm) to 18 inches (45.72 cm).
    Lead-line means the rope, weighted or otherwise, to which the bottom 
edge of a gillnet is attached.
    List of Fisheries means the most recent final list of commercial 
fisheries published in the Federal Register by the Assistant 
Administrator, categorized according to the likelihood of incidental 
mortality and serious injury

[[Page 228]]

of marine mammals during commercial fishing operations.
    Lobster trap means any trap, pot or other similar type of enclosure 
that is placed on the ocean bottom and is designed to or is capable of 
catching lobsters. This definition includes but is not limited to 
lobster pots, black sea bass pots and scup pots.
    Lobster trap trawl means two or more lobster traps attached to a 
single groundline.
    Mesh size means the distance between inside knot to inside knot. 
Mesh size is measured as described in Sec. 648.80(f)(1) of this title.
    Mid-Atlantic coastal waters means waters bounded by the line defined 
by the following points: The southern shoreline of Long Island, New York 
at 72 deg.30'W, then due south to 33 deg.51'N lat., thence west to the 
North Carolina/South Carolina border.
    Minimum population estimate means an estimate of the number of 
animals in a stock that:
    (1) Is based on the best available scientific information on 
abundance, incorporating the precision and variability associated with 
such information; and
    (2) Provides reasonable assurance that the stock size is equal to or 
greater than the estimate.
    Mudhole means waters off New Jersey bounded as follows: From the 
point 40 deg.30' N. latitude where it intersects with the shoreline of 
New Jersey east to its intersection with 73 deg.20' W. longitude, then 
south to its intersection with 40 deg.05' N. latitude, then west to its 
intersection with the shoreline of New Jersey.
    Negligible impact has the same meaning as in Sec. 228.3 of this 
chapter.
    Net productivity rate means the annual per capita rate of increase 
in a stock resulting from additions due to reproduction, less losses due 
to mortality.
    Night means any time between one half hour before sunset and one 
half hour after sunrise.
    NMFS means the National Marine Fisheries Service.
    Nonvessel fishery means a commercial fishing operation that uses 
fixed or other gear without a vessel, such as gear used in set gillnet, 
trap, beach seine, weir, ranch, and pen fisheries.
    Observer means an individual authorized by NMFS, or a designated 
contractor, to record information on marine mammal interactions, fishing 
operations, marine mammal life history information, and other scientific 
data, and collect biological specimens during commercial fishing 
activities.
    Operator, with respect to any vessel, means the master, captain, or 
other individual in charge of that vessel.
    Potential biological removal level means the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population. The potential biological removal level 
is the product of the following factors:
    (1) The minimum population estimate of the stock;
    (2) One-half the maximum theoretical or estimated net productivity 
rate of the stock at a small population size; and
    (3) A recovery factor of between 0.1 and 1.0.
    Regional Fishery Management Council means a regional fishery 
management council established under section 302 of the Magnuson Fishery 
Conservation and Management Act.
    Serious injury means any injury that will likely result in 
mortality.
    Shark gillnetting means to fish a gillnet in waters south of the 
South Carolina/Georgia border with webbing of 5 inches or greater 
stretched mesh.
    Sink gillnet or stab net means any gillnet, anchored or otherwise, 
that is designed to be, or is fished on or near the bottom in the lower 
third of the water column.
    Sinking line means rope that sinks and does not float at any point 
in the water column. Polypropylene rope is not sinking line unless it 
contains a lead core.
    Small mesh gillnet means a gillnet constructed with a mesh size of 
greater than 5 inches (12.7 cm) to less than 7 inches (17.78 cm).
    Southern Mid-Atlantic waters means all state and Federal waters off 
the States of Delaware, Maryland, Virginia, and North Carolina, bounded 
on

[[Page 229]]

the north by a line extending eastward from the northern shoreline of 
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with 
Cape Henlopen, DE), east to its intersection with 72 deg.30' W. 
longitude, south to the 33 deg.51' N. latitude (the latitude that 
corresponds with the North Carolina/South Carolina border), and then 
west to its intersection with the shoreline of the North Carolina/South 
Carolina border.
    Spotter plane means a plane that is deployed for the purpose of 
locating schools of target fish for a fishing vessel that intends to set 
fishing gear on them.
    Stowed means nets that are unavailable for use and that are stored 
in accordance with the regulations found in Sec. 648.81(e) of this 
title.
    Strategic stock means a marine mammal stock:
    (1) For which the level of direct human-caused mortality exceeds the 
potential biological removal level;
    (2) Which, based on the best available scientific information, is 
declining and is likely to be listed as a threatened species under the 
Endangered Species Act of 1973 within the foreseeable future;
    (3) Which is listed as a threatened species or endangered species 
under the Endangered Species Act of 1973; or
    (4) Which is designated as depleted under the Marine Mammal 
Protection Act of 1972, as amended.
    Strikenet or to fish with strikenet gear means a gillnet that is 
designed so that, when it is deployed, it encircles or encloses an area 
of water either with the net or by utilizing the shoreline to complete 
encirclement, or to fish with such a net and method.
    Take Reduction Plan means a plan developed to reduce the incidental 
mortality and serious injury of marine mammals during commercial fishing 
operations in accordance with section 118 of the Marine Mammal 
Protection Act of 1972, as amended.
    Take Reduction Team means a team established to recommend methods of 
reducing the incidental mortality and serious injury of marine mammals 
due to commercial fishing operations, in accordance with section 118 of 
the Marine Mammal Protection Act of 1972, as amended.
    Tended gear or tend means fishing gear that is physically attached 
to a vessel in a way that is capable of harvesting fish, or to fish with 
gear attached to the vessel.
    Tie-down refers to twine used between the floatline and the lead 
line as a way to create a pocket or bag of netting to trap fish alive.
    To strikenet for sharks means to fish with strikenet gear in waters 
south of the South Carolina/Georgia border with webbing of 5 inches or 
greater stretched mesh.
    U.S. waters means both state and Federal waters to the outer 
boundaries of the U.S. exclusive economic zone along the east coast of 
the United States from the Canadian/U.S. border southward to a line 
extending eastward from the southernmost tip of Florida on the Florida 
shore.
    Vessel owner or operator means the owner or operator of:
    (1) A fishing vessel that engages in a commercial fishing operation; 
or
    (2) Fixed or other commercial fishing gear that is used in a 
nonvessel fishery.
    Vessel of the United States has the same meaning as in section 3 of 
the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1802).
    Waters off New Jersey means all state and Federal waters off New 
Jersey, bounded on the north by a line extending eastward from the 
southern shoreline of Long Island, NY at 40 deg.40' N. latitude, on the 
south by a line extending eastward from the northern shoreline of 
Delaware at 38 deg.47' N. latitude (the latitude that corresponds with 
Cape Henlopen, DE), and on the east by the 72 deg.30' W. longitude. This 
area includes the Mudhole.
    Weak link means a breakable component of gear that will part when 
subject to a certain tension load.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39183, July 22, 1997; 
63 FR 66487, Dec. 2, 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. 
24, 1999; 65 FR 80377, Dec. 21, 2000]



Sec. 229.3  Prohibitions.

    (a) It is prohibited to take any marine mammal incidental to 
commercial fishing operations except as otherwise provided in part 216 
of this chapter or in this part 229.

[[Page 230]]

    (b) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with an observer, or attempt the same. This prohibition 
includes, but is not limited to, any action that interferes with an 
observer's responsibilities, or that creates an intimidating, hostile, 
or offensive environment.
    (c) It is prohibited to provide false information when registering 
for an Authorization Certificate, applying for renewal of the 
Authorization Certificate, reporting the injury or mortality of any 
marine mammal, or providing information to any observer.
    (d) It is prohibited to tamper with or destroy observer equipment in 
any way.
    (e) It is prohibited to retain any marine mammal incidentally taken 
in commercial fishing operations unless authorized by NMFS personnel, by 
designated contractors or an official observer, or by a scientific 
research permit that is in the possession of the vessel operator.
    (f) It is prohibited to intentionally lethally take any marine 
mammal in the course of commercial fishing operations unless imminently 
necessary in self-defense or to save the life of a person in immediate 
danger, and such taking is reported in accordance with the requirements 
of Sec. 229.6.
    (g) It is prohibited to violate any regulation in this part or any 
provision of section 118 of the Act.
    (h) It is prohibited to fish with lobster trap gear in the areas and 
for the times specified in Sec. 229.32 (b)(2) and (c)(2) through (c)(8) 
unless the lobster trap gear complies with the closures, marking 
requirements, modifications, and restrictions specified in Sec. 229.32 
(b)(3)(i), (b)(3)(ii), and (c)(1) through (c)(9).
    (i) It is prohibited to fish with anchored gillnet gear in the areas 
and for the times specified in Sec. 229.32(b)(2) and (d)(2) 
through(d)(7) unless that gillnet gear complies with the closures, 
marking requirements, modifications, and restrictions specified in 
Sec. 229.32(b)(3)(i), (b)(3)(ii), and (d)(1) through (d)(8).
    (j) It is prohibited to fish with drift gillnet gear in the areas 
and for the times specified in Sec. 229.32 (d)(7) and (e)(1) unless the 
drift gillnet gear complies with the restrictions specified in 
Sec. 229.32 (e)(1).
    (k) It is prohibited to fish with shark gillnet gear in the areas 
and for the times specified in Sec. 229.32(b)(2), (f)(1)(i), and 
(f)(1)(ii) unless the gear complies with the closures, marking 
requirements, modifications, and other restrictions specified in 
Sec. 229.32(b)(3)(i), (b)(3)(ii), and (f)(2) through (f)(3)(iii)(D).
    (l) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove sink gillnet gear or gillnet 
gear capable of catching multispecies, from the areas and for the times 
specified in Sec. 229.33 (a)(1) through (a)(6), except with the use of 
pingers as provided in Sec. 229.33 (d)(1) through (d)(4). This 
prohibition does not apply to the use of a single pelagic gillnet (as 
described and used as set forth in Sec. 648.81(f)(2)(ii) of this title).
    (m) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any gillnet gear from the 
areas and for the times as specified in Sec. 229.34 (b)(1) (ii) or (iii) 
or (b)(2)(ii).
    (n) It is prohibited to fish with, set, haul back, possess on board 
a vessel unless stowed, or fail to remove any large mesh or small mesh 
gillnet gear from the areas and for the times specified in Sec. 229.34 
(c)(1) through (c)(4) unless the gear complies with the specified gear 
restrictions set forth in those provisions.
    (o) Beginning on January 1, 1999, it is prohibited to fish with, 
set, or haul back sink gillnets or gillnet gear, or leave such gear in 
closed areas where pingers are required, as specified under Sec. 229.33 
(c)(1) through (c)(4), unless a person on board the vessel during 
fishing operations possesses a valid pinger certification training 
certificate issued by NMFS.
    (p) Beginning on January 1, 2000, it is prohibited to fish with, 
set, haul back, or possess any large mesh or small mesh gillnet gear in 
Mid-Atlantic waters in the areas and during the times specified under 
Sec. 229.34(d), unless the gear is properly tagged in compliance with 
that provision and unless a net tag certificate is on board the vessel. 
It is prohibited to refuse to produce a net

[[Page 231]]

tag certificate or net tags upon the request of an authorized officer.
    (q) Net tag requirement. Beginning on January 1, 2000, all gillnets 
fished, hauled, possessed, or deployed during the times and areas 
specified below must have one tag per net, with one tag secured to every 
other bridle of every net and with one tag secured to every other bridle 
of every net within a string of nets. This applies to small mesh and 
large mesh gillnet gear in New Jersey waters from January 1 through 
April 30 or in southern Mid-Atlantic waters from February 1 through 
April 30. The owner or operator of fishing vessels must indicate to NMFS 
the number of gillnet tags that they are requesting up to the maximum 
number of nets allowed in those paragraphs and must include a check for 
the cost of the tags. Vessel owners and operators will be given notice 
with instructions informing them of the costs associated with this 
tagging requirement and directions for obtaining tags. Tag numbers will 
be unique for each vessel and recorded on a certificate. The vessel 
operator must produce the certificate and all net tags upon request by 
an authorized officer.

[60 FR 45100, Aug. 30, 1995, as amended at 62 FR 39184, July 22, 1997; 
63 FR 66487, Dec. 2, 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. 
24, 1999; 65 FR 80377, Dec. 21, 2000]



Sec. 229.4  Requirements for Category I and II fisheries.

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

[[Page 232]]

Fisheries must accompany each registration submitted to NMFS. The amount 
of this fee will be based on recovering the administrative costs 
incurred in granting an authorization. The Assistant Administrator may 
waive the fee requirement for good cause upon the recommendation of the 
Regional Director.
    (3) If a notice is published in the Federal Register announcing an 
integrated registration program, the owner of a vessel, or for nonvessel 
fishery, the owner of the gear may register by following the directions 
provided in that notice. If a person receives a registration to which he 
or she is not entitled or if the registration contains incorrect, 
inaccurate or incomplete information, the person shall notify NMFS 
within 10 days following receipt. If a fisher participating in a 
Category I or II fishery who expects to receive automatic registration 
does not receive that registration within the time specified in the 
notice announcing the integrated registration program, the person shall 
notify NMFS as directed in the notice or may apply for registration by 
submitting the information required under paragraph (b)(1)(i) through 
(b)(1)(vi) of this section.
    (c) Address. Unless the granting and administration of 
authorizations under this part 229 is integrated and coordinated with 
existing fishery licenses, registrations, or related programs pursuant 
to paragraph (a) of this section, requests for registration forms and 
completed registration and renewal forms should be sent to the NMFS 
Regional Offices as follows:
    (1) Alaska Region, NMFS, P.O. Box 21668, 709 West 9th Street, 
Juneau, AK 99802; telephone: 907-586-7235;
    (2) Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 
98115-0070; telephone: 206-526-4353;
    (3) Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213; telephone: 562-980-4001;
    (4) Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930; 
telephone: 978-281-9254; or
    (5) Southeast Region, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702; telephone: 727-570-5312.
    (d) Issuance. (1) For integrated fisheries, an Authorization 
Certificate or other proof of registration will be issued annually to 
each fisher registered for that fishery.
    (2) For all other fisheries (i.e., non-integrated fisheries), NMFS 
will issue an Authorization Certificate and, if necessary, a decal to an 
owner or authorized representative who:
    (i) Submits a completed registration form and the required fee.
    (ii) Has complied with the requirements of this section and 
Secs. 229.6 and 229.7
    (iii) Has submitted updated registration or renewal registration 
which includes a statement (yes/no) whether any marine mammals were 
killed or injured during the current or previous calender year.
    (3) If a person receives a renewed Authorization Certificate or a 
decal to which he or she is not entitled, the person shall notify NMFS 
within 10 days following receipt.
    (e) Authorization Certificate and decal requirements. (1) If a decal 
has been issued under the conditions specified in paragraph (e)(2) of 
this section, the decal must be attached to the vessel on the port side 
of the cabin or, in the absence of a cabin, on the forward port side of 
the hull, and must be free of obstruction and in good condition. The 
decal must be attached to the Authorization Certificate for nonvessel 
fisheries.
    (2) The Authorization Certificate, or a copy, must be on board the 
vessel while it is operating in a Category I or II fishery, or, in the 
case of nonvessel fisheries, the Authorization Certificate with decal 
attached, or copy must be in the possession of the person in charge of 
the fishing operation. The Authorization Certificate, or copy, must be 
made available upon request to any state or Federal enforcement agent 
authorized to enforce the Act, any designated agent of NMFS, or any 
contractor providing observer services to NMFS.
    (3) Authorization Certificates and decals are not transferable. In 
the event of the sale or change in ownership of the vessel, the 
Authorization Certificate is void and the new owner must

[[Page 233]]

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

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



Sec. 229.5  Requirements for Category III fisheries.

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

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



Sec. 229.6  Reporting requirements.

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

[[Page 234]]

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

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



Sec. 229.7  Monitoring of incidental mortalities and serious injuries.

    (a) Purpose. The Assistant Administrator will establish a program to 
monitor incidental mortality and serious injury of marine mammals during 
the course of commercial fishing operations in order to:
    (1) Obtain statistically reliable estimates of incidental mortality 
and serious injury;
    (2) Determine the reliability of reports of incidental mortality and 
injury under Sec. 229.6; and
    (3) Identify changes in fishing methods or technology that may 
increase or decrease incidental mortality and serious injury.
    (b) Observer program. Pursuant to paragraph (a) of this section, the 
Assistant Administrator may observe Category I and II vessels as 
necessary. Observers may, among other tasks:
    (1) Record incidental mortality and injury, and bycatch of other 
nontarget species;
    (2) Record numbers of marine mammals sighted; and
    (3) Perform other scientific investigations, which may include, but 
are not limited to, sampling and photographing incidental mortalities 
and serious injuries.
    (c) Observer requirements for participants in Category I and II 
fisheries. (1) If requested by NMFS or by a designated contractor 
providing observer services to NMFS, a vessel owner/operator must take 
aboard an observer to accompany the vessel on fishing trips.
    (2) After being notified by NMFS, or by a designated contractor 
providing observer services to NMFS, that the vessel is required to 
carry an observer, the vessel owner/operator must comply with the 
notification by providing information requested within the specified 
time on scheduled or anticipated fishing trips.
    (3) NMFS, or a designated contractor providing observer services to 
NMFS, may waive the observer requirement based on a finding that the 
facilities for housing the observer or for carrying out observer 
functions are so inadequate or unsafe that the health or safety of the 
observer or the safe operation of the vessel would be jeopardized.
    (4) The vessel owner/operator and crew must cooperate with the 
observer in the performance of the observer's duties including:
    (i) Providing, at no cost to the observer, the United States 
government, or the designated observer provider, food, toilet, bathing, 
sleeping accommodations, and other amenities that are equivalent to 
those provided to the crew, unless other arrangements are approved in 
advance by the Regional Administrator;
    (ii) Allowing for the embarking and debarking of the observer as 
specified by NMFS personnel or designated contractors. The operator of a 
vessel must ensure that transfers of observers at sea are accomplished 
in a safe manner, via small boat or raft, during daylight hours if 
feasible, as weather and sea

[[Page 235]]

conditions allow, and with the agreement of the observer involved;
    (iii) Allowing the observer access to all areas of the vessel 
necessary to conduct observer duties;
    (iv) Allowing the observer access to communications equipment and 
navigation equipment, when available on the vessel, as necessary to 
perform observer duties;
    (v) Providing true vessel locations by latitude and longitude, 
accurate to the minute, or by loran coordinates, upon request by the 
observer;
    (vi) Sampling, retaining, and storing of marine mammal specimens, 
other protected species specimens, or target or non-target catch 
specimens, upon request by NMFS personnel, designated contractors, or 
the observer, if adequate facilities are available and if feasible;
    (vii) Notifying the observer in a timely fashion of when all 
commercial fishing operations are to begin and end;
    (viii) Not impairing or in any way interfering with the research or 
observations being carried out; and
    (ix) Complying with other guidelines or regulations that NMFS may 
develop to ensure the effective deployment and use of observers.
    (5) Marine mammals or other specimens identified in paragraph 
(c)(4)(vi) of this section, which are readily accessible to crew 
members, must be brought on board the vessel and retained for the 
purposes of scientific research if feasible and requested by NMFS 
personnel, designated contractors, or the observer. Specimens so 
collected and retained must, upon request by NMFS personnel, designated 
contractors, or the observer, be retained in cold storage on board the 
vessel, if feasible, until removed at the request of NMFS personnel, 
designated contractors, or the observer, retrieved by authorized 
personnel of NMFS, or released by the observer for return to the ocean. 
These biological specimens may be transported on board the vessel during 
the fishing trip and back to port under this authorization.
    (d) Observer requirements for participants in Category III 
fisheries. (1) The Assistant Administrator may place observers on 
Category III vessels if the Assistant Administrator:
    (i) Believes that the incidental mortality and serious injury of 
marine mammals from such fishery may be contributing to the immediate 
and significant adverse impact on a species or stock listed as a 
threatened species or endangered species under the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.); and
    (ii) Has complied with Sec. 229.9(a)(3)(i) and (ii); or
    (iii) Has the consent of the vessel owner.
    (2) If an observer is placed on a Category III vessel, the vessel 
owner and/or operator must comply with the requirements of 
Sec. 229.7(c).
    (e) Alternative observer program. The Assistant Administrator may 
establish an alternative observer program to provide statistically 
reliable information on the species and number of marine mammals 
incidentally taken in the course of commercial fishing operations. The 
alternative observer program may include direct observation of fishing 
activities from vessels, airplanes, or points on shore.

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



Sec. 229.8  Publication of List of Fisheries.

    (a) The Assistant Administrator will publish in the Federal Register 
a proposed revised List of Fisheries on or about July 1 of each year for 
the purpose of receiving public comment. Each year, on or about October 
1, the Assistant Administrator will publish a final revised List of 
Fisheries, which will become effective January 1 of the next calendar 
year.
    (b) The proposed and final revised List of Fisheries will:
    (1) Categorize each commercial fishery based on the definitions of 
Category I, II, and III fisheries set forth in Sec. 229.2; and
    (2) List the marine mammals that have been incidentally injured or 
killed by commercial fishing operations and the estimated number of 
vessels or persons involved in each commercial fishery.
    (c) The Assistant Administrator may publish a revised List of 
Fisheries at other times, after notification and opportunity for public 
comment.

[[Page 236]]

    (d) The revised final List of Fisheries will become effective no 
sooner than 30 days after publication in the Federal Register.

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



Sec. 229.9  Emergency regulations.

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

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



Sec. 229.10  Penalties.

    (a) Except as provided for in paragraphs (b) and (c) of this 
section, any person who violates any regulation under this part or any 
provision of section 118 of the MMPA shall be subject to all penalties 
set forth in the Act.
    (b) The owner or master of a vessel that fails to comply with a take 
reduction plan shall be subject to the penalties of sections 105 and 107 
of the Act,

[[Page 237]]

and may be subject to the penalties of section 106 of the Act.
    (c) The owner of a vessel engaged in a Category I or II fishery who 
fails to ensure that a decal, or other physical evidence of such 
authorization issued by NMFS, is displayed on the vessel or is in 
possession of the operator of the vessel shall be subject to a penalty 
of not more than $100.
    (d) Failure to comply with take reduction plans or emergency 
regulations issued under this part may result in suspension or 
revocation of an Authorization Certificate, and failure to comply with a 
take reduction plan or emergency regulation is also subject to the 
penalties of sections 105 and 107 of the Act, and may be subject to the 
penalties of section 106 of the Act.
    (e) For fishers operating in Category I or II fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip, or failure to comply with requirements to 
carry an observer, will subject such persons to the penalties of 
sections 105 and 107 and may subject them to the penalties of section 
106 of the Act, which will result in suspension, revocation, or denial 
of an Authorization Certificate until such requirements have been 
fulfilled.
    (f) For fishers operating in Category III fisheries, failure to 
report all incidental injuries and mortalities within 48 hours of the 
end of each fishing trip will subject such persons to the penalties of 
sections 105 and 107, and may subject them to section 106, of the Act.
    (g) Suspension, revocation or denial of Authorization Certificates. 
(1) Until the Authorization Certificate holder complies with the 
regulations under this part, the Assistant Administrator shall suspend 
or revoke an Authorization Certificate or deny an annual renewal of an 
Authorization Certificate in accordance with the provisions in 15 CFR 
part 904 if the Authorization Certificate holder fails to report all 
incidental mortality and injury of marine mammals as required under 
Sec. 229.6; or fails to take aboard an observer if requested by NMFS or 
its designated contractors.
    (2) The Assistant Administrator may suspend or revoke an 
Authorization Certificate or deny an annual renewal of an Authorization 
Certificate in accordance with the provisions in 15 CFR part 904 if the 
Authorization Certificate holder fails to comply with any applicable 
take reduction plan, take reduction regulations, or emergency 
regulations developed under this subpart or subparts B and C of this 
part or if the Authorization Certificate holder fails to comply with 
other requirements of these regulations;
    (3) A suspended Authorization Certificate may be reinstated at any 
time at the discretion of the Assistant Administrator provided the 
Assistant Administrator has determined that the reasons for the 
suspension no longer apply or corrective actions have been taken.

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



Sec. 229.11  Confidential fisheries data.

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

[[Page 238]]

or summary form means data structured so that the identity of the 
submitter cannot be determined either from the present release of the 
data or in combination with other releases.

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



Sec. 229.12  Consultation with the Secretary of the Interior.

    The Assistant Administrator will consult with the Secretary of the 
Interior prior to taking actions or making determinations under this 
part that affect or relate to species or population stocks of marine 
mammals for which the Secretary of the Interior is responsible under the 
Act.



      Subpart B--Takes of Endangered and Threatened Marine Mammals



Sec. 229.20  Issuance of permits.

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

[[Page 239]]

species or stock, the Assistant Administrator will use the emergency 
authority of Sec. 229.9 to protect such species or stock, and may modify 
any permit granted under this paragraph as necessary.
    (f) Suspension, revocation, modification and amendment. The 
Assistant Administrator may, pursuant to the provisions of 15 CFR part 
904, suspend or revoke a permit granted under this section if the 
Assistant Administrator determines that the conditions or limitations 
set forth in such permit are not being complied with. The Assistant 
Administrator may amend or modify, after notification and opportunity 
for public comment, the list of fisheries published in accordance with 
paragraph (b) of this section whenever the Assistant Administrator 
determines there has been a significant change in the information or 
conditions used to determine such a list.
    (g) Southern sea otters. This subpart does not apply to the taking 
of Southern (California) sea otters.

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



  Subpart C--Take Reduction Plan Regulations and Emergency Regulations



Sec. 229.30  Basis.

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

[64 FR 9088, Feb. 24, 1999]



Sec. 229.31  Pacific Offshore Cetacean Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b) 
through (d) of this section apply to all U.S. drift gillnet fishing 
vessels operating in waters seaward of the coast of California or 
Oregon, including adjacent high seas waters. For purposes of this 
section, the fishing season is defined as beginning May 1 and ending on 
January 31 of the following year.
    (b) Extenders. An extender is a line that attaches a buoy (float) to 
a drift gillnet's floatline. The floatline is attached to the top of the 
drift gillnet. All extenders (buoy lines) must be at least 6 fathoms (36 
ft; 10.9 m) in length during all sets. Accordingly, all floatlines must 
be fished at a minimum of 36 feet (10.9 m) below the surface of the 
water.
    (c) Pingers. (1) For the purposes of this paragraph (c), a pinger is 
an acoustic deterrent device which, when immersed in water, broadcasts a 
10 kHz ( 2 kHz) sound at 132 dB ( 4 dB) re 1 
micropascal at 1 m, lasting 300 milliseconds (+ 15 milliseconds), and 
repeating every 4 seconds (+ .2 seconds); and remains operational to a 
water depth of at least 100 fathoms (600 ft or 182.88 m).
    (2) While at sea, operators of drift gillnet vessels with gillnets 
onboard must carry enough pingers on the vessel to meet the requirements 
set forth under paragraphs (c)(3) through(6) of this section.
    (3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of 
the floatline and spaced no more than 300 ft (91.44 m) apart.
    (4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of 
the leadline and spaced no more than 300 ft (91.44 m) apart.
    (5) Staggered Configuration. Pingers attached within 30 ft (9.14 m) 
of the floatline and within 36 ft (10.97 m) of the leadline shall be 
staggered such that the horizontal distance between them is no more than 
150 ft (45.5 m).
    (6) Any materials used to weight pingers must not change its 
specifications set forth under paragraph (c)(1) of this section.
    (7) The pingers must be operational and functioning at all times 
during deployment.
    (8) If requested, NMFS may authorize the use of pingers with 
specifications or pinger configurations differing from those set forth 
in paragraphs (c)(1) and (c)(3) of this section for limited, 
experimental purposes within a single fishing season.
    (d) Skipper education workshops. After notification from NMFS, 
vessel operators must attend a skipper education workshop before 
commencing fishing

[[Page 240]]

each fishing season. For the 1997/1998 fishing season, all vessel 
operators must have attended one skipper education workshop by October 
30, 1997. NMFS may waive the requirement to attend these workshops by 
notice to all vessel operators.

[62 FR 51813, Oct. 3, 1997, as amended at 63 FR 27861, May 21, 1998; 64 
FR 3432, Jan. 22, 1999]



Sec. 229.32  Atlantic large whale take reduction plan regulations.

    (a)(1) Regulated waters. The regulations in this section apply to 
all U.S. waters in the Atlantic except for the areas exempted in 
paragraph (a)(2) of this section.
    (2) Exempted waters. The regulations in this section do not apply to 
waters landward of the first bridge over any embayment, harbor, or inlet 
and to waters landward of the following lines:

                              Rhode Island

41 deg. 27.99' N 71 deg. 11.75' W TO 41 deg. 28.49' N 71 deg. 14.63' W 
(Sakonnet River)
41 deg. 26.96' N 71 deg. 21.34' W TO 41 deg. 26.96' 71 deg. 25.92" W 
(Narragansett Bay)
41 deg. 22.41' N 71 deg. 30.80' W TO 41 deg. 22.41' N 71 deg. 30.85' W 
(Pt. Judith Pond Inlet)
41 deg. 21.31' 71 deg. 38.30' W TO 41 deg. 21.30' N 71 deg. 38.33' W 
(Ninigret Pond Inlet)
41 deg. 19.90' N 71 deg. 43.08' W TO 41 deg. 19.90' N 71 deg. 43.10' W 
(Quonochontaug Pond Inlet)
41 deg. 19.66' N 71 deg. 45.75' W TO 41 deg. 19.66' N 71 deg. 45.78' W 
(Weekapaug Pond Inlet)

                                New York

    West of the line from the Northern fork of the eastern end of Long 
Island, NY (Orient Pt.) to Plum Island to Fisher's Island to Watch Hill, 
RI. (Long Island Sound)

41 deg. 11.40' N 72 deg. 09.70' W TO 41 deg. 04.50' N 71 deg. 51.60;min; 
W (Gardiners Bay)
40 deg. 50.30' 72 deg. 28.50' W TO 40 deg. 50.36' N 72 deg. 28.67' W 
(Shinnecock Bay Inlet)
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W 
(Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W 
(Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W 
(Jones Inlet)

                               New Jersey

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

                            Maryland/Virginia

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

                        North Carolina to Florida

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

    (b) Gear marking requirements. (1) Specified gear consists of 
lobster trap gear and gillnet gear set in specified areas.
    (2) Specified areas. The following areas are specified for gear 
marking purposes: CCB Restricted Area, Stellwagen Bank/Jeffreys Ledge 
Restricted Area, Northern Nearshore Lobster Waters Area, GSC Restricted 
Lobster Area, GSC Restricted Gillnet Area, GSC Sliver Restricted Area, 
Southern Nearshore Lobster Waters Area, Offshore Lobster Waters Area, 
Other Northeast Gillnet Waters Area, and Southeast U.S. Observer Area.
    (3) Requirements for Southeast U.S. Observer Area. Any person who 
owns or fishes with specified fishing gear in the Southeast U.S. 
Observer Area must mark that gear in accordance with (b)(3)(i) and 
(b)(3)(ii) of this section, unless otherwise required by the Assistant 
Administrator under paragraph (g) of this section.
    (i) Color code. Specified gear in the Southeast U.S. Observer Area 
must be marked with the appropriate color code to designate gear types 
and areas as follows:
    (A) Gear type code--Gillnet gear. Gillnet gear must be marked with a 
green marking.
    (B) Area code. Gear set in the Southeast U.S. Observer Area must be 
marked with a blue marking.
    (ii) Markings. All specified gear in specified areas must be marked 
with two color codes, one designating the gear type, the other 
indicating the area where the gear is set. Each color of the

[[Page 241]]

two-color code must be permanently marked on or along the line or lines 
specified under (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. 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 
(AA).
    (4) Requirements for other specified areas. Any person who owns or 
fishes with specified gear in the other specified areas must mark that 
gear in accordance with (b)(4)(i) and (b)(4)(ii) of this section, unless 
otherwise required by the Assistant Administrator under paragraph (g) of 
this section. For the purposes of the following gear marking 
requirements only, lobster trap gear set in the CCB Restricted Area 
during the winter restricted period, the Federal-water portion of the 
CCB Restricted Area during the off-peak period, and the Stellwagen Bank/
Jeffreys Ledge Restricted Area shall comply with the requirements for 
the Northern Nearshore Lobster Waters Area. Lobster gear set in the GSC 
Restricted Lobster Area shall comply with the requirements for the 
Offshore Lobster Waters Area. Similarly, anchored gillnet gear set in 
the CCB Restricted area, Stellwagen Bank/Jeffreys Ledge Restricted Area, 
GSC Restricted Gillnet Area, and GSC Silver Restricted Area shall comply 
with the requirements for gillnet gear in the Other Northeast Gillnet 
Waters Area.
    (i) Color code. Specified gear must be marked with the appropriate 
colors to designate gear-types and areas as follows:
    (A) Lobster trap gear in the Northern Nearshore Lobster Waters Area 
must be marked with a red marking.
    (B) Lobster trap gear in the Southern Nearshore Lobster Waters Area 
must be marked with an orange marking.
    (C) Lobster trap gear in the Offshore Lobster Waters Area must be 
marked with a black marking.
    (D) Gillnet gear in the Other Northeast Gillnet Waters Area must be 
marked with a green marking.
    (ii) Markings. All specified gear in specified areas must be marked 
with one color code (see paragraph (4)(i) of this section) which 
indicates the gear type and general area where the gear is set. Each 
color code must be permanently affixed on or along the line or lines. 
Each color code 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 mark must be placed along the buoy line midway in the water 
column.
    (5) Changes to requirements. If the Assistant Administrator revises 
the gear marking requirements in accordance with paragraph (g) of this 
section, the gear must be marked in compliance with those requirements.
    (c) Restrictions applicable to lobster trap gear in regulated 
waters--(1) Universal lobster trap gear requirements. In addition to the 
area-specific measures listed in (c)(2) through (c)(8) of this section, 
all lobster trap gear in regulated waters, including the Northern 
Inshore State Lobster Waters Area, must comply with the universal gear 
requirements listed here\1\. The Assistant Administrator may revise 
these requirements in accordance with paragraph (g) of this section.
---------------------------------------------------------------------------

    \1\ Fishers are also encouraged to maintain their buoy lines to be 
as knot-free as possible. Splices are not considered to be an 
entanglement threat and are thus preferable to knots.
---------------------------------------------------------------------------

    (i) No line floating at the surface. No person may fish with lobster 
trap gear that has any portion of the buoy line that is directly 
connected to the gear at the ocean bottom floating at the surface at any 
time. 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.
    (ii) No wet storage of gear. Lobster traps must be hauled out of the 
water at least once every 30 days.

[[Page 242]]

    (2) Cape Cod Bay Restricted Area--(i) Area. The CCB restricted area 
consists of the CCB right whale critical habitat area specified under 50 
CFR 226.203(b) unless the Assistant Administrator changes that area in 
accordance with paragraph (g) of this section.
    (ii) Area-specific gear requirements during the winter restricted 
period. No person may fish with lobster trap gear in the CCB Restricted 
Area during the winter restricted period unless that person's gear 
complies with the gear marking requirements in paragraph (b) of this 
section, the universal lobster trap gear requirements in (c)(1) of this 
section, and the area-specific requirements listed below for the winter 
restricted period. The Assistant Administrator may revise these 
requirements in accordance with paragraph (g) of this section.
    (A) Winter restricted period. The winter restricted period for the 
CCB Restricted Area is from January 1 through May 15 of each year unless 
the Assistant Administrator changes that area in accordance with 
paragraph (g) of this section.
    (B) Weak links. All buoy lines shall be attached to the main buoy 
with a weak link meeting the following specifications:
    (1) The breaking strength of the weak link must not exceed 500 lb 
(226.7 kg).
    (2) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: 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.
    (C) Single traps and multiple-trap trawls. Single traps and three-
trap trawls are prohibited. All traps must be set in either a two-trap 
string or in a trawl of four or more traps. A two-trap string must have 
no more than one buoy line.
    (D) Sinking buoy lines. All buoy lines must be 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.
    (E) Sinking ground line. All ground lines must be comprised entirely 
of sinking line.
    (iii) Area-specific gear requirements during the other restricted 
period. No person may fish with lobster trap gear in the CCB Restricted 
Area during the other restricted period unless that person's gear 
complies with the gear marking requirements in paragraph (b) of this 
section and the universal lobster trap gear requirements in (c)(1) of 
this section as well as the area-specific requirements listed below for 
the other restricted period. The Assistant Administrator may revise 
these requirements in accordance with paragraph (g) of this section.
    (A) Other restricted period. The other restricted period for the CCB 
Restricted Area is from May 16 through December 31 of each year unless 
the Assistant Administrator revises that period in accordance with 
paragraph (g) of this section.
    (B) Gear requirements--(1) State-water portion. No person may fish 
with lobster trap gear in the state-water portion of the CCB Restricted 
Area during the other restricted period unless that person's gear 
complies with the requirements for the Northern Inshore State Lobster 
Waters Area listed in (c)(6) of this section. The Assistant 
Administrator may revise these requirements in accordance with paragraph 
(g) of this section.
    (2) Federal-water portion. No person may fish with lobster trap gear 
in the federal-water portion of the CCB Restricted Area during the other 
restricted period unless that person's gear complies with the 
requirements for the Northern Nearshore Lobster Waters Area in (c)(7) of 
this section. The Assistant Administrator may revise these requirements 
in accordance with paragraph (g) of this section.
    (3) Great South Channel Restricted Lobster Area--(i) Area. The GSC 
Restricted Lobster Area consists of the GSC right whale critical habitat 
area specified under 50 CFR 226.203(a) unless the Assistant 
Administrator changes that area in accordance with paragraph (g) of this 
section.
    (ii) Closure during the spring restricted period--(A) Spring 
restricted period. The spring restricted period for the GSC

[[Page 243]]

Restricted Lobster Area is from April 1 through June 30 of each year 
unless the Assistant Administrator revises this period in accordance 
with paragraph (g) of this section.
    (B) Closure. During the spring restricted period, no person may fish 
with or set lobster trap gear in this Area unless the Assistant 
Administrator specifies gear modifications or alternative fishing 
practices in accordance with paragraph (g) of this section and the gear 
or practices comply with those specifications.
    (iii) Area-specific gear requirements for the other restricted 
period. No person may fish with lobster trap gear in the GSC Restricted 
Lobster Area unless that person's gear complies with the gear marking 
requirements in paragraph (b) of this section, the universal lobster 
trap gear requirements in (c)(1) of this section, and the area-specific 
requirements listed here for the other restricted period. The Assistant 
Administrator may revise these requirements in accordance with paragraph 
(g) of this section.
    (A) Other restricted period. The other restricted period for the GSC 
Restricted Lobster Area is July 1 through March 31, unless the Assistant 
Administrator revises the timing in accordance with paragraph (g) of 
this section.
    (B) Weak links. All buoy lines must be attached to the main buoy 
with a weak link meeting the specifications listed in subparagraph 
(c)(5)(ii)(A) below for the Offshore Lobster Waters Area.
    (4) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge Restricted Area includes all federal 
waters of the Gulf of Maine, except those designated as right whale 
critical habitat under 50 CFR 226.203(b), that lie south of 43 deg.15' 
N. lat. and west of 70 deg. W long. The Assistant Administrator may 
change that area in accordance with paragraph (g) of this section.
    (ii) Area-specific gear requirements. No person may fish with 
lobster trap gear in the Stellwagen Bank/Jeffreys Ledge Restricted Area 
unless that person's gear complies with the gear marking requirements in 
paragraph (b) of this section, the universal lobster trap gear 
requirements in (c)(1) of this section, and the requirements listed for 
the Northern Nearshore Lobster Waters Area in (c)(7) of this section. 
The Assistant Administrator may revise these requirements in accordance 
with paragraph (g) of this section.
    (5) Offshore Lobster Waters Area--(i) Area. The Offshore Lobster 
Waters Area includes all waters bounded by straight lines connecting the 
following points in the order stated (including the area known as the 
Area 2/3 Overlap in the American Lobster Fishery regulations at 50 CFR 
697.18 but not including the GSC Restricted Lobster Area):

------------------------------------------------------------------------
                                                 Latitude (  Longitude (
                     Point                         deg.N)       deg.W)
------------------------------------------------------------------------
A.............................................  43 deg. 58'  67 deg. 22'
B.............................................  43 deg. 41'  68 deg. 00'
C.............................................  43 deg. 12'  69 deg. 00'
D.............................................  42 deg. 49'  69 deg. 40'
E.............................................      42 deg.  69 deg. 40'
                                                      15.5'
F.............................................  42 deg. 10'  69 deg. 56'
K.............................................  41 deg. 10'      69 deg.
                                                                    6.5'
N.............................................      40 deg.  71 deg. 34'
                                                      45.5'
M.............................................      40 deg.  72 deg. 14'
                                                      27.5'
U.............................................      40 deg.      72 deg.
                                                      12.5'        48.5'
V.............................................  39 deg. 50'  73 deg. 01'
X.............................................      38 deg.  73 deg. 40'
                                                      39.5'
Y.............................................  38 deg. 12'  73 deg. 55'
Z.............................................  37 deg. 12'  74 deg. 44'
ZA............................................  35 deg. 34'  74 deg. 51'
ZB............................................      35 deg.      75 deg.
                                                      14.5'       31'\1\
------------------------------------------------------------------------
\1\ From Point ZB east to the EEZ boundary, thence along the seaward EEZ
  boundary to Point A.

    (ii) Area-specific gear requirements. No person may fish with 
lobster trap gear in the Offshore Lobster Waters Area unless that 
person's gear complies with the gear marking requirements in paragraph 
(b) of this section, the universal lobster trap gear requirements in 
(c)(1) of this section, and the gear requirements listed here. The 
Assistant Administrator may revise these requirements in accordance with 
paragraph (g) of this section.
    (A) Weak Links. All buoy lines must be attached to the main buoy 
with a weak link meeting the following specifications:
    (1) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: 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.
    (2) The breaking strength of these weak links must not exceed 3780 
lb (1714.3 kg).

[[Page 244]]

    (3) Weak links must be designed such that the bitter end of the buoy 
line is clean and free of any knots when the link breaks. Splices are 
not considered to be knots for the purposes of this provision.
    (B) [Reserved]
    (6) Northern Inshore State Lobster Waters Area--(i) Area. The 
Northern Inshore State Lobster Waters Area includes the state waters of 
Rhode Island, Massachusetts, New Hampshire, and Maine but does not 
include waters exempted under (a)(2) of this section.
    (ii) Area-specific gear requirements. No person may fish with 
lobster trap gear in the Northern Inshore State Lobster Waters Area 
unless that person's gear complies with the universal lobster trap gear 
requirements in (c)(1) of this section and at least one of the options 
on the Lobster Take Reduction Technology List in (c)(9) of this section. 
The Assistant Administrator may revise this requirement in accordance 
with paragraph (g) of this section.
    (7) Northern Nearshore Lobster Waters Area--(i) Area. The Northern 
Nearshore Lobster Waters Area includes all Federal waters of EEZ 
Nearshore Management Area 1, Area 2, and the Outer Cape Lobster 
Management Area as defined in the American Lobster Fishery regulations 
at 50 CFR 697.18, with the exception of the CCB Restricted Area and the 
Stellwagen Bank/Jeffreys Ledge Restricted Area.
    (ii) Area-specific gear requirements. No person may fish with 
lobster trap gear in the Northern Nearshore Lobster Waters Area unless 
that person's gear complies with the gear marking requirements in 
paragraph (b) of this section, the universal lobster trap gear 
requirements in (c)(1) of this section, and the gear requirements listed 
below for this area. The Assistant Administrator may revise these 
requirements in accordance with paragraph (g) of this section.
    (A) Weak Links. All buoy lines must be attached to the main buoy 
with a weak link meeting the following specifications:
    (1) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: 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.
    (2) The breaking strength of these weak links must not exceed 600 lb 
(272.4 kg).
    (3) Weak links must be designed such that the bitter end of the buoy 
line is clean and free of any knots when the link breaks. Splices are 
not considered to be knots for the purposes of this provision.
    (B) Single traps and multiple-trap trawls. Single traps are 
prohibited. All traps must be set in trawls of two or more traps. All 
trawls up to and including five traps must have no more than one buoy 
line.
    (8) Southern Nearshore Lobster Waters Area--(i) Area. The Southern 
Nearshore Lobster Waters Area includes all state and federal waters 
which fall within EEZ Nearshore Management Area 4 and EEZ Nearshore 
Management Area 5 as described in the American Lobster Fishery 
regulations in 50 CFR 697.18.
    (ii) Area-specific gear requirements for the restricted period--(A) 
Restricted period. The restricted period for Southern Nearshore Lobster 
Waters is from October 1 through April 30 unless the AA revises this 
period in accordance with paragraph (g) of this section.
    (B) Gear requirements. No person may fish with lobster trap gear in 
the Southern Nearshore Lobster Waters Area during the restricted period 
unless that person's gear complies with the gear marking requirements 
specified in paragraph (b) of this section, the universal lobster trap 
gear requirements in (c)(1) of this section, and at least one of the 
options on the Lobster Take Reduction Technology List in (c)(9) of this 
section. The AA may revise these requirements in accordance with 
paragraph (g) of this section.
    (9) Lobster Take Reduction Technology List. The following gear 
modification options comprise the Lobster Take Reduction Technology 
List:
    (i) All buoy lines must be 7/16 inches (1.11 cm) or less in 
diameter.
    (ii) All buoys must be attached to the buoy line with a weak link 
meeting the following specifications:
    (A) The weak link must be chosen from the following list of 
combinations

[[Page 245]]

approved by the NMFS gear research program: 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.
    (B) The breaking strength of these weak links must not exceed 600 lb 
(272.4 kg).
    (C) Weak links must be designed such that the bitter end of the buoy 
line is clean and free of any knots when the link breaks. Splices are 
not considered to be knots for the purposes of this provision.
    (iii) All buoy lines must be comprised entirely of sinking line.
    (iv) All ground lines must be comprised entirely of sinking line.
    (d) Restrictions applicable to anchored gillnet gear--(1) Universal 
anchored gillnet gear requirements. In addition to the area-specific 
measures listed in (d)(2) through (d)(7) of this section, all anchored 
gillnet gear in regulated waters must comply with the universal gear 
requirements listed here \2\. The AA may revise these requirements in 
accordance with paragraph (g) of this section.
---------------------------------------------------------------------------

    \2\ Fishers are also encouraged to maintain their buoy lines to be 
as knot-free as possible. Splices are not considered to be an 
entanglement threat and are thus preferable to knots.
---------------------------------------------------------------------------

    (i) No line floating at the surface. No person may fish with 
anchored gillnet gear that has any portion of the buoy line that is 
directly connected to the gear on the ocean bottom floating at the 
surface at any time. 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.
    (ii) No wet storage of gear. Anchored gillnet gear must be hauled 
out of the water at least once every 30 days.
    (2) Cape Cod Bay Restricted Area--(i) Area. The CCB Restricted Area 
consists of the CCB right whale critical habitat area specified under 50 
CFR 226.203(b), unless the AA changes the boundaries in accordance with 
paragraph (g) of this section.
    (ii) Closure during the winter restricted period--(A) Winter 
restricted period. The winter restricted period for this area is from 
January 1 through May 15 of each year, unless the AA revises the timing 
in accordance with paragraph (g) of this section.
    (B) Closure. During the winter restricted period, no person may fish 
with anchored gillnet gear in the CCB Restricted Area unless the AA 
specifies gear restrictions or alternative fishing practices in 
accordance with paragraph (g) of this section and the gear or practices 
comply with those specifications. The AA may waive this closure for the 
remaining portion of the winter restricted period in any year through a 
notification in the Federal Register if NMFS determines that right 
whales have left the critical habitat and are unlikely to return for the 
remainder of the season.
    (iii) Area-specific gear requirements for the other restricted 
period--(A) Other restricted period. The other restricted period for the 
CCB Restricted Area is from May 16 through December 31 of each year 
unless the AA revises that period in accordance with paragraph (g) of 
this section.
    (B) No person may fish with anchored gillnet gear in the CCB 
Restricted Area during the other restricted period unless that person's 
gear complies with the gear marking requirements specified in paragraph 
(b) of this section, the universal anchored gillnet gear requirements 
specified in (d)(1) of this section, and the area-specific requirements 
listed in (d)(6)(ii) of this section for the Other Northeast Gillnet 
Waters Area. The AA may revise these requirements in accordance with 
paragraph (g) of this section.
    (3) Great South Channel Restricted Gillnet Area--(i) Area. The GSC 
Restricted Gillnet Area consists of the area bounded by lines connecting 
the following four points: 41 deg.02.2' N/69 deg.02' W, 41 deg.43.5' N/
69 deg.36.3' W, 42 deg.10' N/68 deg.31' W, and 41 deg.38' N/68 deg.13' 
W. This area includes most of the GSC right whale critical habitat area 
specified under 50 CFR 226.203(a), with the exception of the sliver 
along the western boundary described in (d)(4)(i) here. The AA may 
revise these boundaries in accordance with paragraph (g) of this 
section.
    (ii) Closure during the spring restricted period--(A) Spring 
restricted period. The

[[Page 246]]

spring restricted period for the GSC Restricted Gillnet Area is from 
April 1 through June 30 of each year unless the AA revises that period 
in accordance with paragraph (g) of this section.
    (B) Closure. During the spring restricted period, no person may set 
or fish with anchored gillnet gear in the GSC Restricted Gillnet Area 
unless the AA specifies gear restrictions or alternative fishing 
practices in accordance with paragraph (g) of this section and the gear 
or practices comply with those specifications.
    (iii) Area-specific gear requirements for the other restricted 
period--(A) Other restricted period. The other restricted period for the 
GSC Restricted Gillnet Area is from July 1 though March 31 of each year 
unless the AA revises that period in accordance with paragraph (g) of 
this section.
    (B) During the other restricted period, no person may fish with 
anchored gillnet gear in the GSC Restricted Gillnet Area unless that 
person's gear complies with the gear marking requirements specified in 
paragraph (b) of this section, the universal anchored gillnet gear 
requirements specified in (d)(1) of this section, and the area-specific 
requirements listed in (d)(6)(ii) of this section for the Other 
Northeast Gillnet Waters Area. The AA may revise these requirements in 
accordance with paragraph (g) of this section.
    (4) Great South Channel Sliver Restricted Area--(i) Area. The GSC 
Sliver Restricted Area consists of the area bounded by lines connecting 
the following points: 41 deg.02.2' N/69 deg.02' W, 41 deg.43.5' N/
69 deg.36.3' W, 41 deg.40' N/69 deg.45' W, and 41 deg.00' N/69 deg.05' 
W. The AA may revise these boundaries in accordance with paragraph (g) 
of this section.
    (ii) Area-specific gear requirements. No person may fish with 
anchored gillnet gear in the GSC Sliver Restricted Area unless that gear 
complies with the gear marking requirements specified in paragraph (b) 
of this section, the universal anchored gillnet gear requirements 
specified in (d)(1) of this section, and the area-specific requirements 
listed in subparagraph (d)(6)(ii) of this section for the Other 
Northeast Gillnet Waters Area. The AA may revise these requirements in 
accordance with paragraph (g) of this section.
    (5) Stellwagen Bank/Jeffreys Ledge Restricted Area--(i) Area. The 
Stellwagen Bank/Jeffreys Ledge Restricted Area includes all Federal 
waters of the Gulf of Maine, except those designated as right whale 
critical habitat under 50 CFR 226.203(b), that lie south of 43 deg.15' 
N. lat. and west of 70 deg. W long. The AA may change these boundaries 
in accordance with paragraph (g) of this section.
    (ii) Area-specific gear requirements. No person may fish with 
anchored gillnet gear in the Stellwagen Bank/Jeffreys Ledge Restricted 
Area unless that gear complies with the gear marking requirements 
specified in paragraph (b) of this section, the universal anchored 
gillnet gear requirements specified in (d)(1) of this section, and the 
area-specific requirements listed in (d)(6)(ii) of this section for the 
Other Northeast Gillnet Waters Area. The AA may revise these 
requirements in accordance with paragraph (g) of this section.
    (6) Other Northeast Gillnet Waters Area--(i) Area. The Other 
Northeast Gillnet Waters Area consists of all U.S. waters west of the 
U.S./Canada border and north of a line extending due east from the 
Virginia/North Carolina border with the exception of the CCB Restricted 
Area, Stellwagen Bank/Jeffreys Ledge Restricted Area, GSC Restricted 
Gillnet Area, GSC Sliver Restricted Area, Mid-Atlantic Coastal Waters 
Area, and exempted waters listed in (a)(2) of this section.
    (ii) Area-specific gear requirements. No person may fish with 
anchored gillnet gear in the Other Northeast Gillnet Waters Area unless 
that person's gear complies with the gear marking requirements specified 
in paragraph (b) of this section, the universal anchored gillnet gear 
requirements specified in (d)(1) of this section, and the area-specific 
requirements listed below. The AA may revise these requirements in 
accordance with paragraph (g) of this section.
    (A) Buoy line weak links. All buoy lines must be attached to the 
main buoy with a weak link meeting the following specifications:
    (1) The weak link must be chosen from the following list of 
combinations approved by the NMFS gear research program: swivels, 
plastic weak links,

[[Page 247]]

rope of appropriate diameter, hog rings, rope stapled to a buoy stick, 
or other materials or devices approved in writing by the AA.
    (2) The breaking strength of these weak links must not exceed 1100 
lb (498.8 kg).
    (3) Weak links must be designed such that the bitter end of the buoy 
line is clean and free of any knots when the link breaks. Splices are 
not considered to be knots for the purposes of this provision.
    (B) Net panel weak links. All net panels must contain weak links 
meeting the following specifications:
    (1) Weak links must be inserted in the center of the floatline 
(headrope) of each net panel in a net string.
    (2) The breaking strength of these weak links must not exceed 1100 
lb (498.8 kg).
    (C) Anchoring System. All anchored gillnet strings containing 20 or 
fewer net panels must be securely anchored with one of the following 
anchoring systems:
    (1) Anchors with the holding power of at least a 22 lb (10.0 kg) 
Danforth-style anchor at each end of the net string,
    (2) Dead weights weighing at least 50 lb (22.7 kg) at each end of 
the net string, or
    (3) A lead line weighing at least 100 lb (45.4 kg) per 300 ft (91.4 
m) for each net panel in the net string.
    (7) Mid-Atlantic Coastal Waters Area--(i) Area. The mid-Atlantic 
Coastal Waters Area is defined in Sec. 229.2.
    (ii) Gear requirements. From December 1 through March 31, no person 
may fish with anchored gillnets in the Mid-Atlantic Coastal Waters Area 
unless that person's gear complies with at least one of the 
characteristics of the Gillnet Take Reduction Technology List in 
paragraph (d)(8) of this section. The Assistant Administrator may revise 
these requirements in accordance with paragraph (g) of this section.
    (8) Gillnet Take Reduction Technology List. The following gear 
characteristics comprise the Gillnet Take Reduction Technology List:
    (i) All buoy lines are \7/16\ inches (1.11 cm) in diameter or less.
    (ii) All buoys are attached to the buoy line with a weak link having 
a maximum breaking strength of up to 1100 lb (498.8 kg). Weak links may 
include swivels, plastic weak links, rope of appropriate diameter, hog 
rings, rope stapled to a buoy stick, or other materials or devices 
approved in writing by the Assistant Administrator.
    (iii) Weak links with a breaking strength of up to 1100 lb (498.8 
kg) are installed in the float rope between net panels.
    (iv) All buoy lines are composed entirely of sinking line.
    (e) Restrictions applicable to mid-Atlantic driftnet gear--(1) 
Restrictions. From December 1 through March 31 of the following year, no 
person may fish with driftnet gear at night in the mid-Atlantic coastal 
waters area unless that gear is tended. During that time, all driftnet 
gear set by that vessel in the mid-Atlantic coastal waters area must be 
removed from the water and stowed on board the vessel before a vessel 
returns to port. The Assistant Administrator may revise these 
requirements in accordance with paragraph (g) of this section.
    (f) Restrictions applicable to shark gillnet gear--(1) Management 
areas--(i) Southeast U.S. restricted area. The southeast U.S. restricted 
area consists of the area from 32 deg.00' N lat. (near Savannah, GA) 
south to 27 deg.51' N lat. (near Sebastian Inlet, FL), extending from 
the shore eastward to 80 deg.00' W long., unless the Assistant 
Administrator changes that area in accordance with paragraph (g) of this 
section.
    (ii) Southeast U.S. observer area. The southeast U.S. observer area 
consists of the southeast U.S. restricted area and an additional area 
along the coast south to 26 deg.46.5' N lat. (near West Palm Beach, FL) 
and extending from the shore eastward out to 80 deg.00' W long., unless 
the Assistant Administrator changes that area in accordance with 
paragraph (g) of this section.
    (2) Gear marking requirements. From November 15 through March 31 of 
the following year, no person may fish with gillnet gear in the 
southeast U.S. observer area unless that gear is marked according to the 
gear marking code specified under paragraph (b) of this section. All 
buoy lines must be marked within 2 ft (0.6 m) of the top of the buoy 
line and midway along the length of the buoy line. From November 15,

[[Page 248]]

1999, each net panel must be marked along both the float line and the 
lead line at least once every 100 yards (92.4 m).
    (3) Restrictions--(i) Observer requirement. No person may fish with 
shark gillnet gear in the southeast U.S. observer area from November 15 
through March 31 of the following year unless the operator of the vessel 
calls the SE Regional Office in St. Petersburg, FL, not less than 48 
hours prior to departing on any fishing trip in order to arrange for 
observer coverage. If the Regional Office requests that an observer be 
taken on board a vessel during a fishing trip at any time from November 
15 through March 31 of the following year, no person may fish with shark 
gillnet gear aboard that vessel in the southeast U.S. observer area 
unless an observer is on board that vessel during the trip.
    (ii) Closure. Except as provided under paragraph (f)(3)(iii) of this 
section, no person may fish with shark gillnet gear in the southeast 
U.S. restricted area during the closed period. The closed period for 
this area is from November 15 through March 31 of the following year, 
unless the Assistant Administrator changes that closed period in 
accordance with paragraph (g) of this section.
    (iii) Special provision for strikenets. Fishing for sharks with 
strikenet gear is exempt from the restriction under paragraph (f)(3)(ii) 
of this section if:
    (A) No nets are set at night or when visibility is less than 500 
yards (460 m).
    (B) Each set is made under the observation of a spotter plane.
    (C) No net is set within 3 nautical miles of a right, humpback, fin 
or minke whale.
    (D) If a right, humpback, fin or minke whale moves within 3 nautical 
miles of the set gear, the gear is removed immediately from the water.
    (g) Other provisions. In addition to any other emergency authority 
under the Marine Mammal Protection Act, the Endangered Species Act, the 
Magnuson-Stevens Fishery Conservation and Management Act, or other 
appropriate authority, the Assistant administrator may take action under 
this section in the following situations:
    (1) Entanglements in critical habitat. If a serious injury or 
mortality of a right whale occurs in the Cape Cod Bay critical habitat 
from January 1 through May 15, in the Great South Channel Restricted 
Area from April 1 through June 30, or in the Southeast U.S. Restricted 
Area from November 15 through March 31 as a result of an entanglement by 
lobster or gillnet gear allowed to be used in those areas and times, the 
Assistant Administrator shall close that area to that gear type for the 
rest of that time period and for that same time period in each 
subsequent year, unless the Assistant Administrator revises the 
restricted period in accordance with paragraph (g)(2) of this section or 
unless other measures are implemented under paragraph (g)(2).
    (2) Other special measures. The Assistant Administrator may revise 
the requirements of this section through a publication in the Federal 
Register if:
    (i) NMFS verifies that certain gear characteristics are both 
operationally effective and reduce serious injuries and mortalities of 
endangered whales;
    (ii) New gear technology is developed and determined to be 
appropriate;
    (iii) Revised breaking strengths are determined to be appropriate;
    (iv) New marking systems are developed and determined to be 
appropriate;
    (v) NMFS determines that right whales are remaining longer than 
expected in a closed area or have left earlier than expected;
    (vi) NMFS determines that the boundaries of a closed area are not 
appropriate;
    (vii) Gear testing operations are considered appropriate; or
    (viii) Similar situations occur.

[64 FR 7552, Feb. 16, 1999, as amended at 65 FR 70317, Nov. 22, 2000; 65 
FR 80377, Dec. 21, 2000]



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

    (a) Restrictions--(1) Northeast Closure Area. From August 15 through 
September 13 of each fishing year, it is prohibited to fish with, set, 
haul back, possess on board a vessel unless stowed, or fail to remove 
sink gillnet gear or gillnet gear capable of catching multispecies, from 
Northeast Closure

[[Page 249]]

Area. This prohibition does not apply to a single pelagic gillnet (as 
described and used as set forth in Sec. 648.81(f)(2)(ii) of this title). 
The Northeast Closure Area is the area bounded by straight lines 
connecting the following points in the order stated:

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

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

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

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

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

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

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

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

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

[[Page 250]]

 
OFS6                   42 deg.50'             69 deg.30'
------------------------------------------------------------------------

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

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

    (b) Pingers--(1) Pinger specifications. For the purposes of this 
subpart, a pinger is an acoustic deterrent device which, when immersed 
in water, broadcasts a 10 kHz (2 kHz) sound at 132 dB 
(4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds 
(15 milliseconds), and repeating every 4 seconds 
(.2 seconds).
    (2) Pinger attachment. An operating and functional pinger must be 
attached at the end of each string of the gillnets and at the bridle of 
every net within a string of nets.
    (c) Pinger training and certification. Beginning on January 1, 1999, 
the operator of a vessel may not fish with, set or haul back sink 
gillnets or gillnet gear, or allow such gear to be in closed areas where 
pingers are required as specified under paragraph (b) of this section, 
unless the operator has satisfactorily completed the pinger 
certification training program and possesses on board the vessel a valid 
pinger training certificate issued by NMFS. Notice will be given 
announcing the times and locations of pinger certification training 
programs.
    (d) Use of pingers in closed areas--(1) Vessels, subject to the 
restrictions and regulations specified in paragraph (a)(2) of this 
section, may fish in the Mid-coast Closure Area from September 15 
through May 31 of each fishing year, provided that pingers are used in 
accordance with the requirements of paragraphs (b) (1) and (2) of this 
section.
    (2) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(3) of this section, may fish in the Massachusetts Bay 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (3) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(4) of this section, may fish in the Cape Cod South 
Closure Area from December 1 through the last day of February and from 
April 1 through May 31 of each fishing year, provided that pingers are 
used in accordance with the requirements of paragraphs (b) (1) and (2) 
of this section.
    (4) Vessels, subject to the restrictions and regulations specified 
in paragraph (a)(5) of this section, may fish in the Offshore Closure 
Area from November 1 through May 31 of each fishing year, with the 
exception of the Cashes Ledge Closure Area. From February 1 through the 
end of February, the area within the Offshore Closure Area defined as 
``Cashes Ledge'' is closed to all fishing with sink gillnets. Vessels 
subject to the restrictions and regulation specified in paragraph (a)(5) 
of this section may fish in the Offshore Closure Area outside the Cashes 
Ledge Area from February 1 through the end of February provided that 
pingers are used in accordance with the requirements of paragraphs (b) 
(1) and (2) of this section.
    (e) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger operating 
effectiveness in the commercial fishery is inadequate to reduce bycatch 
to the PBR level with the current plan.

[[Page 251]]

    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.

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



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

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

                                New York

40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg. 45.30' W 
(Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg. 18.56' W 
(Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg. 35.22' W 
(Jones Inlet)

                           New Jersey/Delaware

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

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

                            Maryland/Virginia

38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg. 05.25' W 
(Ocean City Inlet)
37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30' W 
(Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg. 49.60' W 
(Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.' W 
(Smith Island Inlet)

                             North Carolina

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

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

[[Page 252]]

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

[[Page 253]]

    (iii) Size of nets. Individual nets or net panels are not more than 
300 ft (91.4 m or 50 fathoms) in length.
    (iv) Number of nets. The total number of individual nets or net 
panels for a vessel, including all nets on board the vessel, hauled by 
the vessel or deployed by the vessel, does not exceed 45.
    (v) Tie-down system. Tie-downs are prohibited.
    (vi) Tagging requirements. Beginning January 1, 2000, the gillnet is 
equipped with one tag per net, with one tag secured to each bridle of 
every net within a string of nets.
    (d) Other special measures. The Assistant Administrator may revise 
the requirements of this section through notification published in the 
Federal Register if:
    (1) After plan implementation, NMFS determines that pinger operating 
effectiveness in the commercial fishery is inadequate to reduce bycatch 
to the PBR level with the current plan.
    (2) NMFS determines that the boundary or timing of a closed area is 
inappropriate, or that gear modifications (including pingers) are not 
reducing bycatch to below the PBR level.

[63 FR 66489, Dec. 2, 1998, as amended at 66 FR 2338, Jan. 11, 2001]

[[Page 254]]

[GRAPHIC] [TIFF OMITTED] TR22JA99.001

[64 FR 3434, Jan. 22, 1999]

[[Page 255]]





                          SUBCHAPTER D--WHALING





PART 230--WHALING PROVISIONS--Table of Contents




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

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

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



Sec. 230.1  Purpose and scope.

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



Sec. 230.2  Definitions.

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

[[Page 256]]

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



Sec. 230.3  General prohibitions.

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



Sec. 230.4  Aboriginal subsistence whaling.

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



Sec. 230.5  Licenses for aboriginal subsistence whaling.

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



Sec. 230.6  Quotas and other restrictions.

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

[[Page 257]]

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



Sec. 230.7  Salvage of stinkers.

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



Sec. 230.8  Reporting by whaling captains.

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

[[Page 258]]





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





                     SUBCHAPTER F--AID TO FISHERIES





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




                           Subpart A--General

Sec.
253.1  Purpose.

            Subpart B--Fisheries Obligation Guarantee Program

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

                Subpart C--Interjurisdictional Fisheries

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

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

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



                           Subpart A--General



Sec. 253.1  Purpose.

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



            Subpart B--Fisheries Obligation Guarantee Program



Sec. 253.10  Definitions.

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

[[Page 259]]

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

[[Page 260]]

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



Sec. 253.11  Guarantee policy.

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



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

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

[[Page 261]]

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



Sec. 253.13  Ability and experience requirements.

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



Sec. 253.14  Economic and financial requirements.

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

[[Page 262]]

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



Sec. 253.15  Miscellaneous.

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

[[Page 263]]

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



Sec. 253.16  Fees.

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



Sec. 253.17  Demand and payment.

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



Sec. 253.18  Program operating guidelines.

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



Sec. 253.19  Default and liquidation.

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

[[Page 264]]



                Subpart C--Interjurisdictional Fisheries



Sec. 253.20  Definitions.

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

[[Page 265]]

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



Sec. 253.21  Apportionment.

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

[GRAPHIC] [TIFF OMITTED] TR01MY96.005

[GRAPHIC] [TIFF OMITTED] TR01MY96.006

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



Sec. 253.22  State projects.

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

[[Page 266]]

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



Sec. 253.23  Other funds.

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

[[Page 267]]

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



Sec. 253.24  Administrative requirements.

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



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




                          Joint Tax Regulations

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

                   Capital Construction Fund Agreement

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

    Authority: 46 U.S.C. 1177.

                          Joint Tax Regulations



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

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

[[Page 268]]

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

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

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

                   Capital Construction Fund Agreement

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



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

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

[[Page 269]]

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

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



Sec. 259.31  Acquisition, construction, or reconstruction.

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

[[Page 270]]

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

[[Page 271]]

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

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



Sec. 259.32  Conditional fisheries.

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

[[Page 272]]

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

[[Page 273]]

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

[[Page 274]]



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

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

[[Page 275]]

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



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

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

[[Page 276]]

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



Sec. 259.35  Annual deposit and withdrawal reports required.

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

[[Page 277]]

action specified in the paragraph above.

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



Sec. 259.36  CCF accounts.

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



Sec. 259.37  Conditional consents to withdrawal qualification.

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



Sec. 259.38  Miscellaneous.

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

[[Page 278]]

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

[[Page 279]]





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





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




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

Sec.
260.1  Administration of regulations.

                               Definitions

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

                           Inspection Service

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

                            Appeal Inspection

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

                  Licensing of Samplers and Inspectors

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

                                Sampling

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

                            Fees and Charges

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

                              Miscellaneous

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

   Requirements for Plants Operating Under Continuous Inspection on a 
                             Contract Basis

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

[[Page 280]]

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

                          Labeling Requirements

260.200-260.201  [Reserved]

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

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



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



Sec. 260.1  Administration of regulations.

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

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

[36 FR 21037, Nov. 3, 1971]

                               Definitions



Sec. 260.6  Terms defined.

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

[[Page 281]]

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

[[Page 282]]

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

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



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

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

[[Page 283]]

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

                           Inspection Service



Sec. 260.12  Where inspection service is offered.

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



Sec. 260.13  Who may obtain inspection service.

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



Sec. 260.14  How to make application.

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



Sec. 260.15  Information required in connection with application.

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

[[Page 284]]



Sec. 260.16  Filing of application.

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



Sec. 260.17  Record of filing time.

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



Sec. 260.18  When application may be rejected.

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



Sec. 260.19  When application may be withdrawn.

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

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



Sec. 260.20  Disposition of inspected sample.

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



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

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

[[Page 285]]

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



Sec. 260.22  Order of inspection service.

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



Sec. 260.23  Postponing inspection service.

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



Sec. 260.24  Financial interest of inspector.

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



Sec. 260.25  Forms of certificates.

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



Sec. 260.26  Issuance of certificates.

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



Sec. 260.27  Issuance of corrected certificates.

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



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

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



Sec. 260.29  Disposition of inspection certificates.

    The original of any inspection certificate, issued under the 
regulations in this part, and not to exceed four copies thereof, if 
requested prior to issuance, shall be delivered or mailed promptly to 
the applicant, or person designated by the applicant. All other copies 
shall

[[Page 286]]

be filed in such manner as the Secretary may designate. Additional 
copies of any such certificates may be supplied to any interested party 
as provided in Sec. 260.78.



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

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

                            Appeal Inspection



Sec. 260.36  When appeal inspection may be requested.

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



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

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



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

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

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



Sec. 260.39  When appeal inspection may be refused.

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



Sec. 260.40  Who shall perform appeal inspection.

    An appeal inspection shall be performed by an inspector or 
inspectors (other than the one from whose inspection the appeal is 
requested) authorized for this purpose by the Secretary and, whenever 
practical, such appeal inspection shall be conducted jointly by two such 
inspectors: Provided, That the inspector who made the inspection on 
which the appeal is requested may be authorized to draw the samples when

[[Page 287]]

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



Sec. 260.41  Appeal inspection certificate.

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

                  Licensing of Samplers and Inspectors



Sec. 260.47  Who may become licensed sampler.

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



Sec. 260.48  Application to become a licensed sampler.

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



Sec. 260.49  Inspectors.

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

[[Page 288]]



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

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



Sec. 260.51  Surrender of license.

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

                                Sampling



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

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



Sec. 260.58  Accessibility for sampling.

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



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

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



Sec. 260.60  How samples are to be shipped.

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



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

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

[[Page 289]]

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

[[Page 290]]



                                 Single Sampling Plans and Acceptance Levels
 


                      Table I--Canned or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Lot size (number of containers)
           Container size group           ------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 group 1
 
Any type of container of less volume than   3,600 or less    3,601-14,400   14,401-48,000   48,001-96,000   96,001-156,000   156,001-228,000   228,001-300,000   300,001-420,000    Over 420,000
 that of a No. 300 size can (300 x 407)..
 
                 group 2
 
Any type of container of a volume equal     2,400 or less    2,401-12,000   12,001-24,000   24,001-48,000    48,001-72,000    72,001-108,000   108,001-168,000   168,001-240,000    Over 240,000
 to or exceeding that of a No. 300 size
 can, but not exceeding that of a No. 3
 cylinder size can (404 x 700)...........
 
                 group 3
 
Any type of container of a volume           1,200 or less     1,201-7,200    7,201-15,000   15,001-24,000    24,001-36,000     36,001-60,000     60,001-84,000    84,001-120,000    Over 120,000
 exceeding that of a No. 3 cylinder size
 can, but not exceeding that of a No. 12
 size can (603 x 812)....................
 
                 group 4
 
Any type of container of a volume             200 or less         201-800       801-1,600     1,601-2,400      2,401-3,600       3,601-8,000      8,001-16,000     16,001-28,000     Over 28,000
 exceeding that of a No. 12 size can, but
 not exceeding that of a 5-gallon
 container...............................
 
                 group 5
 
Any type of container of a volume              25 or less           26-80          81-200         201-400          401-800         801-1,200       1,201-2,000       2,001-3,200      Over 3,200
 exceeding that of a 5-gallon container..
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


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


[[Page 291]]


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


                      Table II--Frozen or Similarly Processed Fishery Products, and Products Thereof Containing Units of Such Size and Character as to be Readily Separable
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Lot size (number of containers)
           Container size group           ------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                 group 1
 
Any type of container of 1 pound or less    2,400 or less    2,401-12,000   12,001-24,000   24,001-48,000    48,001-72,000    72,001-108,000   108,001-168,000   168,001-240,000    Over 240,000
 net weight..............................
 
                 group 2
 
Any type of container over 1 pound but      1,800 or less     1,801-8,400    8,401-18,000   18,001-36,000    36,001-60,000     60,001-96,000    96,001-132,000   132,001-168,000    Over 168,000
 not over 4 pounds net weight............
 
                 group 3
 
Any type of container over 4 pounds but       900 or less       901-3,600    3,601-10,800   10,801-18,000    18,001-36,000     36,001-60,000     60,001-84,000    84,001-120,000    Over 120,000
 not over 10 pounds net weight...........
 
                 group 4
 
Any type of container over 10 pounds but      200 or less         201-800       801-1,600     1,601-2,400      2,401-3,600       3,601-8,000      8,001-16,000     16,001-28,000     Over 28,000
 not over 100 pounds net weight..........
 
                 group 5
 
Any type of container over 100 pounds net      25 or less           26-80          81-200         201-400          401-800         801-1,200       1,201-2,000       2,001-3,200      Over 3,200
 weight..................................
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Single sampling plans\1\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units)\2\..               3               6              13              21               29                38                48                60              72
Acceptance number........................               0               1               2               3                4                 5                 6                 7               8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.

[[Page 292]]

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


                        Table III--Canned, Frozen, or Otherwise Processed Fishery and Related Products, and Products Thereof of a Comminuted, Fluid, or Homogeneous State
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Lot size (number of containers)
           Container size group \1\           --------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                   group 1
 
Any type of container of 12 ounces or less...      5,400 or  5,401-21,600   21,601-62,400   62,401-112,000   112,001-174,000   174,001-240,000   240,001-360,000   360,001-480,000  Over 480,000
                                                       less
 
                   group 2
 
Any type of container over 12 ounces but not       3,600 or  3,601-14,400   14,401-48,000    48,001-96,000    96,001-156,000   156,001-228,000   228,001-300,000   300,001-420,000  Over 420,000
 over 60 ounces..............................          less
 
                   group 3
 
Any type of container over 60 ounces but not       1,800 or   1,801-8,400    8,401-18,000    18,001-60,000     36,001-60,000     60,001-96,000    96,001-132,000   132,001-168,000  Over 168,000
 over 160 ounces.............................          less
 
                   group 4
 
Any type of container over 160 ounces but not   200 or less       201-800       801-1,600      1,601-3,200       3,201-8,000      8,001-16,000     16,001-24,000     24,001-32,000   Over 32,000
 over 10 gallons or 100 pounds whichever is
 applicable..................................
 
                   group 5
 
Any type of container over 10 gallons or 100     25 or less         26-80          81-200          201-400           401-800         801-1,200       1,201-2,000       2,001-3,200    Over 3,200
 pounds whichever is applicable..............
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Single sampling plans\2\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sample size (number of sample units)\3\......             3             6              13               21                29                38                48                60            72
Acceptance number............................             0             1               2                3                 4                 5                 6                 7             8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Ounces pertain to either fluid ounces of volume or avoirdupois ounces of net weight whichever is applicable for the product involved.
\2\ For extension of the single sample sizes beyond 72 sample units, refer to table V of this section; for multiple sampling plans comparable to the various single sampling plans refer to
  table VI of this section.
\3\ The sample units for the various container size groups are as follows: Groups 1, 2, and 3--1 container and its entire contents. A smaller sample unit may be substituted in group 3 at the
  inspector's discretion. Groups 4, 5, and 6--approximately 16 ounces of product. When determined by the inspector that a 16-ounce sample unit is inadequate, a larger sample unit may be
  substituted.


[[Page 293]]


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


                                                     Table V--Single Sampling Plans for Use in Increasing Sample Size Beyond 72 Sample Units
Sample size, n.....................................................   84   96  108  120  132  144  156  168  180  192  204  216  230  244  258  272  286  300  314  328  342  356  370  384  400
Acceptance numbers, c..............................................    9   10   11   12   13   14   15   16   17   18   19   20   21   22   23   24   25   26   27   28   29   30   31   32   33
 


[[Page 294]]


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


[[Page 295]]



Sec. 260.62  Issuance of certificate of sampling.

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



Sec. 260.63  Identification of lots sampled.

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

                            Fees and Charges



Sec. 260.69  Payment fees and charges.

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

[36 FR 21038, Nov. 3, 1971]



Sec. 260.70  Schedule of fees.

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

[48 FR 24901, June 3, 1983]



Sec. 260.71  [Reserved]



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

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



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

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

[[Page 296]]



Sec. 260.74  Fee for appeal inspection.

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



Sec. 260.76  [Reserved]



Sec. 260.77  Fees for score sheets.

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



Sec. 260.78  Fees for additional copies of inspection certificates.

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



Sec. 260.79  Travel and other expenses.

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



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

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

[36 FR 21038, Nov. 3, 1971]



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

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

[35 FR 15925, Oct. 9, 1970]

                              Miscellaneous



Sec. 260.84  Policies and procedures.

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

[[Page 297]]

The policies and procedures are available from the Secretary to any 
interested party by writing to Document Approval and Supply Services 
Branch, Inspection Services Division, P.O. Drawer 1207, 3207 Frederic 
St., Pascagoula, MS 39568-1207.

[61 FR 9369, Mar. 8, 1996]



Sec. 260.86  Approved identification.

    (a) Grade marks: The approved grade mark or identification may be 
used on containers, labels, or otherwise indicated for any processed 
product that:
    (1) Has been packed under inspection as provided in this part to 
assure compliance with the requirements for wholesomeness established 
for the raw product and of sanitation established for the preparation 
and processing operations, and (2) has been certified by an inspector as 
meeting the requirements of such grade, quality or classification.

The grade marks approved for use shall be similar in form and design to 
the examples of Figures 1 to 5 of this section.

Shield using red, white, and blue background or other colors appropriate 
                               for label.
[GRAPHIC] [TIFF OMITTED] TC01JY91.061

                                Figure 1.

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

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

                                Figure 3.

[GRAPHIC] [TIFF OMITTED] TC01JY91.064

                                Figure 4.

[GRAPHIC] [TIFF OMITTED] TC01JY91.065

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

[[Page 298]]

an inspector as meeting the requirements of such quality or grade 
classification as may be approved by the Secretary.

The inspection marks approved for use shall be similar in form and 
design to the examples in Figures 6, 7, and 8 of this section.

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

                                Figure 6.

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

                                Figure 7.

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

                                Figure 8.
    (c) Combined grade and inspection marks: The grade marks set forth 
in paragraph (a) of this section, and the inspection marks, Figures 7 
and 8, set forth in paragraph (b) of this section, may be combined into 
a consolidated grade and inspection mark for use on processed products 
that have been packed under inspection as provided in this part.
    (d) Products not eligible for approved identification: Processed 
products which have not been packed under inspection as provided in this 
part shall not be identified by approved grade or inspection marks, but 
such products may be inspected on a lot inspection basis as provided in 
this part and identified by an authorized representative of the 
Department by stamping the shipping cases and inspection certificate(s) 
covering such lot(s) as appropriate, with marks similar in form and 
design to the examples in Figures 9 and 10 of this section.
[GRAPHIC] [TIFF OMITTED] TC01JY91.069

                                Figure 9.

[[Page 299]]

[GRAPHIC] [TIFF OMITTED] TC01JY91.070

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

[36 FR 4609, Mar. 10, 1971]



Sec. 260.88  Political activity.

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



Sec. 260.90  Compliance with other laws.

    None of the requirements in the regulations in this part shall 
excuse failure to comply with any Federal, State, county, or municipal 
laws applicable to the operation of food processing establishments and 
to processed food products.



Sec. 260.91  Identification.

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



Sec. 260.93  Debarment and suspension.

    (a) Debarment. Any person may be debarred from using or benefiting 
from the inspection service provided under the regulations of this 
subchapter or under the terms of any inspection contract, and such 
debarment may apply to one or more plants under his control, if such 
person engages in one or more of the following acts or activities:
    (1) Misrepresenting, misstating, or withholding any material or 
relevant facts or information in conjunction with any application or 
request for an inspection contract, inspection service, inspection 
appeal, lot inspection, or other service provided for under the 
regulations of this subchapter.
    (2) Using on a processed product any label which displays any 
official identification, official device, or official mark, when the 
label is not currently approved for use by the Director or his delegate.

[[Page 300]]

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

[[Page 301]]

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

[[Page 302]]

be served upon all parties to a proceeding shall be accompanied by a 
certificate of service signed by the party making service, stating that 
such service has been made upon each party to the proceeding. 
Certificates of service may be in substantially the following form:

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

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

[[Page 303]]

issues presented. A copy of each decision shall be served on the parties 
to the proceeding, and furnished to interested persons upon request.
    (3) It shall be the duty of the Hearing Examiner, and the Secretary 
where there is an appeal, to determine whether the person has engaged in 
one or more of the acts or activities described in paragraph (a) of this 
section, and, if there is a finding that the person has engaged in such 
acts or activities, the length of time the person shall be debarred, and 
the plants to which the debarment shall apply.

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

   Requirements for Plants Operating Under Continuous Inspection on a 
                          Contract Basis 1
---------------------------------------------------------------------------

    1  Compliance with the above requirements does not excuse 
failure to comply with all applicable sanitary rules and regulations of 
city, county, State, Federal, or other agencies having jursidiction over 
such establishments and operations.
---------------------------------------------------------------------------



Sec. 260.96  Application for fishery products inspection service on a contract basis at official establishments.

    Any person desiring to process and pack products in an establishment 
under fishery products inspection service on a contract basis, must 
receive approval of such buildings and facilities as an official 
establishment prior to the inauguration of such service. An application 
for inspection service to be rendered in an establishment shall be 
approved according to the following procedure:
    (a) Initial survey: When application has been filed for inspection 
service as aforesaid, NMFS inspector(s) shall examine the buildings, 
premises, and facilities according to the requirements of the fishery 
products inspection service and shall specify any additional facilities 
required for the service.
    (b) Final survey and establishment approval: Prior to the 
inauguration of the fishery products inspection service, a final survey 
of the buildings, premises, and facilities shall be made to verify that 
the buildings are constructed and facilities are in accordance with the 
approved drawings and the regulations in this part.
    (c) Drawings and specifications of new construction or proposed 
alterations of existing official establishments shall be furnished to 
the Director in advance of actual construction for prior approval with 
regard to compliance with requirements for facilities.

[36 FR 21039, Nov. 3, 1971]



Sec. 260.97  Conditions for providing fishery products inspection service at official establishments.

    (a) The determination as to the inspection effort required to 
adequately provide inspection service at any establishment will be made 
by NMFS. The man-hours required may vary at different official 
establishments due to factors such as, but not limited to, size and 
complexity of operations, volume and variety of products produced, and 
adequacy of control systems and cooperation. The inspection effort 
requirement may be reevaluated when the contracting party or NMFS deems 
there is sufficient change in production, equipment and change of 
quality control input to warrant reevaluation. Inspectors will not be 
available to perform any of employee or management duties, however, they 
will be available for consultation purposes. NMFS reserves the right to 
reassign inspectors as it deems necessary.
    (b) NMFS shall not be held responsible:
    (1) For damages occurring through any act of commission or omission 
on the part of its inspectors when engaged in performing services; or
    (2) For production errors, such as processing temperatures, length 
of process, or misbranding of products; or
    (3) For failure to supply enough inspection effort during any period 
of service.
    (c) The contracting party will:
    (1) Use only wholesome raw material which has been handled or stored 
under sanitary conditions and is suitable for processings; maintain the 
official establishment(s), designated on the contract in such sanitary 
condition and to employ such methods of handling raw

[[Page 304]]

materials for processing as may be necessary to conform to the sanitary 
requirements precribed or approved by NMFS;
    (2) Adequately code each primary container and master case of 
products sold or otherwise distributed from a manufacturing, processing, 
packing, or repackaging activity to enable positive lot identification 
to facilitate, where necessary, the segregation of specific food lots 
that may have become contaminated or otherwise unfit for their intended 
use;
    (3) Not permit any labels on which reference is made to Federal 
inspection, to be used on any product which is not packed under fishery 
products inspection service nor permit any labels on which reference is 
made to any U.S. Grade to be used on any product which has not been 
officially certified as meeting the requirements of such grade; nor 
supply labels bearing reference to Federal inspection to another 
establishment unless the products to which such labels are to be applied 
have been packed under Federal inspection at an official establishment;
    (4) Not affix any label on which reference is made to Federal 
inspection to any container of processed foods, produced in any 
designated official establishment, with respect to which the grade of 
such product is not certified because of adulteration due to the 
presence of contaminants in excess of limits established in accordance 
with the regulations or guidelines issued pursuant to the Food, Drug, 
and Cosmetic Act, as amended;
    (5) Not, with respect to any product for which U.S. Grade Standards 
are in effect, affix any label on which reference is made to Federal 
inspection to any container of processed food which is substandard: 
Provided, That such label may be affixed to any container of such 
substandard quality product if such label bears a statement to indicate 
the substandard quality;
    (6) Not, with respect to any product for which U.S. Grade Standard 
are not in effect, affix any label on which reference is made to the 
Federal inspection to containers of processed foods, except with the 
approval of NMFS;
    (7) Furnish such reports of processing, packaging, grading, 
laboratory analyses, and output of products inspected, processed, and 
packaged at the designated official establish-ment(s) as may be 
requested by NMFS, subject to the approval of the Bureau of the Budget 
in accordance with the Federal Reports Act of 1942;
    (8) Make available for use by inspectors, adequate office space in 
the designated official establishment(s) and furnish suitable desks, 
office equipment, and files for the proper care and storage of 
inspection records;
    (9) Make laboratory facilities and necessary equipment available for 
the use of inspectors to inspect samples of processed foods and/or 
components thereof;
    (10) Furnish and provide laundry service, as required by NMFS, for 
coats, trousers, smocks, and towels used by inspectors during 
performance of duty in official establishment(s);
    (11) Furnish stenographic and clerical assistance as may be 
necessary in the typing of certificates and reports and the handling of 
official correspondence, as well as furnish the labor incident to the 
drawing and grading of samples and other work required to facilitate 
adequate inspection procedures whenever necessary;
    (12) Submit to NMFS, three (3) copies of new product specifications 
in a manner prescribed by NMFS, and three (3) end-product samples for 
evaluation and/or laboratory analysis on all products for approval, for 
which U.S. Grade Standards are not available, when inspection is to be 
applied to such products. If requested of NMFS, such new specifications 
and end-product samples shall be considered confidential;
    (13) Submit, as required by NMFS, for approval, proofs prio